Hon. Walker Carson Opinion **NO.** o-2778

County Attorney Re: Can the commissioners' court Hudspeth County legally purchase road machinery Sierra Blanca, Texas for the maintenance of lateral roads out of the lateral road mainDear Sir: tenance fund mentioned?

Your recent telegram requesting an opinion of this departmentupon the above stated questionhas been received. We quote from your telegram as follows:

"Please advise me by wire collectwhether
or not in your opinion the county commissioners' court can legally purchase road machinery for the maintenance of lateral roads out of the lateral road maintenance fund created by State money paid this year to county for lateral road construction and maintenance. This is a new fund under a new statute and the only authority I find is particle 66749-7 IHI and ,Article6674q13. The commissioners1court has heretofore elected to use this money for constructionand maintenance of lateral roads as required by Article 66744-7 lHt."
Paragraph H of Article66749-7 reads, in part, as follows:

"The monies allocated to each county from the LateralRoad ,Accountshall be used by said county first for paying the principal, interest and sinking fund requirementsmaturing during the fiscal year for which such moneywas allocated to such county on bonds,warrants and other legal.obligations issuedprior to January 2, 1939, the proceeds ofwhich were actually expended in acquiring rights of way for State designatedhighways, it being the intention of the Legislature to designate and set apart sufficientmoney to pay off and discharge said outstanding obligations incurred for right of way acquisition. Funds remaining in the LateralRoad Fund of any countyHon. Walker Carson,page 2

after the payment of said right of way obligations may be used by the county,under the direction of the CommissionersCourt, for any one or all of the following purposes: (a) for the acquisition of rights of way for county lateral roads and for the payment of legal obligations incurred therefor prior to January 2, 1939, (b) for the constructionor improvement of county lateral roads, (c) for paying the principal, interest and sinking fund requirements of any bonds
or warrantswhich were legally issued by such county orRoad District prior to January 2, 1939, the proceeds of which were actually expended in the constructionor improvementof lateral county

v roads, (d) for the purpose of supplementingfunds appropriatedby the United States Government for Works Progress Administrationhighway construction, and such other grants of Federal funds, as may be made available to the counties of this State for county lateral road construction and (e) for the purpose of cooperatingwith the &ate Highway Department and the Federal Government in the constructionof farm-to-market roads.

QUter such allocationhas been made to the several counties in the State, the Board shall in writing notify the Chairman of the Commissioners Court of each county of the amountwhich has been credited to that county. After receiving saidnotice, the CommissionersCourt shall,within sixty days, notify the Board of the manner inwhich it has exercised its option as to the one or more specifieduses of saidmoney permittedunder this Act.

"In the event the CommissionersCourt of a county shallhave elected to use all or any part of the money thus allocated to said county for the purpose of payingprincipal and interest or sinking fund requirements of its indebtednessfor lateral roads, suchmoney shall be appliedpro rata to the payment of the debt service requirements of all issues of lateral road indebtednessof the county and all included defined road districts, in the proportion that the debt servicerequirements of each issue bears to the aggregatedebt servicerequirements of all issues for that year. When any issue of obligationswhich will receiveHon. Walker Carson, page 3

aid under this section is already listedwith the Board of County and DistrictRoad Indebtedness, the Board shall credit the amount applicable to said issue to the account of said issue in the State Treasury. wasto all other issues of obligations,which will receive aid under this subsection (h) theCommissionersCourts of the specific counties affected shallhave the right if so desired to utilize the facilities of the State Board of County and DistrictRoad Indebtedness in paying the amounts of principal and interest on said issues substantiallyin the manner that payments are effected as to such eligible obligations.

“In the event the CommissionersCourt of a county elects to use the money allocated to it from the LateralRoad Account for the construction of lateral roads ing, the saidBoard o h it shallnotify, inwritits election to make such
use of saidmoney. Whereupon, said Board shall remit saidmoney, or the part thereof to be utilized for suchpurpose, to the County Treasurer of such county, saidmoney to be deposited by the County Treasurer in accordancewith the law, and the same shall be utilized by the county, acting through the CommissionersCourt, for the constructionof lateral roads. Each county may call upon the State Highway Commission to furnish adequate technical and engineering supervisionin making surveys,preparing plans and specifications, preparingprojectproposals and supervising actual construction;the actual cost of such aid in supervision shallbe paid by the county as a charge against its project.

“In order that maximum benefitsmay be obtained in the expenditure of the State fund made available to the counties under thisAct for the constructionof county lateral roads, and so that the countiesmay have the benefit of widespread competition among contractors in bidding on such projects, such counties may, in l~lkieir discretion authorize the State Highway Commission tomceive bids in Austin on all such construction in the
samemanner as is now provided by law for the award of contracts on State Highways.Hon. Walker Carson, page 4

"When any road which shallhave been constructedby any countywholly from the County Lateral Road Account shallbe designatedby the StateHighway Commission as a part of the system of designated StateHighways, the designation of such road by the StateHighway Commission shall constitute a full and complete discharge of any and all obligations of the State,moral, legal or implied, for the payment of suchhighway.

