April 13, 1988
Honorable Neal E. Birmingham Opinion No. JR-892
District Attorney
P. 0. BOX 940 Re: Whether a county com-
Linden, Texas 75563 missioner acting as ex
officio road commissioner
may use county equipment,
materials, and employees
to lay out a road within
limits of an incorporated
city (RQ-1283)
Dear Mr. Birmingham:
You ask whether a county commissioner acting as ex
officio road commissioner may use county equipment,
materials, and employees to lay out a road or alleyway
within the corporate limits of a city in the commis-
sioner's precinct when the road or alley is not part of
the county road system. We conclude that under the facts
you provide a county commissioner would have no such
authority.
You supply the following information as background.
Several years ago the commissioners court of Cass County
adopted a resolution authorizing the county to assist the
city of Bloomburg, Texas. You state that the resolution
is phrased in general terms and does not specify a
particular project. You believe that it was intended to
authorize county assistance to the city pursuant to
article 23523, V.T.C.S. That statute authorizes the
commissioners court of a county to use county road equip-
ment, construction equipment, and employees to assist
another governmental entity on any project under certain
conditions.
You also inform us that several years after the
resolution was adopted, a county commissioner, purportedly
acting in his capacity as ex officio road commissioner,
directed county employees to lay out an alleyway in the
city of Bloomburg with county equipment and materials.
You allege that the alley serves no public use and pro-
vides no public benefit other than to provide access to
p. 4370
Honorable Neal E. Birmingham - Page 2 (JM-892)
fuel pumps at a business establishment owned by the com-
missioner's son. You add that the commissioners court did
not specifically approve the project. The city council ?
did not request the county's assistance on the project,
although you suggest that the mayor may have requested
such assistance from the commissioner. It is also alleged
that the project was completed in a manner that complies
with article 23523.
The question you have submitted for our consideration
is whether a county commissioner, acting as ex officio
precinct road commissioner, may use county equipment,
materials, and employees to open up and lay out an
alleyway within the corporate limits of a city when the
alleyway forms no part of the county road system. You
also ask us to determine whether the actions described in
your letter are lawful and, if they are not, what
sanctions are available to deter such actions in the
future.
With respect to your two final requests, we must
first note that the procedures instituted by subchapter C
of chapter 402 of the Government Code do not clothe this
office with the authority to make findings of fact in the ?
course of rendering an Attorney General's Opinion. We
therefore assume the facts are as you present them, and
express no opinion regarding the accuracy of any of the
allegations made in your letter requesting this opinion.
Also, this office will not in an Attorney General's
Opinion presume to advise your office on the proper
exercise of prosecutorial discretion or on the avail-
ability of a remedy in a particular case. But see Govt.
Code 5402.043 (attorney general shall advise a district
or county attorney regarding cases before district or
inferior courts in which the state is interested on the
attorney's request and after his investigation and submis-
sion of a brief to this office). Accordingly, this opinion
is confined to the narrow legal issues presented by your
first question.
County commissioners serve as ex officio road commis-
sioners pursuant to chapter 3, subchapter A of article
6702-a, V.T.C.S. Subchapter A applies to a county only if
the commissioners court adopts the subchapter by an order
of the court at a meeting where all members are present.
V.T.C.S. art. 6702-1, 53.004(b). The relevant powers and
duties of the commissioners court and ex officio road
commissioners are set forth in the following provisions:
p. 4371
Honorable Neal E. Birmingham - Page 3 (m-892)
Fx officio commissioners
Sec. 3.001. (4 In all counties the
members of the commissioners court are ex
officio road commissioners of their re-
spective precincts and under the direction
of the ommissioners court have charge of
the team:, tools and machinery belonging to
the county and piaced in their hands by the
court. They shall superintend the laying
out of new roads, the making or changing of
roads, and the building of bridges under
rules adopted by the court.
. . . .
Sec. 3.002. (a) The commissioners court
shall adovt a system for workina. lavinq
out. drainina. and revairina the vublic
roads as it considers best, and from time to
time the court may change its plan or system
of working. The court may purchase teams,
tools, and machinery necessary for the
P working of public roads and may construct,
grade, or otherwise improve any road or
bridge by contract in the manner provided by
Subchapter B of this chapter.
. . . .
Sec. 3.003. (a) Subiect to authoriza-
tion bv the commissioners court, each ex
officio road commissioner may employ persons
for positions in the commissioner's precinct
paid from the county road and bridge funds.
