Untitled Texas Attorney General Opinion ( 1995 )

QlXficeof tfp Bttornep Qheral
%tate of IBexaS
DAN MORALES
ATTORNEY
CENERAL December 18,199s
The Honorable Sherry L. Robiin Opinion No. DM-368
Wailer County Criminal District Attorney
836 Austin Street, Suite 109 Re: Whether the 1983 revision of the
Hempstead, Texas 77445 provisions of the Optional County Road
Law of 1947 as part of subchapter c of
article 6702-l; V.T.C.S., now repealed and
wditied in chapter 252 of the Transporta-
tion Code, rendered a county’s earlier
adoption of that law “moot,” and related
questions (RQ-795)
Dear Ms. Robiin:
You advise that Wailer County adopted the Optional County Road Law of 1947
soon after its passage. Act of Apr. 24, 1947, 50th Leg,, R.S., ch. 178, 1947 Tex. Gen.
Laws 288. That act, codiied as V.T.C.S. article 6716-1, provided for the adoption of its
provisions on a local option basis by majority vote of county voters. Id. $2, at 289.
Article 6716-I was repealed in 1983 by the County Road and Bridge Act. Act of
May 20, 1983, 68th Leg., R.S., ch. 288, 5 2, 1983 Tex. Gen. Laws 1431, 1526. The
provisions of article 6702-1, the County Road and Bridge Act, contained, however, in
subchapter C thereof, captioned “Court/Engineer System,” substantially the same
provisions as those of the repealed Optional County Road Law of 1947, including the
provisions for the optional adoption of the “Court/Engineer System” by majority vote of
the county’s voters. Id. sec. 1, 4 3.201, at 1470-71. The article 6702-l provisions were
in turn cod&d in 1995 without substantive change in title 6, subtitle C (chapters 251 to
257) of the Transportation Code; in particular, the provisions of article 6702-1, subchapter
C were placed in Transportation Code chapter 252, subchapter D, captioned “County
Road Department System.” See Act of May 1, 1995. 74th Leg., RS., ch. 165, $5 1
(enacting Tramp. Code chs. 251-257), 24 (repealing V.T.C.S. art. 6702-l), 1995 Tex.
Sess. Law Serv. 1025, 1151-95, 1870-71; see also id. 6 1, at 1031 (to be codified at
Tramp. Code 3 1.001) (codification without substantive change). You ask whether the
fact that the Optional County Road Law was repealed in 1983 rendered the county’s
adoption of that law “moot,” making applicable the provisions which would otherwise
govern absent the voters’ adoption of the optional law. See V.T.C.S. art. 6702-L sub&s.
A, B (“Commissioners as Ex Officio Road Commissioners,” “Court/Road Commissioner
or Road Superintendent System”), repealed by Act of May 1, 1995, 74th Leg., RS., ch.
165,s 24,199s Tex. Sess. Law Serv. 1025,1870-71.
The Honorable Sherry L. Robiion - Page 2 (DM-368)
Subchapter C of article 6702-1, the “Court/Engineer System,” is characterized in
Mr. Brooks’s 1989 treatise, COWI@and Special Districl Law, as requiring, on the law’s
adoption, “the commissioners court to administer and maintain the county road system on
a county-wide basis and not a precinct-by-precinct basis,” with “the county road engineer
as the ‘chief executive officer.“’ DAVID B. BROOKS,COUNTYAND SPECIALDISTRICT
LAW 3 40.19 (Texas Practice 1989); CJ V.T.C.S. art. 6702-L $3.001 (repealed 1995)
(individual county commissioners act as “ex officio road commissioners of their respective
precincts”). Mr. Brooks’s treatise still refers to the provisions, which had been subchapter
C of article 6702-l Since 1983, as the Optional Road Law of 1947, “also known as the
Unit Road Law.” Indeed, the provisions of the Optional County Road Law of 1947,
although revised as to their language when incorporated in subchapter C of article 6702-l
in 1983, appear to be virtually identical in substance to those of subchapter C. The bii
analysis of the bill adopting article 6702-1, of which subchapter C is a part, indicates that
all the subchapter C provisions derive from those formerly in the Optional County Road
Law and that provisions of ah the sections of the latter were carried forward into
subchapter C. The bii analysis acknowkdges that the bii “does change and delete some
language in existing law, but these changes are not significant enough, in this committee’s
opinion, to warrant section-by-section explanation.” Senate Comm. on Transportation,
Bill Analysis, S.B. 148,68th Leg., R.S. (1983).
