                       The Attorney              General of Texas
                                              April 29, 1981
MARK WHITE
Attorney General
                   Honorable Neal E. Birmingham               Opinion No. Mu-331
                   Criminal District Attorney
                   cass camty courthouse                      Re: Authority of county commis-
                   Linden, Texas 75563                        sioners under article 6713, V.T.C.S.

                   Dear Mr. Birmingham:

                          You have requested our opinion concerning the authority of the county
                   commissioners     of Cass County as road supervisors under article 6713,
                   V.T.C.S. You have stated the following fact situation.      Cass County has a
                   population of less than 35,000 and is not subject to the provisions of article
                   6762, V.T.C.S., providing for members of the commissioners court to serve
                   as ex-officio road commissioners of their respective precincts. Cass County
                   has not adopted the provisions of article 6716-1, V.T.C.S., the Optional
                   County Road Law of 1947. The commissioners court has previously employed
                   each commissioner as road commissioner of his precinct under article 6737,
                   V.T.C.S. This practice has been held to be “contrary to the policy of the
                   law.” Starr Ccunty v. Guerra, 29’7 S.W. 2d 379 (Tex. Civ. App. - San Antonio
                   1956, no writ). The commissioners court has indicated its intention to end
                   this practice and administer its road and bridge responsibilities in the future
                   under the provisions of article 6713, V.T.C.S., and other applicable statutes.
                   Your inquiry addresses the division of powers, duties and responsibilities
                   between the commissioners court as a body and the individual commissioners
                   as road supervisors under article 6713, V.T.C.S.

                          The general powers and duties of the commissioners            court   are
                   specified in article 2351, V.T.C.S., including, in part:

                              Each commissioners    court shalh

                              . . . .

                              3. Lay out and establish, change        and discontinue
                                 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, highways,
                                 ferries, and bridges in their counties.




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    Honorable Neal E. Birmingham    - Page Two      (Mw-331)




          Article 6713, V.T.C.S., provides in part thet, “[el xcept when road commissioners
    are employed, the county commissioners shall be supervisors of public roads in their
    respective counties, and each commissioner shall supervise the public roads within his
    commissioners precinct once each month”. Article 6736, V.T.C.S., reads as follows:
    “All moneys appropriated by law, or by order of the commissioners court, for working
    public roads or building bridges, shall be expended under the order of the
    commissioners court, except when otherwise herein provided, and said court shall from
    time to time make the necessary orders for utilizing such money and for utilizing
    convict labor for such purposes”.

          Certain divisions of authority between the commissioners court as a body and the
    acts of individual commissioners have been defined by the courts. The commissioners
    court is the county’s governing body and it alone may make contracts binding on the
    county unless otherwise provided by statute.   Anderson v. Wood, 152 S.W. 2d 1084 (Tex.
    1941). An act of an individual commissioner cannot generally bind the county. Hill
    Farm, Inc. v. Hill County, 425 S.W. 2d 414 (Tex. Civ. App. - Waco 1968), aff’d, 436 Sx
    2d 320 (1969); Maples v. Henderson County, 259 S.W. 2d 264 (Tex. Civ.App. - Dallas
    1953,writ rePd n.r.e.1.

            The road and bridge duties of the commissioners court have also been the subject
    of judicial consideration.    The commissioners court may not delegate its road and
    bridge. duties under article 2351 to an agent acting pursuant to article 1580, V.T.C.S.
    Canales v. Laughlin, 214 S.W. 2d 451 (Tex. 1948). However, article 1580 has been cited
    as authonty      for the delegation of ministerial      road and bridge duties by the
    commissioners court. Coryell County v. Burke and Corbett, 4 S.W. 2d 283 (Tex. Civ.
    App. - Waco 1928, writ dism’d). Nevertheless,        the supreme court, in the Canales
    decision, struck down a county plan to delegate the authority to supervise and maintain
    the axmty road system.      Holding that the plan failed to follow the statutory methods,
    such as road commissioners,       road superintendents,    or county road engineers, for
    delegating such authority, the court stated: ‘I. . . we believe that it must be concluded
    that since 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.” Canales, m,         at
    457. Cf. Hill v. Sterrett, 252 S.W. 2d 766 (Tex. Civ. App. -Dallas 1952, wnt rePd
    n.r.e.).As     a court of limited jurisdiction, Attorney General Opinion H-374 (19741,
    whatever authority the commissioners exercise individually as road supervisors must be
    founded upon article 6713, V.T.C.S., and cannot be delegated generally by the
    commissioners court.

