When a Texas county builds a farm-to-market road, does the state have to pay most of the cost of buying the right-of-way?

Texas AG Opinion JM-1101: Are Farm-to-Market Roads "State Highways" for Right-of-Way Cost?

Plain-English summary

Texas splits the cost of building roads between the state and the counties, and one of the biggest costs is buying the strips of land (the right-of-way) the road runs on. A state senator asked the Attorney General a money question with real stakes for rural counties: when the state and a county cooperate to build a farm-to-market road, does the state have to pick up at least 90 percent of the right-of-way cost, the way it does for state highways under section 4.301(c) of the County Road and Bridge Act? The State Department of Highways and Public Transportation had never treated farm-to-market roads that way, and counties had traditionally paid the full right-of-way cost themselves.

The Attorney General agreed with that traditional practice: farm-to-market roads are not "state highways" for purposes of that 90 percent reimbursement. Several lines of reasoning pointed the same direction. The farm-to-market statutes generally call these routes "roads," not "state highways," and treat them as feeder roads that primarily serve local traffic and connect county roads to the larger state system. Because these roads mainly benefit local users, it made sense that the county acquiring the land would bear that cost.

The legislative history sealed it. The 90 percent reimbursement provision came from a 1957 law (House Bill 620), passed after a Texas Research League report recommended that the state start paying a share of right-of-way costs for interstate and major state highways, but expressly recommended that counties keep providing the right-of-way for farm-to-market roads, since those were often built along existing county road corridors and the extra land was frequently donated by the neighboring owners who benefited most. When House Bill 620 was on the floor, a proposed amendment to extend the reimbursement to farm-to-market roads later converted to state highways was rejected, which itself signaled that farm-to-market roads were not covered.

The opinion also worked through older court decisions that had called farm-to-market roads part of the "state highway system." It explained those cases arose under a different statute (about a commissioners court's authority to condemn land for the state) and did not concern reimbursement. One of them, decided after the 1957 reimbursement law, even involved an arrangement where the county furnished the right-of-way free of cost to the state. So calling a farm-to-market road part of the highway system for condemnation purposes did not mean the state had to pay for its right-of-way. The bottom line: counties, not the state, foot the full right-of-way bill for farm-to-market roads.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The County Road and Bridge Act and related highway statutes cited here (article 6702-1 and the older articles 6673c, 6674n, and 6673e-1, V.T.C.S.) were later repealed and recodified into the Texas Transportation Code, and the state highway agency was reorganized into the Texas Department of Transportation. Right-of-way cost-sharing rules for various road classes have been amended since 1989. Anyone dealing with a present-day road right-of-way funding question should work from the current Transportation Code and department policy rather than the 1989 statutes here.

Who this opinion affected (as of 1989)

County commissioners and county budgets: The opinion confirmed the long-standing practice that counties pay the full cost of acquiring right-of-way for farm-to-market roads. There was no 90 percent state reimbursement to count on for those projects.

The State Department of Highways and Public Transportation: The opinion backed the department's existing position that farm-to-market roads fall outside the section 4.301(c) reimbursement, so the state was not obligated to cover most of the right-of-way cost for them.

Rural landowners: For owners along a proposed farm-to-market route, the opinion reflected a system in which the needed right-of-way was often obtained at nominal cost or donated, on the theory that abutting owners were the primary beneficiaries of the road.

Common questions

Does the state pay 90 percent of the right-of-way cost for a farm-to-market road?
No. The Attorney General concluded farm-to-market roads are not "state highways" under section 4.301(c), so the state's 90 percent reimbursement for state-highway right-of-way does not apply. Counties bear the full cost.

Why aren't farm-to-market roads treated as state highways here?
Because the statutes call them "roads" serving mainly local traffic, and the legislative history of the 1957 reimbursement law shows it was aimed at interstate and major state highways, with counties expected to keep providing right-of-way for farm-to-market roads.

Some old cases call farm-to-market roads part of the state highway system. Doesn't that help?
Not for reimbursement. Those cases arose under a different statute about a commissioners court's authority to condemn land for the state, not about who pays for the right-of-way. One even involved the county furnishing the right-of-way free to the state.

What did the rejected 1957 amendment show?
A floor amendment to House Bill 620 would have extended the reimbursement to farm-to-market roads later changed to state highways. Its rejection indicated that farm-to-market roads were not "state designated highways" within the reimbursement provision.