The only substantive change we find made from the Optional Road Law’s
provisions in revising them in 1983 as subchapter C of article 6702-l is the removal of the
ceiling on the engineer’s annual salary, set in section 6 of the Optional Road Law as
$12,000. However, we note that the $12,000 ceiling amount had orightally been set at
$7,200 when the Optional Road Law was adopted in 1947, and had been increased to
$12,000 by a 1957 amendment to that law-that is, before the Optional Road Law was
repealed and carried forward as subchapter C of article 6702-l in 1983. Act of
Feb. 16, 1955, 54th Leg., R.S., ch. 17, 1955 Tex. Gen. Laws 22. Various other
provisions of the Optional Road Law had also been amended prior to 1983. Act of
Apr. 25, 1957, 55th Leg., RS., ch. 176, 1957 Tex. Gen. Laws 371.’ We note too that
subsequent to the 1983 adoption of article 6702-L and subchapter C as a part thereof, the
legislature has also amended section 3.211 of subchapter C to raise the threshold amounts
for purchases requiring competitive bidding, which amount is currently S15,OOO. Act of
May 25, 1991, 72d Leg., R.S., ch. 786, 1991 Tex. Sess. Law Serv. 2783; Act of
May 29, 1993,73d Leg., RS., ch. 757, 1993 Tex. Sess. Law Serv. 2956.
If it were argued that a new election was required to readopt the provisions in
question when they were placed in subchapter C in 1983 with only the minor substantive
change mentioned above, that argument would also suggest that a new election would
have been required to readopt the law after each of the other changes mentioned, both
before and after the 1983 revision. We find no indication that the legislature intended that
new elections were necessary in order to implement the law as changed by each of these
P. 2000
The Honorable Sheny L. Robinson - Page 3 (DM-368)
amendments, nor do we find any constitutional requirement of such. CJ Slack v. State,
136 SW. 1073 (Tex. Grim. App. 1911) (where county has voted to license liquor sales,
subsequent remedial amendments of licensing law by legislature takes &ect in county
without necessity for new vote to adopt such changes). In any case, if the county’s voters
wish to abandon the provisions of subchapter C, they may do so through the petition and
election procedures provided for in section 3201(c), now in section 252.301 of the
Transportation Code. In answer to your question, we do not believe that a court would
6nd that the 1983 rtision of the provisions of the Optional Road Law as part of
subchapter C of article 6702-l rendered the county’s earlier adoption of the law “moot.”
The county continues to operate under the subchapter C provisions--now, chapter 252,
subchapter D, Transportation Codeunless it votes to abandon those provisions.
You also ask, if the county has adopted and operates under the subchapter C pro-
visions, whether it is required to hire a “licensed professional County Road Engineer.”
Subchapter C of article 6702-1, again, is now codified as chapter 252, subchapter D,
Transportation Code. Transportation Code section 252.304 provides that the
wmmissioners court is to appoint a wunty road engineer who must “be a licensed
professional engineer experienced in road construction and maintenance. . and. . . meet
the qualifications required by the Texas Department of Transportation for its district
engineers.” In 1957, however, language was added to the predecessor provisions of
section 252.304 creating an exception to the requirement that a licensed engineer be
appointed. Act of Apr. 25, 1957, 55th Leg., RS., ch. 176, 1957 Tex. Gen. Laws 371.
The 1957 amendment read in part:
If the Commissioners Court is not able to employ a licensed
professional engineer/or uny reason, then the Commissioners Court
is authorized to employ a qualified road administrative officer, who
shall be known as the County Road Administrator, to perform the
duties of the County Road Engineer. The County Road Admini-
strator shall have had experience in road building or maintenance or
other types of construction work qualitjing him to perform the duties
imposed on him, but it shall not be necessary that he have had any
iixed amount of professional training or experience in engineering
work. The County Road Administrator shall perform the same duties
as are imposed upon the County Road Engineer, and all references in
other sections of this Act to the wunty road engineer include and
apply to the County Road Administrator. pmphasis added.]
