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                                                     GREG        ABBOTT



                                                         January 19,2005



          he Honorable Bruce Isaacks                              OpinionNo.      GA-0295
          Denton County Criminal District Attorney
          1450 East .McKinney, Suite 3100                         Re: Operation of the ex officio road commissioner
    : ._  PostOfficeBox2850
          Denton, Texas 76202
                                                                  system and allocation of road .a.ndbridge funds in
                                                                  Denton County (RQ-0254-GA)

         DeaiMr.
              rsaach:
                  .You seek advice about the ex officio road commissioner systemof county road and bridge
         : administration as it has been implemented in Denton County.’ See TEX. ‘X~ANSP. CODE ANN. ch.
           252, subch. A (Vernon 1999) (Ex Officio Road Commissioner System). Transportation Code
           chapter 252, subchapter A authorizes a county road administration system in which each county
       : commissioner is the ex officio road commissioner of his precinct. See id. 0 252.003.

c ..     i.       Facts

                  Prior to October 1,2003, Denton County administered its roads and bridges as a single
         county-wide system under the road superintendent system authorized by chapter 252, subchapter C.*
         See id. $0 252.201-.216. A single road superintendent appointed by the commissioners court had
         general supervision over the county’s roads, subject to the court’s orders. See id. $0 252.203;
         .205(a). All requests for road work in the county were made to the road superintendent, and no work
         crew was assigned to an individual county commissioner precinct. See Request Letter, supra note
         1, at 2.
:                 Effective October 1,2003, Denton County adopted the ex officio road commissioner system

    ._   authorized, by chapter 252, subchapter A. See id.; TEX. TRANSP. CODEANN. $9 252.001-.006
         .(Vernon 1999). At that date, each county commissioner became the ex officio road commissioner
         for his county commissioner’s precinct. See TEX.TIUNSP.CODE ANN. 0 i52.003 (Vernon 1999).
         Information you provide about county roads in the unincorporated areas of Denton County,
         excluding, interstate highways, state highways, farm to market roads, and city streets, shows
         significant variations in county road mileage among the four precincts. See Request Letter, supra


                  ‘Letter from Honorable Bruce Isaacks, Criminal District Attorney, Denton County, to Honorable Greg Abbott,
         Tkxas Attorney General (July30,2004) (on file with Opinion Committee, also available at ht@//www.oag.state.tx.us)
         @ereinafier RequestLetter].
(                w. at 1.
                                                                                                               ,
 The Honorable Bruce Isaacks - .Page 2          (GA-0295)
                                                                                                                   ?


note 1, at 2-3. Over 6Qpercent of the mileage is located in precinct one and almost 39’percent of the
mileage in precinct four, while precincts two and three combined have less than one percent of the
county road mileage. See id at 2. Denton County has divided its centralized road crew into two
groups, locating them at facilities m precinct one and precinct four. Id. at 3. No work crew is
located in either precinct two or three, but the ex officio road commissioner in precinct two is to have
road work performed by the road crew in precinct one, and the precinct three commissioner by the
road crew in precinct four. See id.

         The Denton County road and bridge fund is comprised 95 percent of motor vehicle
registration fees, while 5 percent derives from otherrevenue sources, such as the farmtomarket road
tax and flood control tax. Id. See TEX. ASP.        CODEANN. @502.102 (Vernon Supp. 2004-05)
(disposition of vehicle registration fees); 502.108 (Vernon 1999) (use of registration fees retained
by county). See also id 0 502.172 (Vernon 1999) (optional vehicle registration fee for county road
and bridge fund). The county budget for fiscal year 2004 allocated the county road and bridge fund
by “distributing 95% of alI road material funds to Precincts 1 and 4 with Precincts 3 and 123
receiving 5% of such material funds” and distributing all other road and bridge funds equally among
the precincts, each receiving 25 percent of the remaining fbnds.’.See Request Letter, supra note 1,
at 3. The budget. for fiscal year 2005 allocated all road and bridge funds to the precincts based on
the mileage and historical expenditures for the past five years. See id. at 4. Road and bridge funds,
without distinguishing between materials cost and other budget items, were allocatedfor fiscal year
2005 as follows:

                PrecinctOne            54%
                                                                                                           c
                Precinct Two             2%

               Precinct Three            1%

               Precinct Four           43%

Id. at 4.