"In the event the CommissionersCourt elects to cooperatewith the Highway Department in the building ofclor in the constructionof, farm-to-marketroa s, it shall by proper resolution entered upon its minutes, authorizethe State Treasurer to pay such funds to be soused
over to the States Highway Department for use on certain designatedprojects. Regardless of how the funds allocated to the counties from the LateralRoad Account are used, the County Judge of each county shallfile with the Board on or before October lst, of each year, a verified report showing the manner inwhich the said funds have been expended, the nature and location of the roads constructed and such other information as the Board may hrom time to time require."
,Article

6741, Vernon'sAnnotated Civil Statutes, provides:

"The commissioners court may make and enforce all reasonable and necessary rules and orders for theworking and repairing of public roads, and to utilize the labor to be used and money expended thereon,not in conflictwith the laws of this State. Said court may purchase
or hire all necessary road machinery, tools or teams and hire such labor as may be needed in additfon to the labor required of citizensto build or repair the roads."

We quote from Texas Jurisprudence,Vol. 21, p. 630,

as follows:

"Subjectto any local law, commissioners' courts are investedwith the power and chargedHon. Walker Carson, page 5

with the duty of creating and maintaining adequate roads. They are commanded tihai out and establish roadswhen necessary. words mean *make,create or found permanently’

-- that is to say they are empowered to do all such acts as may be necessary to construct permanent roads. They are further directed to ‘exercisegeneral control over all roads, highways, ferries and bridges in their counties.’ Accordingly,where a statuteapplicable to highwaysmerely empowers commissioners’courts to exercise theirpowers in a particularway, it will be construed as being subordinateto the generalpower of control, and not mandatory. Similarly the doctrine of impliedpowers enables colidssioners’ court3 to do all that isnecessarily incidental to their declared powers of road improvementand regulation. The limits of their powers, however, are reached when they exceed what may fairly be implied.

“Just as in matters involving the establishment of a highway, the administrativepowers of commissioners’courts are exercisable according to their discretionwith which the-courts refrain from interferingexcept upon a clear showing of abuse. ***‘I

373. Lasater v. Lopez, 202 S.W. 1039, affirmed 217 S-W.

Itwill be noted that paragraphH of Article 6674q-7, supra, specificallyprovides that the moneys allocated to each county from the lateral road account shall be used by said county first for paying the principal, interest and sinking fund requirementsmaturing during the fiscal year for which such money was allocated to such county on bonds,warrants and other legal obligations issuedprior to January 2, 1934. As stated in the statute itwas the intention of the Legislature to designate and sec apart sufficientmoney to pay off and discharge said outstanding obligations incurred for right-ofway acquisition. It is further provided that funds remaining in the lateral road fund of any county after the payment of said right-of-way obligationmay be used by the county, under the direction of the commissioners1court for any one or all of the purposes as set out in the statute. Two of the purposes for which the remaining fund may be expended as provided in the statute is for the acquisition of rights-of-way for countyHon. Walker Carson,page 6 , -- .

lateral roads end for the payment of legal obligations incurred therefor prior to January 2, 1939, and. for the construction or improvement of county lateral roads.

When the commissioners1 court of a county elects to
use the money allocated to it from the lateral road account for the constructionor improvementof county lateral roads, it is our opinion that the court may exercise all impliedpowers that.is necessarily incidental to their declaredpower of constructingor improving of county lateral roads. Therefore, you are respectfully advised that it is the opinion of this department that the commissioners1 court may use the funds remaining in the lateral road fund of a county to purchase road machinerv ?or the maintenance of lateral roadswhen such machinery is necessary for the maintenance, Constructionor improvement of the county lateral roads.

In this connectionwe callyour attention to our OpinionNo. O-2320which held that:

"The county iswithout authority to use the funds specificallycredited to the various defined road districts by the terms of thisAct for any purpose except thatwhich would confer a direct benefit upon the taxpayers livingwithin those particular defined districts and in harmonywith such constructionwe advise hat the county cannot i
expend road district moneyspursuant to the option provided in Section 'El,paragraph 5, subsection (h), Section 6 of House Bill 688."
Trusting that the foregoing fully answersyour inquiry,we are

Yours very truly

ATTORNEYGENERAL OF TEXAS
By /s/ ArdellWilliams ,Ardell Williams, Assistant

APPROVED SEP 30, 1940 /s/ Gerald C. Mann AGGORNEY GENERAL OF TEXAS

APPROVED:OPINION COMMITTEE BY8 BWB, CHAIRMAN

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