Tart .L%TTORNEY GENERAL 

OF%-EXAS 

AUSTIN. TEXAS 78711 

December 10, 1968 

Hon. J. C. Dingwall 

State Highway Engineer 

Texas Highway Department 

Hain ,office Building 

11th and Brazoa 

Austin, Texas 78701 

Opinion No. M-312 

R8: Whether the Texas Highway 

Department can legally 

cofitract with an adjoining State for participation 

in the cost of a joint construction projection aa 

reimburse the adjoining 

State for services performed on that portion of 

the project located in 

Texas. 

Dear Mr. Dingwall: 

You have requested an opinion on the above-referenced 

matter and have outlined the following pertinent facts relative 

thereto: 

(a) The section of U. S. Highway 59 and 71 

involved is situated half in Texas and half in 

Arkansas. 

(b) It is in the public interest for the 

State Highway Department of Texas and Arkansas 

to cooperate in the planning and contracting of 

construction for the widening and improving of 

this highway, provided that each State Highway 

Department is responsible only for that portion 

of the work in its respective State. 

(c) You desire to enter into an agreemeat 

under which the personnel of the Arkansas State 

Highway Department will be used for the preliminary engineering of the project and for construction 

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Hon. J. C. Dingwall, Page 2 (M- 312) 

engineering and with a provision for reimbursement 

to the State of Arkansas from the Texas Highway 

Department Fund for that portion of the cost of 

the above engineering work performed on the part 

of the project in Texas. 

(a) Each State under the proposed agreement is to separately approve the contract bias 

received and separately approve the award of a 

contract. 

Your request calls for an opinion concerning three 

separate questions which are stated, followed by our answers. 

Question No. 1 

Es__th.~-.-~exas_Highway.~~.Department~.unpowered. 

&?-co.nsract with..theB-kansas..State Highway 

pepz+mec$? 

We observe at the outset there is no specific statutory authority confirming such a right on the Highway Department. 

Although we answer this question in the negative, the Texas~.Highway Department does have the authority to negotiate-an agreement 

which may become a binding contract~upon approval by the Governor 

of Texas. Article IV, Section 10, of the Constitution of Texas 

provides: 

Yie,..[the Governor] shall cause the 

laws to b&~ fag$hf$ly executed and shall c;o.auct.; ,... i5 .,., person ;. 

or iti. such mannerly as 

shhll~be'prescr,ibed ._.~~_.--_..-. ,~. -by_,law;- 'dL1~ intercourse ana.business of the S~tate with.... 

o$her i State~,and~,.with~_thel,~,gnMed, States." 

The "Interpretive Commentary" under this Article in 

Vernon's Texas Constitution reads, in part, at page 795, as 

follows: 

"As the chief executive officer of 

the state, Section 10 also makes the 

governor the channel of intercourse and 

business between the State and other 

States, and the United States. . . .* 

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Hon. J. C. Dingwall, Page 3 (~-312) 

This article directs that the Governor, either in person, or in some manner prescribed by the Legislature, is vested 

with power to contract in the name of the State of Texas where 

the subject matter involves "~~,,fercourse-aniLbusiness af,.Ahe 

State_w~~~,.,~~~h.er~...States...and...with.-the_United Sta$$~s,l-_.'Ehe "in 

-&&son" part of the quoted section is self%Z@l.anatory. 

It has been held that, “in.such.manner asshall~be prescribed,by,,law" is a phrase which: 

Highway Commission of Texas v. Vaughn, 288 S.W. 875 at 879 (Tex. 

Civ.App. 1926, error refused). 

In Highway Commission of Texas v. Vaughn, supra, it 

was held that Article IV, Section 10, of the Constitution of 

Texas, was not violated by a Legislative enactment which failed 

to mention the Governor, but authorized Wichita County and the 

Texas Highway Conunission to work out an agreement with Oklahcana 

and the Federal Government concerning construction of a bridge 

across the Red River. The Court observed, 288 S.W. at 879: 

"Why should the Legislature direct 

the Governor to perform an act which the 

Constitution has made his mandatory duty 

to perform? The Governor is charged with 

the duty of executing all laws enacted by 

the Legislature in the manner required by 

the Constitution and laws of this State, 

and the failure of the Legislature to 

specifically direct that officer to execute a law does not vitiate the law." 

In our opinion, Highway Commission of Texas v. Vaughn, 

supra, states the law in relation to the first question presented. 

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Hon. J. C. Dingwall, Page 4 (M-312) 

It also provides a guide concerning the type endorsement desirable to make the agreement reached by the Texas Highway Commission 

a binding contract. The contract in Vaughn was approved by the 

following endorsement: 

"April 9, 1926 

*Examined, ratified and confirmed 

in all things as my act and deed as 

Governor of the State of Texas insofar 

as I am required and authorized by law 

to make said contract. 

