                   April 9, 1948

Hon. Sam Lee,        Opinion No. V-537
County Attorney,
Brazorla County,     Fie::   A&.horlty of commission-
Angleton, Texas              ers' Court and County Road
                             Engineer respectively,un-
                             der the Optional County
                             Road Law of 1947, V. C. S.
                             Art. 6716-l
Dear Sir:
          We refer to your letter of February 4, 1948,
in which you ask the following questions concerning the
Optional County Road Law of 1947:
         t*(1) What powers do the Commissioners'
    Court have under Section 3 of said act as the
    'policy-determining body'.of the County Road
    Department?
         "(2) Is the County Engineer a public
    ~officerunder the provisions of the Optional
    Road Law?
          "(3) Are Commissioners precinct lines
     of the county abolished by the Optional Road
     Law with reference to budgeting, operations,
     appropriationsand the keeping of the records
     of expenses by the Auditor for the malnten-
     ante and constructionof county roads? In
     other words, does the Auditor, in keeping his
     records, break the same down to Commissioners'
     precincts and charge each precinct with the
     money spent in that precinct or does he keep
     the records showing the expenses for the coun-
     ty as a whole?
          "(4) Do such powers as the Comaission-
     ers.1Court might have as the 'policy-determln-
     lng body' Include the adminlstratlonof the
     details of the work of the road department
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        Hon. Sam Lee - Page 2   (V-537)


             with the engineer as the employee of the court
             or Is the engineer an independentofficer of
             the county answerable to the court for the 8x-
             ecutlon of policy with reference to construc-
             tlon andmaintenance of roads with full power
             as to detail and execution of policy?
                 "(5) Is the County Road Engineer em-
            powered to place or use county road department
            equipment, materials and labor in any part of
            the county which in his judgment is necessary
            in carrying out county road constructionand
            maintenanceand the policies of the court In
            an efficient and economicalmanner without
            having his decision for such use of equipment,
            materials and labor overriden by any member
            of the Commissioners'Court gr bv the Cornmu-
            sioners' Court itself?
                  "(6) Under Section 9 of the act Is the
             right to hire and fire road department person-
             nel vested in the engineer and is the hiring
             and firing of individuals subject to the appro-
             val of the Commissioners1Court?
                  "(7) Can an individual Commissionergive
             an order for work to be.done and performed to
             an employee of the county road department in
             the fieid and can the individualCommissioner
             or the Commissionerscancel the work order of
             the engineer in the execution of policy by the
             engineer.
                  "(8) Does an Individualmember of the
             Commissioners'Court have the right to hire and
             fire employees without the approval and consent
             of the County Engineer?
                  "(9) May the Commissioners'Court ln-
             struct the engineer as to where he must place
             his equipment, and keep the 'sameand use the
             same in the county?
                  11(10) Under Section 13 of the law, may
             funds allocated to a specific road or project
             by the budget adopted be transferred to anoth-
             er road or project or for another use, or is
Hon. Sam Lee - Page 3   (v-537)


    such fund frozen to the particular project un-
    til the proposed work has been Completed on
    that specific project and then on application
    of the engineer the unencumberedbalance left
    over from that particular project be trans-
    ferred to another item on the road budset?
         "(11) Under Section 15, can the auditor
    legally pay any claim or bill for equipment,
    materials, supplies, and services purchased by
    the Commissioners'Court on competitivebid
    without the certificateof the engineer 'attach-
    8d to said bill.
         "(12) May the auditor legally pay any
    claim or bill for equipment,materials, sup-
    plies and services purchased by the Commlssion-
    ers Court for the use of the county road depart-
    ment which Is not bought on competitive bid and
    which does not have the certificate provided In
    Section 15 by the County Engineer attached to
    the same."
          Section 2% of Article XVI of the State Constitu-
tion reads:
          "The Legislature .&all make provision for
     laying out and working public roads, for bulld-
     ing of bridges; and for utilizing fines, forfei-
     tures, and convict labor to all these purposes.*
          Section 18 of Article V of the State Constitution
creates the Commissioners'Court and the pertinent part of
that Section reads:
          "The county commissionersso chosen, with
     the county judge, as presiding officer, shall
     compose the County Commissioners’ Court, which
     shall exercise such powers and jurisdictionover
     all county business as Is conferred by thls Con-
     stitution and the laws of this State, or as may
     be hereafter prescribed."
          In the case of Galveston H. & S. A. lly.Co. V.
Uvalde County, 167 S. W. 2d., 305 (writ of error refused),
the Court said:
Hon. Sam Lee - Page 4   (V-537)