Background and statutory framework

Section 4.301(a) of the County Road and Bridge Act (article 6702-1, V.T.C.S., § 1.001) authorizes a commissioners court to condemn land the State Highway and Public Transportation Commission determines is needed for a state highway. Section 4.301(c) directs the State Department of Highways and Public Transportation, in acquiring right-of-way for "all highways designated by the State Highway and Public Transportation Commission as United States or state highways," to pay counties and cities not less than 90 percent of the value of the requested right-of-way. The question was whether farm-to-market roads fall within that designation.

Farm-to-market roads are generally rural feeder roads jointly built and maintained by the state and counties, carrying local traffic between the major highway system and county roads. 36 D. Brooks, County and Special District Law § 40.23 (Texas Practice 1989). A 1943 enactment authorized the highway commission to designate any county road as a farm-to-market road for construction, reconstruction, and maintenance. Acts 1943, 48th Leg., ch. 244 (codified as V.T.C.S. art. 6673c). Counties may levy an ad valorem tax to fund such roads and cooperate with the highway department to acquire right-of-way. Tex. Const. art. VIII, § 1-a; V.T.C.S. art. 6702-1, § 4.103; Attorney General Opinion V-1169 (1951). The farm-to-market road fund (§ 4.002) finances a system of roads that "shall serve rural areas primarily," "shall not be potential additions to the federal aid primary highway system," and should connect at one end with a road on the state system. § 4.002(d). Because these provisions call the routes "roads" and they primarily serve local needs, the opinion concluded they are not "state highways" for which the state must reimburse right-of-way costs under section 4.301(c).

The legislative history reinforced that reading. Section 4.301(c) derives from former article 6673e-1, adopted in 1957 (House Bill 620) to let the highway department pay for right-of-way for certain highways; before 1957, local governments paid the entire right-of-way cost for state highways. A Texas Research League report to the highway commission recommended paying a percentage of right-of-way cost for interstate and primary and secondary state highway projects, while continuing to require local governments to provide right-of-way for farm and ranch to market roads, reasoning that such roads were often built along existing county road corridors and the extra land was frequently donated by abutting owners who were the primary beneficiaries. When House Bill 620 was at second reading, the House rejected a proposed section 4 that would have extended the act to county right-of-way costs for farm-to-market roads changed to state-designated highways within ten years of construction. H.J. of Tex., 55th Leg., Reg. Sess. 2435 (1957). That rejection indicated farm-to-market roads were not state-designated highways within the reimbursement provision.

The opinion then reconciled older case law. Subsections 4.301(a) and (b) derive from former article 6674n (1925, amended 1929), which authorized a commissioners court to secure and pay for right-of-way for state highways. The court in Gill v. Falls County, 243 S.W.2d 277 (Tex. Civ. App. - Waco 1951, no writ), considered a case where the state, through the commissioners court, condemned land for a farm-to-market road; the property owners argued a farm-to-market road was a local road outside the designated highway system, and the court found the highway commission had implied authority under article 6673c to condemn land for farm-to-market roads. In W. L. Moody Cotton Co. v. Commissioners' Court of Montague County, 261 S.W.2d 204 (Tex. Civ. App. - Fort Worth 1953, no writ), the court held article 6674n authorized the commissioners court to condemn land in the name of the state for right-of-way for any road in the state highway system and that the farm-to-market road there was such a road. Both were decided before the 1957 reimbursement law. The decision in Bolin v. Brazoria County, 381 S.W.2d 206, 209 (Tex. Civ. App. - Houston 1964, no writ), came after 1957; there the county furnished the right-of-way free of cost to the state, and the court held the farm-to-market designation "suffices to make it a part of the Highway system" for condemnation, yet the state paid none of the right-of-way cost. The opinion concluded these holdings are not inconsistent with its reading that section 4.301(c) does not require the state to reimburse 90 percent of the cost of acquiring right-of-way for farm-to-market roads. See also Jefferson County v. Board of County & District Road Indebtedness, 182 S.W.2d 908, 912 (Tex. 1944) (article 6673c one of a series of enactments shifting most road costs from counties to the state); Attorney General Opinions V-1115 (1950), V-1282 (1951).

