Untitled Texas Attorney General Opinion ( 1940 )

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EiWE
Honorable 0. E. Cerron
County Attorney
Ector County
Odessa, Texas
Opinion No. O-2501
Re: ,Eligibility of certain bonds
of Ector County to partici-
pate in the County and Road
District Highway Fund provided,
in House Bill No.6aa, 'Forty-
Sixth Legislature, Regular
Session, 1939.
Dear Sir:
We are in receipt of your request for our opinion
as to the eligibility of certain bonds issued by Ector County,
the proceedsof which allegedly have been expended upon roads
now constituting a part of the designated State Highway Sys-
tem, that is, whether the bonds are eligible to participate
in the funds coming into the Board of County,and District
Road Indebffednessas provided in House Bill 688, Forty-sixth
Legislature, Regular Session, 1939.
The facts, briefly stated, are as follows:
On May 22, 1937, Ector County voted $135,000 of Road
Bonds, which bonds were sold August 1, 1937, and the proceeds
thereof expended in the purchase of a right-of-way, 120,feet
in width, the fencing of same, and on November 13, 1937, a~con-
tract was let by the Commissionerst Court for the purpose of
constructing grading and drainage structures and a flexible
base on the first 12.71 miles of a road extending northwest
from Odessa toward the Winkler County line. The first section
was completed by the contractor on June 14, 1938, and paid for
from the proceeds of this bond issue,
. .
Honorable O.,E. Gerron, page 2
At a public hearing of the State Highway,Commis-
sion in Austin on June 21, 1938, representatives of the
Commissioners1 Court of Ector County appeared in behalf of
a road from Winkler County to Odessa and Midland, at which
time the State Highway Commission adopted Minute No.15111,
which reads, in part, as follows:
"In Wlnkler and Ector County it is the ex-
pressed intention of the Highway Commission to
add to the State Highway System at some future date
a road from Kermit extending northeast to the Wink-
ler-gctor County Line, and thence northeast across
EctorCounty via Qoldsmith to an intersection with
Highway Non.51~north of 'Odessaat the present inter-
section of HighwayNo. 51 and 158, and it is further
intended at some future date to add to the State
Highway System a road from Odessa northwest to an
intersection with the above described route at a
goint about 7-l/2 miles northeast of the Ector-
~Nihkler County Line."
Minute No. 15111 of the Highway Commission records is
lengthy and will not be quoted here in full, but it must be
noted in theread'%fgof said minute that certain conditions are
imposed which must be complied with prior to the time such
designation shall become effective. This being a condition
precedent, it calls for the performance of some act or then
happening of some event after the terms of the contract have
been agreed upon before the contract shall take effect. You
have stated in your communication that Ector County has com-
plied with all of the terms laid down'in the minutes of the
Highway Commission~relative to the obtaining of the right-of-
way, the grading and drainage structures and the construction
of the flexible base for such road.
According to the information supplied us; that part
of the road extendqpg northwestwardly from Odessa to a connec-
tion with the State Highway running east from Kermit &n Wink-
ler County was not finally and officially designated as a part
of the State Highway System until June 20, 1939; however, in
the adoption of Minute No.16373 the Highway Commission direct-
ly referred to Minute No.15114, here%iabove quoted, by can-
celling such minute and adopting Minute No.16373 in lieu
Honorable 0. E. Gerron, page 3
thereof. This highway was designated as Highway No. 302
of the State Highway System.
Paragraph 2 of Section 6a of House 'Bill~688, supra,
reads as follows:,
"In the event the State Highway Commission
has on a date prior to January 2, 1939, ind,icated:_'
its intention of designating as ,StateH.ighwaysthe'~
public roads of any county or defined road dis-
trict in this state, and has evidenced such in-~~
tention in its official records or files, then the
provisions of this Act shall apply as if the roads
had actually been designated prior to January 2,,1939.':
;
The language of Minute No.15111, which is'a part of
the official records of the State Highway Commission and is
dated June 21, 1938, clearly reveals that the Highway Corn-,
mission intended at some future date to designate a road in
H?tor County running northwesterly from Odessa toward the
Winkler County Line as a part of the State Highway System,
which we think brings it within the terms of the above
quoted paragraph from House Bill 688. It will be noted that
such paragraph provides that the Commission shall have in-
dicated its intention of designating as State Highways'tbhe
public roads of any county or def~inedroad district, and
shall have evidenced such intention in its official records,
or files. Article 6666 of Vernon's Annotated Civil'Statutes
provides that the Commission shall maintain a record,of all
proceedings and official orders and keep on file copies of
all road plans, specifications and estimates prepared,,
by the department or under its direction. We think,that
Minute No.15111 complies with the terms prescribed in para-
graph 2 of Section 6a of House Bill 688 and evidences t.he.. ',
intention of the Highway Commission to designate such road,
and that the intention has been properly recorded in the
official records of the Commission. An official record
is one made by a public officer in pursuance of a duty and
which serves as a memorial of official transactions for pub-
lic referencer: It is our opinion that the indication of an
intention of designating a road as a part of the State High-
way System must have been formally recorded in the official
records of the Highway Commission and shall have been adopt-
ed by the Commission at a regular or called meeting, It is
obvious from the information supplied in your communication
that the Highway~Commission has in the past acted with suffi-
cient formality with reference to the designation of this
particular road in Hctor County to bring same within the
Honorable 0. E. Gerron, page 4
terms of Section 6a of House Bill 688.
Your question reads as follows:
"Will you please advise if in your opinion
this expenditure by Ector County and the bond
issue from which it was derived is eligible to
participate in the distribution of moneys com-
ing into the County and District Highway Fhnd
as provided for in House Bill 688, passed by the
Forty-sixth Legislature, Regular Session, 1939,
in compliance with paragraphs 2 and 3 of Section
6a thereof."
We do not think paragraph 3 of Section 6a applicable,
and advise that your question should be answered in the afL
flrmative.
Trusting that the foregoing satisfactorily answers
your inquiry, we are
Yours very truly
ATTORREYGERERAL OFTEXAS
BY s/ Clarence E. Crowe
ClarenCe'E,.Crowe
APPROVED Aug.9,19'(0 Assistant
Grover Sellers
First Assistant Attorney General
APPROVED Opinion Committee
by BWB, Chairman
CEC:s:bt