Case Information
*1 Arrxmm $1. TEXAS PRICE DANIEL ATTORNEY GENERAL March 31, 1948
Hon. H. P. Querra, Jr. Opinion No. V-532 county Attorney Re: The validity
Starr County of a ~Com- Rio Grande City, Texas lulssloners' court or-
der that all road em- ployees shall be hir- ed and all road mater- ials shall be W- chased by the 8 omt, aatlng through the County Judge, rather than by lndivldua~~ ~oounty commiss10n.ra.
Dear sir: Is made to your recent request
Reference which reads, in part, as follows:
"The CommIssionera Court Starr County has passed a resolution to the ef- fect that from and after the 28th day of February 1948, all road hands, foremen and any and all persons WW employed on the oounty roads, who have been employed by the commissioners of the respective pre- cincts, be discharged and that upon their the Commissioners Court &all discharge, employ akl mob county road workers In The resolutional- the various precincts.
so provides that all materials and supplies in the malnhainancr bZ such roada necessary shall be purchased by the court and not by the respecttve commtssloners and further provides appolntod that the County Judge 1s thereby
the sole person authoriaed employ such m&ma &ml make all purchases. This resolution
vaa passed, two oonasis- sloners voting for it, two against It and the County Judge voting it.
"The two comisslraers who voted against the resolution, consider that
Hon. H. P. Cuerra, Jr., page 2, (V-532)
it an attempt on the part of the two oommlssloners who voted it and the County Judge to gain control over all road matters within the precincts of
these two commissioners who voted against the resolution. They considerthat this would be tantamnmt to relieving them of their duties as comuxLss1oners for their respective precincts which they assumed upon being aleCted and that It would ef- fect a delegation of their duties
someone who Is not charged by law with the performance of such duties. . .
‘1 request yo6r opinion aa to the legal effect of the rasolutlon which I have described above.
You also advised us that Starr County Is not operating under the optional County Road Law.
Article 2351, V. C. S., provides, in part, that:
“Each commlssloners court shall%... “3. Lay out and establish, change and discontinue public roads and hlgh- ways.
“4. Build bridges and keep them in repalr i
“5. Appoint road overseers and ap- portion hands. “6. Exercise general control over
all roads, highwayg, ferries and bridges in their counties.
Article 6713, V. 0. S., 1s as follows: , “Except when road commlssloners are employed, the county commissioners shall be supervisors of public roads In their respective counties, and each comml.aslon- * er shall supervise the public roads within his oommlssloners precinct once each month.
He shall also mke a sworn report to each *3 Hon. H. P. Ouerra, Jr., page 3, (V-532)
regular term of the cOBfIdBB~OnerS court hsld in his county during the ysar, show- ing%
“1. The condition of all roads and parts 0r roads in his precinct.
“2. The condition of all culverts and bridges.
“3. The amount money remaining in the hands of overseeps subject to be expend- ed upon the road8 within his precinct.
“4. The number of mile posts and fin- ger boar&h defarsd and torn down.
‘5. What, Lf any, new roads of any kind sheoLd be opened ln his preoin&t, and what, If any, bridges, amlverts, or other are necessary to place the impPOVement8 roads In his precinct in good GOnditiOn and ths probable cost of such improvements; also the name of eve- overseer who has failed to work on the road, OF In any way neglected to perform hls duty.
“Said report shall be spread upon the minutes of the cou&, to be considered in Improving public roads and deter$.nlng
amount of tares levied therefor.
Article 6740, V. C. S., provide8 for the ex- penditure of the road and bridge fund of the various counties, and Article 6741, V. C. S., provides that:
“The commlssloners court may make and enforce all reasonable and necessary rules and orders for the working and repairing of public roads, and to utillre the labor to be used and money expended thereon, not in confliot with the laws of this State.
Said court may purchase or hire all nec- essary road machinery, tools toams, and hire such labor may be needed In addl- tlon to the labor requ&redWof citizens
build or repair the roads.
If Starr County has appointed a road supsrln- *4 . - Hon. H. P. ffuerra, Jr., page 4, (V-532) tendent for the county or one such superintendent each precinct of the county, pursuant to~Artlcle 6743, v. c. s., then Article 6751, V. C. S., la applicable and is r0ii0ws:
'The coamlssioners court of any such county Is authorized to purchase hire all .
necessary road machinery, tools, Implements, teams and labor required to grade, drain, or repair the rwds of such county, and said ,court is authorized and empowered to make all reasonable and necessary rulea, ordora and regulations not in conflict with law for lay- ing out, working and otherwise Improving the public roads, and to utilize the labolr and moneynexpended thereon, and to enforce same.
