EA ORNEY GENERAL 

OF TEXAS 

Honorable George W. Morris Opinion No. WW-405 

County Attorney 

Montgomery County Re: Atithority of e courit,y to-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 foIlowing questions: 

"Can Montgomery County, Texas, acquire 

right of way by purchase, contract or otherwise 

(except by condemnation proceedings) and legally 

obligate itself to remove and re-establish and/or 

rebuild the fences, cattle guards and culverts 

where the work is the whole or a part of the 

consideration for such new right of way or additional right of way secured by the county either 

for itself or for and on behalf of the State of 

Texas for Farm to Market Highways?" 

Your letter indicates that the performance'of this ,work 

by county employees, rather tlhan by an independent contractor engaged by the property owner, will result in savings both ,to the 

landowner and the county. Further, you state that such a procedure would eliminate delay In clearing ,tha new right of way for 

future construction. 

In Attorney General's Opinion No. O-1457, it was 

stated: 

"While right-of-way is acquired by 

purchase, contract or other wise except by condemriatiorl proceedings, and the construction or 

rebuilding of t'he fence is ,the whole or a part 

of the consideration for such new rlg!!.t-of-way 

or additional right-of-way secured by the county, 

ther, the county ,would be obligated t;o carry out 

its agreement with the landowner regarding the 

re'building or construction of the fence accordLng 
Honorable George W. 

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 highway purposes. 

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 condemned by Article 9780, 

Vernon's Penal Code, and Rowan v. Pickett, 237 S.W. 2d 734 (Tex. 

Civ. App.), for the reason that this use of county employees and 

equipment is in the furtherance of a lawful governmental function of the county, i.e. the building and maintenance of a system 

of roads. 

We would further point out that the funds used as consideration for the purchase of such right-of-way may not be 

taken from the Permanent Improvement Fund of the County. Attorney General's Opinion V-831 (1949). The Road'and Bridge 

Fund of the County should be used for this purpose. 

The consideration for the work and labor done and 

materials furnished by 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 county may 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 the widening 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/John H. Minton, Jr. 

C.X. Richards John H. Minton, Jr. 

John Reeves Assistant 

REVIEWED FOR THE ATTORNEY GENERAL BY: W. V. Geppert.