EA ORNEY 

### GENERAL OF TEXAS

Honorable George W. Morris OpinionNo. WW-405 County Attorney Montgomery County Re: Atithorityof e courit,yto-reConroe,Texas locate or rebuild fences, cattle guards, and culvert-s as a part of the corieideration for the purchase of right of way for a County Road or a Farm to Market Road. Dear Sir:

Your request for an opinion states the foIlowingquestions: "CanMontgomery County,Texas, acquire right of way by purchase, contract or otherwise (exceptby condemnationproceedings) and legally obligate itself to remove and re-establishand/or rebuild the fences, cattle guards and culverts where thework is the whole or a part of the consideration for such new right of way or additional right ofway securedby the county either for itself or for and on behalf of the State of Texas for Farm to MarketHighways?"
Your letter indicates that the performance'of this ,work by county employees,rather tlhan by an independentcontractor engaged by the property owner,will result in savingsboth ,tothe landownerand the county. Further, you state that such a procedure would eliminatedelay In clearing ,tha new right of way for future construction.

InAttorney General's OpinionNo. O-1457, itwas stated: "Whileright-of-way is acquiredby purchase, contract or otherwise except by condemriatiorl

proceedings,and the construction or rebuilding of t'hefence is ,the whole or a part of the consideration for such new rlg!!.t-of-way or additional right-of-way securedby the county, ther,the county ,would be obligated t;ocarry out its agreementwith the landownerregarding the re'building

or construction of the fence accordLngHonorable GeorgeW.

to the contract parties." Morris, page 2 (w-405)

or agreement had between the

We think the above statement to be sound, and adopt It as our opinion in this case. Accordingly, the county may contract with a landowner,as a part of the consideration for the purchase or right-of-way,to replace the fence of the owner along the right-of-way taken for road or highwaypurposes.

We do not think that the use of county labor and equipment to satisfy this obligation constitutes the use of county equipment for private purposes as condemnedby Article 9780, Vernon's Penal Code, and Rowan v. Pickett, 237 S.W. 2d 734 (Tex. Civ.App.), for the reason that thisuse of county employeesand equipment is in the furtherance of a lawfulgovernmental function of the county, i.e. the building and maintenance of a system of roads.

We would further point out that the fundsused as consideration for the purchase of such right-of-waymay not be taken from the Permanent ImprovementFund of the County. Attorney General's OpinionV-831 (1949). The Road'and Bridge Fund of the County should beused for this purpose.

The consideration for the work and labor done and materials furnishedby the county as a part of the purchase price and consideration to be paid for the acquisition of the land in question should be specifically set forth In the contract.

SUMMARY
A countymay legally contract as a part of the purchase price of right-of-way to relocate or rebuild the fences along said rightof-way caused by thewidening or changing of the road or highway. Said services should be paid for out of the Road and Bridge Fund of the County. JHM:mg:pg:wc APPROVED: OPINION COMMITTEE Yours very truly,
WILL WILSON Attorney General of Texas Se0 s P. Blackburn, Chairman J.C. Davis, Jr. By s/JohnH. Minton, Jr. C.X.Richards John H. Minton, Jr. John Reeves Assistant REVIEWED FOR THE ATTORNEY GENERAL BY: W. V. Geppert.