                 OFFICE   OF THE AITORNEY    GENERAL   OF TEXAS
                                    AUSTIN




     Bonorable Olevelend Davis
     county Attorney
     BrazOPia COULty
     LLngleton,
              Texas
     Dear Sir:




               ~Yourrequest for
.>$. has
  - nlentbeen reeelved  snd ears
g!       .
i‘.i
                                                   ad Texas Girl1




                                , Vemon*e    Annotated Texas Civil

                *The ooumdsslonera ooulrtshall eee that
           the road and bridge fund of thefr Bounty ia
           judiciouslyand equitablyexpended on the
           roads and bridges of their aounty, and, 88
           nearly ae the oondltlon andneoemitp ef
Wsnsrabla Clsreland Davis, Page 2


     the roads wIl1 pewlt, It shall besvpsndsd
     la each oounty oolrmi~sionerspreoinot In
     pr&portlon to the amount oolleotsd In suoh
     preoinst. Money used In building permanent
     roada shall first be used only on first or
     seoond-olassroads, and on those whioh
     shall have the right of way furnished free
     of cost to make as straight a road as Is
     praotioableand having the greatest bonus
     oftered by the aitizens of money, labor
     or other property."
          Article 6741, Vernon's Annotated Texas Civil
statut04) read8 as follows:
          "The oommlaeloneracourt may make and
     enfbroe all reasonable and necessary rules
     and orders for the working and repawIng of
     pub110 roaas, and to utlllse the lab& to
     bo used and money expended thereon, not in
     oonfllot with the laws orthla  State. Said
     oourt may purebase or hire all neoelsaary
     road maohlnery, tools or tsams, and hire
     suoh labor atamay bs needed In addition to
     the labor required of oitiaens to build
     or repair the Toads."
          The oases of Willisma, et al v. De Pee, Osunty
Judgs, 77 9. w. (2d) 729 and HI11 county v. Bryant 8 mrr-
man, ~6 S, W. (2df 513, cited by you In your brief, hold
that the Commissioners  Court has authority to employ an
engineer to supervise sn% aid In ths oonsttiotion al&imaln-
tananoe 0r oouoty road8.
         We   quote from 21 Texas Jurlsprudenoe
                                              , pai3es
644-5, a6 ronowe:
          "I 126. IPnployment or Engineer. - The
     state highway englnoer ia a statutory offioer.
     But for a oounty or road diatrlot the State
     Highway CommIssIannay, upon applloetlon,
     reoommend a oompstent oIvi1 engineer, and
     there is no doubt that under the general road
     law a oounty has Implied power to employ an
                                                    ._
                                                         343.



fioaorabloOlereland Davlr, Page 3


    engineer to mpervlse oonstructIonoaatraot8.
    It Is now expreeely provided that the engage-
    meat of an engineer shall not be eubjeot to
    oompetltivebidding. Whether a speolal road
    law governIn@ a partloular oounty authorize8
    muoh employment,end, If 60, whether the
    engineer may be employed on a oomulaelon..~
    bada,  depend on what le expxessed OP,~
    plied by the law In question.
            Generally, of oourse, the oompenrra-
    tlon of the engineer and other oblI@tlona
    Inter se are determinedby the oontraot
    lteelf. The question has been raised a8
    to what oompensationla 80 exaesslva as to
    be of itself arldenae of fraud, and It ha
    been hold that a eontraotwa@ not Invalid
    ror.rraud   beoause 81x per oat. or the
    ooet of the oonatruotionwork wa8 payable
    thereunber.
        'Where road Improvmnt work Is under-
    tkkn by the oou&y 88 employer Or the
    uorben engaged, the en@neer-rupervlsor
    10 not a oontraotorwithin the pu.rrIeV~of
    the statute requiring oontraotor8ior
    pub110 norks to fornlih a bond.

    traotl(-%ng%s~~         %~~~p%%d
    oharged with the duty or oreatlng and
    maintaining adequate road@, a oOmmlasioner8*
    court neoessarlly harsauthority to oontraot
    for road oonetruotionend Improreraent work.
         "*The bglalature has Been proper to
    oonfer upon the commlseIonermScourt the
    pourerand authority to nake contraotrr for
    the repairing and oonatruotlonof soad@
    within Its oounty, and so long ES eaid
    aourte make oontrtiotawithin the matrio-
    tione of the oonstltutionand under the
    authbrlty of the law, it Is not for the
honorableCleveland Davia~,    Pags 4


         oourts to substitutetheir judgment for
         that of the sommlasioners*oourt as to
         the wisdmn of such oontraots.' . . . . ,*
          You do not state in your letter whether or not
BrazorIa County Is governed by the general road law but
us assume from your letter that euoh Is the base and we
base our answer to your question upon the assumption
that your oounty Is governed by the general road law.
              On May 13, 1938, this departmsnt held, In a
letter opinion written by Honorable R. X. Qray, Assrle-
tant   Attorney   General,reoorded In Vol. 361, page 509,
latter Opinions of the Attorney     Daneral, that the Wm-
timloners* Court had authority to maploy an en&tsar to
uparvise      and aid In the ooustruotionand malntenauoe aI
aaunty roads, and that his salary     should be paid from
the road and bridge funda ot the oounty.
             It la therefore our opinion that the en&neer
employ46 by Brazorla Cmmty to aonatruot and  maintaintha
publIo roada of said oounty should be paid from the read
ra8 bridge funds oi mid aounty.




                    AFPL:'.':.FLE20, 1941
W3FtGO


                    ATTORNEY GENERAL OF TEXAS
