HonorableW. 0. Reed, Chairman AppropriationaConrnlttee House of Representatives Austin, Texan
Dear Sir: OpinionNo. O-3245 Ret Authorityof legislatureto appropriate from State HighwayFund to pay Judeplent obtainedby W. 5. Hale and wife against the State of Texas.
Your letterof March 6th, 1941,request6the opinionof this Department upon the questionwhether the Legialatti'emay appropriatefrom the State HighwayFund moneys to pay the judgmantrenderedagainatthe State of Terse in the case of W. S. Hale, et ux, va. The State of Texas, et al.
It appearsthat the &nd Legislature,at its RrgulsrSession in 1931,In Senate BillNo. 197, grantedpormiaaionto W. S. Hale and Wife, M3ry D. Hale, to use the State of Texds and the State Highway Commiasionfor damagesoccasionedto the landa be Sing to the Hales, by reason of the constructionof State Highwe,No. 4 Y in such manner as to over flow and otherwisedamage the Hale land. Suit was filed and judgmentrenderedfor the Hales agalnstthe State of Texas. (See State v. Hale (Texas)146 S. W (2d)731) No reason occurs to us, and none has been suggested,why the Legislature may not appropriatefrom the State HighwayFund to pay this judgnmnt. The State HighwayFund is availablefor the paymentof the expensesIncident to the establishment, constructionand maintenanceof State Highways.'The State has vested in the State Highway Commissionfull authority,and charged it with the duty to designate,lay out and constructpublichigh- ways. It has the right, aa the agent of the State, to take, damageor destroyprivatepropertyT>r public use. This right has been guaranteedby our Constitution.Public Xo:!ds are a great public convenience,and, if necessaryto carry out plans for the completionof a public road, pr?.F%te propertymq~ be totallyor partiallytaken or damagedto accomplishthat purpose. This carrieswith it the power, if need be, that a servitudemay be createdon land not actuallytaken or occupiedby the publichighway, for the purposeof carryingoff,thewater, the naturalflow of which is changedor divertedby theconstruction of such highway."(Statev. Sale, supra) It is clear that the comperxat'ionof :persona for property"taken" HonorableW. 0. Reed, page #2 (O-3245)
for publichighwaypurposes,as In the Hale case, i~,a,n expew. incident to the establishment, constructionand main~;~;~~n~e~oL C$ijteK;&ays. No question,therefore,can arise as to'heappiopriationbeing an unconstitutional diversionof a specialfund. The applicationof a portion of the fund to the satisfactionof this judgmentIs but the application of that portionof the fund to one of the very purposesfor which the fund was created.
You are advisedthat, in our opinion,the Legislaturehas "bhepower to appropriatefrom the State HighwayFund moneys to pay the judgmentrendered againstthe State of Texas ln the case of W. S. Hale, et ux, v. The State of Texas, et al.
Yours very truly,
AlTORNEY0ENERALOFTEEP.S
s/Richard W. Fairchild
BY RichardW. Fairchild Amslstant
APPROVEDMAR. 13, 1941 a/ GEIIALD c. MANN ATTORNEYCEXEBALOFTEXAS
APPROVEDOPINIONCOMMITTEE By B. W. B. CHAhMAN