Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GFRILD
c.MAraN
A”- ...OYIL Earoh 6, 1939
Deer Sir:
Pour letter 0 is hereby ao-
uest an opinion per-
. In pars-aphs nuw
k the following ques-
pleted and paid ior release the land owner
frozesay lisbilitp b,y virtue of 8uoh appli-
cation."
Also, by separate letter under date of February
lOth, you desire this Department to subdt a contraot form
.
lion. 'L. J. GittInSer,LZorch6, 1939, Pace 2
.agplIcobleunder said act and particularlyas provided
for In Seotion 5 thereof. Tho provi.sIonof Senate Bill
Fo. 227, Chapter 214, Aots of 1935, 44th LeSlsleture,and
seotlon 5 appllcablo,Is set forth In Vernon's,Annotated
Texas Civil Statutes, 1925, under &tIole 165a-1, Sec-
tion 5 and reads a8 follow:
-'TheCommissioners'Courts of the,sever-
al OOgIltd.08
may prOVidc for the construction
of improvementson the lenas lyin: Mithln
their rzcpective counties‘,in the naturo of
farm tI3rraCe8,'dikes,,ditches, soil and water
reservoirs, and other soil and water conscrva-
tion anZlerosion prevention services, assessing
the landovmerwith an aseess:nent not to exceed
tileactual cost of'lobor, notarial, and fuel,
and no charge shall be m&e for depreciation
and/or other expenses. The amount so assessed
against the lonaov.ner,shall bc and remain a
lien upon and against the lands upon which such
money was used for any or all of the Improvq-
monts mentioned in this section.
_
"The'CountyCommissioners'Courts shall
oonoult and advise with the County Farm Domon-
strators, an&/or employ other capable and ox-
perlenaed aGent or agents, In the application
,.and operation of this Act.
*The Commissioners'Court of the several
counties cannot undertake the improvements
hereon, unless the landovmer petitions said
Sourt so to do. Said courts must enter into
a written oontmot,v:iththe landoxner, for any
and all,of the.improvementsherein specified,
provided that.no oontract can.Grant the lsnd-
owner a periociof moro than ten years from
date of the contract Itsolf for payment.to .
the Commissioners'Courts of assessments
agsinst said lanDo?;nerin makin% the said lm-
provements, anti'providedfurther that Said as-
sessments shall.,bearno interest until after
ranturity,said contract form to be 6rm.n by
the Attorney General's Department. Onlg.one
contract oen be made with any individual land-
ovmcr In any one calendar year, and not more
Bon. L. J. GIttin3or,Xarch 6, 1939, i'ilS,e
3
than Threa mnarca (c300.00) Dolln.rs'shall
. bo s;;entper annum cn any one farm. Suoh
contracts shall be filed and recorded In the
office of tho County Clerk of the County In
which the lanl is situated, and such filing
shall serve to fix the lion on said land.
Anyone receiving any benefits herounder mpct
. bo the owner of racer-:of such .lendon which
any impr6vonent.s hereunder are to be ma&e;
provided further that nothing In this &t
shall affect the existing statutes regard-
Inp,InpounciInC; 2ater reservoirs."
The &poso of this provision in the act a8
ox$resscfiin tho onnctin~ oiause of the bill was to eon-
fer on the Coxnissionors1 Court of the several oounties
authority g nrovitiofor the construotlonof imgrove-
ments on 1andS in thonnture of farm terraoes.Likea.
ditches and other servioos expressed; providing for
e:sossing landowners for the aonstruotionan8 mainten-
ence’oi such Improvencntsan8 ievices, under rules and
regulations to be prescribed by the said conservation
board; providing for the contributionby the landoxners
for such improvements,enterins into contraotsu:Iththe
Commissioners'Court for same an& other purposes more
or loss conneoted with the above.
It appears, In the r.cadinf:
of Section 5 of said _
act, that the Commissioners1Court shall enter into a
.writtencontract with the landowner for any and all of
the Improvementsapeoified In said sot. The act requires
tt,atsuch assessmentbe ma&e, that a contract be entered
Into ana a lien retained, thereby securin.Sthe funds of
. .the oounty emen'$ed In suah causesand which are to be -
paid bsok by the Individual landowner.
The primary and cardinal purpose of this enaot-
ment was to create a fund an& provi8e vrhrabythe oounty,
throu,:hIts Coxmissionors'Court could, if it saw fit,
exnanz a s'umof money or its equIv&eat In labor, material
an; fuel to suoh a project, at the landownerPsroquest anG
in suoh amount as not to exceed @JOO.OO -forthe designated
improvementsin any one calendar year. Such sum available
vrithoutInterest and payments deferred, would be an in-
duoement to having the work done by any landovmer who deeirea
Hon. L. J. Gittinger,%!aroh6, 1939, 3360 4
to avail himself of the privilege.:The act Itself WI-
dently contemplatesthat t!scounty shall perioim the
Vsor!cand the latter part cf %wt10n 6 of the aot appears
to leava it within the illscretion of We Co:~mlsslonera*
Court to ;Icrr;lit
rosa machinery, Vhcn not necessarily,
in use on the. putlio roads, to be Us0a on private lands.