          "The Commissioners'Court of a county
     has onl.ysuch powers as are expressly or by
     necessary implicationgiven it by the Consti-
     tution and statutes of this State."
          The same rule applies to count road engineers
                                         7.
under the Optional County Road Law of 1si:
          Powers of Commissioners'Courts are provided by
the LegislatureIn Article 2351, V. C. S., the pertinent
part of which read.88
          "Each Commissioners'Courtshall: . . .
     3.  Lay out and establish, change and dlscon-
     tinue public roads and highways.
     4. Build bridges and keep them In repair.
     5. Appoint road overseers and apportion
         hands.
     6. Exercise general control over all roads,
         ::I;,     ferries and bridges in their
                 ln

          Your questions relate to the enlargementand the
modificationof certain of the powers of Commissioners'
Courts In the constructionand maintenance of county roads
and the powers and duties in that regard, and the status of
a county engineer appointed by the Commissioners’Court In
countieswhich adopt the Optional County Road Law of 1947
(S. B. 226, Acts 1947 p* 288, V. C. S. Article 6716-l),the
pertinent parts of which reads
          “SEC” 3. The constructionand maintenance
     of county roads is vested In the .countvroad de-
     partment which shall include the Commissioners1
     Court as the policv determining bodv. the oounty
     road engineer as the chief executive officer,
     other administrativenersonnel. and road emulov-
     w.*    (Emphasisadded throughout)
          “SEC. 9. The county road engineer shall
     be responsible to the Commissioners1Court for
     the efficient and economical constructionand
     maintenanceof the county roads, m&all     have
     Jhe Dower to awwoint for an indefinite t8
     to remove all
                may auth&%e certain administrative
     gerso&el to emulov and remove subordinatesor
     gmplovees under their respect_ivedirection.
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        Hon. Sam Lee - Page 5   (V-537)


                 "SEC. 10. !?XC8Wtfor the WU w se of lnauirl
            the Commissioners'Court shall de:lOwith the N-
            tv road deWartment's administrativewer orinela
            BmWloves throunh the countv road engine&.
                 "SEC. 11. The county road engineer shall
            attend all meetings of the Commissioners'Court
            when It sits to consider county road matters with
            the right to participate in the discussions and
            to make recommendatlong . He shall see that the
            w         of the Commissioners Court relating to
            county roads are faithfully executed, suvervlse
            the admlnlstrationof the county road department,
            and prepare detailed annual budget estimates for
            the constructionand maintenance of the county
            roads and the operation of the county road depart-
            ment. The county road engineer shall prepare es-
            timates and specificationsfor all equipment, ma-
            terials, supplies, and labor necessary for the
            constructionand maintenance of the county roads
            and the operation of the county road department,
            serve as custodian for all equipment, materials,
            and supplies belonging to the county road depart-
            ment, prepare plans and specificationsfor all
            county road constructionand maintenance, main-
            tain cost accounting reoords on county road de-
            partment expenditures,keep a perpetual inventory
            of all county road department equipment, material
            and supplies, and perform such other duties as
            the Commissioners'Court may require which are
            consistent with this Act.
                 "SEC. 13. All expenditures for the construc-
            tion and maintenance of the county roads and the
            operation of the county road department shall be
            paid out of the Road and Bridge Fund strictly In
            accordance with annual budgeted appropriations,
            axcewt that UD n aonllcation of the countv rod
                     the Commissioners' Court may transfer any
            part of any unencumbered appropriation balance for
            some item within the Road and Bridge Fund budget
            to some other Item.
                  "SEC. 14. On projects of county road con-
             struction and maintenance let to private contrac-
                                  enaer    shall be the rebra-
                                     lneinspeatlngthe progress
Hon. Sam Lee - Page 6   (V-537)


