Hon. R, V. Rayford 

County Agditor 

Rusk County 

Henderson, Texas 

Dear Sir: Opinion Mrmber Q-1747 

Re: Eaiiiient doman -- Commissioners' 

C0Ul-t -i Right of wayfor State 

highways -- Litigation -- Settlement 

Your request for opinion has beeii received and considered by this 

departient. You submit four que.stPons in your letter. We quote from your 

letter as followsr 

"Rusk County is scouring rights ofway for a State Highway and it has bepane hacessary to condemn some of the property. Inthe condemnation prooeedings, three commissioner8 were appointed after the C&missioners' 

Court had failed to settle with the property owner on a certain tract of 

land 9eeded for this Stats Highway. 

"The three Commissioners in due course met end assessed the damage at a 

sum that was not satisfactory to the prop&y owner. Please answer these 

questions for me in refsrenoe to the above3 viz: 

"(1) Has the Commissioners' Court the right to settle with the property 

Pwner at a higher sum or figure than that awarded bythe three commissioners, pending an appeal to the County Court? 

"(2) Has the Commissioners' Sourt the ri@ to settle wlththe property 

ovn?r at a higher sum or figure than that set by the three uxmnissioners 

before the case is tried in the County Court? 

"(3) Inthe event the deoisions of the County Court is not satisfactory 

tothe property owner, has the Commissioners' Court the right to settle 

this ease at a higher 8um or figure than set by the County Court? 

"(4) Can the Conunissioners* Court by proper order authorize the County 

or Criminal District Attorney to make a settlement with the property owner at a sum or figure higher than that set by the three commissioners 

after an appeal is perfected and before the case is triad in County 

cart?" 
Hon. R. V. Rayford, Page 2 (O-1747) 

(Here follows a complete quotation of the following Articles frcm the 

Revised Civil Statutes of Texas? Articles 6674n, 3264, 3264a, 3265, 

snd 3266. These are omitted here for brevity as they are readily 

available in any county attorney's office) 

Article 3266, Revised Civil Statutes of Texas, provides, among 

other things, that if the cause should 'be appealed frcmthe decision of the 

county court that the appeal shall be governed by the law governing appeals 

in other cases, etc. 

&-ticle 3271, R.C.S., provides for the investitute of the prcperty by the judgment. 

This department held in an opinionwritten by Hon. James N. Reff, 

Assistant Attorney General, dated Octo'ber 16, 1937, addressed to Hon. A. V. 

Peel, that the canmissioners' oourt was authorised under the terms of Article 6674n to purchase new or additional right of way for purpose of midening or constructing a State highwsy through the county. 

P&s quote from 11 Texas Jurisprudence, Counties, Chapter DC, 

Powers, Rights end Liabilities, Section 61, Generally - Power to Sue - 

authorization, of suit, pages 614-15, as follows: 

"A county is a body corporate which has comprehensive posers, rights and 

duties. Ila has been noted, the po;uers and duties of a county are limited 

to those defined by the Constitution and statutes. The powers and duties 

delegated to a county are vested in the commissioners' court, ocnsequently, the discussion above of the powers of that body comprehends the powers 

and duties of theaounty. 

"A county undoubtedly has power or authority to institute and maintain aotions at law; and when prosecuting a suit in its own name by attorneys the 

countv comes into court as any other litigant. It is sub$eot to all the 

rules of evidence and legal presumptions usually,applicable to ordinary 

parties. . . ." (Underscoring ours). 

Section 82, Counties, 11 Texas Jurisprudence, page 616, provides 

that a county has capacity to defend actions at law brought against a county. 

We quote frcm 11 Texas Jurisprudence, Counties, Chapter VI, Section 45, page 574, as follows: 

"The commissioners court is empowered to appoint agents for the accomplishment of purposes authorized by law. However, there are certain functions 

which must be performed~~bythe court as a body and which may not be delegated to an agent. The authority to contraot for the ccnstruction of a ccurthouse, for example, is not delegable. But an arohiteot may be employed to 

prepare plans and specifications, make a draft of a contract, and make a 

contract itself subject to the approval of the connnissioners' court. It is 

said that the selection of agents in respect of matters necessitating the 

exercise of judgment and discretion should bemade by the commissioners' 

court and should not be delegated. . . 0s 
Hon. R. V. Rayford, Page 3 (O-1747) 

The case of Russellvs. Cage, 1 SW 270, 77 T. 426, holds that 

the commissioners' court cannot delegate to an architect its authority to 

make a contract to construct a courthouse, but that the commissioners' 

court can authorize him to make a contract therefcr subject to the approval of the commissioners' court. 

Under Article 6674n, Revised Civil Statutes of Texas,the county 

clearly has the right to purchase right-of-way for State Highways, as well 

as thelright to secure same by condemnation. Clearly, the ccmmissioners~ 

court, on behalf of the county, has the right to prosecute and maintain 

actions at law wherein the county is involved and clearly hastie right to 

defend suits against the county. Clearly, the commissioners' court, in the 

exercise of its sound discretion, may compromise and settle certain character of suits wherein the county is a litigant. Since Article 6674n, supra, 

gives the cow&y-~the right to purchase as well BS condemn right-of-way for 

for State Righways in the county, ws are of the opinionhat tie camnissionet-s 1 court, in their sound discretion, may abandon pending litigation relative to securing right-of-way for State Highway purposes and may by proper 

orders and proper proceedings dismiss or secure the dismissal of ccndemnation proceedings andior litigation and acquire the right-of-way by purchase. 

Of course, if the condemnation proceedings or litigation had become final 

we doubt the authority of the commissioners' court to purchase said rightof-way at a greater price than the amount of the final adjudication. 

However, if the matter has not been finally adjudicated or beccme final, 

then we are of the opinion that the cmmnissionerst court may exercise its 

sound discretion in settling and compromising the litigation at such figure 

and amount they deem just and proper. 

You are, therefore, respectfully~'advised that it is the opinion of 

this deportment that questions WCS. 1, 2 and 3 of your letter should be answered in the affirmative if the prooeedings and litigation have not become 

final. If such proceedings or litigation have become final, the questions 

should be answered in the negative. 

In answer to your fourth question, you are respectfully advised 

that it is the opinion of this department that the ccmmissioners~ court by 

proper order could authorize the county or criminal distriot attorney to 

make a settlement with the property owner at & sum or figure higher than 

that set by the three commissioners after an appeal is perfected and before 

the case is tried in the county court, subject to the approval of the ccmmissioners' court. The order of the commissioners' court. should authorize 

the county or criminal district a;torney to maketiis settlement subject to 

the approval of the commissioners court. 

Trusting that this satisfactorily answers your inquiry, and vdth 

best regards, we are 

WJFaAWzegw 

APPROVED DSC 9, 1939 

/s/Gerald C. &!m 

AT'KJFGIEYGRNRRAL OFTEMS 

Very truly yours 

n 

ATTORRRYGRXERN, OFTSXAS 

By /s/En. J. Fanning 

Assistant