Untitled Texas Attorney General Opinion ( 1948 )

Arrxmm $1. TEXAS
PRICE DANIEL
ATTORNEYGENERAL
March 31, 1948
Hon. H. P. Querra, Jr. Opinion No. V-532
county Attorney
Starr County Re: The validity 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:
Reference Is made to your recent request
which reads, in part, as follows:
"The CommIssionera Court 0r 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
discharge, the CommissionersCourt &all
employ akl mob county road workers In
the various precincts. The resolutional-
so provides that all materials and supplies
necessary in the malnhainancr bZ such roada
shall be purchased by the court and not by
the respecttve commtssloners and further
provides that the County Judge 1s thereby
appolntod the sole person authoriaed to
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 for it.
"The two comisslraers who voted
against the resolution, consider that
Hon. H. P. Cuerra, Jr., page 2, (V-532)
it Is an attempt on the part of the two
oommlssloners who voted for 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 to
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
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 0r 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
impPOVement8 are necessary to place the
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 the
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 or toams, and
hire such labor as may be needed In addl-
tlon to the labor requ&redWof citizens to
build or repair the roads.
If Starr County has appointed a road supsrln-
. -
Hon. H. P. ffuerra, Jr., page 4, (V-532)
tendent for the county or one such superintendent for
each precinct of the county, pursuant to~Artlcle 6743,
v. c. s., then Article 6751, V. C. S., la applicable
and is as r0ii0ws:
'The coamlssionerscourt of any such
county Is authorized to purchase or 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 the
same.
The court, in the cash of Stovall v. Shivers,
(01~. App. 7 8. w."(2d) P76, aTfIrmed 129 Tex. 256,
103 9. w. t 26 7 363, said:
'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
agency of the whole county. The respective
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.$hways,
ferries, and bridge8 in their counties.
We believe that the resolution Is merely cum-
lative Insofar as It states that the Commissioners1
Court shell employ all such county road workers In the
various precincts, since it is incumbent upon the Com-
missioners' Court to perform this duty under the stat-
utea, even in the absence of such a resolution. True,
Xon. 11. P. Cuerra, Jr., page 5 (V-532)
each Commissiona) may recommend to the Counniaaloners~
Court that it employ certain PSPBOnS~ to work on the
county roads in his respective precinct, but the Com-
missioner himself has no authority to e$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 Is 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,
as 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
blda , , . . In cases or emergency,pur-
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
to the location or extent thereof or the
funds from which said repair or mainte-
nance la paid. In such case the owner of
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
that the COdBSi0IKWS t Court may condemn same.
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
($2,000) or more out of any fund or funds
of any county or subdivision of amy ooUnty
creating or~imposing an obligation 6r lla-
billty of any nature or character upon such
county or any subdivision of such county,
or upon such City, without first sUbmittiE%gV
such proposed contract to competitive bids.
It further provides for advertisement, etc.,
together with a calamity clause.
We think it abundantly clear from the above
statutes that it Is the duty of the cO3UIIiBS~On~rS’ Court
to m8.kesuch purchases and further that the power 18 a
non-delegable one. Rence, the Commissioners' Court may
not authorize the County Judge to make such purchases.
By virtue of the foregoing, it is the opinion
of this Department that the resolution passed is Of no
force and effect insofar as it attempts to dele$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