         Transportation Code chapter 25 1 .sets out the commissioners court’s general authority over
roads. while chapter 252 provides for optional systems of road administration that a county
may adopt. See TEX. TRANSP.CODE ANN. chs. 251, 252. (Vernon 1999 & Supp. 2004-05).
Transportation Code chapter 252, subchapter A authorizes the commissioners court to adopt the ex
officio road system, under which each county commissioner is the ex officio road commissioner of
his precinct. See id. $0 252.001(a),- .003 (Vernon 1999). See ah id. 0 252.002 (subchapter A
controls over conflicting general laws relating to roads). Before assuming the duties of an ex officio
road commissioner, a county commissioner must execute a bond conditioned on the individual’s
performing “the duties required of the ex officio road commissioner by law or by the commissioners
court” and accounting for money or other county property coming into his possession. Id.
5 252.004(a). The commissioners court “shall adopt a system for laying out, working on, draining,
    TheHonorable Bruce Isaacks - Page 3            (GA-0295)




    and repai&g the public roads.” Id. 0 252.005(a). The commissioners court may also “purchase
I   vehicles, tools, and machinery necessary for working on public roads and.may construct, grade, or
    otherwise improve a road or bridge by contract in the manner provided by Section 252.213.” Id.
    9 252.005(b). See id. 0 252.213 (procedures for road work contract). See. also id. 0 251.006
    (commissioners court may obtain material necessary to construct, repair, or maintain public roads).

             As a general matter, the ex officio road. commissioner exercises certain powers and duties
    independently within his precinct, and others subject to the commissionerscourt’s authority. Under
    the commissioners court’s direction, “an ex officio road~~&mnissioner rs responsible for the
    vehicles, tools, and machinery belonging to the county and placed in the commissioner’s control by
    the court.” Id. .§ 252.006(a). “[AIn ex officio road commissioner shall,” under rules of the
    commissioners court, direct the laying out of new roads, construction or changing of roads, and the
    building of bridges. Id. 5 252.006(b). See also id. $0 251.003(a) (commissioners court may make
    all necessary rules and orders for construction ofpublic ioads); 251.08 1 (authority of commissioners
    court to build and maintain bridges). “Subject to authorization by the commissioners court, an ex
    officio road commissioner may t%nploypersons for positions in the commissioner’s precinct to be
    paid from the county road and bridge fund.” Id. $252.006(c). Se.ea&o id. 0 256.001 (money in the
    county road and bridge fund may be spent only by order ofthe commissioners court). The ex officio
    road commissioner “may discharge any county employee working in the commissioner’s precinct
    who is paid from the county road and bridge fund.” Id. 6 252.006(d).

             An ex officio road commissioner must also determine the condition of the public roads in the
    precinct and the kind of work to be done on them, as well as direct “the manner of grading, draining,
c   or otherwise improving the roads.” Id. 0 252.006(f). He has the reporting duties that Transportation
    Code sections 251.004 and 251.005 require of county commissioners serving as road supervisors.
    See id. 0 252.006(e). See also id. $0 25 1.004(b) (duty to supervise the public roads in the precinct
    at least once a month); 25 1.005 (annual report on the condition of each road, culvert and bridge in
    the precinct; the funds needed to maintain the roads during the next fiscal year; any new road that
    should be opened; and other information relating to improvements).

    III.   Questions

           You ask the following questions:

           1.      Is the ex officio road commissioner system as. adopted and
                   functioning in Denton County in accordance with lega! requirements
                   and within the discretion of the Commissioners Court?

           21      Was the allocation of road and bridge funds for Fiscal Year 2004 in
                   accordance with legal requirements and within the discretion of the
                   Commissioners Court?

           3.     Is the proposed allocation of road and bridge funds for Fiscal Year
                  2005 in accordance with legal requirements and within the discretion
                  of the Commissioners Court?
 TheHonorable Bruce Isaac&s - Page 4             (GA-0295)
                                                                                                               1



        4.      Does the ex officio road commissioner of Precinct 2 have joint
                authority with the ex officio road commissioner of Precinct 1 to hire                      i
                the road and bridge crew to perform work in Precincts 1 and 2?

