Honorable W. 0. Reed, Chairman Appropriationa

Conrnlttee House of Representatives Austin,Texan

Dear Sir: Opinion No. O-3245 Ret Authority

of legislature

to appropriate from State HighwayFund to pay Judeplent obtained

by W. 5. Hale and wife against the State of Texas.

Your letterof March 6th, 

### 1941, request6

the opinionof this Department upon the question

whether the Legialatti'e may appropriate

from the State HighwayFund moneys to pay the judgmant rendered

againatthe State of Terse in the case of W. S. Hale, et ux, va. The State of Texas, et al.

It appears that the &nd Legislature, at its RrgulsrSession in 

### 1931,In Senate 

### Bill

No. 

### 197,granted

pormiaaion

to W. S. Hale and Wife, M3ry D. Hale, to use the State of Texds and the State Highway Commiasion for damagesoccasioned to the landabe

Y Sing to the Hales, by reason of the construction

of State Highwe,

No. 4 in such manner as to over flow and otherwise

damage the Hale land. Suit was filed and judgment rendered

for the Hales agalnstthe State of Texas. (See State v. Hale (Texas) 146 S. W 

### (2d)731) 7 No reason occurs to us, and none has been suggested, why the Legislature may not appropriate from the State HighwayFund to pay this judgnmnt. The State HighwayFund is available for the paymentof the expensesIncident to the establishment, construction

and maintenance

of State Highways. 'The State has vested in the State HighwayCommission full authority,

and charged it with the duty to designate, lay out and construct publichighways. It has the right, aa the agent of the State, to take, damageor destroy

privateproperty

T>r publicuse. This right has been guaranteed by our Constitution.PublicXo:!ds are a great public convenience, and, if necessary

to carry out plans for the completion of a public road, pr?.F%te property

mq~ be totallyor partially taken or damagedto accomplish that purpose. This carries with it the power, if need be, that a servitude may be createdon land not actually taken or occupied

by the public

highway, for the purposeof carrying off,the

water, the natural flow of which is changedor diverted by theconstruction of such highway." (State v. Sale, supra) It is clear that the comperxat'ionof :persona

for property "taken"Honorable W. 0. Reed, page #2 (O-3245)

for publichighwaypurposes, as In the Hale case, i~,a,n expew. incident to the establishment, construction

and main~;~;~~n~e~oL

C$ijte K;&ays. No question,

therefore,

can arise as to'heappiopriation being an unconstitutional

diversion

of a special fund. The application of a portion of the fund to the satisfaction of this judgmentIs but the application of that portionof the fund to one of the very purposes for which the fund was created.

You are advisedthat, in our opinion, the Legislature

has "bhe

power to appropriate

from the State HighwayFund moneys to pay the judgment rendered againstthe State of Texas ln the case of W. S. Hale, et ux, v. The State of Texas, et al.

Yours very truly,
AlTORNEY0ENERALOFTEEP.S
s/Richard W. Fairchild

BY RichardW. Fairchild

Amslstant RWF:ep/ldw

APPROVED

MAR. 13, 

### 1941 a/ GEIIALD

c. MANN ATTORNEYCEXEBALOFTEXAS

APPROVEDOPINION

COMMITTEE By B. W. B. CHAhMAN