Ronorable D. C. Greer, 

State Highway Engineer, 

Austin, Texas 

Dear Mr. Greer: 

July 14, 1958 

Opinion Ho. W-472 

Be: May Court Costs in Condemnation 

suits to secure rights of way for 

State Bighways be paid out of 

Section 23 of the Highway Departmeat Appropriation? 

We have received your letter in which you state: 

“We wish 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 way in connection with the construction of 

highways out of the appropriation included in Section 

23 of the Eighway Department Section of House Bill 

133. ” 

The general 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 the Highway Department Appropriation 

appropriates money for purposes reading in part as follows: 

“for establishing, planning, constructing and 

maintaining a system 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. 

The question 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). 

The term “caurt costs” as used in this opinion includes the cost 

of the condemnation proceedings, including the cost of hearings before the 

special caissioners as wall as coots on appeal 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) 

and Rouse Bill 620, Chapter 301, Page 731, same Acts, the Highway Department 

had no authority to condemn property for rights of way except under certain 

conditions when the county failed or refused to acquire the same by purchase 

or condemnation as provided in Art. 6674n V.A.C.S. Prior to the enactment 

of said House fills 179 and 620, the Highway Department did not pay for any 

rights of way, but the counties were required to pay for the same. Under 

Section 4 of House Bill 179 (Art. 6674w-2), the Highway Department is 

authorized to acquire rights of way by condemnation as well as by purchase. 

(The Federal Government currently reimburses the State for 90% of the cost 

of rights of way on Interstate Highways). 

The specific power above mentioned to construct highways and the 

additional specific power to condemn property for rights of way clearly make 

the cost of acquisition of a right of way a part of the cost of constructing 

a highway. LIn this connection, attention is called to the fact that the 

Federal Government pays a part of the costs of rights of way and under 

23 U.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 23 of the State Appropriation Bill aforesaid for “constructing” 

highways will include the cost of securing rights of way by condemnation 

proceedings. This leaves only to decide if court costs expended in condemnation suits in acquiring rights of way is a part of the cost of such rights 

of way, 

1n acquiring rights of way, either by purchase or by condemnation, 

there are certain elements that go into the cost of securing the smse as 

well as the actual amount paid for the land alone. Before the Highway 

Department will make an offer to a land owner for his property, it is necessary that the Department employ appraisers to value the property. It is the 

POliCJp of the Department in each case to employ two appraisers who work 

independently of each other. It may be necessary for the Department to 

employ other persons for work in connection with the acquisition of rights 

of way. If any private utility should be forced to file a suit to condemn 

property for a right of way, it certainly would charge such expenses just 

mentioned es a part of the cost of such right of way. Can it be said, then, 
Wonorable D. C. Greer, Page 3 (WW-472). 

that such costs incurred by the Righway Department is not properly a part 

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 a suit to condemn the 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 as much a part of the cost of securing the right of way as the cost 

of employing appraisers and other expenses in securing the property? Even 

the cost of employing attorneys to prosecute a condemnation suit would be 

a proper item of cost of securing the rights of way, but we will hereinafter 

see that the appropriation hereinafter mentioned has provided for this item 

of cost of the rights of way. 

The other provision at page 1004 reads as follows: 

“The State Highway Cmission is authorized to 

direct the State Comptroller to transfer funds as 

it may consider necessary from the State Wighway 

Fund to the appropriated funds available to the 

Attorney General for the purpose of meeting the 

expenses and salaries 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. Any unobligated 

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 and salaries 

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”. We do not 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 a proper fund out of which to pay court costs 

in condemnation suits. 

‘fhe third and last appropriation above mentioned is Section 30, 

page 947 of 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 and stenographers, court costs and other ~necessary expenses 

for collecting delinquent corporation franchise 

taxes. . .‘I 
Honorable D. C. Greer, Page 4 (WW-472). 

Only the sum of $7,000.00 is appropriated in the above item for 

the two years of the present biennium. The entire 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 a large item of expense in condemnation suits, as well as the other 

items mentioned. Also,~ there ere some condemnation suits under Rouse Bill 

620, above mentioned, where the Righway Department will be required to pay 

a part of the court costs in suits filed by a county. 

Rven if the appropriation to the Attorney General should be larger 

and enough to pay the costs of condemnation suits, the fact that the Legislature did make a specific appropriation under Section 23 of 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 no part of such court costs should be paid out 

of the appropriation for the Attorney General. 

In view 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 and should not be paid out of any other 

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, 

WILL WILSON 

Attornyy General of Taxes 

HGC:fb:pf 

APPROPED: 

OPINIOW COMMITmE 

J. C. Davis, Jr., Chairman 

Marietta M. Payne 

Tom McFarling 

Jack Goodman 

Henry Braswell 

RRVIRWRD FOR TIlE ATTORNRT GHNRRiu 

By: w. V. Geppert. 

Assistsnf