        5.      What authority, if any, does one Denton County ex officio road
                commissioner who shares a road crew with another ex officio road
                commissioner have over the road crew while it is performing work in
                the other commissioner’s precinct?

        6.      What authority does the Commissioners Court acting as a unit have
                over the individual ex officio road commissioner?

        7.      Ifnot answered in Question 6, what authority does the Commissioners
                Court acting as a unit have over the budget allocated to an individual
                ex officio road commissioner during the fiscal year other than its
                annual budgeting author-i@’

        8.      May an ex officio road commissioner system continue to be used in
                a County in which there are no longer any county roads in one of the
                commissioner precincts?

Request Letter, supra note 1, at 4-5.

         We will first answer questions 2 through 5, which relate to the legality of specific aspects of   (
the Denton County road system and then answer question 1; which relates to the system’s legality
in its entirety, and then questions 6 through 8.

Iv.     Questions 2 and 3: Allocation of Road and Bridge Funds

        You ask whether the allocations of road and bridge funds for fiscal years 2004 and 2005
complied with the law and were within the commissioners court’s authorized discretion. Article V,
section 8 of the Texas Constitution gives the district ‘court “appellate jurisdiction and general
supervisory control over the County Commissioners Court.” TEX. CONS-Kart. V, 0 8. Discretionary
matters are for the commissioners court to resolve in the first instance, subject to judicial review.
See Comm ‘rs Court of Titus County v. Agan, 940 S.W.2d 77,80 (Tex. 1997).

        The leading case on allocating the county road and bridge fund among the precincts is Sto&ZZ
v. Shivers, 103 S.W.2d 363 (Tex. 1937). The court in Stovall interpreted former article 6740 of the
Revised Civil Statutes: the predecessor of Transportation Code section 252.108, which provides as
follows:




     3ActapprovedApri16,1889,21stLeg.,RS.,ch. 111,$6,1889Tex.Gen.Laws  134,135,reprintedin9H.P.N.
GAMMEL,
      THE LAWSOFTEXAS1822-1897, at 1162,1163 (Austin, Gammel Book Co. 1898).
                                                                                                           C
     TbeHonorableBruce       Isaacks - Page 5         (GA-0295)
f



                             (a) In a county that employs road commissioners under this
                     subchapter, the commissioners court shall ensure that the county road
                     and bridge fund is judiciously and equitably spent on the roads and
                     bridges in the county. As nearly as the condition and necessity of the
                     roads permit, the fund shall be spent in each county commissioner’s
                     precinct in proportion to the amount of money in the fund collected
                     in the precinct.

    TEX. TFMNSP.CODEANN. $ 252.108(a) (Vernon 1999). This provision, found in chapter 252,
    subchapter B, does not apply to Denton County or to other counties that have adopted the ex officio
    road commissioner system under subchapter A. It nonetheless states some general rules about a
    county’s exercise of discretion in allocating the road and bridge fund among the precincts that
    provide guidance in addressing questions like yours. See Tex. Att’y Gen. LO-98-087 (relying on
    section 252.108 to consider allocation of road and bridge fund among precincts in county subject to
    Transportation Code chapter 251 and special road law).

             In StovuZZ,the Texas Supreme Court stated that a district court may review and abrogate an
     action of the commissioners court if it “acted arbitrarily without the exercise of any discretion, or
    clearly abused its discretion, . . . especially if the action of the court involves a failure to perform a
    duty affecting the public welfare.” StovuZZ,103 S.W.2d at 366. It noted that the members of the
    commissioners court are “primarily representatives of the whole county, and not merely
    representatives of their respective precincts.” Id. It is their duty to “transact the business, protect
    the interests, and promote the welfare of the county as a whole.” Id. The commissioners court had
    mechanically allocated one-fourth of the fund to each precinct, regardless of the amount of taxes
    collected in the precincts or condition and needs of the roads, and the Texas Supreme Court found
    that this allocation was “not authorized by article 6740, or any other statute.” Id. at 367. By contrast,
    in another case under former article 6740, the court uPheld a commissioners court’s allocation of the
    road and bridge fund to the precincts because the order was “supported by substantial evidence” and
    involved “no arbitrary action.” See AZZeyv. Jones, 311 S.W.2d 717,723 (Tex. Civ. App.-Beaumont
    1958, writ refd n.r.e.). See ako Jams v. Morton, 385 S.W.2d 702,706 (Tex. Civ. App.-Amarillo
    1964, writ ref d n.r.e.) (upholding commissioners court’s allocation of road and bridge fund under
    article 6740 because it was not arbitrary and was supported by substantial evidence).

