                               ATTORNEYGENERAL OF TEXAS
                                            GREG        ABBOTT




                                               October 23,2006



TheHonorableMike Fetter                                  Opinion No. GA-0473
Upshur County Criminal District Attorney
405 North Titus Street                                   Re: Authority of a county commissioners court to
Gilmer, Texas 75644                                      appoint a county road administrator who is not a
                                                         road engineer (RQ-0472-GA)

Dear Mr. Fetter:

        You ask about the appointment of a county road administrator by the Upshur County
Commissioners Court.’ In connection with your request you inform us that Upshur County (the
“County”) operates under a county road department system pursuant to elections held in 2002 and
2004. Early in 2005, the County sought to hire a county road engineer. See Request Letter Brief,
supra note 1, at 1. You inform us that two individuals applied as engineers and four individuals
applied as road administrators. See id. You further inform us that one of the qualified engineers
eventually withdrew his name from consideration.        See id. Finally, you tell us that the County
hired one of the road administrators.      See id. You state that the issue is whether the County
Commissioners Court violated the “Transportation Code when it appointed a road administrator even
though a county road engineer applied for the position.” Id. at 2. Additionally we received a brief
in response to your request that argues that the County violated section 252.304 ofthe Transportation
Code by hiring a road administrator when there was a qualified professional engineer candidate?

          Section 252.304(a) of the Transportation Code provides that the commissioners court of a
 county operating under a county road department system “shall appoint a county road engineer”who
 meets certain requirements and qualifications.    TEX. TR@.NS~.CODE ANN. 5 252.304(a) (Vernon
 1999). Even though section 252.304(a) uses the word “shall,” a county commissioners court is
 authorized under section 252.304(b) to hire a road administrator “[i]f the commissioners court is
 unable to employ a licensed professional engineer.” Id. 5 252.304(b). By its plain language, the
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‘~izxception~~authorizing a commrsstoners court to hue a road administrator~reqtiires~ only that the
 commissioners court be “unable to employ” a professional engineer. See id.; see tilso TEX.GOV'T


          ‘Letter and Brief from Honorable Mike Fetter, Upshur County Criminal District’ Attorney, to Honorable Greg
Abbott, Attorney General of Texas (Mar. 13, 2006) (on file with the Opinion Committee, also availabk at
http://www.oag.state.tx.us)   [hereinafter Request Letter Brief].

        2Brief from Honorable James Crittenden, Upshur County Commissioner, Precinct 1, to Nancy Fuller, Chair:
Opinion Committee, Office of the Attorney General of Texas (May 3,2006) (on file with the Opinion Committee).
The Honorable Mike Fetter - Page 2              (GA-0473)




CODE ANN.’5 311 .Ol l(a) (Vernon 2005) (p roviding that a phrase in a statute is to be construed
according to its common meaning). The statute does not specify any reasons or standards by which
a commissioners court would determine it was unable to employ a professional engineer. Thus,
section 252.304 grants a commissioners court the authority to determine, in the first instance,
whether it is unable to hire a licensed professional engineer.

         In your brief, however, you refer us to several prior opinions from this office. Because we
believe that two of the prior opinions provide conflicting advice, we briefly examine them here. In
Attorney General Opinion H-201, this office said that “[wlhere it can be shqwn 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.” Tex. Att’y Gen. Op. No. H-201 (1974) at 3 (emphasis added). Because a
qualified licensed engineer was a candidate for the position in Upshur County, it might appear as if
your question about the Upshur County Commissioners Court’s action is answered by this statement
in Opinion H-201. In 1974 when H-201 was issued, the road administrator exception provision
stated that “[i]f the Commissioners Court is not able to employ a licensed engineer for any reason,”
the commissioners      court was authorized to hire a road administrator.     Act of Apr. 25, 1957,
55th Leg., R.S., ch. 176, 5 1, 1957 Tex. Gen. Laws 371, 371. Attorney General Opinion H-201
considered the “for any reason” language of the road administrator exception in light of the
emergency clause in the enacting legislation. Tex. Att’y Gen. Op. No. H-201 (1974) at 3. The
opinion noted that the exception had been enacted to “provide an alternative to a county road
engineer for counties which were not able to hire a licensed professional engineer.” Id. Because of
the emergency justifying the initial enactment ofthe exception, H-20 1 construed the “for any reason”
to mean “any reason having to do with inability to hire a professional engineer who is qualified
according to the standards set by the Commissioners’ Court.” Id.

