ENERAIL 

Hon. 'Carroll F. Stilllvant Opinion No. V-1282 

County Attorney 

Cooke County 

Gainesville, Texas 

Re: Wh&ther condemnation proceedings for lands for 

*.~ farm-to-market roads 

should be Instituted in 

the name of the State or 

Dear.~Sir: the county. . 

Your request for an opinion reads in part as 

follows: . 

"Your opinion is requested as to the 

procedure necessary 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. 

"It appear; that a prerequisite for 

the condemnation of lands for right-of-way, 

by counties, in the name of the ;gtate of 

Texas may be that such lands be reauired 

for state highways and that farm to-market 

roads are not part of any designated state 

highway as that term is used in the statute. 

"I have 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 contemplation of 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 that 
Hon. Carroll F. Sulllvant, page 2 (V-1282) 

such procedure Is incorrect and 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 opinion with reference thereto 

is respectfully requested." 

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 statutes relating 

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, ,152 S.W.2d 404 

(Tex. Clv. App. 1941, error ref. w.o.m.). Article 3264a, 

V.C.S., which confers the right of eminent domain upon 

counties, provides that condemnation proceedings shall 

be Instituted under the direction of the oommlssioners' 

aourt and In the name of the county. The only authority 

for counties to institute such proceedings "on behalf of 

the State of Texas" and "with title to the State of Texas" 

is found in Article 6674n, V.C.S., which applies only to 

land needed for designated State highways. Under this 

latter Artiole, the commissioners* court acts not for the 

benefit of the county but as the authorieed agent of the 

State and institutes the condemnation proceedings 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. Ap 

tf ' 

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 Legislature may delegate this right to 

various agencies. The Legislature has delegated the right 

to counties by specifically conferring upon them the power 

to condemn land for road purposes. It is elementary that 

the statutes relating to eminent domain and prescribing 

the procedure must 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-market road Is for the county to institute the 

prooeedings in its name rather than In the name of the 
Hon. Carroll F. Sullivant, page 3 (V-1282) 

State. The Legislature has directed that the proceedings be instituted in the name of the county in all 

instances where the county ma$ exercise the right except as to land needed for a designated State Highway," 

whiah term does not include farm-to-market roads. 

Art. 7083a, Sec. 2, subdlv.(4b), V.C.S. 

See 

If the condemnat$on proceeding Is instituted 

" in the name of the county, the title Is taken in the name 

of the county. Regardless of this, it has 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 authorities hold that the Legislature can take 

over tram the counties all hlghwags and place them under 

the exclusive control and jurisdiction of 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 District Road Indebtednez,143 Tex. 99, 1 

25~~.~d~~q~~~~)Robbins v. Limestone County, 114 Texy*345, 

. . . 

You are therefore advised that the proper procedure for acquiring land for a farm-to-market road is to 

institute condemnation proceedings 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 the Highway Commission to designate it as a 

farm-to-market road and to authorize the expenditure of 

State funds on the road. The county does not own the land 

in e proprietary sense but only holds it as an agency of 

the State for the use and benefit of the State. 

We are not her*& holding that condemnation proceedings for rights of way for farm-to-market roads 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, it may 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 prooeeding has not been presented for 

our opinion, and we therefore pretermit a discussion of 

the arguments in support of the view that this irregularity would 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-market road in the name of the 

county and not in the name of the State. 

APPROVED: Yours very truly, 

Ned &Daniel PRICE DANIEL 

State Affairs Dlvisldn Attorney General 

Jesse P. Luton, Jr. 

:. Reviewing Assistant 

By~%?f&it 

Everett Hutchinson William S'. Lott ' 

Executive Assistant Assistant 

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