             Relying on StovuZZ,this office has developed a test for allocating vehicle registration fees
    placed in the county road and bridge fund pursuant to section 502.102 of the Transportation Code.
    See TEX. TRANSP.CODEANN. 0 502.108 (Vernon Supp. 2004-05) (motor vehicle registration fees
    in road and bridge fund may only be used for the road construction, improvement, and maintenance
    purposes set out in statute). Attorney General Opinion O-1091 (1939) determined that the
    commissioners court, in spending the vehicle registration fees for county road purposes, “shah regard
    the roads and highways of the county as a system to be built, improved and maintained as a whole
    to the best interests and welfare of all the people of the county and of all the precincts of the county.”
    Tex. Att’y Gen. Op. No. O-1091 (1939) at 7. Accord Tex. Att’y Geri. Op. Nos. H-428 (1974) at 3,
    V-566 (1948) at 4. See also Tex. Att’y Gen. Op. No. GA-0128 (2003) at 3; Tex. Att’y Gen.
    LO-98-087, at 6.
                                                                                                               1
  The Honorable Bruce Isaacks - Page 6           (GA-0295)
                                                                                                                   P



         We conclude that the Denton County Commissioners Court has broad discretion to allocate
 the road and bridge fund among the precincts, keeping in mind its duty to represent the county as a
 whole. This authority applies to the allocations for fiscal years 2004 and 2005, as well as other
 budget years. We note, however, that in 2004 the county divided a portion of the fund equally
 among the four precincts, an allocation that may raise a question as to whether the commissioners
 court has exercised its discretion in the best interest of the county as a whole.       See StovuZZ,103
 S.W.2d at 367; Tex. Att’y Gen. LO-98-087, at 6. The county’s allocation of the road and bridge
 fund is subject to judicial invalidation for arbitrary action or other abuse of discretion. Whether the
 commissioners court abused its discretion in adopting the allocation for 2004 or 2005 must be
 determined by considering the evidence relevant to each annua.I allocation, something that cannot
 be resolved in an attorney general opinion. See, e.g., Tex. Att’y Gen. Op. Nos. GA-01 39 (2004)
 at 5, GA-0003 (2002) at 1; Tex. Att’y Gen. LO-98-087, at 6.

         You are also concerned about a restriction on the 2005 allocation to precincts two and three.
 See Request Letter, supru note 1, at 4,12. The commissioners court’s order allocating the road and
 bridge fund provides that “funds for Precincts 2 and 3 shall be deposited in ‘contract labor, road
 work. “’ Id. at 4, You state that the “probable interpretation” of this phrase “is that the ex officio
 mad commissioners for Precincts 2 and 3 w& not have the use of the road and bridge crews and will
 have to contract with private sources for any road workthat either seeks to do during the next fiscal
 year.” Id. In answering your question, we will rely on your interpretation of the restriction.

         As already noted, an ex officio road commissioner may hire employees for his precinct if the
 commissioners court authorizes the position. TEX.TRANSP.     CODEANN.$252.006(c)(Vernon 1999).
 Chapter 252, subchapter A does not, however, authorize the ex officio commissioner to contract with
 a public or private.entity to have road work done in his precinct. A county may act only through its
commissioners court, and individual commissioners have no authority to make contracts that are
binding on the county, except where authorized to do so by statute. See Canales v. Laughlin, 214
S.W.2d 451,455 (Tex. 1948); Anderson v. Wbod, 152 S.W.2d 1084,1085 (Tex. 1941). See also
Tex. Att’y Gen. Op. No. GA-0139 (2004) at 6 (ex officio road commissioner has no authority to
accept a street for county maintenance). Subchapter A authorizes a commissioners court to
‘,‘construct,grade, or otherwise improve a road or bridge by contract,“see TEx. TRANSP.CODEANN.
6 252.005(b)(V ernon 1999), ,but ex officio road commissioners do not have such authority.
Accordingly, the ex officio road commissioners for precincts two and three may not individually
contract with an entity for road work within their precincts. They may, however, request the
commissioners court to contract pursuant to section 252.005(b) with a public or private entity to
construct, grade, or improve a road or bridge within their respective precincts.

