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 

department upon the above stated question has been received. 

We quote from your telegram as follows: 

"Please advise me by wire collect whether 

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 ,Article 6674q13. The commissioners1 court has heretofore 

elected to use this money for construction and 

maintenance of lateral roads as required by Article 66744-7 lHt." 

Paragraph H of Article 66749-7 reads, in part, as 

follows: 

"The monies allocated to each county from 

the Lateral Road ,Account shall be used by said 

county first for paying the principal, interest 

and sinking fund requirements maturing during the 

fiscal year for which such money was allocated 

to such county on bonds, warrants and other legal. obligations issued prior to January 2, 1939, 

the proceeds of which were actually expended in 

acquiring rights of way for State designated highways, it being the intention of the Legislature 

to designate and set apart sufficient money to 

pay off and discharge said outstanding obligations 

incurred for right of way acquisition. Funds remaining in the Lateral Road Fund of any county 
Hon. Walker Carson, page 2 

after the payment of said right of way obligations may be used by the county, under the direction of the Commissioners Court, 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 construction or improvement of county 

lateral roads, (c) for paying the principal, interest and sinking fund requirements of any bonds 

or warrants which were legally issued by such 

county or Road District prior to January 2, 1939, 

the proceeds of which were actually expended in 

the construction or improvement of lateral county 

v 

roads, (d) for the purpose of supplementing funds 

appropriated by the United States Government for 

Works Progress Administration highway 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 cooperating with the &ate Highway Department and the Federal Government in the construction of farm-to-market roads. 

QUter such allocation has 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 amount which has been 

credited to that county. After receiving said notice, the Commissioners Court shall, within sixty 

days, notify the Board of the manner in which it 

has exercised its option as to the one or more 

specified uses of said money permitted under this 

Act. 

"In the event the Commissioners Court of a 

county shall have elected to use all or any part 

of the money thus allocated to said county for the 

purpose of paying principal and interest or sinking fund requirements of its indebtedness for lateral roads, such money shall be applied pro rata 

to the payment of the debt service requirements 

of all issues of lateral road indebtedness of the 

county and all included defined road districts, 

in the proportion that the debt service requirements of each issue bears to the aggregate debt 

service requirements of all issues for that year. 

When any issue of obligations which will receive 
Hon. Walker Carson, page 3 

aid under this section is already listed with 

the Board of County and District Road Indebtedness, the Board shall credit the amount applicable to said issue to the account of said issue 

in the State Treasury. was to all other issues 

of obligations, which will receive aid under this 

subsection (h) theCommissioners Courts of the 

specific counties affected shall have the right 

if so desired to utilize the facilities of the 

State Board of County and District Road Indebtedness in paying the amounts of principal and interest on said issues substantially in the manner 

that payments are effected as to such eligible 

obligations. 

“In the event the Commissioners Court of a 

county elects to use the money allocated to it 

from the Lateral Road Account for the construction of lateral roads 

ing, the said Board o h 

it shall notify, in writits election to make such 

use of said money. Whereupon, said Board shall 

remit said money, or the part thereof to be utilized for such purpose, to the County Treasurer 

of such county, said money to be deposited by the 

County Treasurer in accordance with the law, and 

the same shall be utilized by the county, acting 

through the Commissioners Court, for the construction of lateral roads. Each county may call 

upon the State Highway Commission to furnish adequate technical and engineering supervision in 

making surveys, preparing plans and specifications, preparing project proposals and supervising actual construction; the actual cost of such 

aid in supervision shall be paid by the county as 

a charge against its project. 

“In order that maximum benefits may be obtained in the expenditure of the State fund made 

available to the counties under this Act for the 

construction of county lateral roads, and so that 

the counties may 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 to mceive 

bids in Austin on all such construction in the 

same manner as is now provided by law for the 

award of contracts on State Highways. 
Hon. Walker Carson, page 4 

"When any road which shall have been constructed by any county wholly from the County 

Lateral Road Account shall be designated by 

the State Highway Commission as a part of the 

system of designated State Highways, the designation of such road by the State Highway Commission shall constitute a full and complete 

discharge of any and all obligations of the 

State, moral, legal or implied, for the payment 

of such highway. 

