                                                                                        ENERAL




                                                   November            30,     1971



Miss     Naomi         Harney                                   Opinion         No.          M-1004
County      Attorney
Potter      County       Courthouse                             Re:            Several         questions             relating      to
Amarillo,            Texas     79101                                           county         control        of vehicular
                                                                               traffic        at a railroad                crossing.
Dear     Miss        Harney:


             In your          recent      letter    to this        office,       you      request        our        opinion       as
to the following             questions:


                1.     Can     Potter      County         legally       employ          a flagman            at the
                       Santa     Fe      Railway      crossing            between         the hours            of
                       8:00 o’clock          P. M.        and     12:00       o’clock         P. M. ?


                2.     If Potter         County     should          employ       a flagman              and if it
                       has     assumed        a duty which              it is not obligated                 to as-
                        sume     in accordance              with       the law,          would        Potter
                       County      be     subjecting         itself       to civil       liability       for        damages?


                3.     If Potter         County     should          employ       a flagman            between              the
                       hours     of 8:00      o’clock        P.M.         and        12:00     o’clock         P.M.         ,
                       and an accident              should        occur       at 4:00         o’clock        P. M. ,
                       would     Potter       County        be      subjecting           itself    to civil          li-
                       ability     for    not having         a flagman               covering         the    crossing
                       for    the full     24-hour         period?


             4.        What      would     be the liability               of the Sheriff’s              Department
                       of Potter         County,      Texas,           if the Sheriff,             at the request
                       of the Commissioners’                       Court,       parked         a Sheriff’s             vehicle
                       at the crossing             with     the     red      light    on top of the vehicle
                       operating         between       the hours             of 8:OO o’clock                P.M.           and
                       12:OO o’clock          P. M.        on Saturdays               and Sundays?                   Tickets
                       would     also     be issued          for      vehicular          traffic      failing         to stop
                       at the     stop     sign    installed          at the crossing.




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Miss      Naomi          Harney,            page      2                       (M-1004)




                 5.          Can    Potter      County             enter        into a contract              with      the
                             railroad        Company               to install,           on the       railroad         right-
                             of-way,        a regular              railroad           signal      light     and bells
                             which      warn       the public             of an approaching                  train?
                             The     County        would          pay     90 per         cent     and the       railroad
                             company          would        pay       10 per           cent    of the cost           of in-
                             stallation.


                 Article           6699,      Vernon’s              Civil       Statutes,          relates          to the hiring         of
“County          traffic        officers,       ” and provides,                       in part,        as    follows:


                                   “The     Commissioners                       Court         of each       county,
                 acting         in conjunction               with        the Sheriff,             may       employ       not
                 more          than five       (5)        regular         deputies,             nor   more          than two
                 (2)    additional            deputies            for     special         emergency             to aid       said
                 regular           deputies,          to be known                as      county       traffic        officers
                 to enforce             the highway                 laws        of this       State     regulating            the
                 use        of the public           highways              by motor              vehicles.       ”


These      traffic           officers,         operating             under        the direction              of the County             Sheriff,
may      be assigned               the duty of controlling                       the traffic  at the crossing                         in question
during         the specified           time,  in line with                      their statutory   responsibility                         to en-
force     the State’s              highway         laws.            Attorney            General’s           Opinion          O-1454       (1939.)
We      find    no specific              statute      authorizing                the Commissioners                      Court        of Potter
County,          a county           of less        than      150,       000     population,            to direct         or     control        traffic;
therefore,             we conclude             there        is no implied authority  in the County to employ
a flagman             for     that purpose.                We thus answer   your first  question  in the nega-
tive,     except            insofar        as a traffic             control           officer      under      the direction            of the
County          Sheriff        could       be made           available       to perform    the duties                         indicated.   In
view      of this       answer            to your         first      question,   we   do not  answer                         your question
Nos.      2 and         3.


                  Your        question         No.        4 envisions             action         by the Sheriff’s               Department
to alleviate            the dangerous                 conditions              at the crossing                in question.             Such       action,
performed              by County            traffic        officers,          referred           to in the preceding                  paragraph
to enforce             the State’s           highway          laws,           would          not expand         County        tort    liability       be-
yond      its    existing           status.         Tort          liability       in a specific             situation         would       depend          on
the particular                facts        involved         and would             not be within              the power           of this       Office
to decide.




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    Miss        Naomi          Harney,         page        3                   (M-1004)




                       Your      question           No.        5 relates           to the County’s            authority            to contract
    for       the    installation         of a regular                 railroad        signal      light      and bells          which       would
    warn        the public         of an approaching                      train.       Article        6701d,           Vernon’s           Civil
    Statutes,          otherwise            known          as the Uniform                 Act     Regulating            Traffic          on High-
    ways,           provides        in Section             31(a)    thereof          as follows:


                                     “Local         authorities,               in their         respective          juris-
                      diction,        may          place       and maintain            any traffic-control
                      devices         upon         any highway             under       their      jurisdiction           as
                      they      may      deem        necessary              to indicate           and carry            out the
                      provisions            of this        Act,         or local-traffic            ordinances,               or
                       regulate,         warn        or     guide        traffic.         All    such        traffic      con-
                      trol      devices        hereafter            erected          shall      conform         to the State
                      Highway           Department’s                manual           and     specifications.             ”


                      Originally,             as     concluded            in Attorney            General         Opinion           No.     V-429
    (1947),          the term         “local        authorities”               as    contemplated             by the statute               did not
    include          County       Commissioners                     Courts.           However,             when        the Legislature              in
    1963        enacted        Sections            169     and     170     of Article           6701d,       Vernon’s          Civil       Statutes,
    it conferred              upon      the County              Commissioners                   Court       of 3         county          certain
    limited          authority          in the regulation                  of traffic        speed         limits      and thereby            brought
    the counties               within     the meaning               of “local          authorities”            as      defined       in Article
    6701d,          Section       12.