V.     Questions 4 and 5: Hirimand        Suuervisine Road Crews

        The Denton County Commissioners Court, having adopted subchapter A, must administer
the county roads consistently with its provisions. Commissioners courts possess only those powers
expressly confkrred by the Texas Constitution and the legislature. See City of Sun Antonio v. City
of Boerne, 111 S.W.3d 22,28 (Tex. 2003); Canales, 214 S.W.2d at 453. While a commissioners
court has broad discretion in exercising powers expressly conferred upon it, the legal basis for any
action by the court must be found in the constitution or statutes. See Canales, 214 S.W.2d at 453.         (
See aZsoCity of San Antonio; 111 S.W.3d at 28; Anderson, 152 S.W.2d at 1085.
    ,
         TheHonorableBruce      Isaacks - Page 7        (GA-0295)



                 In C&ales v. Laughlin, the Jim Wells County Commissioners Court adopted a resolution
I        providing that the roads in the county would be built, operated, and maintained on a county-wide
         basis and that the county would employ a county road unit administrative officer, who would
         exercise broad powers over county road administration, such as hiring and thing employees, setting
         their compensation, and purchasing equipment, materials, and supplies. See Canales, 214 S.W.2d
         at 454,456. The Texas Supreme Court determined that the commissioners court was statutorily
         authorized to provide for administering the roads on a county-wide basis, but that no statute
         authorized the court to create the position of county road unit administrative officer. See id
         at 454-55. The court reviewed statutes authorizing the commissioners court to employ road
         commissioners, road superintendents, and a county engineer. See id Finding that the commissioners       .
         court’s employment of a county road unit administrative officer did not comply with any of these
         provisions, the court reached the following conclusion:

                        {S]ince the legislature has expressly provided that the commissioners
                        courts may employ persons to superintend or supervise the county
                        road system and has placed certain conditions and restrictions on the
                        exercise of this power, these conditions and restrictions must be
                        observed if the authority is to be exercised.

        Id. at 457. Accord Starr County v. Guerru, 297 S.W.2d 379,380 (Tex. Civ. App.-San Anton@
        1956, no writ) (commissioners court may employ road commissioner only as authorized by statute);
        Guerru v. Rodriguez, 239 S.W.2d 915,918 (Tex. Civ. App.-San Antonio 1951, no writ) (position
        of ex officio road commissioner for precinct does not exist in county absent a statute creating that
        position).

                These decisions about the authority ofthe commissioners court and individual commissioners
        guide us in addressing your fourth question, as to whether the ex officio road commissioners of two
        precincts have joint authority to hire the road and bridge crew to work in both precincts.

                 Subchapter A provides that “[slubject to authorization by the commissioners court, an ex
        officio road commissioner may employ persons for positions in the commissioner’s precinct to be
        paid from the county road and bridge fund.” TEX.TR~NSP.CODEANN. 0 252.006(c) (Vernon 1999).
        It also authorizes an ex officio road commissioner to discharge any county employee working in his
        precinct who is paid from the county road and bridge fund. See id. 0 252.006(d). Once the
        commissioners court has authorized an employee position in a precinct, the ex officio road
        commissioner has authority to hire someone for that position as well as authority to fire that person.
        See Tex. Att’y Gen. id-97-021, at 2; Tex. Att’y Gen. Op. Nos. DM-158 (1992) at 4, MW-362
        (1981). Thus, a commissioners court lacks authority to overturn an ex officio road commissioner’s
        discharge of an employee working in that commissioner’s precinct and paid from county road and
        bridge fin&. See Tex. Att’y Gen. Op. No. DM-158 (1992) at 4.

