Untitled Texas Attorney General Opinion ( 1971 )

Hon. Joe Resweber Opinion No. M- 798
County Attorney
Harris County Courthouse Re: Can the Commissioners Court of
Houston, Texas 77002 Harris County order that the
responsibility for the operation
and maintenance of the Washburn
Tunnel and Harris County Ferries
In Commissioner Precinct 2 be
transferred from the Commissioner
of that precinct to the Commls-
Dear Mr. Resweberf sioner of another precinct?
In your letter of December 22, 1970, you request our
opinion in answer to the following question:
'Can the County Commissioners Court order
that the responsibility for the operation and
maintenance of the Washburn Tunnel and Harris
County Ferries In Commissioners Precinct 2 be
transferred from the Commissioner of that
Precinct to the Commissioner of another Precinct?"
Our answer is "No", inasmuch as there is no statutory
authority permitting such transfer. The.control over the roads
is vested in the Commissioners Court, which %ay be delegated by
resolution to "the precinct road supervisor.
The Harris County Road Law passed by the 33rd Legisla-
ture Is cited under the Special Laws, Acts 1913, 33rd Legislature,
page 64, chapter 17. We believe that the following sections of
that Law control this situation.
"Section 1. That;subject to the provisions
of this Act, the commissioners' court of Harris
County shall have control of all roads, bridges,
drains, ditches, culverts and all works and con-
structions incident to its roads, bridges, and
drainage, that have been heretofore laid out or
constructed, or that may hereafter be laid out,
or constructed by Harris County, or under its
direction. (Emphasis added.)
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. .
Hon. Joe Resweber, page 2 (M-798)
"Section 5. From and after the passage of
this Act, each county commissioner shall be ex-
officio a precinct road supervisor, and subject
to the nrovisions of this Act, and under the
orders and supervision of the court, shall have
charge of all teams, tools, equipment, and
roperty of ail kinds committed to his care by
for
he court his precinct, and shall
au erintend the laying out of all work of all
i precinct subjectT such con-
as the court may see &t to provide. (Emphasis
added.)
"Section 16. The commissioners' court shall
have control of all matters in connection with
the constructionand maintenance of county roads,
bad
ri ges an dra nage, except sue as it may from
time to time, by resoluiigate to the
precinct road supervQor, and then under such
rules and regulations as it may prescribe,.and
subject to their recall at its pleasure. (Em-
phasis added.)
"Section 29. Whenever in this Act, or any
neneral law. the word 'Road,' is used, the same
u----- ~~~
is hereby defined to mean in so far as Harris
County is-road
concerned, a beds, ditches,
drains, bridges, culverts and every part of
every road, whether Inside or outside of any
incorporated city or town in Harris County, or
not. (Emphasis added.)
"Section 31-b. The Commissioners
._.-- - Court
_ -..- of
~~~
Harris Counts may enter Into such contracts and
amreemen
-~..- ts it-finds necessary with the United
States, the State of Texas . . . in connection
with the construction of a tunnel or tunnels. . .
Such tunnels are hereby decqto be an es-
sential public highway unit. . . (Emphasis
added .)
Sections 1 and 16 place control of the roads in the
Commissioners Court. Section 16 does allow by resolution the
delegation of certain powers to the precinct road supervisor
who is designated in Section 5 as the county commissioner of
each precinct. This power placed in the Commissioners Court
by Sections 1 and 16 of the Harris County Road Law is also
set out in the general law. Article 2351, Sec. 6, Vernon's
Civil Statutes.
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Hon. Joe Resweber, page 3 " (M-798)
The control or power delegated to the Court cannot be
abrogated by it unless statutory authority can be found. 15 Tex.
Jur.26 277, Counties, Sec. 48, reads in part as follows:
“In the absence of an enabling statute the
power of a commissioners’ court that involves
exercise of judgment and discretion cannot be
delegated.” Citing Guerra v. Rodriguez, et al.,
239 S.W.2d 915 (Tex.?Ziv.App.1951, no writ).
In the Guerra case, tried under the general law, a
commissioner maintainedhis right to hire road workers, buy and
rent tools and equipment and make contracts for road labor and
machinery, subject to the Commissioners Court supervision. Some
of the duties were being performed by a third party hired by the
Commissioners Court. The Court of Civil Appeals posed the follow-
ing question:
'Since the Legislature has specifically
authorized the employment of agents having
power over the county roads, hedged about with
stated protective requirements, can a different
method be used?"
The Court determined that the prescribed method must be
followed and held that the statute did not authorize the pmnct
commissioner to exercise the power of a %oad superintendent" and
that the Commissioners Court could appoint a third party superln-
tendent or control the road themselves,
Following this reasoning, one could conclude that the
Harris County Commissioners Court could appoint some third person
to supervise the Washburn Tunnel and the ferry and that the third
person could, in fact, be a commissioner of a precinct 'otherthan
the one in which the tunnel and ferry are located.
The Guerra case4 however, is distinguished from the sub-
ject problem Inthat the third party", the road superintendent,
was authorized by statute whereas under the Harris County Road Law,
a special law, Section 16 specifies that the Commissioners Court
shall have control of all matters concerning roads". . . exce t
such as it may from timeto time, by resolution, delegateTdbie
precinct road supervisor. . .- (Emphasis added.)
Section 16 if In conflict with the general law, would
control by reason of Section 33 of this Act. Section 16 is the only
authority for s delegation of authority by the Harris County Corn-
missioners Court. Further, neither Section 16 nor any other section
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. /
Hon. Joe Resweber, page 4 (M-798)
of the Harris County Road Law provide for a road superintendent
as was before the Court in the Guerra case.
We believe that control of the tunnel and ferry must
remain with the Commissioners Court unless delegated to the
precinct commissioner where the tunnel and ferry are located.
At this point we must determine whether this tunnel
and the ferries are "roads, bridges, etc." within the purview
of the Harris County Road Law.
Section 31-b of the law clearly establishes the tunnel
as a Fart of the road system by the words, "public highway unit
and by inclusion within the Harris County Road Law. It
is'therefore subject to and governed by the powers granted the
Commissioners Court in Sections 1 and 16.
We find no Texas authority for a definition of "ferry";
however, we do find the following relevant definition in Blacks
Law Dictionary, 4th Edition, which states in part, as follows:
'Ferry . . . or to connect a continuous line
of road leading from township or fiii/ to another.
Canadian Pac. Ry. Co. v. U.S.C.C.k. rash., 73 F.2d
831, 832."
"A continuation of the highway from one side
of the water over which it passes to the other,
U.S. v. Puget Sound Nav. Co., D.C. Wash.
24'F:Supp. 431, 432." (Emphasis added.)
A ferry is generally a connection between highways
located on opposite sides of the body of water. 25 Tex.Jur.2d
312, Ferries, Sec. 1. We therefore conclude that the Harris
County Ferries, as well as the Washburn Tunnel, are 'roads'and
are therefore governed by the Harris County Road Law as set out
In this opinion.
SUMMARY
The Harris County Road Law authorized the
transfer of responsibility for operation and main-
tenance of the Washburn Tunnel and Harris County
Ferries to only the commissioner in whose precinct
the tunnel and ferries are located.
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Hon. Joe Resweber, page 5 (M-798)
xas
Prepared by Melvin E. Corley
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Kenneth Nordquist
Max Hamilton
R. D. Green
Sarah Phillips
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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