/’ 

‘.a. 

THEAPTORNEYG~GNEFCAC 

OF 

Hon. Sidney J. Brown 

County Attorney 

Fort Bend County 

Richmond, Texas 

Opinion No."V-578. 

Re: The obligation of the County to pay for lands purchased 

to provide materials to be 

used by the State Highway Department in constructing a 

highway under the submitted 

contract. 

Dear Sir:: 

'The facts which are the subject of your request may be briefly summarised as follows: 

On June 18, 1945, the State Highway Commission and Fort Bend County entered into a contract relating to the construction of FM Highway No. 359 in 

Fort Bend County. By the terms of the contract, which 

you have enclosed, the County agreed to remove or abandon any encroachments on said road or right-of-way at 

the expense of the County 

d 

and to obtain at the County's expense any new or a ditional right-of-way upon request of the State on location to be approved by the 

State Highway Engineer. The State agreed to construct, 

reconstruct; and or maintainthe highway at the sole 

cost and expense of 'the State., $Ihile 'the highway was 

being constructed, the Resident Engineer of the Highway Department requested the County to obtain two tracts 

of land in order that the soil therefrom could be used 

in the construction of the highway,. The County obtained both the tracts, one through negotiated purchase at 

a cost of #90.00, and the other by condemnation which 

resulted in considerable expense to the County. 

Based upon these facts, you ask the following questions: 

"(1). Under the contract copy'of which 

is enc,losed, is the County ~obi&$ated-~o Turnish any material to be used by tht~~@gh~+..~ 

Commission in the construction of,Highway FX _( 

No. 359? 
Hon. Sidney J. Brown, Page 2, V-578. 

(1) i: 

(2) If your answer to question No. 

in the negative, then is the County entitled to reimbursement by the State 

Highway Commission of the following costs 

expended by it in connection with the acquisition of the above mentioned materials, 

namely, soil to be used as binder; (a) the 

actual sums paid to the landowners for the 

materials; and (b) attorneys fees; and (c) 

court.cbsts.'J 

Under the terms of the contract, 'the County 

obligated itself, among other things, to obtain at its 

expense "any new or additional right-of-way upon request of the State on location to be approved by the 

State Highflay Engineer should same be considered rs cessary or desirable to the proper maintenance, construction, or reconstruction of said road as a part of the 

State system." At the time these terms were agreed 

upon Article 667&n, Vernon's Civil Statutes, was,and 

stili is 

any Comm i ssionerst Court to secure by purchase or conin effect. That Article expressly empowers 

demnation right-of-ways for materials or borrow pits. 

The pertinent provisions are: 

"Any Commissioners Court is hereby 

authorized to secure by purchase or by 

condemnation on behalf of the State of, 

Texas, any new or wider rightof way or 

land. . i or lands for material or borrow pits, to be usea in the construction, 

reconstruction. or maintenance of the 

State highways'and to pay for the same 

out of the County Road and Bridge Fund, 

'. or out of any special rc,ad funds ,or any 

.,~available county funds.: Th St t Hi h- 

'wavcommission shall 6e cha&edawzthZfhe 

duty of furnishing to the County Commissioners Court the plats or field notes of 

such right of way cr land and the description of such materials as may be required, 

after which 'the Commissioners Court may, 

and is hereby authorized to'purchase:or 

condemn~the same, with title to the State 

of 'Texas, in accordance with such field 

notes. . . Provided that if the County Com- 

,missioners Court of any county in which 

such right of wa is,. '. . shall fail or 

refuse to secure y purchase or condemnation for or on beh.alf,of the State of Texas, 
Hon. Sidney J. Brown, Page 3, V-578. 

such right of way. . . then and in such 

event Andy within ten (10) davs after the 

service of such notice,' said-state Highway Commission shall direct the Attorney 

General of Texas to institute condemnation 

nroceedinas in the name, of the State of 

Texas, foF the purpose of securing such 

right of way; . ." 

Undoubtedly, this statute was in the.minds of the parties executing the contract. It must be nresumed that 

the parties understood that in the event'it became necessary to acquire materials, such as contemplated in 

this Article, such materials would~ be ,acquired k; ;gtue of the power grarxed in the said Article. 

time the State requested the County to obtain the two 

tracts of~,land for materials, the County could have refused to acquire the land, 'thereby rendering it incumbent upon the State to condemn or purchase the land. 

But the County did not refuse or fail to comply with 

the request ofthe State. Instead, it exercised the 

power granted by Article 667l+n, and obtained both 

tracts one by~purchase and the other by condemnation. 

Having'acquired the land, the County was authorized to 

pay for the same out of the YZounty Road and Bridge 

Fund, or out of any special road funds or any available County funds." ;tie find no provision requiring 

the State to reimburse the County for expenditures thus 

made. 

It was the State's duty to construct the highway at itsl'sole cost and expense." Within this duty 

certainly lay the obligation to bear the expense of materials used~to build the,highway, that is, nsterials 

such as cement or asphalt, steel, forms, etc. All such 

materials could be~purchased outright in definite *antities. But, as to furnishing materials which could be 

obtained through the acquisition of a right-of-way under 

Article 6674n we believe the terms of the contract imposed that obligation upon the County. 

In answer to your first question, it is our 

conclusion that the County isobligated to furnish that 

material which could be obtained through the acquisition 

d a right-of-way under Article 6674n. It follows,therefore, that since the County was obligated to furnish the 
Hon. Sidney J. Brown, Page 4, V-578. 

materials inquired about, the County is not entitled to 

reinhursement for (a) the actual 'sums paid to the landowners for materials;(b) attorney's fees; and (c) Court 

costs. 

SUMMARY 

Under the 'terms of a contract between 

Fort Bend County and the State of Texas, 

through the State Highway Department, where- 

: by the County is to,furnish "any new or additional right-of-way upon request of the 

State on location to be approved by the 

State Highway Engineer", and the State Highsway Department is to construct, maintain, 

and operate the highway at its sole expense, 

~.the County is obligated to furnish materials~which can be acquired by the acquisition 

of a right-of-way. Article 6674n, V. C. S. 

,, The County is.not entitled to reimbursement~under Article 6674n for sums expended 

in condemnation proceedings in acquiring a 

right-of-way to be used for materials under 

the above-mentioned contract. 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

.,~ 

By WE%eT . 

Assistant 

APPROVED: ,. 

CEC:jmc