                Subchapter A, however, includes no provision authorizing two ex officio road commissioners
        jointly to hire a person to work in both precincts. Nor does it provide that the crew hired by
        one ex officio road commissioner may work on roads in another commissioner’s precinct or be
        supervised by the other precinct’s ex officio road commissioner: If a county adopts subchapter A,
                                                                                                       1
 TheHonorableBruce     Isaacks - Page 8        (GA-0295)
                                                                                                           1


“[a] county commissioner is the ex officio road conimissioner of the county commissioner3
precinct:“- TEX.TRANSP. CODE ANN. 0 252.003 (Vernon 1999) (emphasis added). The ex officio
road commissioner’s authority under subchapter A is limited to his own precinct.

        We conclude, in answer to question 4, that the ex officio road commissioner of precinct two
does not have joint authority with the ex officio road commissioner ofprecinct one to hire the road
and bridge crew to perform work in precincts one and two. The answer to question 5 follows from
our answer to question 4. A Denton County ex officio road commissioner has no authority to
supervise a road crew jointIy with the ex officio road commissioner of another precinct or to
supervise employees other than those he has hired to work in his precinct.

VI.     Lwalitv of Denton Countv Ex Officio Road Commissioner Svstem

        We now.address your first question, whether the ex officio road commissioner system is
operating in Denton County in accordance with legal requirements and within the discretion of the
commissioners court. As we concluded in answering questions 2 and 3 about the allocation of the
r&d and bridge fund, ,the Denton County Commissioners Court has broad discretion to allocate this
$md among the four precincts, subject to its duty to represent the county as a whole. An attorney
general opinion cannot, however, determine the validity of the court’s decision as a matter of law.
See Tex. Att’y Gen. Op. Nos. GA-01 39 (2004) at 5, GA-0003 (2002) at 1. Thus, we caflIlot advise
you whether the Commissioners Court has funded its road system in accordance with law.

          In answering questions 4 and 5, however, we have determined that the ex officio road
 commissionersystem asimplementedinDentonCountyisnotoperatinginaccordancewiththelegal
 requirements set out in Transportation Code chapter 252, subchapter A. The ex officio road
 commissioner of a precinct does not have joint authority with the ex officio road commissioner of
 another precinct to hire a road and bridge crew to perform work in both precincts. Nor is an ex
officio road commissioner authorized to supervise employees other than those he has hired to work
 in his precinct. In addition, we determined in auswer to question 3 regarding the 2005 funding for
thecounty road system that an ex officio road commissioner lacks authority to c&&act for road work
to be done in his precinct. In these respects, the Denton County ex officio road commissioner system
‘is not operating in accordance with the relevant law.

.Vn.   Chestions 6 and 7: Commissioners Court’s Authority as a Unit over an Individual Ex
       Officio Road Commissioner

        You wish to know what authority the commissioners court acting as a unit has over an
individual ex officio road commissioner. Under the ex officio road commissioner system, the
commissioners court exercises a number of powers on behalf of the county and the road system as
a whole. Chapter 252, subchapter A grants an individual ex officio road comn@sioner certaiu
express powers to be exercised in his precinct, in most cases subject to the commissioners court’s
supervision.

        We first note that money in the county road and bridge fund may be spent only by order
of the commissioners court. See TEX. TRANSP. CODE ANN. 6 256.001(b) (Vernon 1999). The
l        The HonorableBruce Isa&s         - Page 9       (GA-0295)



        commissioners court’s authority over spending for roads has at least a practical effect on what
        an individual road commissioner may do in his precinct. For example, an ex officio road
        commissioner’s authority to hire au employee to work in his precinct depends upon the
        commissioners court’s authorizing the position and funding it t%omthe county road and bridge fund.
        See id. 0 252.006(c); see also Tex. Att’y Gen. Op. No. JM-1070 (1989) at 4 (in county with ex
        officio road commissioner system, commissioners court sets working hours and holidays for road
        employees as au aspect of compensation). Once an authorized position is filled, the ex officio road
        commissioner may discharge an employee in his precinct without the commissioners court’s
        supervision or approvak See Tex. Att’y Gen. Op. No. DM-158 (1992) at 4 (commissioners court
        does not have authority to reinstate an employee discharged by ex officio road commissioner from
        position in his precinct).

