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### THEAPTORNEYG~GNEFCAC
OF

Hon. Sidney J. Brown CountyAttorney Fort Bend County Richmond, Texas Opinion No."V-578.

Re: The obligation of the County to pay for lands purchased to providematerials to be used by the State HighwayDepartment in constructinga highway under the submitted contract.

Dear Sir::

'The facts which are the subject of your requestmay be briefly summarisedas follows:

On June 18, 

### 1945, the State Highway Commission and Fort Bend County entered into a contract relatingto the construction of FM HighwayNo. 

### 359in 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-wayat 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 'theState., $Ihile'thehighway was being constructed, the Resident Engineer of the Highway Department requested the Countyto 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 otherby condemnationwhich resulted in considerable expenseto the County.

Based upon these facts, you ask the following questions:

"(1).Under the contract copy'ofwhich is enc,losed,

is the County~obi&$ated-~oTurnish 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 questionNo. in the negative,then is the County entitledto reimbursementby the State Highway Commission of the following costs expendedby it in connectionwith the acquisition of the above mentionedmaterials, 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, 'theCounty obligated itself, among other things, to obtain at its expense "any new or additional right-of-wayupon request of the State on locationto be approved by the State Highflay

Engineer should same be consideredrscessary or desirableto the propermaintenance, construction, or reconstructionof said road as a part of the State system." Atthe time these terms were agreed upon Article 667&n, Vernon's Civil Statutes,was,and stili is any Comm ssionerst Court to secure by purchase or coni in effect. That Article expressly empowers
demnation right-of-ways for materials or borrow pits. The pertinentprovisions are:

"Any Commissioners Court is hereby authorized to secureby 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 Statehighways'and to pay for the same out of the County Road and Bridge Fund, '.or out of any special rc,adfunds ,orany .,~available

county funds.: Th St t Hi h- 'wavcommission shall 6e cha&edawzthZfhe duty of furnishingto the County Commissioners Court the plats or field notes of such right of way cr land and the description of suchmaterials as may be required, after which 'theCommissionersCourtmay, and is hereby authorized to'purchase:or condemn~the same,with title to the State of 'Texas,in accordancewith such field notes.

. . Provided that if the County Com- ,missionersCourt 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 eventAndy

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 statutewas 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 acquirematerials, such as contemplated in this Article, suchmaterialswould~be ,acquiredk; ;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, 'therebyrendering it incumbent upon the State to condemn or purchasethe land. But the County did not refuse or fail to complywith 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'acquiredthe land, the Countywas authorized to pay for the same out of the YZountyRoad and Bridge Fund, or out of any specialroad funds or anyavailable 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 obligationto 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 materialswhich 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 Countywas obligatedto furnish theHon. Sidney J. Brown, Page 4, V-578.

materials inquired about, the County is not entitledto reinhursement for (a)the actual 'sumspaid to the landowners for materials;(b) attorney's fees; and (c) Court costs.

SUMMARY

Under the 'termsof 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-wayupon request of the State on locationto be approved by the State Highway Engineer", and the State HighswayDepartment is to construct,maintain, and operate the highway at its sole expense, ~.the County is obligatedto furnishmaterials~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 condemnationproceedings in acquiring a right-of-wayto be used for materials under the above-mentioned contract.

Yours very truly,

ATTORNEY GENERAL OF TEXAS

.,~ By WE%eT

. Assistant

APPROVED: ,.

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