### Tart .L%TTORNEY GENERAL OF%-EXAS

AUSTIN. TEXAS 78711 December 10, 1968

Hon. J. C. Dingwall State Highway Engineer Texas Highway Department Hain ,officeBuilding 11th and Brazoa Austin, Texas 78701 Opinion No. M-312

R8: Whether the Texas Highway Department can legally cofitract

with an adjoining State forparticipation in the cost of a joint constructionprojection

## 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 followingpertinent factsrelative thereto: (a) The section of U. S. Highway 59 and 71

involved is situatedhalf 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 improvingof this highway,provided that each State Highway Department is responsibleonly for that portion of the work in its respective State. (c) You desire to enter into an agreemeat under which the personnelof the Arkansas State Highway Departmentwill 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 andwith a provision **for** reimbursement to the State of Arkansas from the Texas Highway Department Fund for that portion of the cost of the above engineeringwork performed on the part of the project in Texas. (a) Each State under the proposed agreement is to separatelyapprove the contract bias received and separatelyapprove the award of a contract. Your request calls for an opinion concerning three separate questionswhich are stated, followedby our answers. Question No. 1 Es__th.~-.-~exas_Highway.~~.Department~.unpowered. &?-co.nsract

with..theB-kansas..State Highway pepz+mec$? We observe at the outset there is no specific statutory authority confirming such a right on the Highway Department. Although we answer this question in the negative, the Texas~.Highway Department does have the authority to negotiate-an agreement which may become a binding contract~uponapproval by the Governor of Texas. Article IV, Section 10, of the Constitution of Texas provides: Yie,..[the Governor] shall cause the laws to b&~fag$hf$ly executed and shall c;o.auct.;

,... i5.,., person;.

or iti. suchmannerly

as shhll~be'prescr,ibed -by_,law;-

'dL1~inter._.~~_.--_..-.

,~. course ana.business of the S~tate with.... o$heri State~,and~,.with~_thel,~,gnMed, States." The "InterpretiveCommentary"under this Article in Vernon's Texas Constitutionreads, inpart, at page 795, as follows:
"As the chief executive officer of

the state, Section 10 alsomakes the governor the channel of intercourseand business between the State and other States, and the United States.
. . .*
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This article directs that the Governor, either in person, or in somemanner prescribedby the Legislature, is vested with power to contract in the name of the State of Texas where the subjectmatter 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 Legislativeenactmentwhich failed to mention the Governor, but authorizedWichita County and the Texas HighwayConunissionto work out an agreementwith Oklahcana and the Federal Government concerningconstructionof a bridge across the Red River. The Court observed, 288 S.W. at 879:

"Why should the Legislaturedirect the Governor to perform an actwhich the Constitutionhas made hismandatory duty to perform? The Governor is chargedwith the duty of executing all laws enacted by the Legislature in themanner requiredby the Constitution and laws

### ofthis State, and the failure of the Legislature to specificallydirect that officer to execute a law does not vitiate the law."
In our opinion, HighwayCommission **of** Texas v. Vaughn, supra, states the law in relation to the first questionpresented.
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Hon. J. C. Dingwall, Page 4 (M-312)

It also provides a guide concerning the type endorsementdesirable to make the agreement reached by the Texas Highway Commission a binding contract. The contract inVaughn was approvedby 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. "MirianA. Ferguson "Governorof Texas'
InAttorney General Opinion No. C-284 (19641,it was held that the Highway Departmentwas 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 consideredwas whether the appropriations bill authorized the expenditure of funds and the statutory authority to support the same. The constitutionalquestion of the requirement for the approval by the Governor of the contract was not passed upon by this office. QuestionNo. 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 questionmust be in the affirmative, provided, however, that the Texas Highway Departmentmaintains final authority over that part of the highwaywork being done in Texas. The State Constitutionprovides (Article16, Section 24) that the, "Legislatureshallmake provision for laying out and working public roads.
. . ." The Legislaturemay delegate this power as it sees fit. Texaa Highway Commissionv. 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 inwhich are vested powers to formulate and executeplans and policies for the location, construction andmaintenance 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 governmentheaded by the Texas Highway Commission is sp$cificallycharged by Article 6667,Vernon's Civil Statutes, to,
. . . investigateand 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 improvementof said State Highway System shall be made under the exclusive and direct control **of** the State Highway Department and with appropriationsmade by the Legislature out of the State Highway Fund.
. . . In the development of the System of State Highways 

## aa themaintenance thereof, the State Highway Connuission shall from funds available to the State Highway Department,provide: "(a) For the efficientmaintenance of all highways comprising the State System.' The term "improvement"as used inArticle 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 Constitutionof Texas, prohibits,with certain exception,enactment of special laws

## aa contains thismandate: "And in all other caseswhere a general law can be made applicable,no local or special law shallbe enacted." The Legislaturehas delegated exclusive and immediate control of the improvement

### ofthe 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 cooperationwith 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 agreementwhereby final determination of the construction requirementsand specifications,rightof-way requirements,etc., of the entireproject, are vested in any authority other than the Texas HighwayDepartment, because such an agreementwould be a relinquishmentof the exclusive and direct control delegated specificallyto 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 impliedlyauthorizepayment therefor. Article 6674q-4 specificallyauthorizesuse of suchmoneys for the efficientmaintenance of the Highway System. SUMMARY
A contractural agreementwith the State of Arkansas may be negotiatedby the Texas Highway Department for the approval of the Governor of Texas. Upon approvalby the Governor, the agreement can become a binding contracturalobligation of the State of Texas.

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

The Texas Highway Departmentmay, in order to promote more efficient constructionpractices, further the public interest, and preventwaste ofmanpower, allow personnel of the Arkansas Highway Department to do preliminary engineeringand construction engineeringwork 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 fundsmay be used to reimburse Arkansas for thatportion of the cost of suchwork 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. ExecutiveAssistant

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