for purposes expressed. :;uchprovisions are as follows:~
Yin order to jZOViiS a fl13aIn nitiof
the oonstruotioni,nil nsfntennnoe of the im-
provencnts~unci structuresname;2In ~cotion 5
.of this bot, the Corn-lissioutirs~ Ccurt of aach
appropriate any amount up to twOnty-
gpy2;;
YP er cant of the net collections
mede In each suoh county of the motor vehialo
liccnne Pees not to exo~eclTwelve Thousand Xve
ilunarca($12,300.00)Dcllnrs.....Xoneysmnp
be wIth~raV~nfrom saia fund under the dircc-
tion of the Cor!;ilIssioners' Courts, and used for
the purpcoss of purchasing,maintaining and re-
PaIrInS machinery anG equipment, ani:furnishing
labor, an& any 8uCh mnchinery so purchased by
the county, an& any rosa maohinery oVXnadby
the oountg an& not noc~noarlly U8Od on the
publia roa&s, may be used on private lands for
the purpose of constructingand maintaining the
Improvementsand structuresIn this Aot pro-
vided.m
-Theabovo provisions quotod, of tho Acts of the
44th Legislature,are to bo read with and considered in
the 1IGht of the authdrity .crantedand as expressed In
Artlole 23720, Bcviosd Civil Statutes, 1923, Aots Of 1931;
42na Legislature, Chapter 33, Sootion 4 of whiah cot
reads:
"In the public service of conservI.nS the
soil ferility of the lands Of the,County,the
Commissioners'Courts shall havo the authority
to co-operatewith the land o-+!ners and tax-
peyors of th.0CorvltyIn all judiciousefforts
for the preservation of the produotivenessof
the 'soilfrom avoidable waste, anti1008 Of pro-
ductiveness of the soil from avoidable ?.aste,
ana loss of productivenessof agriculturalcrops
neces8aTy to the publia welfare, thr0U!#l pC+I’dSS-
Ion to use the machinery and equipment that may
Eon. 3,.J. GIttIn5;or,
Yorch 6, 1939, Pa5e 5
be mado available by the County for such pur-
poses under vrrittencontra&, and the County
shall rcceIvo fro3 such landownersand tax-
pnpl% COin?enSntlon,upon suoh uniform basis as
IMY bo deencd cquilable,and proper, for the
co-operationextended and nervices rendered,
all suoh compensationor funds to the county
to be paid into th::Zoad an; Eridfe Fund of
tl2eCounty; and the County Commissioners* .'
Court may provide for payments from lando:;ners ,
and taxpayer5 of the County ot suoh stated
IMervals,and In such amounts, as and when the
County taxes are oolleoted, 3s gay be equitable,
,for the use of the equipment for the protec-
tion OS lands a&aInst contInuIn5 Imrseasurcble
Injury throus:hsoil erosion; provided that the
Corz:issIoners'Court or representativethereof
shll net Co upon the:lznZ oSany owner to ix-
provlz?,
terrace, proteot, or dltoh such lands
until requested to do so In wrItIn by suoh
mmer; and provided further, that the Commission-
ers' Court or repre5enontIvethereof shall not
be rquired to dossuch Improving,terracIn5,
protecting, and dItchin unless such Court shall
determine that suoh work is of some publio
benefit and said Court elects to do the work.D
The Act of the 44th Legislature bclnp,enaotcd after the .
ona last referred to and on the same penoral subject, its
S>CCiKC $rovIsIonswill control and prevail over the
prior eat v:hcreIts provIsions are general - the two
acts not necossarIly.contlIctin~.Suoh fu$ds advanced
for labor, material and fuel fumnished under either
provisionsof our statutes must be done by written con-
traot and orders duly made ahd entered upon the minutes
of said oourt.
In Volume 11, Tex. Sm., Pera. 95, p. 632, it
Is said the authority of the Commissioners'Court as the
'governingbGdy.oS the uo,untyto make oontreots in its
behalf Is str&ctly limited to that conferred either ex6rs6s-
ly or by fair or neoessary implicationby the Constitution
and laws of the State. ,AlsO: .
*%I dealing with the county, it Is necess-
ary to have an express contraot with the Corn-
missioners* Court and that court can only speak
EIon.L. J. CittInCsr,i.Virch
6, 1339, Pago'6
by and through its minutes and records."
FerrIer vs. FZGI (Civ. 2.g.) 33.SA'896,8.
Xe arc unable to extend the F-,?ortOS,the plain
and unambiguous lenqa::e used In these enactncntsto In-
clude an arrenpemnt cs expressed In your letter, portions
of which aro 'aboveset forth. The act provides for:
*AsscssInCthe landoT::ner
with an access-
ment.n
And unless a lanco?:nerdesires to avail hI.mselSof this
esecssrnsnt with payments deferred and withoutinterest, we
can conceive of no sueh benefits added cr acoruin5 to his
land by the use of county fund::or amount assosscd,when
his own money which would sdoquatoly pay for and provide
said Inprovcmonts,Is v:lthiclCin escrow.
Ye find no Inhibition,of course, for the Com-
misslocers'~^ourt to perforiasaid work after CeInC pctl-
tioned, asseGsz=sntmade end a contract entered Into, from
accepting cash In payzst of the assessmentprior to the
m&in: of said lmprovc~ents.
It is, therefore, the opinion of this Department
that the Commissioners Court would not be authorizedto.
construct or provide for tbo construction Gf inyovencnts .
as mentlonod In Article 165a-1, Devised Civil Statutes and
ZectIon 5 thereof.byallowin cash as security &n lieu of
n contmot retainin!:, a lien as provided therein and that
it v:Guld be necessary that said lien, in all instances
. where paymentsazredeferred; be filed and recorded.
In keeDing with this opinion end as per your re-
quest;ve hGrelrrith.submlta form oontraot,bearIn the ap-
proval of this Dcyertmcnt,for such improvementsas are
desired to bo made under the prOviSiOnS cf Seid ATtiCk
'165a-1,Devised Civil Statutes and as provided In Section
.5 thereof.
Very truly yours