Ronorable D. C. Greer,

State Highway Engineer, Austin, Texas

Dear Mr. Greer: July 14, 1958
Opinion Ho.W-472
Be: May

### CourtCosts in Condemnation suits to secure rights of wayfor State Bighways be paid out of Section 23of the Highway Departmeat Appropriation?
Wehave received your letter inwhich you state: “Wewish to be advised whether or not it is proper to pay court costs in connection with eminent drain procedures, in connection with the acquisition of right of wayin connection with the construction of highways out of the appropriation included in Section 23of the Eighway Department Section of House Bill 133.” Thegeneral appropriation bill for the biennium ending August 

### 31, 1959 is contained in House Bill 133, Chapter 384, page 869 et,seq. of the Acts of the Regular Session of the 55th Legislature, 1957.

Section 23 (page 1002) of theHighway Department Appropriation appropriates money for purposes reading in part as follows:

“for establishing, planning, constructing and maintaining asystem of highways” Other provisions of the above appropriation bill which might be pertinent in answering your question are (1) the provision et page 1004 providing for the transfer of funds from the Righway Department to the Attorney General and (2) the regular appropriation for the Attorney General at page 947.

Thequestion to be answered is out of which of the above appropriations should the court costs in condemnation suits be paid. It is our opinion that such costs should be paid out of the first of the above quoted appropriations for the Highway Department, for the reasons hereinafter stated:Bonorable D. C. Greer, Page 2(W-472).

Theterm “caurt costs” asused in this opinion includes the cost of the condemnation proceedings, including the cost of hearings before the special caissioners aswall as coots onappeal from the award.

Beginning with the enactment of Chapter 186, Acts 39th Legislature, Regular Session, 1925 (V.A.C.S. Art. 6674a et seq.), the Highway Department for the first time was authorized to construct highways. Immediately prior to the enactment of House Bill 179, Chapter 300, Page 724, Acts Regular Session, 55th Legislature, 1957 (V.A.C.S. Acts 6674~ to 6674w-4) andRouse Bill 620, Chapter 301, Page 731, sameActs, the Highway Department had noauthority to condemn property for rights of wayexcept under certain conditions whenthe county failed or refused to acquire the samebypurchase or condemnation as provided inArt. 6674n V.A.C.S. Prior to the enactment of said House fills 179and 620, theHighway Department did not pay for any rights of way, but the counties were required to pay for the same. Under Section 4of House Bill 179 (Art. 6674w-2), the Highway Department is authorized to acquire rights of wayby condemnation aswell as bypurchase. (The Federal Government currently reimburses the State for 90%of the cost of rights of wayonInterstate Highways).

Thespecific power above mentioned to construct highways andthe additional specific power to condemn property for rights of wayclearly make the cost of acquisition of aright of wayapart of the cost of constructing ahighway. LIn this connection, attention is called to the fact that the Federal Government pays apart of the costs of rights of wayandunder 23U.S.C.A. Section 23, it is provided that the term “construction” includes

“the cost of the rights of way:/. There is no specific appropriation for the payment by the Righway Department of the cost of rights of way, and such payment must necessarily be paid out of the appropriation for’kbimtructlug” highways. Therefore, it clearly appears that the appropriation under Section 23of the State Appropriation Bill aforesaid for “constructing” highways will include the cost of securing rights of wayby condemnation proceedings. This leaves only to decide if court costs expended in condemnation suits in acquiring rights of wayis apart of the cost of such rights of way, 1nacquiring rights of way, either bypurchase or bycondemnation, there are certain elements that go into the cost of securing the smseas well as the actual amount paid for the land alone. Before the Highway Department will makeanoffer to aland owner for his property, it is necessary that the Department employ appraisers tovalue the property. It is the

POliCJp of the Department in each case to employ twoappraisers whowork independently of each other. It maybe necessary for the Department to employ other persons for work in connection with the acquisition of rights of way. If anyprivate utility should be forced to file asuit to condemn property for aright of way, it certainly would charge such expenses just mentioned es apart of the cost of such right of way. Canit be said, then,Wonorable D. C. Greer, Page 3 (WW-472).

that such costs incurred by the Righway Department is not properly apart of the cost of securing the right of way?

If the Department is unable to purchase the property after going to the expense above mentioned and it is necessary to file asuit to condemnthe property and in such suit the court costs are adjudged against the State, the State must pay the same. Why, then, are such court costs not asmuchapart of the cost of securing the right of wayas the cost of employing appraisers andother expenses in securing the property? Even the cost of employing attorneys to prosecute acondemnation suit would be aproper item of cost of securing the rights of way, but wewill hereinafter see that the appropriation hereinafter mentioned has provided for this item of cost of the rights of way.

Theother provision at page 1004 reads as follows:

“The State Highway Cmission is authorized to direct the State Comptroller to transfer funds as it mayconsider necessary from the State Wighway Fundto the appropriated funds available to the Attorney General for the purpose of meeting the expenses andsalaries of the staff of the Attorney General in the handling of the legal work of the State Highway Department for the purpose of acquiring State Highway right of way. Anyunobligated balances in such transferred amounts at the end of each fiscal year of **the** biennium beginning Septembar 1, 1957, shall revert to the State Righway Fund.”
It seems clear that court costs should not be paid out of the funds provided for in the above quoted provision, for the **reason** that it expressly provides that such funds are to pay the “expenses andsalaries of the staff of the Attorney General in handling the legal work of the State Highway Department for the purpose of acquiring State Highway right of way”

. Wedonot believe that court costs can be claimed as an “expense” or “salary” of the staff of the Attorney General. Therefore, it is our opinion that this fund is not aproper fund out of which to pay **court** costs in condemnation suits.

‘fhe third andlast appropriation above mentioned is Section 30, page 947of the appropriation for the Attorney General’s office which reads in part as follows:

“For the purpose of paying necessary salaries for attorneys, accountants, collectors andstenographers, court costs andother ~necessary expenses for collecting delinquent corporation franchise taxes.

. .‘IHonorable D. C. Greer, Page 4 (WW-472).

Only the sumof $7,000.00 is appropriated in the above item for the twoyears of the present biennium. Theentire amount:appropriated in the above item would not be five, par cant, it is estimated, of the amount needed to pay the court costs in the condemnation suits. It certainly was not contemplated that this small appropriation should take care of such alarge item of expense in condemnation suits, as well as the other items mentioned. Also,~ there ere somecondemnation suits under Rouse Bill 620, above mentioned, where the Righway Department will be required to pay apart of the court costs in suits filed by acounty.

Rven if the appropriation to the Attorney General should be larger andenough to pay the costs of condemnation suits, the fact that the Legislature did makeaspecific appropriation under Section 23of the Highway Department Appropriation for construction of&$&ways, which will include the cost of rights of way, which will include court costs in securing the same, shows, in our opinion, **that** nopart of such court costs should be paid out of the appropriation for the Attorney General.

Inview of the above, you are advised **that** court costs in condemnation suits should be paid out of the appropriation in Section 23, page 1002 for the Highway Department andshould not be paid out of anyother appropriation. SUMMARY Court costs in condemnation suits filed by the State should be paid out of the appropriation for the Righway Department contained in Section 23, page 1002 for the biennium ending August 31, 1959.
Yours very truly,
WILLWILSON Attornyy General of

### Taxes

HGC:fb:pf APPROPED: OPINIOWCOMMITmE J. C. Davis, Jr., Chairman Marietta M.Payne TomMcFarling Jack Goodman Henry Braswell RRVIRWRD

FORTIlEATTORNRT GHNRRiu By: w. V. Geppert. Assistsnf