OFFICEOFIHE A'170RNEY GENERALOFTEXAS 

AUSTIN 

Honorable D. C. Oremr 

Stats fiighway Xnglmor 

Aurrtin, Teaa 

Dear Sir: Opinion No. 0485E 

.Ber The authority of the 

Etato blghway Department 

to require hQhway oonl d!uo tio o o n ntr a a tto ro a 

two paint puroha8ed and 

omd by tha State of Texas 

and deduot the uoat of suoh 

paint from the oontraotor'a 

Axmthly sstlmate8. 

ke aoknomlgbge reoeipt oi your request r0r en oeinlcn 

of thie Deportlmt on the question arr to whether the 4ate 

highway Departimnt ia authodmd to pur~hmm paliSt be LIEO~ 

on all maintenanoo and oonetruotlon work ‘ml require al9 

oontraotorr rer.oons+uotlon of Mrk to use the paint’ao purohassd and .to ~doduot. Zmm tfre..oontraotcpt'a eatiwte -the 90') 

of the.gialnt tied by #ueh oontraotor. 7 

'The exo'luilve and 8010 l &hitirrtratire~qontrol of the 

&ate d.ghwayr Fe tested in the state &&&my Qomiaaion. 

(Art. 5663 fi.C.8,) In the odm oi k%m.v. Be&n, 46 S. W. 

(2d) 586 (6om.App.), the oourt saidt 

V&e &foot of t&e prwmt statute (Vsrnon~s 

imnotataa Cirfl Statutor,-Art, 6666~ et seq.1 on 

the subjoot is to ve6t admfnietratlre oontrol of 

all public road8 whioh might be a pati of the 
Eon. D. C. Crew, page 2 

state highmy system in the state hi(zhway department, with reepeot to the designation, lboatlon, 

relocation, I~prov:znent, construction, abandonment, 

or discontinuance thereof. chatever said deoartment may do in the premisea, in the exercise of 

eu honest discretion, must be respeoted when 

untainted by fraud and unassailed on aooount of 

accident or cisteke ooourrihg In their performanoe, 

or suoh abuse of discretion as under the authorities 

WOUld SVOid the ABme." (Undersoorlng ems) 

i-. I ns above held It la solely with the Ltate highway 

Commission to determine the manher In whioh aaid highway 

should be oohstruoted and their deterrrinatlon oan be assailed 

only it it is tainted with some speoles of fraud. 

If the state highway Comiesion determines that the 

interest of the. Et&e will be beat served by requiring all 

contractors to use paint aoqulred by the State Highwa'y*Departzmnt as above rot forth that is a matter that can be 

determined only by the btate al&way ComuIssion. In the 

eeee of Losheim v. kollins, 79 S. b. ($33) 678, the Court of 

Civil Appeal6 held: 

-'The &ate hli'hway Conunlsslon Is authorized 

to take over and maintain the various state highwuye in Texas, an6, In aooompliahiug this duty 

imposed upon it, the judtgnent ot the highway 

Commission, and not of eomaone else, 18 euprem. 

The faot'that there are better my8 of maintaining 

the highways is unlmportant.w (Undersoorlng owa 1 

hot only do ve bell&e that the broad grant of powers 

to the State highway Ccwmlsslon authorizes the purohase and 

L+ndling of paint as outlined In your request, but we be-. 

liere that Artiole 6674k, hevised Cirll Statutes is au express authorization 80 to do. Sal6 Artlole being as follower 

*The State Flghway Cormniasion shall prescribe 

the form of suoh contract and may Inolude therein 

such rotters as they may deem advantaneous to the 

State.n 

Go ( thererore, see no reason why, If the State hi&?.?.way 

Commission determInes that it would be edranteCeou8 to the 

Ltate, eald Comlsslon cannot require all contractors to 1288 
L - 

a0n. U. C. Greer, page 3 

paint which has theretofore been purchased by the state 

hlghwey fiepartmmt and deduct the cost of such paint from 

the estlmtee of the contractors. You are, therefore, 

advised that our answer to yc,ur inquiry la in the ai'flnuetlve. 

However, this opinion Is not to be oonstrued as authorizing the state Ughwey Department to oherge oontreotore 

more than cost because we find nothing in the law that would 

authorize it to engage in a proprietary enterprlae. 

om SEP 19, 1941 Yours vary tNly