Citations

Statutory and constitutional authorities:

• County Road and Bridge Act, V.T.C.S. art. 6702-1, § 4.301 (§ 4.301(a) condemnation for state highways; § 4.301(c) 90 percent state reimbursement of right-of-way cost for United States or state highways)
• V.T.C.S. art. 6702-1, § 4.002 (farm-to-market road fund; character of eligible roads); § 4.103 (county tax and cooperation with highway department)
• V.T.C.S. art. 6673c (authority to designate county roads as farm-to-market roads)
• V.T.C.S. art. 6674n (predecessor of § 4.301(a), (b); condemnation for state highways)
• V.T.C.S. art. 6673e-1 (former 1957 provision, predecessor of § 4.301(c))
• Texas Constitution art. VIII, § 1-a (county ad valorem tax for farm-to-market roads)

Cases:

• Bolin v. Brazoria County, 381 S.W.2d 206 (Tex. Civ. App. - Houston 1964, no writ) (farm-to-market designation makes a road part of the highway system for condemnation, though county furnished right-of-way free of cost to the state)
• W. L. Moody Cotton Co. v. Commissioners' Court of Montague County, 261 S.W.2d 204 (Tex. Civ. App. - Fort Worth 1953, no writ) (article 6674n authorized condemnation for a road in the state highway system, and the farm-to-market road was such a road)
• Gill v. Falls County, 243 S.W.2d 277 (Tex. Civ. App. - Waco 1951, no writ) (highway commission had implied authority under article 6673c to condemn land for farm-to-market roads)
• Jefferson County v. Board of County & District Road Indebtedness, 182 S.W.2d 908 (Tex. 1944) (article 6673c one of a series shifting road costs from counties to the state)

Attorney General opinions referenced:

• V-1169 (1951); V-1115 (1950); V-1282 (1951)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1101
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1101.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. (The opinion number is JM-1101; the scan's first line mis-renders it as "JR-1101.")

September 25, 1989

Honorable John T. Montford
Chairman
State Affairs Committee
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. JM-1101

Re: Whether a farm-to-market road is a "state highway" for purposes of right-of-way acquisition under section 4.301(c) of article 6702-1, V.T.C.S. (RQ-1708)

Dear Senator Montford:

You ask whether farm-to-market roads are "state highways" within section 4.301(c) of article 6702-1, V.T.C.S., which provides that the state shall pay 90 percent of the cost of acquiring right-of-way for state highways. The State Department of Highways and Public Transportation has not viewed farm-to-market roads as state highways within that provision, and the counties have traditionally paid the full cost of right-of-way acquisition.

The provision you inquire about is part of the County Road and Bridge Act. V.T.C.S. art. 6702-1, § 1.001. Section 4.301(a) of this act authorizes the commissioners court to condemn land which the State Highway and Public Transportation Commission determines is needed for a state highway. Section 4.301(c) makes the following provision for payment for right-of-way secured for certain highways:

In the acquisition of all rights-of-way authorized and requested by the State Department of Highways and Public Transportation in cooperation with local officials for all highways designated by the State Highway and Public Transportation Commission as United States or state highways, the State Department of Highways and Public Transportation is authorized and directed to pay to the counties and cities not less than 90 percent of the value . . . of the requested right-of-way . . . . (Emphasis added.)

The question before us is whether farm-to-market roads are designated as state highways within section 4.301(c) of article 6702-1, V.T.C.S. Some consideration of the role of farm-to-market roads in the network of Texas highways and roads will help us to answer this question.

Farm-to-market roads are generally rural roads that may be jointly constructed and maintained by the state and counties. 36 D. Brooks, County and Special District Law § 40.23 (Texas Practice 1989). They carry local traffic and serve as feeder roads between the major highway system and local county roads. Texas Legislative Council, Texas Roads and Highways 37, 46, 136 (Oct. 1952) (Staff Research Report 52-3). The state began a program of building farm-to-market roads in response to public demand that it take some action to insure all-weather surfaces on the more important local roads. Texas Research League, A Program for Texas Highways: A Digest of a Report to the Texas State Highway Commission (1957). A 1943 enactment authorizes the highway commission to designate "any county road in the state as a farm-to-market road for purposes of construction, reconstruction, and maintenance . . . ." Acts 1943, 48th Leg., ch. 244, at 365 (codified as V.T.C.S. art. 6673c).[1] Counties may levy an ad valorem tax to fund the construction of farm-to-market roads and may use the tax revenues in cooperation with the highway department to acquire rights-of-way for and to build and maintain such roads. Tex. Const. art. VIII, § 1-a; V.T.C.S. art. 6702-1, § 4.103 (implementing legislation); Attorney General Opinion V-1169 (1951).