           We now address the specific wuage      and construction of article 6713, V.T.C.S.
    The wording of the statute offers scant direction or definition.       In particular, the
    commissioners are designated as “supervisors”, a term not generally employed in the
    road and bridge statutes.   One definition of supervisor is “one having authority over
    others, to superintend and direct”. Black’s Law Dictionary 1290 (5th ed. 1979); Cafferty
    v. Southern Tier Pub. Co., 123 N.E. 76 (N.Y. 1919). The statute also provides that “each
    commmsmner shall supervise the public roads within his commissioners precinct once
    each month”. The word supervise has been defined as “to have general oversight over,




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    Honorable Neal E. Birmingham    - Page Three       (MW-331)




    to superintend or to inspect”.    Black’s Law Dictionary 1290 (5th ed. 1979); State v.
    Mq:iw,    259 N.W. 213 (Iowa 1935). Such terms, without judicial construction, would be
    dlf mult to relate to specific powers and actions.

           However, article 6713, V.T.C.S., has been the subject of judicial construction by
    Texas courts. In Guerra v. Rodriguez, 239 S.W. 2d 915 (Tex. Civ. App. - San Antonio
    1951, no writ), opinion by Justice Pope, the court of civil appeals examined this statute
    in detaiL This case arose when the commissioners court of Starr County appointed
    Alonzo Hinojosa to hire road hands for precinct two and to fix and report to the county
    the wages these hands should receive.     H.P. Guerra, the commissioner of precinct two,
    objected to this appointment.       Guerra sought a declaratory juament      that, under
    article 6713, he was an ex-officio road superintendent of public roads in his precinct
    with full right and power to employ necessary road workers, and to buy or hire such
    tools, teams, implements and machinery 8s the commissioners court may direct.
    Guerra also sought an injunction to prevent the county from approving or paying claims
    from his precinct without his approvaL The district court denied his request.         The
    court of civil appeals affirmed the district court decision but also discussed at length
    in its opinion the relative powers of the commissioners court as a body end the
    individual commissioners as road supervisors under article 6713.

          The court rejected Guerra’s argument that he possessed all of the powers of a
    road superintendent as defined in article 6747, V.T.C.S. The court also rejected the
    proposition that the commissioners court could delegate its authority under article
    2351, V.T.C.S., and other statutes to the individual commissioners acting as road
    supervisor% stating:

                    In the absence of statutory    authority,  the powers of a
               Commissioners’ Court involving the exercise of judgment and
               discretion   cannot be delegated,    and until delegated those
               powers reside with the court. The power to hire workers and to
               buy and hire tools, and equipment are not mere ministerial
               functions which may be delegated.     Otherwise, the Legislature
               would have been under no necessity to authorize the delegation
               of the functions of the court to a road commissioner or a road
               superintendent.      Those are powers that the Commissioners’
               Court retains until they have been parceled out in accord with
               some statute authorizing such a delegation of power. [citation
               omitted].   Absent the delegation of such powers in line with the
               legislative  authority,   the power of decision rests with the
               Commissioners’ Court.

    239 S.W. 2d at 920.

         The court then defined the duties of a road supervisor as follows:

               Once the Commissioners’ Court has exercised its powers to hire
               workers, buy and hire equipment, or make contracts for labor or




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Honorable Neal E. Birmingham       - Page Four (~~-331)




            machinery, the commissioner in his precinct may supervise the
            workers so hired, the equipment so employed, and the contracts
            made. . . . Since that supervision is subject to the general
            supervision of the Commissioners’ Court, it must yield to the
            general control of the court in the event of conflict.

-Id.
        The Guerra decision is the only appellate court construction of the duties of road
 supervisors under article 6713, V.T.C.S. It is true that it is a no writ case which has
 not been cited subsequently.    Moreover, article 6755, V.T.C.S., relied upon in part by
.the court in its comparison of the duties of a road supervisor to the duties of a road
 superintendent,  has been repealed. However, under the doctrine of stare decisis, we
 must adhere to this construction of the statute which has been allowed to stand,
 unamended by the legislature, since 195L Ex parte Boehme, 255 S.W. 2d 206 (Tex.
 Crim. App. 1952). In summary? in counties in which the county eommmissioners serve
 as road supervisors under arbcle 6713, V.T.C.S., the commissioners court as a body
 must exercise its power to hire workers, buy and hire equipment, and make contracts
 for labor or machinery; the Individual commissioner as road supervisor ln his precinct
 has the authority to supervise the workers so hired, the equipment so employed, and
 the contracts made.

                                      SUMMARY

               In counties in which the county commissioners serve as road
           supervisors under article 6713, V.T.C.S., the commissioners
           court as a body must exercise its powers to hire workers, buy
           and hire equipment, and make contracts for labor or machinery;
           the individual commissioner as road supervisor in his precinct
           has the authority     to supervise the workers so hired, the
           equipment so employed, and the contracts made.




                                              Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by James Allison
Assistant Attorney General




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         Honorable Neal E. Birm.hgham   - Page Five   (m-331)




         APPROVED:
         OPINION COMMllTEE

         Susan L. Garrison, Chairman
         James Allison
         Jon Bible
         Walter Davis
         Rick Gilpin
         Jim Moellinger




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