                                ATTORNEYGENERALOF                           TEXAS
                                              GREG        ABBOTT




                                                   June 30,2003



The Honorable Melanie Spratt-Anderson                      Opinion No. GA-0085
Upton County Attorney
P.O. Box 890                                               Re: Whether the Upton County Commissioners
Rankin, Texas 79778                                        Court may maintain or work on private non-road
                                                           property or sell county-owned     dirt to private
                                                           individuals for a reasonable fee (RQ-0015GA)


Dear Ms. Sprat&Anderson:

        You ask whether the Upton County Commissioners Court may maintain or work on private
non-road property or sell county-owned dirt to private individuals for a reasonable fee.’

          You explain that Upton County has a population of less than 5,000 and is subject to article
III, section 52f of the Texas Constitution,* which provides:

                           A county with a population of 5,000 or less, according to the
                  most recent federal census, may construct and maintain private roads
                  if it imposes a reasonable charge for the work. The Legislature by
                  general law may limit this authority. Revenue received from private
                  road work may be used only for the construction,             including
                  right-of-way acquisition, or maintenance of public roads.

TEX. CONST.art. III, 8 52f. Given this constitutional provision, you ask whether “the Upton County
Commissioners    may maintain or work on private property, that is not a road, if it imposes a
reasonable fee” or “may sell County owned dirt to private individuals for a reasonable fee.” Request
Letter, supra note 1, at 1. We gather that the commissioners court would undertake the work on
private property using county materials, labor, and equipment.3


         ‘See Letter from Honorable Melanie Spratt-Anderson,    Upton County Attorney, to Honorable Greg Abbott,
Texas Attorney General, at 1 (Feb. 3,2003) (on file with Opinion Committee) [hereinafter Request Letter].

         *Id.

         3We assume you ask about the authority of the Upton County Commissioners Court acting as a body rather than
about the authority of commissioners acting in an individual capacity. See Canales v. Laughlin, 2 14 S.W.2d 45 1,455
(Tex. 1948) (“individual commissioners have no authority to bind the county by their separate action”); Anderson v.
                                                                                                        (continued.. .)
The Honorable Melanie Spratt-Anderson                - Page 2         (GA-0085)




          Article V, section 18(b) of the Texas Constitution provides that a commissioners court “shall
exercise such powers and jurisdiction over all county business, as is conferred by this Constitution
and the laws of the State.” TEX. CONST. art. V, 9 18(b). “This provision has been interpreted to
mean that although a commissioners court may exercise broad discretion in conducting county
business, the legal basis for any action taken must be grounded ultimately in the constitution or
statutes.” Guynes v. Galveston County, 861 S.W.2d 861, 863 (Tex. 1993) (citing Canales v.
Laughlin,    214 S.W.2d 45 1,453 (Tex. 1948); Renfro v. Shropshire, 566 S.W.2d 688,690 (Tex. Civ.
App.-Eastland      1978, writ ref d n.r.e.)).

          For this reason, a commissioners court’s authority to contract on behalf of the county is
limited to that authority conferred either expressly or by necessary implication by the constitution
and laws of this state. See Jack v. State, 694 S.W.2d 391,397 (Tex. App.-San Antonio 1985, writ
ref d n.r.e.) (citing Childress County v. State, 92 S.W.2d 1011,1016 (Tex. 1936); Wilson v. County
of Calhoun, 489 S.W.2d 393,397 (Tex. Civ. App.-Corpus Christi 1972, writ ref d n.r.e.)). And a
commissioners court must have statutory authority to charge a fee. See Camacho v. Samaniego,
83 1 S. W.2d 804,8 15 (Tex. 1992) (rendering judgment for bail bond businesses because, “as a matter
of law, the bond approval fees imposed on bondsmen by the El Paso County Commissioners Court
. . . are not authorized by any Texas statute”). You have not identified any statute or constitutional
provision that would authorize the commissioners court to maintain or work on private non-road
property, to sell county dirt, or to contract for or charge a fee for either activity.

         With respect to a county’s authority to “maintain or work on private property, that is not a
road, if it imposes a reasonable fee,” Request Letter, supra note 1, at 1, article ILL,section 52f
applies only to private roads and does not authorize a county to maintain private non-road property.
See TEX. CONST.art. III, 8 52f (“A county with a population of 5,000 or less, . . . may construct and
maintain private roads if it imposes a reasonable charge for the work.“) (emphasis added). The
legislature has enacted statutes that specifically authorize counties to undertake work on private
property in certain limited circumstances.4 We are not aware of any statute, however, that authorizes
a county to maintain or work on private non-road property generally. In the absence of such a statute
or a constitutional provision analogous to article III, section 52f, such activities are beyond a
commissioners court’s authority.