The court, in the cash of Stovall v. Shivers, 7 8. w."(2d) P76, aTfIrmed 129 Tex. 256, (01~. App. 103 9. w. 26 363, said: t 7
'By AFtlole 2342 of the Revlsod Stat- utes, It ia provided that the several com- missioners, together with the county judge, shall composb the lcixnmissloners GOtad.' Such court Is IJEinifeBtly a unit, and Is the The respective agency of the whole county.
members of the colamissioners court are there- fore primarily representativss of the whole county, and not merely representatives Of their respective precincts. The duty of the commissioners court is to transact the busl- ness, protect the interest, and promote the welfare of the county as a whole. Among the powers conferred upon such court by article 2351 are the following: The power to lay out and establish, change and discontinue roads and highways, the power to build bridges and keep them In repair, and the power to exer- cise general control over all roads, lU.$hways, ferries, and bridge8 in their counties.
We believe that the resolution merely cum- lative Insofar as It states that the Commissioners1 Court shell employ all such county road workers In the since it is incumbent upon the Com- various precincts, missioners' Court to perform this duty under the stat- True, utea, even in the absence of such a resolution.
Xon. 11. P. Cuerra, Jr., page 5 (V-532)
each Commissiona) may recommend to the Counniaaloners~ Court that it employ certain PSPBOnS~ to work on the county roads in his respective precinct, but the Com- missioner himself has no authority to e$log road hands. Nor do we believe that the Commissioners Court may de- legate this power to the County Judge.
The same rule or lav applicable to the Commisalonera* Court relative te purchases made by the county. We shall quote only those statutes which deal with county purchases which we deem pertinent to your Inquiry.
Article 1659, V. C. S,, provides, la part, r0ii0wS: “Supplies of every kind, road and bridge material, or any other material, for the use or said county, or any of
Its officers, departments, or instltu-
tlona must be purchased on competitive In cases emergency, pur-
blda , , . . chases not In excess of one hundred and fifty dOllal’ may be made upon ZWquiBi- tion to be approved by the commissioners court, “without advertising for competitive bids.
Article 6729, V. C. S., provides, In part, a8 r0n0vS: "Th0 CO~iBBiO~Sl'B COUZ't IE%y'USe
either timber, earth, atone, gravel, or other necessary material most convenient therefor to build, repair, or maintain any public road or any part of any pub- lic road in the county without regard or extent thereof or
to the location funds from which said repair or mainte- In such case the owner of nance la paid.
any such material shall be paid a fair and just compensation therefor as may be agreed upon by the owner or tfis agent
and the commiBBloners court.
The aot further provides in the event the Commissioners1 Court ancj the owner of the material fail to agree upon the price to be paid for such material t Court may condemn same. that the COdBSi0IKWS
Ron. H. P. ffuerra, Jr., page 6 (V-532)
Article 2368a, Sec. 2, as amended In 1947, R. 3 a, 50th Leg., provides, ln part, as follows:
'Qec. 2. No county acting through it8 Commi8sioner8 Court and no city In this State shall hereafter make any con- tract oalllng for or requiring the expen- diture or payman% of Two Thousand bllara ($2,000) or more out of any fund or funds of any county subdivision of amy ooUnty creating or~imposing an obligation lla- billty of any nature or character upon such county or any subdivision of such county, or upon such City, without first sUbmittiE%gV such proposed contract to competitive bids.
It further provides for advertisement, etc., together with a calamity clause.
We think it abundantly clear from the above statutes that it Is the duty of the cO3UIIiBS~On~rS’ Court to m8.ke such purchases and further that the power 18 a non-delegable one. Rence, the Commissioners' Court may not authorize the County Judge to make such purchases.
By virtue of the foregoing, it is the opinion of this Department that the resolution passed is Of no force and effect insofar as it attempts to dele$ate to the County Judge the power to employ road hands and to make purchases for the county.
SUMMARY That portion of a resolution passed by the Commissioners' Court of Starr Coun- ty Which provide8 that all COUnty road em- ployees shall be hired and all road mater- ials Shall be purchased by the County Judge Is invalid, since this duty Is Imposed up- on the Commissioners' Court. Arts. 1659, 2368a and 6729, V. C. 3.
Yours very truly, ATTORNFX GENERAL OF TEXAS BY
Assistant