Untitled Texas Attorney General Opinion

The Attorney General of Texas
April 29, 1981
MARK WHITE
Attorney General
Honorable Neal E. Birmingham Opinion No. Mu-331
Criminal District Attorney
cass camty courthouse Re: Authority of county commis-
Linden, Texas 75563 sioners under article 6713, V.T.C.S.

Dear Mr. Birmingham:

You have requested our opinion concerning the authority of the county
commissioners of Cass County as road supervisors under article 6713,
V.T.C.S. You have stated the following fact situation. Cass County has a
population of less than 35,000 and is not subject to the provisions of article
6762, V.T.C.S., providing for members of the commissioners court to serve
as ex-officio road commissioners of their respective precincts. Cass County
has not adopted the provisions of article 6716-1, V.T.C.S., the Optional
County Road Law of 1947. The commissioners court has previously employed
each commissioner as road commissioner of his precinct under article 6737,
V.T.C.S. This practice has been held to be “contrary to the policy of the
law.” Starr Ccunty v. Guerra, 29’7 S.W. 2d 379 (Tex. Civ. App. - San Antonio
1956, no writ). The commissioners court has indicated its intention to end
this practice and administer its road and bridge responsibilities in the future
under the provisions of article 6713, V.T.C.S., and other applicable statutes.
Your inquiry addresses the division of powers, duties and responsibilities
between the commissioners court as a body and the individual commissioners
as road supervisors under article 6713, V.T.C.S.

The general powers and duties of the commissioners court are
specified in article 2351, V.T.C.S., including, in part:

Each commissioners court shalh

. . . .

3. Lay out and establish, change and discontinue
public roads and highways.

4. Build bridges and keep them in repair.

5. Appoint road overseers and apportion hands.

6. Exercise general control over all roads, highways,
ferries, and bridges in their counties.

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Honorable Neal E. Birmingham - Page Two (Mw-331)

Article 6713, V.T.C.S., provides in part thet, “[el xcept when road commissioners
are employed, the county commissioners shall be supervisors of public roads in their
respective counties, and each commissioner shall supervise the public roads within his
commissioners precinct once each month”. Article 6736, V.T.C.S., reads as follows:
“All moneys appropriated by law, or by order of the commissioners court, for working
public roads or building bridges, shall be expended under the order of the
commissioners court, except when otherwise herein provided, and said court shall from
time to time make the necessary orders for utilizing such money and for utilizing
convict labor for such purposes”.

Certain divisions of authority between the commissioners court as a body and the
acts of individual commissioners have been defined by the courts. The commissioners
court is the county’s governing body and it alone may make contracts binding on the
county unless otherwise provided by statute. Anderson v. Wood, 152 S.W. 2d 1084 (Tex.
1941). An act of an individual commissioner cannot generally bind the county. Hill
Farm, Inc. v. Hill County, 425 S.W. 2d 414 (Tex. Civ. App. - Waco 1968), aff’d, 436 Sx
2d 320 (1969); Maples v. Henderson County, 259 S.W. 2d 264 (Tex. Civ.App. - Dallas
1953,writ rePd n.r.e.1.

The road and bridge duties of the commissioners court have also been the subject
of judicial consideration. The commissioners court may not delegate its road and
bridge. duties under article 2351 to an agent acting pursuant to article 1580, V.T.C.S.
Canales v. Laughlin, 214 S.W. 2d 451 (Tex. 1948). However, article 1580 has been cited
as authonty for the delegation of ministerial road and bridge duties by the
commissioners court. Coryell County v. Burke and Corbett, 4 S.W. 2d 283 (Tex. Civ.
App. - Waco 1928, writ dism’d). Nevertheless, the supreme court, in the Canales
decision, struck down a county plan to delegate the authority to supervise and maintain
the axmty road system. Holding that the plan failed to follow the statutory methods,
such as road commissioners, road superintendents, or county road engineers, for
delegating such authority, the court stated: ‘I. . . we believe that it must be concluded
that since the legislature has expressly provided that the commissioners courts may
employ persons to superintend or supervise the county road system and has placed
certain conditions and restrictions on the exercise of this power, these conditions and
restrictions must be observed if the authority is to be exercised.” Canales, m, at
457. Cf. Hill v. Sterrett, 252 S.W. 2d 766 (Tex. Civ. App. -Dallas 1952, wnt rePd
n.r.e.).As a court of limited jurisdiction, Attorney General Opinion H-374 (19741,
whatever authority the commissioners exercise individually as road supervisors must be
founded upon article 6713, V.T.C.S., and cannot be delegated generally by the
commissioners court.