     of the work. Before any claims by reason
     of county road constructionor maintenance
     done by private contractors shall be ordered
     paid by the Commissioners'Court, the county
     road enEineer shall certifv in writing to the
     gor ctn ss of the claiu and shall certify
     thaEetheeworkdone conforms to the clans and
     specificationscalled for in the reipective
     contracts.
          "SE. 15. All equipment, materials, sup-
    plies; and services other than those of admlg-
    istrativepersonnel and employes for the coon-
    structlonand maintenance of county roads and
    for the county road department shall be nur-
    chased by the Commissioners'Court on competl-
    tive bids In conformitywith estimates and
    sDecificationsnresed bv the countv road en-
    -.        Before any claims covering the pur-
    chase of such equipment,materials, supplies,
    and services shall be ordered paid by the Com-
    missioners'Court the county road engineer
    shall certify In writing to the correctness of
    the claims and shall certify that the respec-
    tive equipment,materials, supplies, and sa-
    yices covered by the cl    s conforms to SDeC&-
    ficatigns  aDDroved bv #    and that the same
    respective equipment,mat&lals, and supplies
    were delivered in good condition, or the ser-
    vices satisfactorilyperformed."
          &x3;; th;ep;$i:ions of Section 39 the construe-
tlon and ma    nan       untv roads is vested In the coun-
ty road department9which includes the Commissioners'Court,
as the **policydeterminingbody."
          "Pollcyt'is defined by Webster as "A definite
course or method adopted and followed by a government,in-
stitution,body, or individual." "Determine"as there used
means 1tdecide.8m
          This department cannot write a definitionwhich
will cover each factual question which may arise. General-
ly speakinK,we are of the opinion that the Commissioners
Court of Brazoria County, after adoption of the Optional
County Road Law of 1947, has authority to decide and outline
Hon. Sam Lee - Page 7   (v-S37)


the general principles and the general over-all system
governing the co truction and maintenance of county
roads in that co%y.    The Commissioners'Court has all
of the powers and duties given by Article 2351, V. C. S.,
which are not delegated to the County Road Engineer in
the Optional County Road Law of 1947. Your first ques-
tion is answered accordingly.
          The title of the Optional County Road Law
reads, in parts
         "An Act . D D creating the office of coun-
    ty road engineer; providing for the appolntment
    of a county road engineer and prescribing the
    qualifications,powers, duties, tenure, salary,
    oath, and bond of the county road engineer."
          The Act then prescribes the qualifications,
powers, duties, tenure and salary and requires that such
engineer shall enter into bond and take the official oath
of office.
          A person who Is required to enter into bond,
take an oath of office, and exercise functions of govern-
ment in the performance of a public duty, as is required
of a county road engineer, is an officer. 34 Tex. Jur.
322-373, Sec. 2.
          The term of office Is not fixed in the law. It
provides that (Section 7):  "The County road engineer
shall hold his position for an &&finite term and may
be r oved bv a malorltv vote of the CommissionersCourts
The %ure    of the law to provide a fixed term does not
militate against our decision that such engineer is an
officer.
          In this regard, your attention Is directed to
Section 30 of Article XVI of the Constitutionwhich reads
In part: "The duration of all offices not fixed by this
Constitution shall never exceed two years."
          We are of the opinion that the County Road En-
gineer appointed under Optional County Road Law of 1947
is a public officer. Your second question is answered in
the affirmative.
          Sections 4 and 13 of the law are pertinent to
your question No. 3. They read:
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             Hon. Sam Lee - Page 8   (v-537)


                       “SEC. 4. The constructionand main-
                  tenance of county roads, the ownership and
                  use of all county road department equipment,
                  materials, and supplies,and the admlnistra-
                  tion of the county road department shall be
                  on the basis of the county as a whole with-
                  out regard to commissloners~precincts.
                       “SEC. 13. A11 expendituresfor’the con-
                  structionand maintenanceof the county roads
                  and the operation of the county road depart-
                  ment shall be paid out of the Road and Bridge
                  Fund gtrictlv In accordance with annual bu$-
                                 tions euent aat ubon e-
                  pation of the county road enelneer the Com-
                  mlssioners~’Court may transfer any part of any
                  unencumberedappropriationbalance for some
                  item within the Road and Bridge Fund budget to
                  some other item.”
                        We are of the opinion that precinct lines are
              abolishedwith reference to budgeting, operations,and ap-
              propriatlonsin the constructionand maintenance of county
              roads in counties adopting the Optional County Road Law,
              so that such shall be on a county basis as a whole without
              regard to commissioners’precinct lines. In other words,
              the County Auditor, In keeping his records, does not dl-
              vlde the road and bridge fund among the four commission-
              ers’ precincts and show the amount of money expended in
              each precinct. On the contrary he’keeps said records for
            _ the county as a whole.
                       Sections 3? 9, and 10, supra, are pertinent to
             your related question No. 4 for the purpose of this opln-
             Ion. The County Road Engineer is answerable to the Com-
             missioners’Court for the execution of the policies pre-
             scribed by the Commissioners’Court In the construction
             and maintenance of county roads. Your fourth question is
             answered accordingly.
                       It is provided in Section 11 that the County ’
             Road Enelneer “shall serve as custodian of all equipment,
             materials and supplies belong.lngto the county road de-
             partmentmI1 It Is clear that such custody shall be for uses
             In the constructionand maintenanceof county roads In ac-
             cord with the policy (system) established by the Commission-
             ers’ Courte The decision of the County Road Engineer as to
             the custody of the equipmentwill not be questioned so long
 Hon. Sam Lee - Page 9   (V-537)


