Untitled Texas Attorney General Opinion ( 1951 )

Hon. Wm. L. Taylor Opinion No. V-1348.
Prosecuting Attorney
Harrison County Re: Legality of using county
Marshall, Texas equipment and materials
to construct driveways on
Dear Sir: private property.
Your request for an opinion is substantially as fol-
lows:
If a property owner in Harrison County re-
quests a County Commissioner to build on the
owner’s priva.te property a driveway entering a
county or state’ road, and the county commis-
sioner does so, using county materials, machin-
ery, and labor, is the county commissioner subject
to prosecution under Article 95 of the Penal Code
of the State of Texas 7
The decisions of the Texas courts have repeatedly held
that the commissioners’ court is a court of limited jurisdiction
and has only such powers as are conferred upon it, either by ex-
press terms or by necessary implication, by the statutes and the
Constitution of ,this state. Childress County v.. The State, 127
Tex. 343, 93 S.W,Zd KID (1936); Von Rosenberg v. Lovett, 173
S.W. 508 (Tex. Civ. App. 1919, error ref.); Roper v. Hall, 280
S.W. 289 (Tex. Civ. App. 1925); Art. 2351, V.C.S.; 11 Tex. Jur.
632, Countiesi Sec. 95.
The only statute we have found which authorizes the use
of county road equipment for improvements on private property
is Article 2372c, V.C.S.. authorizing the, commissioners’ court
to use road equipment and machinery in soil conservation work,
for which the county receives compensation from the persons
for whom the services are performed. We do not find any stat-
ute authorizing the use of county road materials and equipment
for the construction of a private road. And in view of Section 52
Hon. Wm. L. Taylor, page 2 (V-1348)
of Article III, Constitution of Texas, any statute which at-’
tempted to authorize the use of county material and equip-
ment for private purposes without compensation to the county
would be unconstitutional. See Dunlap v. Hardin, 223 SW.
711 (Tex. Civ. App. 192d); Gray v. Lewis, 88 S.W.Zd 603 (Tex.
Civ. App. 1935); Att’y Gen. Op. O-6670 (1945). qualified on
other points in Att’y Gen. Op. O-6908 (1945).
Article 95, V.P.C.. provides:
“If any officer of any county, city or town,
or any person employed by such officers, shall
fraudulently take, misapply, or convert to his
ownuse any money. property or other thing of
value belonging to such county, city or town, that
may have come into his custody ‘or possession
by virtue of his office or employment, or shall
secret the same with intent to take, misapply or
convert it to his own use. or shall pay or deliver
the same to any person knowing that he is not en-
titled to receive it, he shall be confined in the
penitentiary not less than two nor more than ten
years.” (Emphasis added.)
It is our opinion that a county commissioner who de-
livers county road material to an unauthorized private project
may be subject to prosecution under Art.icle 95. However, the
answer to your questi~on would be controlled by the facts of the
individu.al situation. This office does not pass upon fact ques-
tions, but the general rules of l.aw stated above may be of help
to you in considering specific fact situations.
SUMMARY
The use of county material and equipment
in the construction of private roads is unauthor-
ized. and is a violation of Art. 95, V.P.C., if all
.
Hon. Wm. L. Taylor, pagi 3 (V-1348)
the elements of the offense prescribed by that
statute are present.
APPROVED: Yours very truly,
J. C. Davis, Jr. PRICE DANIEL
County Affairs Division Attorney General
Jesse P. L&on, Jr.
Reviewing Assistant
Charles D. Mathews
First Assistant
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