OFFICE OF THE AITORNEY GENERAL OF TEXAS
AUSTIN
Bonorable Olevelend Davis
county Attorney
BrazOPia COULty
LLngleton,
Texas
Dear Sir:
~Yourrequest for
.>$. has
- nlentbeen reeelved snd ears
g! .
i‘.i
ad Texas Girl1
, Vemon*e Annotated Texas Civil
*The ooumdsslonera ooulrtshall eee that
the road and bridge fund of thefr Bounty ia
judiciouslyand equitablyexpended on the
roads and bridges of their aounty, and, 88
nearly ae the oondltlon andneoemitp ef
Wsnsrabla Clsreland Davis, Page 2
the roads wIl1 pewlt, It shall besvpsndsd
la each oounty oolrmi~sionerspreoinot In
pr&portlon to the amount oolleotsd In suoh
preoinst. Money used In building permanent
roada shall first be used only on first or
seoond-olassroads, and on those whioh
shall have the right of way furnished free
of cost to make as straight a road as Is
praotioableand having the greatest bonus
oftered by the aitizens of money, labor
or other property."
Article 6741, Vernon's Annotated Texas Civil
statut04) read8 as follows:
"The oommlaeloneracourt may make and
enfbroe all reasonable and necessary rules
and orders for the working and repawIng of
pub110 roaas, and to utlllse the lab& to
bo used and money expended thereon, not in
oonfllot with the laws orthla State. Said
oourt may purebase or hire all neoelsaary
road maohlnery, tools or tsams, and hire
suoh labor atamay bs needed In addition to
the labor required of oitiaens to build
or repair the Toads."
The oases of Willisma, et al v. De Pee, Osunty
Judgs, 77 9. w. (2d) 729 and HI11 county v. Bryant 8 mrr-
man, ~6 S, W. (2df 513, cited by you In your brief, hold
that the Commissioners Court has authority to employ an
engineer to supervise sn% aid In ths oonsttiotion al&imaln-
tananoe 0r oouoty road8.
We quote from 21 Texas Jurlsprudenoe
, pai3es
644-5, a6 ronowe:
"I 126. IPnployment or Engineer. - The
state highway englnoer ia a statutory offioer.
But for a oounty or road diatrlot the State
Highway CommIssIannay, upon applloetlon,
reoommend a oompstent oIvi1 engineer, and
there is no doubt that under the general road
law a oounty has Implied power to employ an
._
343.
fioaorabloOlereland Davlr, Page 3
engineer to mpervlse oonstructIonoaatraot8.
It Is now expreeely provided that the engage-
meat of an engineer shall not be eubjeot to
oompetltivebidding. Whether a speolal road
law governIn@ a partloular oounty authorize8
muoh employment,end, If 60, whether the
engineer may be employed on a oomulaelon..~
bada, depend on what le expxessed OP,~
plied by the law In question.
Generally, of oourse, the oompenrra-
tlon of the engineer and other oblI@tlona
Inter se are determinedby the oontraot
lteelf. The question has been raised a8
to what oompensationla 80 exaesslva as to
be of itself arldenae of fraud, and It ha
been hold that a eontraotwa@ not Invalid
ror.rraud beoause 81x per oat. or the
ooet of the oonatruotionwork wa8 payable
thereunber.
'Where road Improvmnt work Is under-
tkkn by the oou&y 88 employer Or the
uorben engaged, the en@neer-rupervlsor
10 not a oontraotorwithin the pu.rrIeV~of
the statute requiring oontraotor8ior
pub110 norks to fornlih a bond.
traotl(-%ng%s~~ %~~~p%%d
oharged with the duty or oreatlng and
maintaining adequate road@, a oOmmlasioner8*
court neoessarlly harsauthority to oontraot
for road oonetruotionend Improreraent work.
"*The bglalature has Been proper to
oonfer upon the commlseIonermScourt the
pourerand authority to nake contraotrr for
the repairing and oonatruotlonof soad@
within Its oounty, and so long ES eaid
aourte make oontrtiotawithin the matrio-
tione of the oonstltutionand under the
authbrlty of the law, it Is not for the
honorableCleveland Davia~, Pags 4
oourts to substitutetheir judgment for
that of the sommlasioners*oourt as to
the wisdmn of such oontraots.' . . . . ,*
You do not state in your letter whether or not
BrazorIa County Is governed by the general road law but
us assume from your letter that euoh Is the base and we
base our answer to your question upon the assumption
that your oounty Is governed by the general road law.
On May 13, 1938, this departmsnt held, In a
letter opinion written by Honorable R. X. Qray, Assrle-
tant Attorney General,reoorded In Vol. 361, page 509,
latter Opinions of the Attorney Daneral, that the Wm-
timloners* Court had authority to maploy an en&tsar to
uparvise and aid In the ooustruotionand malntenauoe aI
aaunty roads, and that his salary should be paid from
the road and bridge funda ot the oounty.
It la therefore our opinion that the en&neer
employ46 by Brazorla Cmmty to aonatruot and maintaintha
publIo roada of said oounty should be paid from the read
ra8 bridge funds oi mid aounty.
AFPL:'.':.FLE20, 1941
W3FtGO
ATTORNEY GENERAL OF TEXAS