A farm-to-market road fund is established by section 4.002 of article 6702-1, V.T.C.S., to finance the construction, improvement, and maintenance of farm-to-market roads by the highway department. The fund is to be used for a system of roads selected by the State Department of Highways and Public Transportation after consultation with the commissioners courts of the counties as to the most needed roads in the counties. V.T.C.S. art. 6702-1, § 4.002(c). The roads "shall serve rural areas primarily" and "shall not be potential additions to the federal aid primary highway

[1] Article 6673c, V.T.C.S., appears to be one of a series of enactments which shifted most of the costs of providing highways and roads from the counties to the state. See generally Jefferson County v. Board of County and Dist. Road Indebtedness, 182 S.W.2d 908, 912 (Tex. 1944); see also V.T.C.S. arts. 6670, 6673, 6674b, 6674q-2, 6674q-4; Attorney General Opinion V-1115 (1950).

system . . . ." Id. § 4.002(d). They are moreover to "be capable of early integration with the previously improved road system, and at least one end should connect with a road already or soon to be improved on the State system . . . ." Id. § 4.002(d)(5) (emphasis added).

The provisions on building and financing farm-to-market roads generally refer to them as roads, and not state highways, thus suggesting that they are not state highways within section 4.301(c) of article 6702-1, V.T.C.S. These roads primarily serve local needs for transportation and for access to other state roads, rather than the needs of traffic going through the county or the state. Thus, in acquiring the right-of-way for a farm-to-market road the county is ordinarily paying a cost of a facility that will principally benefit local users. Both the language and the purposes of farm-to-market legislation persuade us that these roads are not state highways for which the state must reimburse right-of-way costs under section 4.301(c).

The circumstances under which the predecessor of section 4.301(c), article 6702-1, V.T.C.S., was enacted and its legislative history also support our construction of this provision. Section 4.301(c) derives from former article 6673e-1, adopted in 1957 to authorize the highway department to spend money for "the purchase of rights of way for certain highways under certain conditions . . . ." Acts 1957, 55th Leg., ch. 301, § 1, at 731 (title). Before 1957, local governments had to pay the entire cost of right-of-way for state highways. Texas' New Highway Right-Of-Way Policy, TEX. RESEARCH LEAGUE ANALYZES, July 17, 1957. In that year the legislature changed this practice by adopting House Bill 620, codified in part as article 6673e-1, V.T.C.S., and later recodified as section 4.301(c) of article 6702-1, V.T.C.S.

A contemporary report on Texas highways prepared by the Texas Research League at the request of the highway commission proposed a solution to the "right-of-way problem" that was subsequently adopted as House Bill 620. Texas Research League, A Program for Texas Highways: A Report to the Texas Highway Commission, ch. V, "The Right of Way Problem" (1957). The report recommended that the State Highway Commission establish a policy of paying a percentage of the cost of right-of-way on interstate highway system projects and primary and secondary state highway system projects. Id. at 65. It also recommended that the highway commission "continue to require local governments to purchase or otherwise provide the right-of-way for state farm and ranch to market roads." Id. at 67. The report explained its different treatment for farm-to-market roads on the ground that most of them were built, at least in part, along rights-of-way originally used for a county road. The amount of additional right-of-way required could usually be obtained at nominal cost and in many cases would be donated by the abutting land owners "who are after all, the primary beneficiaries of the project." Id.

Section 1 of House Bill 620 appears to embody the suggestions of the Texas Research League report as to providing reimbursement for costs of acquiring right-of-way for interstate highways and major state highways, but not for farm-to-market roads.[3] When the bill was being considered at second reading by the House, the following amendment was proposed and rejected:

Section 4. The provisions of this act shall also apply to the county expended costs of right-of-ways and right-of-way easements of Farm to Market Roads changed to State designated Highways within ten years of their construction.

H.J. of Tex., 55th Leg., Reg. Sess. 2435 (1957). The text of the rejected amendment indicates that farm-to-market roads are not state designated highways within section 1 of House Bill 620, which became article 6673e-1, V.T.C.S. Thus, section 4.301(c) of article 6702-1, V.T.C.S., which carries forward the language of section 1 of House Bill 620, does not apply to farm-to-market roads.

[2] Senate Bill 1528 of the 71st Legislature shows that donation of right-of-way for farm-to-market roads is not a thing of the past. Acts 1989, 71st Leg., ch. 706, at 3238 (to be codified at Local Gov't Code § 43.032). It authorizes a home-rule city to annex a certain area crossed by the proposed route of a farm-to-market road if the landowner has donated or is committed to donate the right-of-way necessary to construct the road.

[3] The other provisions of House Bill 620 related to financing the state's acquisition of rights-of-way. Acts 1957, 55th Leg., ch. 301, §§ 2, 3, at 732-735.