Each ex officio road commissioner may
discharge any county employee working in the
commissioner's precinct if the employee is
paid from county road and bridge funds.
Each ex officio road commissioner also has
the duties of a supervisor of public roads
as provided by Section 2.009 of this Act.
(b) Each county commissioner, when acting
as a road commissioner, shall inform himself
of the condition of the public roads in his
precinct, shall determine what character of
work is to be done on the roads, and shall
direct the manner of the grading, draining,
r‘ or otherwise improving the roads, which
p. 4372
Honorable Neal E. Birmingham - Page 4 (JM-892)
directions shall be followed and obeyed
by all road overseers of his precinct.
(Emphasis added.) -,
Id. §§3.001(a); 3.002(a); 3.003(a), (b).
An ex officio road commissioner also has the duties
of a supervisor of public roads within his precinct. A
road supervisor is required to "supervise the public
roads" in the precinct once each month and submit a sworn
report to each regular term of the commissioners court
showing the following:
(1) the condition of all roads and parts
of roads in his precinct;
(2) the condition of all culverts and
bridges:
(3) the amount of money remaining in the
hands of overseers subject to be expended on
the roads within his precinct:
(4) the number of mileposts and finger-
boards defaced or torn down:
(5) what. if anv. new roads of anv kind
should be ovened in his vrecinct and what,
If any, bridaes. culverts. or other
imvrovements are necessarv to vlace the
roads in his vrecinct in aood condition and
the vrobable cost of the imvrovements; and
(6) the name of every overseer who has
failed to work on the roads or who in
any way neglected to perform his duty.
(Emphasis added.)
Id. 52.009(a). The supervisor's report is spread on the
minutes of the commissioners court "to be considered in
improving public roads and determining the amount of taxes
levied for public roads.Vq Id. 52.009(b). The report must
also be submitted to the grand jury at the term first
following the report to the commissioners court, together
with any contracts made by the court since its last report
for work on any road. Id. §2.009(C).
The underscored language in sections 3.001 to 3.003
reflect the general understanding that the commissioners
court maintains general supervisory control over ex
p. 4373
Honorable Neal E. Birmingham - Page 5 (JM-892)
officio road commissioners. &8 Attorney General Opinion
JM-801 (1987). However, an ex officio road commissioner
acting alone may discharge any county employee working in
his precinct if the employee is paid from county road and
bridge funds. V.T.C.S. art. 6702-1, 53.003(a); Attorney
General Opinion MW-362 (1981) (construing former article
6763, V.T.C.S.). It is also understood that a county
commissioner acting as ex officio road commissioner may
not bind the county to pay claims that are not necessary
or proper expenditures of county funds. Attorney General
Opinion JM-170 (1984). In Attorney General Opinion JM-334
(1985) we were asked whether a county commissioner acting
as ex officio road commissioner could maintain a private
road in his precinct. The opinion did not discuss the
scope of a commissioner's authority under sections 3.001
to 3.004, but concluded that the commissioners court
did not have aeneral authority to maintain private
roads in the county. Comvare Tex. Const. Art. III, §52f
(authorizing counties with population of 5,000 or less to
maintain private roads for a fee). If the commissioners
court has no such general authority, it follows that an ex
officio road commissioner possesses no such power, his
authority being subject to commissioners court direction.
V.T.C.S. art. 6702-1, 53.001(a).
The emphasized language in section 2.009(a) clearly
indicates that a road supervisor has no independent
authority to commit county resources to u project, but
instead serves to inform the commissioners court of road
conditions and availability of funds and to recommend new
projects or maintenance work. See Attorney General
@k~;z; MW-331 ,(1981). The commissioners court retains
supervisory authority over road supervisors.
Guerra v. Rodriauez, 239 S.W.2d 915, 920 (Tex. Civ. App. -
San Antonio 1951, no writ). See also V.T.C.S. art. 2351,
subdivs. 2. and 5. (commissioners court's powers over
public roads). The commissioners court remains re-
sponsible for authorizing improvements and levying the
taxes needed to pay for such projects. V.T.C.S. art.
