ENERAL
November 30, 1971
Miss Naomi Harney Opinion No. M-1004
County Attorney
Potter County Courthouse Re: Several questions relating to
Amarillo, Texas 79101 county control of vehicular
traffic at a railroad crossing.
Dear Miss Harney:
In your recent letter to this office, you request our opinion as
to the following questions:
1. Can Potter County legally employ a flagman at the
Santa Fe Railway crossing between the hours of
8:00 o’clock P. M. and 12:00 o’clock P. M. ?
2. If Potter County should employ a flagman and if it
has assumed a duty which it is not obligated to as-
sume in accordance with the law, would Potter
County be subjecting itself to civil liability for damages?
3. If Potter County should employ a flagman between the
hours of 8:00 o’clock P.M. and 12:00 o’clock P.M. ,
and an accident should occur at 4:00 o’clock P. M. ,
would Potter County be subjecting itself to civil li-
ability for not having a flagman covering the crossing
for the full 24-hour period?
4. What would be the liability of the Sheriff’s Department
of Potter County, Texas, if the Sheriff, at the request
of the Commissioners’ Court, parked a Sheriff’s vehicle
at the crossing with the red light on top of the vehicle
operating between the hours of 8:OO o’clock P.M. and
12:OO o’clock P. M. on Saturdays and Sundays? Tickets
would also be issued for vehicular traffic failing to stop
at the stop sign installed at the crossing.
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Miss Naomi Harney, page 2 (M-1004)
5. Can Potter County enter into a contract with the
railroad Company to install, on the railroad right-
of-way, a regular railroad signal light and bells
which warn the public of an approaching train?
The County would pay 90 per cent and the railroad
company would pay 10 per cent of the cost of in-
stallation.
Article 6699, Vernon’s Civil Statutes, relates to the hiring of
“County traffic officers, ” and provides, in part, as follows:
“The Commissioners Court of each county,
acting in conjunction with the Sheriff, may employ not
more than five (5) regular deputies, nor more than two
(2) additional deputies for special emergency to aid said
regular deputies, to be known as county traffic officers
to enforce the highway laws of this State regulating the
use of the public highways by motor vehicles. ”
These traffic officers, operating under the direction of the County Sheriff,
may be assigned the duty of controlling the traffic at the crossing in question
during the specified time, in line with their statutory responsibility to en-
force the State’s highway laws. Attorney General’s Opinion O-1454 (1939.)
We find no specific statute authorizing the Commissioners Court of Potter
County, a county of less than 150, 000 population, to direct or control traffic;
therefore, we conclude there is no implied authority in the County to employ
a flagman for that purpose. We thus answer your first question in the nega-
tive, except insofar as a traffic control officer under the direction of the
County Sheriff could be made available to perform the duties indicated. In
view of this answer to your first question, we do not answer your question
Nos. 2 and 3.
Your question No. 4 envisions action by the Sheriff’s Department
to alleviate the dangerous conditions at the crossing in question. Such action,
performed by County traffic officers, referred to in the preceding paragraph
to enforce the State’s highway laws, would not expand County tort liability be-
yond its existing status. Tort liability in a specific situation would depend on
the particular facts involved and would not be within the power of this Office
to decide.
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Miss Naomi Harney, page 3 (M-1004)
Your question No. 5 relates to the County’s authority to contract
for the installation of a regular railroad signal light and bells which would
warn the public of an approaching train. Article 6701d, Vernon’s Civil
Statutes, otherwise known as the Uniform Act Regulating Traffic on High-
ways, provides in Section 31(a) thereof as follows:
“Local authorities, in their respective juris-
diction, may place and maintain any traffic-control
devices upon any highway under their jurisdiction as
they may deem necessary to indicate and carry out the
provisions of this Act, or local-traffic ordinances, or
regulate, warn or guide traffic. All such traffic con-
trol devices hereafter erected shall conform to the State
Highway Department’s manual and specifications. ”
Originally, as concluded in Attorney General Opinion No. V-429
(1947), the term “local authorities” as contemplated by the statute did not
include County Commissioners Courts. However, when the Legislature in
1963 enacted Sections 169 and 170 of Article 6701d, Vernon’s Civil Statutes,
it conferred upon the County Commissioners Court of 3 county certain
limited authority in the regulation of traffic speed limits and thereby brought
the counties within the meaning of “local authorities” as defined in Article
6701d, Section 12.
Section 169(a) provides, in part:
“The County Commissioners Court of any county
with respect to county highways or roads outside the lrmits
of the right-of-way of any officially designated or marked
highway, road, or street of the State Highway System and
outside the limits of any incorporated city, town or village
shall have . . . authority . . . to alter maximum prima
facia speed limits upon the basis of an engineering and traf-
fic investigation. . .‘I
Section 170(b) provides, in part:
“Whenever the . . . County Commissioners Court
. . . determine on the basis of an engineering and traffic
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Miss Naomi Haney, page 4
investigation that slow speeds on any part of a highway
consistently impedes the normal and reasonable move-
ment of traffic, the said . . . County Commissioners
Courts . . are hereby empowered and may determine
and declare a minimum speed limit thereat or thereon,
and when appropriate signes are erected . . , no per-
son shall drive a vehicle below that limit except when
necessary for safe operation or in compliance with law. ”
Finally, in 1971, Article 6701d was again amended (S. B. No. 183,
Chap. 83, 722, 62nd Leg., R.S., 1971), and in Section 87 it was in part
provided that:
“The State Highway Commission and local authori-
ties with respect to highways under their respective juris-
dictions are hereby authorized to designate particularly
dangerous highway grade crossings of railroads and to
erect stop signs or other standard traffic-control devices
thereat. ”
The statute further provides for costs for installation and maintenance of
the mechanically operated safety devices, etc. to be apportioned and paid
“on the same percentage ratio and in the same proportionate amounts by the
State and all political subdivisions thereof as is presently established policy
and practice of the State of Texas and the Federal Government. ”
In view of the foregoing, we have concluded that Potter County,
assuming the location is within its legal jurisdiction, does have the authority
to contract for the installation of a regular railroad signal light and bells
which warn the public of an approaching train pursuant to the above referenced
statutes. The Commissioners Courts of any county thus have the power to
erect such an appropriate warning sign to warn and alert traffic for its safe
operation at those locations within their respective jurisdictions.
In this connection it should be pointed out that any device or signal
erected must conform in its design and location to the Texas Manual on Uni-
form Traffic Control Devices for Streets and Highways issued by the Texas
Highway Department under authority of Article 6701d, Section 29.
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. .
Miss Naomi Harney, page 5 (M-1004)
SUMMARY
Potter County may not legally employ a flag-
man at a railroad crossing on a county road, but these
services may be performed by a county traffic officer
pursuant to Article 6699, Vernon’s Civil Statutes. Per-
formance of such an officer in accord with his statutory
duty to enforce State highway laws would not expand the
County’s tort liability beyond its existing status.
Potter County may enter into a contract to in-
stall a regular railroad signal light and bells which
warn the public of an approaching train pursuant to
Sections 87, 169, and 170 of Article 6701d, V. C. S.,
as amended.
Prepared by Kerns Taylor,
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
W. E. Allen, Acting Chairman
James Mabry
Charles R. Lind
Houghton Brownlee
William Craig
SAM MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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