We now address the specific wuage and construction of article 6713, V.T.C.S.
The wording of the statute offers scant direction or definition. In particular, the
commissioners are designated as “supervisors”, a term not generally employed in the
road and bridge statutes. One definition of supervisor is “one having authority over
others, to superintend and direct”. Black’s Law Dictionary 1290 (5th ed. 1979); Cafferty
v. Southern Tier Pub. Co., 123 N.E. 76 (N.Y. 1919). The statute also provides that “each
commmsmner shall supervise the public roads within his commissioners precinct once
each month”. The word supervise has been defined as “to have general oversight over,

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Honorable Neal E. Birmingham - Page Three (MW-331)

to superintend or to inspect”. Black’s Law Dictionary 1290 (5th ed. 1979); State v.
Mq:iw, 259 N.W. 213 (Iowa 1935). Such terms, without judicial construction, would be
dlf mult to relate to specific powers and actions.

However, article 6713, V.T.C.S., has been the subject of judicial construction by
Texas courts. In Guerra v. Rodriguez, 239 S.W. 2d 915 (Tex. Civ. App. - San Antonio
1951, no writ), opinion by Justice Pope, the court of civil appeals examined this statute
in detaiL This case arose when the commissioners court of Starr County appointed
Alonzo Hinojosa to hire road hands for precinct two and to fix and report to the county
the wages these hands should receive. H.P. Guerra, the commissioner of precinct two,
objected to this appointment. Guerra sought a declaratory juament that, under
article 6713, he was an ex-officio road superintendent of public roads in his precinct
with full right and power to employ necessary road workers, and to buy or hire such
tools, teams, implements and machinery 8s the commissioners court may direct.
Guerra also sought an injunction to prevent the county from approving or paying claims
from his precinct without his approvaL The district court denied his request. The
court of civil appeals affirmed the district court decision but also discussed at length
in its opinion the relative powers of the commissioners court as a body end the
individual commissioners as road supervisors under article 6713.

The court rejected Guerra’s argument that he possessed all of the powers of a
road superintendent as defined in article 6747, V.T.C.S. The court also rejected the
proposition that the commissioners court could delegate its authority under article
2351, V.T.C.S., and other statutes to the individual commissioners acting as road
supervisor% stating:

In the absence of statutory authority, the powers of a
Commissioners’ Court involving the exercise of judgment and
discretion cannot be delegated, and until delegated those
powers reside with the court. The power to hire workers and to
buy and hire tools, and equipment are not mere ministerial
functions which may be delegated. Otherwise, the Legislature
would have been under no necessity to authorize the delegation
of the functions of the court to a road commissioner or a road
superintendent. Those are powers that the Commissioners’
Court retains until they have been parceled out in accord with
some statute authorizing such a delegation of power. [citation
omitted]. Absent the delegation of such powers in line with the
legislative authority, the power of decision rests with the
Commissioners’ Court.

239 S.W. 2d at 920.

The court then defined the duties of a road supervisor as follows:

Once the Commissioners’ Court has exercised its powers to hire
workers, buy and hire equipment, or make contracts for labor or

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machinery, the commissioner in his precinct may supervise the
workers so hired, the equipment so employed, and the contracts
made. . . . Since that supervision is subject to the general
supervision of the Commissioners’ Court, it must yield to the
general control of the court in the event of conflict.

-Id.
The Guerra decision is the only appellate court construction of the duties of road
supervisors under article 6713, V.T.C.S. It is true that it is a no writ case which has
not been cited subsequently. Moreover, article 6755, V.T.C.S., relied upon in part by
.the court in its comparison of the duties of a road supervisor to the duties of a road
superintendent, has been repealed. However, under the doctrine of stare decisis, we
must adhere to this construction of the statute which has been allowed to stand,
unamended by the legislature, since 195L Ex parte Boehme, 255 S.W. 2d 206 (Tex.
Crim. App. 1952). In summary? in counties in which the county eommmissioners serve
as road supervisors under arbcle 6713, V.T.C.S., the commissioners court as a body
must exercise its power to hire workers, buy and hire equipment, and make contracts
for labor or machinery; the Individual commissioner as road supervisor ln his precinct
has the authority to supervise the workers so hired, the equipment so employed, and
the contracts made.

SUMMARY

In counties in which the county commissioners serve as road
supervisors under article 6713, V.T.C.S., the commissioners
court as a body must exercise its powers to hire workers, buy
and hire equipment, and make contracts for labor or machinery;
the individual commissioner as road supervisor in his precinct
has the authority to supervise the workers so hired, the
equipment so employed, and the contracts made.

Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by James Allison
Assistant Attorney General

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Honorable Neal E. Birm.hgham - Page Five (m-331)

APPROVED:
OPINION COMMllTEE

Susan L. Garrison, Chairman
James Allison
Jon Bible
Walter Davis
Rick Gilpin
Jim Moellinger

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