The 1957 addition was codified virtually verbatim in 1983 in section 3.204 of
article 6702-1, includmg the “for any reason” language emphasized in the above quote.
The article 6702-l language was in turn codified in 1995 in section 252.304. The current
codification of this language in Transportation Code section 252.304 omits the words “for
any reason”; but, again, the 1995 Transportation Code was expressly a nonsubstantive
revision. In any case, we think it clear from the detailed provisions for the appointment of
a county road administrator in lieu of a licensed county road engineer. that the
commissioners court is not required under all circumstances to appoint a licensed county
P. 2001
The Honorable Sherry L. Robin - Page 4 (DM-368)
road engineer when the county has adopted the Optional Road Law, or as it is now called
in the Transportation Code, “‘the “County Road Department System.” You ask further,
however, under what circumstances the wmmissioners court may be considered, in the
words of the provisions, as ‘unable” to appoint a licensed county road engineer so that a
wunty road administrator may be appointed instead, and specifically whether “Snancial
inability and/or not enough work for a tUtime position” would be suthcient reasons.
We note first that we do not believe that “not enough work for a tbll-time
position” would in itselfbe sufficient reason for not employing an engineer. Nothing in
the applicable provisions requires that the en-s position-or, for that matter, the
administrator’s position, if an administrator is employed instead of an engineer-be t%ll-
time. “Not enough work for a Ill-time position” would, however, be an adequate reason
if for example, it were also the case that an engineer could not be found to take the
position on a part-time basis at the salary the county could pay. As a general matter, for
the reasons given below, we believe that so long as the reasons determined on by the
commissioner’s wurt for not employing an engineer indeed reflect factual conditions
under which the wunty is “unable” to employ an engineer, “any reason” would &ice for
its determining to appoint a road administrator instead.
Again, the original 1957 amendment as well as the language of section 3.294 of
now repealed article 6702-I expressly provided that the wmmissioners may appoint a
county road administrator instead of a licensed wunty road engineer if it “is not
able. . for rmy reuwn” (emphasis added) to employ the latter. These provisions as
nonsubstantively revised in Transportation Code section 252.394 must be read to carry the
same meaning, although the Transportation Code revision omits the “for any reason”
language. Two attorney general opinions have addressed the scope of this exception to
the requirement that a licensed engineer be appointed; both dealt specifically with Bexar
County’s not having employed such an engineer. Attorney General Opinion M-1149
(1972), in response to a request from the Bexar County District Attorney, focused on the
‘for any reason” language of the exception, then found in section 5 of now repealed article
67 16-1, and concluded that the commissioners wurt had discretion which, “in the absence
of abuse,” would be assumed to have been validly exercised if it determined there was a
reason why a licensed engineer could not be employed and employed a county road
administrator instead. Attorney General Opinion H-201 (1974) at the request of the
Texas State Board of Registration for Professional Engineers, was asked to reconsider the
conclusion of Attorney General Opinion M-1149 (1972). Attorney General Opinion
H-201 considered the language of the emergency clause of the 1957 bii adding the
exception-to the effect that the exception was necessary because of the scarcity of
professional engineers and the liitations on the engineer’s salary then in the act. The
opinion also recognized a “need for licensed professional engineers to design today’s
modern superhighways.” It concluded that “[wlhere it can be shown that a licensed
professional engineer, who meets the standards authorized by the Commissioners’ Court,
is available and willing to accept the job, it may be an abuse of discretion for the
Commissioners Court to hire a road administrator.”