                The commis~oners court is responsible for adopting ‘a system for laying out, working on,
        draining, ,and repairing the public roads.” 'l?EX.TRANSP.CODE&TN. 5 252.005(a) (Vernon 1999).
        Thus, the commissioners court makes decisions about locating and building new roads and the
        methods for working on, draining, and repairing the public roads. See also id. $ 251.05 1
        (cornmursioners court may order roads to be “laid out, opened, discontinued, closed, abandoned,
        vacated, or altered”); 0 25 1.08 1 (commissioners court may erect and maintain bridges). Under rules
        adopted by the commissioners court, an ex officio road commissioner shall direct the

                                (1) laying out of new roads;

                                (2). construction or changing of roads; and

                                (3) building of bridges.

        Id. 6 252.006(b), An ex officio road commissioner thus implements the commissioners court’s
        decisions on a day-today basis, by directing the work in his precinct according to rules established
        Joythe court.

    .     ._     The commissioners court has authority to “purchase vehicles, tools, and machinery necessary
         for working on public roads.‘: Id. 0 252.005(b). An ex officio road commissioner has no authority
         to make such purchases on behalf of the. county. See Tex. Att’y Gen. Op. No. JC-0100 (1999) at 2.
         Under the commissioners court’s direction, “an ex officio road commissioner is responsiile for the
        .vehicles, tools, and machinery belonging to the county and placed iu the commissioner’s control by
         the court.” TEX. TRANSP,CODE ANN. 0 252.006(a) (Vernon 1999). Au ex officio road
         comnzissioner is therefore accountable to the commissioners court for his use of county property for
         road work in his precinct. The cormnissioners court may also “construct, grade, or otherwise
         improve a road or bridge by contract.” Id. 0 252.005(b). As we have already concluded, an ex
         officio commissioner has no independent authority to contract for road work in his precinct. Only
         the commissioners court acting as a unit may enter into such contracts. In summary, the ex officio
         commissioners are under the direction of the commissioners court in the exercise of most of their
         duties, as they implement the court’s plans on a day-today basis. Ex officio road commissioners
         do have authority, subject to the budget, to hire and tire employees for their precincts. See Tex. Att’y
         Gen. Op. No. DM-158 (1992) at 3.
 The Honorable Bruce Isaacks - Page 10          (GA-0295)
                                                                                                             t




         You also wish to know what authority the commissioners court acting as a unit has over the
budget allocated to an individual ex officio road commissioner during the fiscal year, other than its
annual budgeting authority. Section 111.070 of the Local Government Code provides the auswer
to this question. See Tex. Att’y Gen. Op. No. GA-008 l(2003) at 1 (section 111.070 governs budget
amendment process in Denton County). See akro TEX.UK. GOV’TCODEANN. ch. 111, subch. C
(Vernon 1999 & Supp. 2004-05) (alternative method of budget preparation in countries with a
population of more than 125,000). After the commissioners court gives final approval to the county
budget, it may spend county funds only in strict compliance with it, except as provided by section
111.070. See id. $111.070(a) (Vernon 1999). The commissioners court may amend the budget to
authorize an emergency expenditure “‘onlyin a case of grave public necessity to meet an unusual and
unforeseen condition that could not have been included in the original budget through the use of
reasonably diligent thought and attention.” Id. 0 111.070(b). The commissioners court may also
transfer funds budgeted for one item to another budgeted item without authorizing an emergency
expenditure. See id. 0 1I I .070(c); Tex. Att’y Gen. Op. No. GA-0081 (2003) at 1-2. Thus, a
commissioners court may transfer funds originally budgeted for one road precinct to another road
precinct. See Tex. Att’y Gen. Op. No. DM-158 (1992) at 5.