"In the event the Commissioners Court 

elects to cooperate with the Highway Department 

in the building of 

cl 

or in the construction of, 

farm-to-market roa s, it shall by proper resolution entered upon its minutes, authorize the 

State Treasurer to pay such funds to be so used 

over to the States Highway Department for use on 

certain designated projects. Regardless of how 

the funds allocated to the counties from the 

Lateral Road Account are used, the County Judge 

of each county shall file with the Board on or 

before October lst, of each year, a verified 

report showing the manner in which the said 

funds have been expended, the nature and location of the roads constructed and such other 

information as the Board may h rom time to time 

require." 

,Article 6741, Vernon's Annotated Civil Statutes, 

provides: 

"The commissioners court may make and enforce all reasonable and necessary rules and 

orders for the working and repairing of public 

roads, and to utilize the labor to be used and 

money expended thereon, not in conflict with 

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 citizens to 

build or repair the roads." 

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

as follows: 

"Subject to any local law, commissioners' 

courts are invested with the power and charged 
Hon. Walker Carson, page 5 

with the duty of creating and maintaining 

adequate roads. They are commanded tihai out 

and establish roads when necessary. 

words mean *make, create or found permanently’ 

-- that is to say they are empowered to do all 

such acts as may b e necessary to construct 

permanent roads. They are further directed to 

‘exercise general control over all roads, highways, ferries and bridges in their counties.’ 

Accordingly, where a statute applicable to 

highways merely empowers commissioners’ courts 

to exercise their powers in a particular way, 

it will be construed as being subordinate to 

the general power of control, and not mandatory. Similarly the doctrine of implied powers enables co lid ssioners’ court3 to do all 

that is necessarily incidental to their declared 

powers of road improvement and 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 administrative powers of 

commissioners’ courts are exercisable according 

to their discretion with which the- courts refrain from interfering except upon a clear showing of abuse. ***‘I 

373. 

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

It will be noted that paragraph H of Article 6674q-7, 

supra, specifically provides 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 requirements maturing during the fiscal year for which 

such money was allocated to such county on bonds, warrants 

and other legal obligations issued prior to January 2, 1934. 

As stated in the statute it was the intention of the Legislature to designate and se c apart sufficient money 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 obligation may be used by the county, under 

the direction of the commissioners1 court 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 county 
Hon. 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 commissioners 1 court of a county elects to 

use the money allocated to it from the lateral road account 

for the construction or improvement of county lateral roads, 

it is our opinion that the court may exercise all implied powers that.is necessarily incidental to their declared power of 

constructing or improving of county lateral roads. Therefore, 

you are respectfully advised that it is the opinion of this 

department that the commissioners 1 court may use the funds 

remaining in the lateral road fund of a county to purchase 

road machinerv ?or the maintenance of lateral roads when such 

machinery is necessary for the maintenance, Construction or 

improvement of the county lateral roads. 

In this connection we call your attention to our 

Opinion No. O-2320 which held that: 

"The county is without authority to use the 

funds specifically credited to the various defined 

road districts by the terms of this Act for any 

purpose except that which would confer a direct 

benefit upon the taxpayers living within those 

particular defined districts and in harmony with 

such construction we advise hat the county cannot 

i 

expend road district moneys pursuant to the option 

provided in Section 'El, paragraph 5, subsection 

(h), Section 6 of House Bill 688." 

Trusting that the foregoing fully answers your inquiry, we are 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By /s/ Ardell Williams 

,Ardell Williams, Assistant 

APPROVED SEP 30, 1940 

/s/ Gerald C. Mann 

AGGORNEY GENERAL OF TEXAS 

APPROVED: OPINION COMMITTEE 

BY8 BWB, CHAIRMAN 

AW:eaw:wb