"Mirian A. Ferguson 

"Governor of Texas' 

In Attorney General Opinion No. C-284 (19641, it was 

held that the Highway Department was authorized to use its funds 

to pay an agency of the united States for obtaining research data 

to design highway drainage structures. It appears that the only 

question therein presented and considered was whether the appropriations bill authorized the expenditure of funds and the statutory authority to support the same. The constitutional question 

of the requirement for the approval by the Governor of the contract was not passed upon by this office. 

Question No. 2 

May personnel of the Arkansas Highway 

Department, under the facts stated, plan 

and supervise construction of that part of 

the highway located in Texas? 

Our answer to this question must be in the affirmative, 

provided, however, that the Texas Highway Department maintains 

final authority over that part of the highway work being done 

in Texas. 

The State Constitution provides (Article 16, Section 

24) that the, "Legislature shall make provision for laying out 

and working public roads. . . ." The Legislature may delegate 

this power as it sees fit. Texaa Highway Commission v. El Paso 

Bldg. L Con&. Trades Council, 149 Tex. 547, 234 s.W.Zd 857 (1951). 

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Hon. J. C. Dingwall, Page 5 (M-312) 

The provisions of the highway statutes of Texas create in the 

Texas Highway Commission, . . . , an agency in which are vested 

powers to formulate and execute plans and policies for the location, construction and maintenance of a comprehensive system of 

state highways and public roads.* Robbins v. Limestone County, 

114 Tex. 345, 268 S.W. 915 (1925). 

The department of government headed by the Texas Highway Commission is sp$cifically charged by Article 6667, Vernon's 

Civil Statutes, to, . . . investigate and determine the methods 

of road construction best adopted to the different sections of 

the State. . . .* 

Article 6674q-4, Vernon's Civil Statutes, provides: 

*All further improvement of said 

State Highway System shall be made under 

the exclusive and direct control of the 

State Highway Department and with appropriations made by the Legislature out 

of the State Highway Fund. . . . In the 

development of the System of State Highways aa the maintenance thereof, the 

State Highway Connuission shall from 

funds available to the State Highway 

Department, provide: 

"(a) For the efficient maintenance of all highways comprising 

the State System.' 

The term "improvement" as used in Article 66746-4 and 

defined in Article 6674a, Vernon's Civil Statutes, is, we believe, 

inclusive of the work described in your request for this opinion. 

Article III, Section 56 of the Constitution of Texas, 

prohibits, with certain exception, enactment of special laws aa 

contains this mandate: "And in all other cases where a general 

law can be made applicable, no local or special law shall be 

enacted." 

The Legislature has delegated exclusive and immediate 

control of the improvement of the State Highway System to the 

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Hon. J. C. Dingwall, Page 6 (~-312) 

Texas Highway Department, with the direction that there be 

efficient maintenance of the State System, Article 6674q-4. 

It is our opinion that the scope of authority delegated to the Texas Highway Department is broad enough to allow 

the procedure outlined above for cooperation with the State of 

Arkansas: provided it is in the public interest, as you have 

determined that fact to be; provided it is in furtherance of 

efficient maintenance; and provided the Texas Highway Department retains final authority wer that portion of the work done 

in Texas. 

We do not believe the Texas Highway Department is 

authorized to negotiate an agreement whereby final determination of the construction requirements and specifications, rightof-way requirements, etc., of the entire project, are vested in 

any authority other than the Texas Highway Department, because 

such an agreement would be a relinquishment of the exclusive 

and direct control delegated specifically to the Texas Highway 

Department by Article 6674q-4. 

Question No. 3 

May money from the Texas Highway Fund be 

used under the facts stated to reimburse the 

State of Arkansas for the portion of the work 

done in Texas7 

We answer this question in the affirmative. The provisions of law cited above which authorize the Highway Department to 

use the procedure outlined impliedly authorize payment therefor. 

Article 6674q-4 specifically authorizes use of such moneys for the 

efficient maintenance of the Highway System. 

SUMMARY 

A contractural agreement with the State of Arkansas may 

be negotiated by the Texas Highway Department for the approval 

of the Governor of Texas. Upon approval by the Governor, the 

agreement can become a binding contractural obligation of the 

State of Texas. 

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Hon. J. C. Dingwall, Page 7 (~-312) 

The Texas Highway Department may, in order to promote 

more efficient construction practices, further the public interest, 

and prevent waste of manpower, allow personnel of the Arkansas 

Highway Department to do preliminary engineering and construction 

engineering work on that portion of the road in Texas, provided 

final control and authority over that portion of the road in Texas 

rests in the Texas Highway Department. 

Texas Highway Department funds may be used to reimburse 

Arkansas for that portion of the cost of such work applicable to 

the part of the road in Texas. 

Prepared by SAMUEL D. MCDANIEL 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

Thomas Mack 

Larry Craddock 

Louis Neumann 

Jack Sparks 

A. J. Carubbi, Jr. 

Executive Assistant 

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