There are cases construing the predecessor of subsections 4.301(a) and 4.301(b) of article 6702-1, V.T.C.S., which hold that a farm-to-market road is part of the state highway system. See Bolin v. Brazoria County, 381 S.W.2d 206 (Tex. Civ. App. - Houston 1964, no writ); W. L. Moody Cotton Co. v. Commissioners' Court of Montague County, 261 S.W.2d 204 (Tex. Civ. App. - Fort Worth 1953, no writ); Gill v. Falls County, 243 S.W.2d 277 (Tex. Civ. App. - Waco 1951, no writ). Subsections (a) and (b) of section 4.301 derive from a 1925 enactment, former article 6674n, V.T.C.S. Acts 1925, 39th Leg., ch. 186, § 14, at 458. A 1929 amendment to article 6674n, V.T.C.S., authorized a commissioners court to secure and pay for right-of-way for state highways. Acts 1929, 41st Leg., 3d C.S., ch. 10, at 243. Gill, Moody Cotton Co., and Bolin addressed questions about the authority of a commissioners court to condemn property for a farm-to-market road on behalf of the state under former article 6674n, V.T.C.S. Their statements characterizing farm-to-market roads must be read in that context.[4] None of the cases addressed state reimbursement of right-of-way costs under former article 6673e-1, V.T.C.S.

In Gill, condemnation proceedings were filed by the state through the commissioners court of Falls County to condemn land for a farm-to-market road. The property owners argued that the state could not condemn land for a farm-to-market road under former article 6674n, V.T.C.S., which authorized condemnations of land for roads to be included in the designated state highway system. Since a farm-to-market road was a local road and not part of the designated highway system, the plaintiffs claimed that it could not be condemned under that statute. The court found that the highway commission had implied authority under article 6673c, V.T.C.S., to condemn land for farm-to-market roads.

[4] Attorney General Opinion V-1282 (1951) also addressed the correct procedure for condemning land for farm-to-market roads. The opinion concluded that the county should institute the proceedings in its name and not the name of the state, because eminent domain proceedings were required by statute to be instituted in the county's name except as to land condemned under article 6674n, V.T.C.S., for a "designated State Highway," which term does not include farm-to-market roads. Attorney General Opinion V-1282, at 3 (1951). Since the county acquired title to the land as agent for the state, condemnation proceedings for rights-of-way for farm-to-market roads brought by the commissioners court in the name of the state were not necessarily void, but the opinion reserved discussion of this question, which had not been asked. In Gill, Moody, and Bolin, the commissioners courts had instituted proceedings in the name of the state to condemn land for farm-to-market roads, and the courts had to address the application of article 6674n, V.T.C.S., to those proceedings.

Moody Cotton Co. also involved a suit by the commissioners court to condemn land on behalf of the state for a farm-to-market road. The court held that former article 6674n, V.T.C.S., authorized the commissioners court "to condemn land in the name of the State for right of way purposes necessary or convenient to any road in the State Highway System to be constructed, reconstructed, widened, straightened or lengthened and that Farm-to-Market Road No. 455 is such a road." Moody Cotton Co., supra, at 206.

Thus, the court in Moody Cotton Co. concluded that a farm-to-market road was a road in the state highway system for purposes of article 6674n, V.T.C.S., while the Gill court did not. Moody and Gill were decided prior to the enactment in 1957 of former article 6673e-1, V.T.C.S. Bolin, on the other hand, arose after the reimbursement requirement was adopted. In Bolin, the Highway Department had agreed to build a farm-to-market road in Brazoria County if the county would furnish the right-of-way free of cost to the state. The county's eminent domain suit was contested on the ground that the road in question was a county road and the commissioners did not follow the correct procedure for condemning land for county roads. The court stated as follows:

The order of the Highway Commission . . . provides that when the proposal has been accepted by Brazoria County it is ordered that a Farm to Market Road be designated along said route. It was a road, except for the right of way to be constructed under contract by the State at its expense. . . . This designation of a Farm to Market Road suffices to make it a part of the Highway system.

Bolin, supra, at 209.

Thus, the farm-to-market road in Bolin was part of the state highway system for purposes of condemning the right-of-way, but the state was not to pay any of the cost of acquiring the right-of-way. The holdings of Gill, Moody Cotton Co., and Bolin are not inconsistent with our reading of section 4.301(c) of article 6702-1, V.T.C.S. That provision does not require the state to reimburse counties for 90 percent of the cost of acquiring right-of-way for farm-to-market roads.

SUMMARY

Farm-to-market roads are not "state highways" for purposes of section 4.301(c) of article 6702-1, V.T.C.S., which requires the State Department of Highways and Public Transportation to pay 90 percent of the cost of rights-of-way acquired by counties and cities for "highways designated by the State Highway and Public Transportation Commission as United States or state highways."

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General