6702-1, 52.009(b). It must act as a body in fulfilling
its duties respecting the public roads of the county and
generally may not delegate such duties to road super-
visors. Attorney General OpiniOn MW-331 (1981). A county
commissioner, then, has no authority to individually bind
the county when acting as road supervisor. Id. Whatever
authority a county commissioner exercises as road super-
visor must be founded upon section 2.009 and cannot
generally be delegated by the commissioners court. Id.
p. 4374
Honorable Neal E. Birmingham - Page 6 (JM-892)
Your question raises two issues. The first concerns
the conditions under which an ex officio road commissioner
may direct county employees to perform roadwork with
county equipment. The second concerns the county's
authority to spend county funds to construct, improve,
maintain, or repair roads within the corporate limits of a
city or town in the county.
Turning to the first issue, the previous discussion
demonstrates that an ex officio road commissioner's
authority under article 6702-1, section 3.003(b), to
"direct the manner of grading, draining, or otherwise
improving the roads" of his precinct is subject to
direction from the commissioners court, section 3.001(a).
Under your version of the facts, there is some question
whether the commissioners court exercised sufficient
supervisory control over the ex officio road commissioner
to authorize the construction of the alley in question.
It is argued that the commissioner's actions were
authorized by the resolution of the commissioners court
adopted pursuant to article 23523, V.T.C.S. That statute
provides the following in major part:
A commissioners court of a county may use
its road equipment . . . and employees
necessary to operate the equipment to assist
another aovernmental entitv on anv vroiect
so long as the cost does not exceed $3,000
if:
(a) the use of the equipment or employees
does not interfere with the county's work
schedule: and
(2) the county does not pay any costs
related to the use of the equipment or
employees that the county would not pay if
the assistance were not given to the other
governmental entity. (Emphasis added.)
Assuming for the moment that article 23525 governs in
this instance, we do not believe that the adoption of a
resolution in general terms is sufficient to authorize
county assistance to another governmental entity under
the statute. First, we note that the statute confers
authority on the commissioners court and not on individual
commissioners. The authority conferred must therefore be
exercised by the commissioners court as a unit, and no
individual commissioner has independent authority to
p. 4375
Honorable Neal E. Birmingham - Page 7 (JK-892)
commit county resources to assist another governmental
entity. $&? Canales v. Lauahl&.l, 214 S.W.zd 451, 454-455
(Tex. 1948); Attorney General Opinion Nos. MW-331 (1981);
WW-1401 (1962). Second, the language of article 23523
relating to costs and the use of county equipment and
employees strongly suggests that the commissioners court,
in order to make an informed and responsible decision,
must review and approve svecific projects in advance of
their undertaking. It is doubtful that a resolution
committing unspecified county assistance of uncertain cost
to a city or town at some time in the future would serve
this purpose. In the absence of commissioners court
approval of a particular project, a county commissioner
has no authority to direct county employees to provide
assistance to a municipality in the county pursuant to
article 23523.1
We do not believe article 23525 governs in this
instance, however. Section 2.010 of article 6702-l
addresses the county's authority to construct, improve, or
maintain roads within the corporate limits of a city.
Section 2.010 prescribes the procedures for authorizing
such work, the types of projects that may be undertaken,
and the methods whereby such work may be performed or
financed. It contains the following relevant language:
(a) The commissioners court of a county
may expend county funds to finance the
construction, improvement, maintenance, or
repair of a street or alley located in the
1. We should note that article 23523 raises questions
under article III, section 52 of the Texas Constitution
because there is no express requirement that the county
receive an adequate consideration or quid pro guo for the
assistance it provides to the other governmental entity.
Also, a proposed amendment to article III, which would
authorize the use of county employees and equipment to
perform work for another governmental entity without
compensation, was defeated by the voters at the November
3, I987 election. The proposed amendment contained
language virtually identical to article 2352j. See text
of proposed Tex. Const. art. III, 552g (reprinted in 1988
cumulative annual pocket part for vol. lA, Vernon's
Annotated Constitution of Texas). We need not decide this
issue at this time, for we conclude that article 2352j is
inapplicable in this instance.
p. 4376
Honorable Neal E. Birmingham - Page 8 (JM-892)
county within the limits of an incorporated
city or town if the work on the street or
allev is done with the consent and avnroval --.
of the aovernina bodv of the citv or town.
(Emphasis added.)
V.T.C.S. art. 6702-1, 52.010(a). The county's authority
thus hinges on the consent or approval of the governing
body of the city or town in which the work is to be done.
It is also clear that the statute confers authority on the
commissioners court, which must act as a body in approving
the expenditure of county funds to finance such projects.
Se aen r llv Canales v. Lauahlin, suvra; Attorney General
Op?nioneI&331 (1981).
