ENERAIL

Hon. 'CarrollF. Stilllvant Opinion No. V-1282 CountyAttorney Cooke County Gainesville,Texas Re: Wh&ther condemnationproceedings for lands for *.~ farm-to-marketroads

shouldbe Instituted in the name of the State or Dear.~Sir: the county.

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Your request for an opinion reads in part as follows:
.

"Youropinion is requested as to the procedurenecessary for the 'condemnation of land to be used as farm to market roads, partiizularly

a8 to whether the proceedings
are to be filed in the name of the State of in the name of the County.

"Itappear; that a prerequisite for the condemnationof lands for right-of-way, by counties, in the name of the ;gtateof Texas may be that such landsbe reauired for statehighways and that farm to-market roads are not part of any designated state highway as that term is used in the statute.

"Ihave been unable to find any statute directly authoritltig cpunties to condemn lands in behalf of the State for farm to market roads, nor have I been able **to** locate any decisions of our appellate courts holding that farm to learket roads are state highway@within the contemplationof Article 6674n, R.C.S.
"Piumerous

tracts of land have been condemned ln the n&me of the State, acting by and through the Commls~loners~Court Of Cooke County,but I am inclined to the opinion thatHon. Carroll F. Sulllvant, page 2 (V-1282)

such procedure Is incorrectand that the Commissioners'Court should institute such proceedings in the name of the County and thereafter convey the right-of-way to the State. Your opinionwith reference thereto is respectfullyrequested."

Cossulssloners~courts have the authority to condemn land to be used for the construction of a road either under the general eminent domain statutes (Art. 364 et seq.,V.C.S.) or under the statutesrelating strictly tothe establishment of roads (Art.6702 et seq.,V.C.S.). Tarrant County v. Shannon, I29 Tex. 264, 104 S.W.2d 4 (1937);Doughty v. DeFee, ,152S.W.2d 404 (Tex.Clv.App. 1941, error ref. w.o.m.). Article 3264a, V.C.S., which confers the right of eminent domainupon counties,provides that condemnationproceedings shall be Institutedunder the direction of the oommlssioners' aourt and In the name of the county. The only authority for counties to institute such proceedings "onbehalf of the State of Texas" and "withtitle to the State of Texas" is found inArticle 6674n,V.C.S., which applies only to land needed for designated State highways. Under this latterArtiole, the commissioners*court acts not for the benefit of the countybut as the authorieed agent of the State and institutesthe condemnationproceedings in the
name of the State. State v. McLendon, 111 S.W.2d 287 (Tex.Civ.App. 1937, error dlsm.). Thomuson v. State, 165 S.W.28 131 (Tex.Civ.App. 194s);.T_raders' Comnress Co.. State, 77 S.W.2d 245 (Tex.Civ.App. 1934);&
v. State, 77 S.W.2d 606 (Tex.Clv.App. 1934, error ref.); Kgier v. Balser, 48 S.W.26 668 (Tex.Civ.Aptf ' 1932, error ref.); O%sefe v.Hudsueth County 25 S.W.2d 25 (Tex. civ. App. 1930). Title vests In the SCate and not in the counWllbarRer County v. Hall, 55 S.W.2d 797 (Tex. COmm. A";;.1932).

The right of eminent domain Is inherent in a State, but the Legislaturemay delegate this right to various agencies. The Legislaturehas delegated the right to countiesby specificallyconferringupon them the power to condemn land for road purposes. It is elementary that the statutesrelating to eminent domain and prescribing the proceduremust be strictly followed.

Although we have been unable to find any authority directly on the subject,we are of the opinion * that the proper procedure in condemning land for a farm-to-marketroad Is for the county to institute the prooeedings in its name rather than In the name of theHon. Carroll F. Sullivant,page 3 (V-1282)

State. The Legislaturehas directed that the proceedingsbe instituted in the name of the county in all instanceswhere the countyma$ exercise the right except as to land needed for a designated State Highway," whiah term does not include farm-to-marketroads. Art. 7083a, Sec. 2, subdlv.(4b),V.C.S. See

If the condemnat$onproceeding Is instituted " in the name of the county, the title Is taken in the name of the county. Regardless of this, ithas been the unanimous holding of the Texas courts that the rOadB belong to the State and not to the counties. The titles are merely held by the counties for the use and benefit of the State. These same authoritieshold that the Legislature can take
over tram the counties all hlghwags and place them under the exclusive control and jurisdictionof some other agency. This is not a taking@ the property of the county within the meaning of the Constitution. defferson County,v. Board of Count and DistrictRoad Indebtednez,143 Tex. 99, 1 25~~.~d~~q~~~~)Robbins v. Limestone County, 114 Texy*345,

. . .
You are thereforeadvised that the proper procedure for acquiring land for a farm-to-marketroad is to institutecondemnationproceedings in the name of the county. You are further advised that it Is not necessary for the county to deed the right-of-way to the State in order for theHighway Commission to designate it as a farm-to-marketroad and to authorize the expenditure of State funds on the road. The county does not own the land in e proprietary sensebut only holds it as an agency of the State for the use and benefit of the State.

We are not her*&

holding that condemnationproceedings for rights of **way** for farm-to-marketroads which
are brought by the commissioaers~court In the name of the State are void. Since the county acquires title to the right of way as an agency of the State, itmay be that the acquisition of title in the name of the State rather than in the name of the county Is not such a defect as would render the proceeding void. The question of the validity of such a prooeedinghas not been presented for
our opinion, and we thereforepretermit a discussion of the arguments in support of the view that this irregularitywould not vitla'te the proceeding.Hon. Carroll F. Sullivant, page 4 (V-1282)

SUMMRY

A county should institute condemnation proceedings for land to be used as a farm-to-marketroad in the name of the county and not in the name of the State.

APPROVED: Yours very truly,

Ned &Daniel PRICE DANIEL StateAffairs Dlvisldn Attorney General

Jesse P. Luton, Jr. :.ReviewingAssistant By~%?f&it EverettHutchinson William S'. Lott ' Executive Assistant Assistant
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