Wood, 152 S.W.2d 1084, 1085 (Tex. 1941) (the commissioners court “is the general business and contracting agency
of the county, and it alone has authority to make contracts binding on the county, unless otherwise specifically provided
by statute”).

          4See, e.g., TEX. AGRIC. CODE ANN. 9 201.15 1 (Vernon 1982) (permitting use of county equipment on private
property for soil conservation and erosion prevention under certain circumstances); TEX. HEALTH& SAFETYCODEANN.
9 713.028(a) (V emon 2003) (“For purposes of historical preservation           or public health, safety, or welfare, a
commissioners court r-nay use public funds, county employees, and county equipment to maintain a cemetery that has
a grave marker more than 50 years old.“); TEX. TRANSP.CODE ANN. $256.006(e) (Vernon 1999) (permitting county to
acquire machinery and equipment for soil, water, erosion, and drainage program for flood control: “The machinery and
equipment shall be made available to the owner of a farm or ranch for purposes consistent with the purposes .of this
section. A farm or ranch owner using the machinery or equipment shall compensate the county for the use according
to the actual expenses incurred by the county, not including depreciation.“).
The Honorable Melanie Spratt-Anderson                - Page 3          (GA-0085)




         Furthermore, in the absence of a constitutional provision like article III, section 52f, a statute
authorizing a county to maintain or work on private property would have to comply with article V,
section 18(b), which limits commissioners courts’ jurisdiction to “county business?           TEX. CONST.
art. V, 8 18(b). A statute must also comply with article III, section 52(a), which prohibits a county
from granting public money or a thing of value to a private person. See id. art. III, 5 52(a) (“Except
as otherwise provided by this section, the Legislature shall have no power to authorize any county,
city, town or other political corporation or subdivision of the State to lend its credit or to grant public
money or thing of value in aid of, or to any individual, association or corporation whatsoever. . . .“);
Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers’ Comp. Comm iz, 74 S.W.3d 377,
383 (Tex. 2002) (article III, section 52(a) “does not prohibit payments to individuals, corporations,
or associations so long as the statute requiring such payments:          (1) serves a legitimate public
purpose; and (2) affords a clear public benefit received in return”). These limitations apply to the
use of county labor, materials, and equipment. See Godley v. Duval County, 361 S.W.2d 629,630
(Tex. Civ. App.-San Antonio 1962, no writ) (a commissioners court is “not authorized to permit the
use of county labor, materials or equipment for other than public use”) (citing Exparte Conger, 357
S.W.2d 741 (Tex. 1962); Rowan v. Pickett, 237 S.W.2d 734 (Tex. Civ. App.-San Antonio               1951, no
writ)).6

        With respect to a county’s authority to “sell County owned dirt to private individuals for a
reasonable fee,” Request Letter, supra note 1, at 1, the legislature has enacted a number of statutes
that specifically authorize counties to sell county property to private parties,7 none of which
expressly authorizes a county to sell dirt. However, subchapter D of chapter 263 of the Local
Government Code authorizes counties to sell salvage or surplus property, generally by competitive
bid or auction. See TEX. LOC. GOV’T CODE ANN. 8 263.152 (Vernon Supp. 2003); see also id.


           ‘For example, in 1975 this office considered the constitutionality  of proposed legislation that would have
authorized counties to use county employees and equipment to construct and maintain private roads and “for private
earthmoving work” for a fee, and concluded that the bill was unconstitutional   because those activities are not “county
business” within the meaning of article V, section 18. See Tex. Att’y Gen. LA-92 (1975). The legislature proposed
article III, section 52f in 1979 and the voters adopted it in 1980. See Act of May 26, 1979, 66th Leg., R.S., 9 1, 1979
Tex. Gen. Laws 3231 (adopted Nov. 4, 1980).

