Untitled Texas Attorney General Opinion ( 1939 )

Eon. Bill S. Watkins Opinion Wo. O-962
County Gtorney Re: Could “acquisitionof right-of-
Llano County way” be construed to include the fee
Llano, Texas charged by an engineer for making a
survey of a road that is included in
Dear Sir: the call for the bond election?
We have your letter of recent date requesting an
oi>inionon the above stated question.
We quote from your letter as fOllOidS:
“I am exlosing herewith a copy of a resolu-
tion passed :-‘y
the CommissionersICourt of Llano
County, Texas, prior to the passa;e of the bond
issue mentioned in said resolution.
“Some time before said election a group of
private citizens of this county hired~a civil en-
gineer to make a survey of the proposed Brady road
mentioned in subdivision(a) of said resolution.
These citizens asreed to pay said engineer w:henaad
if silic!
surve:;s!louldbe approved by the Highway
Department.
“The -&;ineers of the I;i,?;hway
Department ap-
;xoved said survey; and said bond issue having been
voted by the :>eo-,le
in the meantime, these citizens
requested the county to pay the fee charged b:rsaid
Engineer~for said.survey out of the bond money voted.
“The ;,uestionar?.singin .themind of th< ><:riter
‘acquisitionof right-of-way’could be
was w:-iether
construed to include fee charged by an engineer for
making a survey of a road that is included in the
call for the box? election. The Commissioners’Court
is willing:to ~>,a;?
this fee if tileycan legally pay
saxe out of this bond money. I shall therefore a,Jpre-
ciate very much :;ourgivin;;ile,-ouro:>inionon the
legality of su.c;i
1 ~~ayment.”
11;is elexn’tarytiltitthe funds derived from the sale
of bonds ma:;::otbe diverted from the i_$ur.noses
specified in t?le
li .,
Hon. Bill S. Watkins, page #2.
roposition submittedto the electors. Aransas County v.
Eoleman-FultonPasture Company, 191 S.W. 553, Heathman v.
Singletary,12 S.W. (2d) 150, Huggins v. Baden, 259 S.W.
204.
It follows that where a departure from the proposi-
tion appearing on the ballot paper is alleged, the only ques-
tion is whether the expenditure contemplatedis within or
without the propositionupon.its true construction. Adams v.
Mullen, 244 S.W. 1083.
Construing propositionsto this end, it has been
held by the courts that "road" includes a bridge constituting
a necessary length in the road, and that l%urnpikes"means
hard-surfacedroads. Aransas County v. Coleman-fultonPasture
Company and Adams v. Mullen, supra.
The Attorney General's office has held in an opinion
written by the Honorable Scott Gaines, former Assistant Attor-
ney General, that road bond money may be used in construction
of the proper drains and ditches when such are appropriately
and incidentallyconnectedwith the constructionof the road
proper.
And by an analogy of reasoning we see no reason why
it would not be held that a survey is necessary in the "acqui-
sition of the right-of-way."
Therefore, it is the opinion of this department that
if the Commissioners'Court desires to pay the fee charged by
the engineer for making a survey of the road, it may enter.an
order finding that the survey was necessary to the acquisition
of the right-of-way,and may legally pay for same out of the
bond money.
However, we want it clearly understood that we are
not holding that the Commissioners'Court must assume the debt
set out in your letter, but the fact that a survey is neces-
sary to the "acquisitionof a right-of-way",they may assume
the debt if they so desire.
Trusting that this answers your question,we remain,
APPROVEDJTJL14, 1939 Very truly yours
s/ W. F. Moore OF mxAs
ATTORNEY cz3~mfi.L
FIRST ASSISTANT By /s/ Claud 0. Boothman
ATTORNEY GENERAL Claud 0. Boothman, Assistant
APPROVED:,OPINIONCOMMITTEE
BY: WRK. CHAIRMAN
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