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 Highway Fund to pay Judeplent 

obtained by W. 5. Hale and wife against 

the State of Texas. 

Your letter of March 6th, 1941, request6 the opinion of this Department 

upon the question whether the Legialatti'e may appropriate from the State 

Highway Fund moneys to pay the judgmant rendered againat the 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 Rrgulsr Session 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 

damages occasioned to the landa be 

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 agalnst the 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 Highway Fund to pay this judgnmnt. The 

State Highway Fund is available for the payment of the expenses Incident 

to the establishment, construction and maintenance of State Highways. 'The 

State has vested in the State Highway Commission full authority, and 

charged it with the duty to designate, lay out and construct public highways. It has the right, aa the agent of the State, to take, damage or 

destroy private property T>r public use. This right has been guaranteed by 

our Constitution. Public Xo:!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 totally or partially taken or damaged to accomplish that 

purpose. This carries with it the power, if need be, that a servitude may 

be created on land not actually taken or occupied by the public highway, 

for the purpose of carrying off,the water, the natural flow of which is 

changed or 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 public highway purposes, 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 judgment Is but the application 

of that portion of the fund to one of the very purposes for which the 

fund was created. 

You are advised that, in our opinion, the Legislature has "bhe power to 

appropriate from the State Highway Fund moneys to pay the judgment rendered 

against the State of Texas ln the case of W. S. Hale, et ux, v. The State 

of Texas, et al. 

Yours very truly, 

AlTORNEY 0ENERALOFTEEP.S 

s/Richard W. Fairchild 

BY 

Richard W. Fairchild 

Amslstant 

RWF:ep/ldw 

APPROVED MAR. 13, 1941 

a/ GEIIALD c. MANN 

ATTORNEY CEXEBALOFTEXAS 

APPROVED OPINION COMMITTEE 

By B. W. B. 

CHAhMAN