P. 2002
The Honorable Sherry L. Robinson - Page 5 (DM-368)
Notably, although Attorney General Opinion H-201 could be read to suggest that
the only legitimate reasons for not employing a licensed professional county road engineer
would be those set out in the emergency clause of the bill adding the exception-that is,
the scarcity of professional engineers and the limitations on the engineer’s salary-it
nevertheless concluded only that the county’s not employing an engineer for other reasons
“may be an abuse of discretion.” (Emphasis added.) It is our opinion that the reasons
invoked for utilizing emergency procedures for the exception’s adoption should not be
read strictly to limit as a matter of law the broad language set out in the text of the
exception itself. If this w.ere the case, as the ceiling on the engineer’s salary was removed
from the provisions in 1983, the exception would now be virtually nonexistent: where
there was no limit on what the county wuld pay, it would be rather rare, we think, that the
“scarcity” of engineers would be such that the county could not employ one. For this
exception-which the legislature has leg in the provisions now for over ten years since the
engineer’s salary limitations were removed-to be given any current substance, it cannot,
we think, be liited to only those parameters suggested in the emergency clause.2
We note that both Attorney General Opinion M-1149 (1972) and Attorney
General Opinion H-201 (1974) cited, in support of their conclusions, the provision of the
state’s engineerlicensure and practice law, the Texas Engineering Practice Act, that the
“Act shall not apply to. . road maintenance or betterment work undertaken by the
commissioners court of a county.” V.T.C.S. art. 32714 5 19(b). Attorney General
Opinion M-l 149 stated that “[blecause of this exclusionary provision in Article 3271a, the
specific provisions of Article 6716-I [now Transportation Code section 252.3041 are
controlling.” Attorney General Opinion H-201, on the other hand, opined that “‘the more
logical interpretation” of the exclusion “is to apply such descriptive terms to the more
routine maintenance and betterment work. . . rather than . to traditional engineering
work involving design drawings, and supervision requiring professional engineering
expertise.” We .do not believe that the referenced “exclusion” in the Engineering Practice
Act, which has been in that act since its 1937 adoption, should be taken to limit situations
in which a road administrator rather than an engineer could be employed under the
exception now section 252.294 at issue here, which was first adopted in 1957. We find
nothing in the applicable provisions thus limiting the circumstances in which a road
administrator could be employed. In any case, where a road administrator was employed
and it was determined that engineering services were also required, such services could be
obtained by the county’s also employing an engineer as necessary, for instance on a
wntract basis. Thus a county could operate with a road administrator and still engage
zWe note, too, that soch a rest&h reading would by implication suggest that the
ammissioners m’s ability, under section 252.308, Tmnsporhtion code, to desigoate B ?pmMied
.
admmsbative of&r to performthe cmnty mad engineer’sduties duringany periodio which the county
mad engineer is absentor anahle to performthose duties”should also k similarlyrestricted-restrictions
for which WCfind no basis in the applicableprovisions.
P. 2003
The Honorable Sherry L. Robinson - Page 6 (DM-368)
engineering services where necessary, for instance, “to design today’s modern
superhighways.‘q
In conclusion, the commissioners court, under section 252.394 of the
Transportation Code, may employ a road administrator instead of an engineer if “for any
reason” it is, in fact, unable to employ an engineer. ‘Financial inabiity,” for example,
would, we think, be a sutBient mason if it were determined the county was indeed
6nanciaIly unable to employ an engineer. Again, the wnnnissioners wurt has discretion in
making such det emtinations in the first instance, subject to judicial review. To the extent
that Attorney General Opinion H-201 may be inwnsistent with this opinion, it is
disapproved.
SUMMARY
The 1983 revision of the provisions of the Optional County
Road Law of 1947 as part of subchapter C of article 6702-l did not
render a county’s earlier adoption of that law “moot.” Rather, the
wunty wntinues to operate under the provisions, now codified in
chapter 252, subchapter D, Transportation Code, unless it votes to
abandon those provisions. The wmmissioners court of a county
operating under said system may employ a road administrator instead
of an engineer if for instance, it determines that the county is
hancially unable to employ an engineer, or that for any other reason
the county is in fact unable to employ an engineer. The
wnnnissioners wurt has discretion in making such detemunations in
the first instance, subject to judicial review
DAN MORALES
Attorney General of Texas
JORGE VEGA
Fii bktant Attorney General
SARAH J. SHIRLEY
Chair, opinion Committee
Prepared by William Walker
Assistant Attorney General
P. 2004