VIII. guestion 8: Ex Officio Road Commission’er Svstem Where One Precinct Has No
      Conntv Roads

        You ask whether an ex officio road commissioner system may continue to be used iu a
county where there are no longer any county roads in one of the precincts. See Request Letter, supra
note 1, at 5. You state that when Denton County adopted the ex officio road commissioner system,
there were only ,075 miles .of county roads in precinct three, exchrding interstate highways, state      (
highways, farm to market roads, and city streets, and that there may be no county roads in precinct
three in the near future. See id. at 2-3,15. “Ifthere are no county roads in a precinct,” you write,
“there is no reason for the existence of an ex officio road commissioner.” See id. at 15.

        Transportation Code chapter 252, subchapter A does not specifically address such a case.
However, an ex officio road commissioner may still have some statutory powers and duties even if
most of the precinct is within the boundaries of incorporated municipalities and there are no county
roads iu the unincorporated area of his precinct.

        A county has long had authority under common law to improve a city street that forms au
integral part of or connecting link with county roada or state highways. See City of Breckem-idge v.
Stephens ‘Cow@, 40 S.W.2d 43,43-44 (Tex. 1931); Tex, Att’y Geu. Op. No. JC-0036 (1999) at 1.
See also TEX, ‘I’RANSP.CODE ANN. 0 251.101 (Vernon 1999) (county may condemn, with
municipality’s consent, real property interest within municipality necessary or convenient to a road
forming a connecting link in county road system or in a state highway). Transportation Code section
25 1.012 authorizes the commissioners court of a county to build, maintain, or improve city streets
within the county that are not integral parts of or connecting links with the cotmty roads, where this
expenditure would serve a cotmty purpose. See id. $25 1.012 (Vernon Supp. 2004-05); Tex. Att’y
Gen. Op. No. JC-0036 (1999) at 11. If the commissioners court decides to build, maintain, or
improve a city street, the ex officio road commissioner of the precinct where the city street is
located may be involved in implementing this decision. See generaZZyTEX.TRANSP.CODEANN.
        The Honorable Bruce Isaacks - Page 11          (GA-0295)
f


    i   $ 251.0!2(b) (V emon Supp. 2004-05) (county work on city road may he done by couuty, by
    t   independent contractor with whom county has contracted, or pursuant to other specified methods).

                 Moreover, an ex officio road comrrkioner is required to report on the condition of roads,
        culverts, and bridges in his precinct. See id. 0 25 1.005 (Vernon 1999). See also id. 6 252.006(e) (ex
        officio road commissioner has duties of supervisor of public road under sections 251.004 and
        251.005). This duty would apply to any county roads iu an incorporated area. The. ex officio
        road commissioner must also report if any new road should be opened in his precinct. See id.
        0 25 1,005(a)(4). Even if there are no roads in the unincorporated area of the precinct at present,
        circumstauces may change so that roads will be needed in the future. Accordingly, we conclude that
        a county may continue to admiuister its roads under the ex officio road commissioner system even
        if there are no longer any county roads in the unincorporated area of one precinct.
TheHonorableBruce     Isaacks - Page 12       (GA-0295)
                                                                                       t




                                       SUMMARY

                        In a county operating under the ex officio road commissioner
               system authorized by Transportation Code chapter252, subchapter A,
               the ex officio road commissioners of two precincts may not jointly
               hire a road and bridge crew to work in both precincts. Nor may an ex
               officio road commissioner contract with a public or private entity to
               perform road work in his precinct, although the commissioners court
               may enter into such contracts. Denton County, in attempting to
               implement the ex officio road commissioner system in these ways,
              .does not’comply with chapter 252, subchapter A.

                        The commissioners court of a county has broad discretion,
               subject to judicial review and abrogation for abuse of discretion, to
               allocate the road and bridge fimd among the county’s precincts,
               keeping in mind its duty to represent the county as a whole. The
               Denton County Commissioners Court may amend its budget to
               authorize an emergency expenditure under the circumstances stated
               in Local Government Code section 111.070 and may transfer funds
               originally budgeted for one precinct to another precinct without
               authorizing an emergency expenditure.

                      A county may continue to administer its roads under the ex
              officio road commissioner system even if there are no longer any
              county roads in the unincorporated area of one precinct.

                                             Very trvlyYOU,




                                             Attor&q&!eneral of Texas


BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
