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 consideredby this departient. You submit four que.stPonsin your letter. We quote fromyour letter as followsr

"Rusk County is scouring rights ofway for a State Highwayand it has bepane hacessary to condemn some of the property. Inthe condemnationprooeedings, three commissioner8were 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 coursemet end assessed the damage at a sum that was not satisfactoryto the prop&y owner. Please answer these questions for me in refsrenoe to the above3 viz:
"(1) Has the Commissioners'Court the right to settlewith the property Pwner at a higher sum or figure than that awarded bythe three commissioners, pendingan appeal to the County Court?
"(2) Has the Commissioners'Sourt the ri@ to settlewlththe property ovn?r at a higher sum or figure than that set by the three uxmnissioners beforethe case is tried in the County Court?
"(3) Inthe eventthe 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 DistrictAttorney to **make** a settlementwith the property owner at a sum or figure higher than that setby 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 completequotation of the followingArticles frcm the Revised Civil Statutesof 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 otherthings, that if the cause should 'beappealed frcmthe decision of the county court that the appeal shallbe governedby the law governingappeals in other cases, etc.

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

This departmentheld in an opinionwritten by Hon. JamesN. Reff, AssistantAttorney General, dated Octo'ber 16, 1937,addressed to Hon. A. V. Peel, that the canmissioners'oourtwas authorised under the terms of Article 6674n to purchasenew or additional right of way for purpose of midening or constructinga State highwsy through the county.

P&squote 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 corporatewhich has comprehensiveposers, rights and duties. Ilahas been noted,the po;uers and duties of a county are limited to those defined by the Constitutionand statutes. The powers and duties delegated to a countyare vested in the commissioners'court, ocnsequently, the discussion above of the powers of that body comprehendsthe powers and duties of theaounty.

"A county undoubtedly has power or authority to instituteand maintain aotions at law; andwhen prosecutinga 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 presumptionsusually,applicableto ordinary parties.

. . ." (Underscoringours).

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, ChapterVI, Section 45, page 574, as follows:

"The commissioners court is empowered to appoint agents for the accomplishment of purposes authorizedby law. However, there are certain functions which must be performed~~bythecourt as a body and which may not be delegated to an agent. The authority to contraot for the ccnstructionof a ccurthouse,for example, is not delegable. But an arohiteotmay 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 selectionof agents in respect of matters necessitatingthe exercise of judgment and discretion should bemade by the commissioners' court and should not be delegated.

. . 0sHon. R. V. Rayford, Page 3 (O-1747)

The case of Russellvs. Cage, 1 SW 270, 77 T. 426, holdsthat the commissioners'court cannotdelegate to an architect its authority to make a contract to constructa courthouse,but that the commissioners' court can authorizehim to make a contract therefcr subject to the approval of the commissioners' court.

UnderArticle 6674n,Revised Civil Statutes of Texas,the county clearlyhas 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,hasthe right to prosecute and maintain actions at law wherein the county is involved and clearly hastieright to defend suits against the county. Clearly, the commissioners'court, in the exercise of its sound discretion,may compromiseand settle certain character of suitswherein the county is a litigant. SinceArticle 6674n, supra, gives the cow&y-~theright to purchase as well BS condemn right-of-wayfor 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 securingright-of-way for State Highway purposes andmay by proper orders and proper proceedingsdismiss or secure the dismissal of ccndemnation proceedingsandior litigation and acquire the right-of-wayby purchase. Of course, if the condemnationproceedings or litigationhad 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 thematter has not been finally adjudicated or beccme final, thenwe are of the opinion that the cmmnissionerstcourt may exercise its sound discretion in settling and compromising the litigationat such figure and amount they deem just and proper.

You are,therefore, respectfully~'advised that it is the opinion of this deportmentthat questions WCS. 1, 2 and 3 of your letter should be answered in the affirmative if the prooeedings and litigationhave not become final. If such proceedings or litigation have become final, the questions shouldbe answered in the negative.

In answer to your fourth question, you are respectfullyadvised 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 settlementwith the property owner at & sum or figure higher than that set by the three commissionersafter an appeal is perfected and before the case is tried in the county court, subjectto the approval of the ccmmissioners' court. The order of the commissioners' court. should authorize the county or criminal district a;torney to maketiis settlement subjectto the approval of the commissioners court.

Trusting that this satisfactorilyanswersyour 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