 as it iS In accord with the general policy of the Coun-
 ty as prescribed by the Court. That body has the power,
 as the policy making body, tm lay down general rules for
 the preservationand protection of the County's equip-
 ment. Your fifth question is answered accordingly6
           Section 9 of the law provides that the County
 Road Engineer "shall have the power to appelnt for an In-
 definite term and to remove a&l eoumty road department
 personnel, subject to the approval of the Commissioners'
 Court. He may authorize certain administrativeperson-
 nel to emfioy and remwe subordinates or employes under
 their respective direction."
           Under this section th,eappointment and removal
 of "all road department personnel" Is subject to the ap-
 proval of the Court. The County Engineer may appoint or
 remove such personnel, subject to such approval.
           Section 10 of the low readsg
           "Except for the purposes of inquiry, the
      Commissioners'Court shall deal with thencoun-
      ty road department'sadministrativepersonnel
      and empleyes through the county Read Engineer."
            We are of the opinion that neither the Commls-
  sioners' Court aor any of Its members are authorized to
  hire or fire any county road personnel or employe, or to
  give orders for the performance or non-performanceof ad-
  ministrative details of such work. Neither can the Com-
. missioners' Court or any member thereof cancel the work
  order of the engineer which was made pursuant to the pol-
  icies of the Commissioners'Court. Your seventh and
  eighth questfons are answered in the negative.
           Your ninth question is answered in our answer
 to your fifth question0
           We are of the opinion that the funds allocated
 In the annual budget to a specific project may not be
 transferred to another road project until completion of
 such project to which it was allocated, At that time the
 unencumbered balance of such fund may be transferred, up-
 on application of the County Road Engineer, to some other
 Item within the Road and Bridge Fund budget. Your tenth
 question Is answered accordingly.
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          Hon. Sam Lee - Page 10   (V-537)


                    Your questions 11 and 12 are grouped because
          they are answered in Section 15 of the law which reads:
                    “All eaulument, materials. suuolies
              gnd services other than those of admlnis-
              ative uersonnel and emuloves for thq
              sonstruction and maintenancq of county
              roads and for the county road department
              shall be purchased by the Commissioners1
              Court on competitivebids ;Lnconformitv
              with estimates and suecificationsure-
              pared bv the countv road engineer. Be-,
              fore anv claims covering the uurchase of
              such materials, suunlies. and services
              shall be ordered paid by the Commisslon-
              ers’ Court the county road engineer shall
              certify In writing to the correctnessof
              the claims and shall certify that the re-
              spective equipment,materials, supplies,
              and services covered by the claims a-
              QT.&J to the sueciflcatlonsauuroved bg
              m     and that the same respective equlp-
              meni , materials, and supplies were de-
              livered in good condition, or the ser-
              vices satisfactorilyperformed.”
                    A law expressed in plain, unequivocal language
          is not subject to construction. Your eleventh and twelfth
          questIons are answered in the negative.

                               SUMMARY

                    Under,the Optional County,Road Law of
               1947, Art. 6716-l V. C. S., the Commission-
               ers’ Court has authority as the “policy-
               determiningbody” to decide and outline the
               general principles and the “over-al18’sys-
               tem governing the constructionand mainten-
               ance of county roads. The County Road En-
               gineer Is a public officer under this Act
               and he has power to employ and discharge
               road department personnel, subject to the
               approval of the Commissioners’Court,
                   The law provides that neither the Com-
               missioners’ Court nor any member thereof
. .




      Hon. Sam Lee - Page 11   (V-537)


          may give orders for work to be performed
          by employes; nor can said court or any
          member thereof cancel any work order of
          the County Engineer that was issued pur-
          suant to the general policies of the Com-
          mlssloners~Couti. The CouW,y Road Rngi-
          neer is the exclusive custodian of all
          equipment,materials, and supplies of the
          county road department. The Commission-
          ers' precinct lines have been abolished        _
          under this law with reference to budget-
          ing, operations and appropriationsin the
          constructionand maintenance of county
          roads, and the county auditor shall keep
          his records for the whole county rather
          than for four commissioners’precincts.
          The auditor cannot pay any claim or bill
          for equipment, supplies, materials or
          services unless the same is purchased on
          competitivebids, and said bill or claim
          must have attached thereto the certifl-
          cate of the engineer.  Art. 6716-1, V.C.S.

                                     Yours very truly,
                                 ATTORNEYGENERAL OFTEXAS



                                     W. T. Williams
      WTWrwb                         Assistant




                                 ATTORNhY GENERAL