           6Exparte Conger, a 1962 decision of the Texas Supreme Court, involved commissioners in your county. See
Exparte Conger, 357 S.W.2d 741 (Tex. 1962). The trial court had issued an injunction that “commandedUpton        County,
its agents, servants, officers and employees to desist and refrain from using the road machinery and other equipment of
Upton County for the benefit of private persons by blading and scraping off lots, filling in lots or hauling dirt, sand,
gravel, or caliche or using such road equipment for the benefit of private persons or doing any form of soil or dirt work
on private property.”      Id. The Texas Supreme Court upheld the trial court’s findings that two Upton County
commissioners had violated the injunction by scraping off and removing the brush from private property. See id. at 742.

           7See, e.g., TEX. GOV’TCODEANN. $8 1477.070(a) (Vernon 2000) (“The commissioners court may sell, deliver,
and distribute any water of the project that is not needed for county purposes to a municipal corporation or political
subdivision of this state, or an individual, corporation, or company under terms that the court determines are in the best
interests of the county.“), 1477.119 (“The commissioners court may sell, deliver, and distribute natural gas of a natural
gas system purchased or constructed under this subchapter that is not needed for county purposes to a municipal
corporation or political subdivision of this state, or an individual, corporation, or company under terms that the court
determines are in the best interests of the county.“); TEX. LOC. GOV’T CODE ANN. ch. 263, subch. A (Vernon 1999 &
Supp. 2003) (sale or lease of county real property), subch. D (sale of county salvage or surplus personal property).
             The Honorable      Melanie Spratt-Anderson          - Page 4          (GA-0085)




             8 263.153(a) (V emon 1999) (“The commissioners court shall publish notice of a sale of surplus or
             salvage property in at least one newspaper of general circulation in the county.“).

                      In subchapter D, “salvage property” means “personal property, other than items routinely
             discarded as waste, that because of use, time, accident, or any other cause is so worn, damaged, or
             obsolete that it has no value for the purpose for which it was originally intended.” Id. 5 263.15 l(1)
             (Vernon 1999). “Surplus property” means, on the other hand, “personal property that: (A) is not
             salvage property or items routinely discarded as waste; (B) is not currently needed by its owner; (C)
             is not required for the owner’s foreseeable needs; and (D) possesses some usefulness for the purpose
             for which it was intended.” Id. lj 263.15 l(2).

                      Because subchapter D authorizes a county to sell only personal property that has no value for
             the purpose for which it was originally intended or personal property the usefulness of which to the
             county has diminished, see id. 5 263.15 1(l)-(2) (defining salvage and surplus property), it is clear
             that this statute does not authorize a county to sell property that the county acquired from a third
             party with the intent to resell it. But dirt that has been removed from county land is the county’s
             personal property, see CageBros. v. W?iiteman, 163 S.W.2d 638 (Tex. Comm’n App. 1942, judgm’t
             adopted) (earth or sand in its original bed is a part of realty; when it is removed, it becomes
             personalty of the landowner), as is dirt that the county purchased for a county project, and such dirt
             could fall within the definition of salvage or surplus property, see TEX. LOC. GOV’T CODE ANN.
             5 263.151(l)-(2) (V emon 1999). Provided that the dirt falls under the definition of either salvage
             or surplus property, subchapter D would authorize the county to sell it? See, e.g., Tex. Att’y Gen.
             Op. No. JM- 1241(1990) (trees removed from the county right-of-way are county’s personal property
             and the county’s sale of the trees would be governed by chapter 263, subchapter D).




                       8Unless otherwise provided by law, a commissioners court must deposit the proceeds from the sale of surplus
             or salvage property (i) “in the county treasury to the credit of the general fund or the fund from which the property was
             purchased” or (ii) “if the property was used for maintenance or construction of county roads and bridges, in the county
             treasury to the credit of the county road and bridge fund.” TEX. Lot. GOV’TCODEANN. 8 263.156 (Vernon 1999).




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The Honorable Melanie Spratt-Anderson        - Page 5     (GA-0085)




                                      SUMMARY

                       Article III, section 52f of the Texas Constitution expressly
               permits counties with a population of 5,000 or less to construct and
               maintain private roads if they impose a reasonable charge for the
               work. In the absence of a statute authorizing a county to maintain or
               work on private non-road property or a constitutional provision
               analogous to article III, section 52f, such activities are beyond a
               commissioners court’s authority. Provided that county-owned dirt
               falls under the definition of either salvage or surplus property,
               subchapter D of chapter 263 of the Local Government Code would
               authorize the county to sell it.

                                               Very tply yours,




                                         r



                                               Attomweneral       of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