         Attorney General Opinion H-201, however, was disapproved in part by Attorney General
Opinion DM-368. In Opinion DM-368, this office recognized that H-201 could be read to sanction
only two reasons for not hiring a professional engineer as county road engineer-the         “scarcity of
professional engineers and the limitations on the engineer’s salary.” Tex. Att’y Gen. Op. No. DM-
368 (1995) at 5. Opinion DM-368 then clarified that the plain language of the exception was broad
and not to be construed as limited to just the two reasons contemplated in Opinion H-201. See id.
(disapproving Opinion H-20~1to the extent it is inconsistent with Opinion DM-368). Additionally,
in Opinion DM-368 this office construed the exception to retain the same meaning as it had before
a nonsubstantive revision omitted the words “for any reason.” Id. at 4; see dlso ‘I&x. TRANSP.CODE
ANN. 5 252.304 revisor’s~note (Vemon~ 1~999)(stating~mat~ me revised law omit$‘for any reason”
asunnecessary). Thus, OpinionDM-368 concludedthat,subjecttojudicialreview,acommissioners
court “may employ a road administrator instead of an engineer if ‘for any reason’ it is, in fact, unable
to employ an engineer.“, Tex. Att’y Gen. Op. No. DM-368 (1995) at 6.

        There have been no subsequent attomey.general opinions or judicial opinions construing the
exception in section 252.304 of the Transportation Code, so we follow the plain language of the
statute as construed by Attorney General Opinion DM-368. Under section 2521304, where a county
commissioners court is in fact unable to employ a licensed engineer, it may employ a road
The Honorable Mike Fetter - Page 3           (GA-0473)




administrator. See TEX.TRANSP.CODE ANN. 5 252.304(b) (Vernon 1999); see also Tex. Att’y Gen.
Op. No. DM-368 (1995) at 6. And, a county commissioners court has discretion to determine
whether it is in fact unable to employ a licensed engineer. See Tex. Att’y Gen. Op. No. DM-368
(1995) at 6.

         You inquire whether the Upshur County Commissioners Court violated this provision of the
Transportation Code by hiring a road administrator when a licensed engineer was also a candidate.
See Request Letter Brief, supra note 1, at 2. We cannot determine as a matter of law whether.the
Upshur County Commissioners Court violated section 252.304. The sole fact that a licensed~
engineer was a candidate is not dispositive that the Commissioners Court abused its discretion. We
do not know on what factual basis the Upshur County Commissioners Court determined it was
unable to employ a licensed engineer. And the determination of whether that factual basis falls
within the scope of the discretion ofthe Upshur County Commissioners Court granted by the statute
is a question we must leave to the courts. See Tex. Att’y Gen. Op. Nos. DM-368 (1995) at 6 (“The
commissioners court has discretion in making such determinations in the first instance, subject to
judicial review.“); GA-0430 (2006) at 3 n.4 (stating this office does not resolve fact questions).
The Honorable Mike Fetter - Page 4          (GA-0473)




                                     SUMMARY

                      Under section 252.304 of the Transportation          Code, a
              commissioners court may employ a road administrator when it is
              in fact unable to hire a licensed engineer as county road engineer.
              A commissioners court has discretion, subject to judicial review,
              to determine in the first instance whether it is unable to employ
              a licensed engineer.     The determination      of whether a county
              commissioners     court violates      section 252.304     involves  a
              consideration of facts and, therefore, is a question we must leave to
              the courts,

                                            Very truly yours,




                                                        General of Texas



RENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