                      Section         169(a)        provides,             in part:


                                     “The      County            Commissioners                   Court       of any county
                      with      respect        to county            highways           or    roads         outside      the lrmits
                      of the right-of-way                      of any officially                designated           or marked
                      highway,           road,        or       street      of the State           Highway           System         and
                      outside        the limits            of any         incorporated             city,      town      or    village
                       shall     have     .    .    . authority            .   .    . to alter       maximum             prima
                      facia      speed        limits        upon        the basis         of an engineering                  and traf-
                      fic    investigation.                . .‘I


                      Section         170(b)        provides,             in part:


                                     “Whenever                 the .     . . County             Commissioners                 Court
                       . .     . determine               on the basis              of an engineering                and traffic




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Miss     Naomi              Haney,            page         4




                    investigation                 that     slow        speeds             on any part             of a highway
                    consistently               impedes            the normal                   and reasonable                move-
                ment             of traffic,          the        said        .    . . County              Commissioners
                    Courts         .         . are        hereby         empowered                    and may         determine
                    and declare               a minimum                  speed            limit      thereat        or thereon,
                    and when               appropriate             signes            are       erected        .      .    , no per-
                    son     shall          drive     a vehicle               below         that limit          except        when
                    necessary               for     safe       operation             or        in compliance             with    law.       ”


                    Finally,            in 1971,           Article               6701d      was       again       amended        (S. B.         No.        183,
Chap.         83,     722,         62nd       Leg.,            R.S.,             1971),        and in Section             87 it was           in part
provided            that:


                                   “The           State        Highway             Commission                and local          authori-
                    ties     with          respect        to highways                    under       their     respective           juris-
                    dictions           are     hereby           authorized                 to designate             particularly
                    dangerous               highway             grade            crossings           of railroads            and to
                    erect         stop      signs        or other                standard          traffic-control              devices
                    thereat.           ”


The     statute            further          provides            for     costs            for    installation          and maintenance                      of
the mechanically                       operated            safety        devices,                 etc.     to be apportioned                  and paid
“on     the    same          percentage                  ratio     and in the                  same       proportionate             amounts            by the
State    and all            political             subdivisions                   thereof        as is presently               established              policy
and practice                of the State              of Texas                   and the Federal               Government.              ”


                    In view            of the foregoing,                     we have              concluded         that     Potter         County,
assuming             the location                  is within           its       legal     jurisdiction,             does       have     the authority
to contract                for    the installation                 of a regular                    railroad         signal      light    and bells
which     warn             the public              of an approaching                       train         pursuant        to the above             referenced
statutes.             The         Commissioners                        Courts            of any          county    thus      have      the power                to
erect     such         an appropriate                      warning                sign    to warn          and alert         traffic        for      its   safe
operation             at those             locations            within           their      respective            jurisdictions.


                    In this        connection                  it should           be pointed              out that      any device             or     signal
erected         must             conform           in its       design            and location              to the Texas            Manual            on Uni-
form      Traffic            Control           Devices            for        Streets           and Highways               issued        by the         Texas
Highway             Department                under            authority            of Article             6701d,        Section        29.




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    Miss        Naomi        Harney,         page   5                  (M-1004)




                                                          SUMMARY


                                   Potter      County       may     not legally            employ       a flag-
                     man      at a railroad          crossing          on a county           road,      but these
                        services      may     be performed             by    a county         traffic       officer
                    pursuant          to Article          6699,    Vernon’s          Civil     Statutes.           Per-
                    formance           of such      an officer          in accord          with      his    statutory
                     duty to enforce            State      highway          laws     would     not expand             the
                     County’s         tort    liability      beyond        its   existing      status.


                                   Potter      County       may      enter       into a contract            to in-
                     stall    a regular         railroad          signal     light    and bells            which
                    warn       the public        of an approaching                 train     pursuant        to
                    Sections         87,     169,   and      170    of Article        6701d,         V. C. S.,
                    as     amended.




    Prepared            by Kerns       Taylor,
    Assistant           Attorney       General


    APPROVED:
    OPINION             COMMITTEE


    W. E.        Allen,      Acting        Chairman


    James         Mabry
    Charles         R.     Lind
    Houghton            Brownlee
    William         Craig


    SAM         MCDANIEL
    Staff       Legal     Assistant


    ALFRED              WALKER
    Executive            Assistant


    NOLA         WHITE
    First       Assistant
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