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GERALD C. MANN




  Honorable   Chas.    A.   Tosch
  County Auditor
  Dallas County
  Hall of Records
  Dallas,   Texas

  Dear Sir:                           Opinion No. o-1164
                                      Re:   Can salaries of right-of-way                agents
                                            be paid from the right-of-way                bond
                                            fund?

                                              Explanation:      of our opinion No.
                                              O-1379, pertaining      to the method of
                                              the payment of compensatih       to
                                              similar   special    employees.

  We acknowledge    receipt         of your    letter       of   recent   date,   from which     we
  quote as follows:

   “Can salaries     of right-of-way         agents employed by the County to work
   exclusively    on the projects         for which the bonds were voted be paid
   out-of    bond funds?

   “Your opinion   to Moseley    is very clear  and answers the purpose in so
   far as the appraisers’     fees are concerned,   but the Commissionerst
   Court of.this   County has employed several     right-of-way    agents, on
   salaries,   who make the actual     purchase of the right-of-way.

   ‘We are very anxious to know whether                    or not    these   salaries   can be
   paid out of the same fund, . . .‘I

   This opinion   supplements.and   explains,  in certain   particulars,     our
   opinion  No. O-1379, addressed    to HonorableZE.    G. Moseley,    Civil
   District  Attorney,   Dallas,  Texas.

   Our department      held in opinion No. O-1379,           that the Commissioners’
   Court of Dallas County is authorized              to employ an attorney         and
   appraisers    in the acquisition         of rights-of-way,      and to pay the
   compensation      of such employees out of the funds derived                from the
   sale of bonds voted by the people of Dallas County for the DUrpOSe
   of constructing       roads and highways and acquiring            rights-of-way
   therefor.     The reasoning       set forth    in that opinion,       and the
   authorities     cited    therein,    likewise   justify     the conclusion      that
   the Conunissionerst       Court of Dallas County is authorized              to employ
Honorable      Chas.   A.   Tosch,     Page 2,     O-1164



right-of-way      agents     for     the-purpose     of making the   actual
purchases      of the rights-of-way.
Pertaining    to the method of the payment of the compensation   of
such special    employees,  there appears in our opinion No. O-1379
the following    statement:
(1. . .that the appraisers  may be compensated on a per tract
or per day basis- in a reasonable  sum-from the bond-funds.   . .‘I

and
II. . .we believe  that the attorney                should be employed for a
specific   sum of money to institute                and prosecute condemnat ion
law suits.   . .”

After   carefully    considering       the question       of the basis of the
payment of compensation         to such authorized          special    employees,
which may be adopted by the commissioners~                  court,    we feel     that
our opinion No. O-1379 in such respects,                  should be clarified.
The cases cited      in our opinion        referred     to, did not invol,ve
the    question    of the method of payment of compensation                  to indivl-
duals specially      employed by a commissionersf              court,   whether      the
individual     were an architect         (Russell    v. Cage, 1 S.W. 270) or an
attorney     (City National     Bank V. Presidio           County 26 S.W. 775;
Grooms v. Atascosa,        32 S.W. 188; Jones v. Veltman,               171 S.W. 287;
Galveston     County v. Gresham, 220 5. W. 560) or a paving company
to manage, supervise,         operate,     advise,     and so forth,      in the
construction      of a two million        dollar    county road system (Gulf
Bitulithic     Company v. Nueces County,            11 S.W. (2nd) 305).           These
cases are authority        for the proposition           that in certain       situations,
the commissionersr        court   is authorized        to contract     for special
assistance,      and further    that the compensation            payable    in such
situations     must be reasonable         and c0mmensurat.e with the services
required     and actually     performed.

Possessing     the authority      to employ appraisers,        right-of-way      agents
and/or an attorney,        and the corollary        right to compensate        such
employees,     the method or basis        of the payment of such compensation
becomes peculiarly        the function     of the commlsslonerst         court    to
determine     in consonance     with the test of reasonableness             invoked
in the cited      cases.    Manifestly,      this quPstlon can only be pro-
perly resolved       by practical     considerations;       in other words,       in
 the manner whereby the county will              receive    the required     services
in return for the most economical             financial     expenditures.       Questions
of fact and of the exercise           of discretion      only are involved.          It
is not the prerogative         of this department to resolve            such fact and
discretionary      questions,     assume It would be more practicable               and
economical      to compensate an appraiser,           or a right-of-way      agent,     or
an attorney      on a per day or a per tract           or a salary basis,       and
thereupon     rule that the commissioners          1 court would be unauthorized
,   .




        Honorable     Chas.     A. Tosch,       Page 3, O-1164



        adopt either  of these methods.     We merely recognize     that it is
        the duty of the commissioners    t court to adopt the most practic-
        able and economical    method for the county,      and point out that
        the court would be unauthorized       to compensate any special    employee
        beyond the limit of a reasonable       expenditure   commensurate with
        the services  required   and actually    rendered.

        You are therefore      respectfully    advised that it is the opinion            of
        this department      that the Commissioners*      Court of Dallas County
        is authorized     to employ right-of-way      agents to work on the
        proJects   for which the bonds were voted,          the compensation        of
        whom may be paid out of the funds received             from our opinion        No;O-
        1379, the compensation        of such employee,     together     with that of an
        apprasier    and/or an attorney,     which the commissionersr           court   is
        authorized    to employ as held in the opinion           referred    to, may be
        paid on a per day or a per tract         or a salary basis,         provided    the
        compensation     paid is reasonable     expenditure      commensurate with
        the services     required   and actually    rendered.

        ;;;;;ng       that    the   foregoingadequately      answers       your    inquiry,   we
                  t
                                                          Yours   very     truly

                                                    ATTORNEYGENERALOF TEXAS


                                                                     Walter     F. Koch
                                                                              Assistant

                                                    BY
                                                            Zollie       C. Steakley

        ZCS:PAM!cge

        APPRCVEDJAN13, 1940

        GERALDC. MANN
        ATTORNEYGENERALOF TEXAS

        Approved Opinion            Committee
        By BWB, Chairman