Untitled Texas Attorney General Opinion
GA-1014
| Tex. Att'y Gen. | Jul 2, 2013Background
- Waller County operates under the County Road Department System (subchapter D of chapter 252, Transportation Code).
- Private companies offered to donate money for materials to repair or improve particular county roads, conditioned on the county performing specified work and completing it on a set schedule.
- Subchapters B and C of chapter 252 contain express donation provisions (sections 252.109 and 252.214) authorizing acceptance of donations for road work; subchapter D contains no similar provision.
- Requestor asked whether a county under subchapter D may rely on the donation provisions in other subchapters or otherwise accept conditioned donations.
- The Attorney General examined statutory silence in subchapter D, the general donation authority in Local Government Code §81.032, and precedent limiting delegation of commissioners court road‑improvement discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether subchapter D authorizes acceptance of donations for road work | Subchapter D silence should be read as limiting donation authority; county cannot borrow donation provisions from other subchapters | County may accept donations because Legislature knew how to provide express authority in other subchapters but did not in D | Subchapter D contains no express donation authority; Transportation Code is not the source of authority to accept donations under subchapter D |
| Whether a county may accept donations at all for performing county functions | N/A (request asks whether county may accept donations) | Local Government Code §81.032 grants commissioners court discretion to accept gifts, grants, donations for county functions | Yes: §81.032 authorizes a commissioners court to accept donations for statutory county functions such as road maintenance |
| Whether conditioned donations (designating specific roads and schedules) are permissible | Conditioned payments are consideration/contract obligations, not gifts; such agreements would bind the county | Conditions can be acceptable so long as they are reasonable and not inconsistent with law; acceptance is discretionary | Donations with reasonable, lawful conditions may be accepted; commissioners court may evaluate whether an offer is a gift and whether conditions are lawful |
| Whether the commissioners court may pre‑commit or delegate its road‑improvement discretion by agreement | N/A (private parties seek assurances of scheduled work) | Such precommitments would bind the court and circumvent its statutory discretion | A commissioners court may not delegate or divest its discretion; agreements that preclude free exercise of discretion (e.g., enforceable obligations to maintain specific roads or schedules) would be unenforceable |
Key Cases Cited
- FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000) (legislature's inclusion of express authorization elsewhere shows it knows how to authorize an action)
- PPG Indus. v. JMB/ Houston Ctrs. Partners Ltd., 146 S.W.3d 79 (Tex. 2004) (statutory silence can be significant in construing legislative intent)
- Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010) (courts avoid construing statutes as meaningless)
- Hooten v. Enriquez, 863 S.W.2d 522 (Tex. App.-El Paso 1993) (judicial review of commissioners court action where decision is arbitrary, capricious, collusive, fraudulent, or an abuse of discretion)
- Grayson Cnty. v. Harrell, 202 S.W. 160 (Tex. Civ. App.-Amarillo 1918) (commissioners court cannot delegate or divest its discretion over road improvements)