Two rules of statutory construction support the
conclusion that section 2.010 rather than article 23523 is
the controlling statute. One familiar and established
rule is that when two statutes concern the same general
subject matter, the more specific statutory provision
prevails. See Garza v. State, 687 S.W.Zd 325 (Tex. Crim.
App. 1985). Another is that in the case of a clear
conflict between two statutes, the later expression of
legislative intent prevails to the extent of the conflict.
Brown v. Patterson, 609 S.W.Zd 287 (Tex. Civ. App. -
Dallas 1980, no writ). Section 2.010 is the more specific
and recent expression of legislative intent. Comvare Acts
1985, 69th Leg., ch. 625, at 2323 (enacting section 2.010)
with Acts 1981, 67th Leg., ch. 260, at 668 (enacting
article 23523).
Section 2.010 codifies in part the rule developed by
the courts concerning the authority of a county to
construct, improve, repair or maintain roads within the
boundaries of a city. That rule states that a county may
exercise such limited authority over city streets provided
the city consents and provided further that such streets
form an "integral part" of the county road system or a
"connecting link" therewith. Citv of Breckenridae v.
Stevhens Countv 40 S.W.Zd 43 (Tex. 1931); Huahes v.
Count? Commissi&ers Court of Harris County 35 S.W.Zd 818
(Tex. Civ. App. - Galveston 1931, no writ); Attorney
General Opinion Nos. H-1018 (1977); WW-1401 (1962); V-971
(1949); V-261 (1947): O-7465 (1946); O-4256 (1941). The
consent of the municipality is required because, as a
general matter, both general law municipalities and home
rule cities have exclusive control over their streets,
alleys, and public highways and their incorporation
removes from the commissioners court the authority to
,-,
construct or maintain roads within their boundaries. See
p. 4377
,
Honorable Neal E. Birmingham - Page 9 (JE-892)
Attorney General Opinion H-1018 (1977). The "integral
part/connecting link" requirement is the result of
article III, section 52 @I, of the Texas Constitution
which authorizes counties, other political subdivisions,
or "any defined district . . . which may or may not
include" municipalities to issue bonds for, among other
purposes, the construction and maintenance of roads. The
supreme court determined long ago that since munici-
palities may be an "integral part" of a road district, the
commissioners court may expend road district bond funds on
town or city streets "where such streets are parts of and
form connecting links in county or state highways." City
of Breckenridae v. Stevhens County, 40 S.W.2d 43, 44 (Tex.
1931).
Section 2.010 does not expressly impose this latter
requirement. We note, however, that upon its original
enactment, the County Road and Bridge Act did not purport
to expand the powers of the commissioners court. Rather,
it was merely intended as a revision of the laws
concerning countv roads and bridges. Acts 1983, 68th
Leg., ch. 288, at 1431 (caption). We are constrained to
interpret section 2.010 in that light. Accordingly, the
P
commissioners court of a county may spend county funds to
finance the construction of a street or alley located
within the boundaries of an incorporated city or town in a
manner provided in section 2.010 if the governing body of
the city or town consents and the street or alley is an
integral part of the public roads or highways of the
county or a connecting link therewith.
Under your description of the facts, it is apparent
that the commissioners court took no action pursuant to
section 2.010 with respect to the specific project in
question. Furthermore, the facts you describe do not
indicate that the governing body of the city gave its
consent or approval to the project. Thus, in the
circumstances you describe a county commissioner acting as
ex officio road commissioner would not be authorized to
use county equipment, materials, and employees to
construct an alleyway within the corporate limits of a
city in the commissioner's precinct.
We note in closing that a county may construct roads
within a city that are not public roads of the county by a
,-
contract made in accordance with the provisions of Inter-
local Cooperation Act, V.T.C.S. article 4413(32c).
Attorney General Opinion H-1018 (1977).
p. 4378
Honorable Neal E. Birmi,ngham - Page 10 (JM-892)
SUMMARY
In the absence of commissioners court
approval pursuant to section 2.010 of article
6702-1, V.T.C.S., or a contract made in
accordance with the provisions of the Inter-
local Cooperation Act, article 4413(32c),
V.T.C.S., a county commissioner acting as ex
officio road commissioner has no independent
authority to use county equipment and
employees to construct a road or alley within
the corporate limits of a city located in the
commissioner's precinct.
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 Steve Aragon
Assistant Attorney General
p. 4379