                           April 13, 1988




Honorable Neal E. Birmingham                  Opinion   No.   JR-892
District Attorney
P. 0. BOX 940                                 Re:   Whether a county com-
Linden, Texas   75563                         missioner    acting    as    ex
                                              officio road     commissioner
                                              may use county     equipment,
                                              materials,    and    employees
                                              to lay out    a road    within
                                              limits of an     incorporated
                                              city (RQ-1283)

Dear   Mr.   Birmingham:

      You ask whether     a county     commissioner    acting as     ex
officio    road   commissioner     may   use     county    equipment,
materials,   and employees     to lay    out a    road or    alleyway
within the     corporate   limits of     a city in      the    commis-
sioner's precinct when      the road or      alley is not     part of
the county road system.       We conclude that      under the facts
you provide     a county     commissioner    would    have   no    such
authority.

      You supply the      following    information    as    background.
Several years ago the        commissioners    court of      Cass County
adopted a resolution      authorizing     the county     to  assist the
city of Bloomburg,     Texas.      You state that      the resolution
is phrased     in   general    terms    and   does    not    specify    a
particular   project.     You believe      that it was      intended to
authorize    county     assistance     to   the   city    pursuant     to
article    23523,    V.T.C.S.      That    statute    authorizes     the
commissioners     court of a county to use        county road equip-
ment, construction       equipment,     and    employees     to   assist
another governmental      entity    on any project       under certain
conditions.

      You also    inform    us   that several    years    after   the
resolution   was adopted, a county commissioner,        purportedly
acting in his     capacity as     ex officio road     commissioner,
directed   county employees      to lay out   an alleyway     in  the
city of    Bloomburg   with    county  equipment   and   materials.
You allege that      the alley serves     no public use     and pro-
vides no public      benefit other than     to provide access      to



                                  p.   4370
Honorable    Neal   E. Birmingham     - Page   2   (JM-892)




fuel pumps at a business      establishment    owned by   the com-
missioner's  son.    You add that the commissioners      court did
not specifically   approve    the project.      The city   council             ?
did not request    the county's     assistance   on the   project,
although you    suggest that    the mayor    may have    requested
such assistance   from the commissioner.       It is also alleged
that the project was     completed   in a manner    that complies
with article 23523.

      The question you have submitted         for our consideration
is whether     a county    commissioner,    acting     as ex   officio
precinct   road   commissioner,      may   use   county    equipment,
materials,   and   employees     to   open   up    and   lay   out   an
alleyway within the      corporate    limits of     a city when     the
alleyway   forms no    part of     the county    road system.       You
also ask us to determine      whether the      actions described      in
your   letter    are   lawful    and,    if they     are   not,    what
sanctions   are   available     to   deter such     actions    in   the
future.

      With respect      to    your two      final   requests,     we   must
first note that the procedures           instituted     by subchapter      C
of chapter 402 of the         Government     Code do not      clothe this
office with the authority         to make findings of          fact in the     ?
course of     rendering    an   Attorney      General's     Opinion.      We
therefore   assume the      facts are as       you present them,         and
express no opinion       regarding     the accuracy       of any of      the
allegations    made in your letter requesting               this opinion.
Also, this     office    will     not    in   an   Attorney      General's
Opinion presume      to    advise     your    office     on   the    proper
exercise   of   prosecutorial       discretion       or on    the    avail-
ability of a remedy in         a particular      case.    But    see Govt.
Code 5402.043     (attorney     general shall        advise a district
or county attorney       regarding      cases     before     district     or
inferior courts in which the state               is interested     on    the
attorney's    request and after his investigation             and submis-
sion of a brief to this office). Accordingly,                this opinion
is confined to the       narrow legal issues presented             by your
first question.

      County commissioners     serve as ex officio road commis-
sioners pursuant     to chapter     3, subchapter     A of    article
6702-a, V.T.C.S.     Subchapter   A applies to a county only if
the commissioners    court adopts the subchapter        by an order
of the court at a meeting where all members            are present.
V.T.C.S.   art. 6702-1, 53.004(b).       The relevant     powers and
duties of    the   commissioners    court   and   ex officio      road
commissioners    are set forth in the following       provisions:




                                 p. 4371
     Honorable   Neal        E. Birmingham      - Page   3     (m-892)




                                  Fx officio   commissioners

                 Sec.  3.001.     (4     In   all   counties     the
             members of    the commissioners        court are      ex
             officio   road    commissioners       of   their    re-
             spective precincts      and    under the     direction
             of the    ommissioners      court    have charge      of
             the team:, tools      and machinery      belonging    to
             the county and piaced in their hands by             the
             court.   They   shall superintend         the    laying
             out of new roads, the making or changing              of
             roads, and    the   building of       bridges     under
             rules adopted by the court.

                 . . . .

                 Sec. 3.002.    (a) The commissioners        court
             shall adovt    a   system for     workina.     lavinq
             out.   drainina.    and   revairina     the    vublic
             roads as it considers     best, and from time to
             time the court may change its plan or system
             of working.    The   court may purchase        teams,
             tools,   and   machinery     necessary     for     the
P            working of public      roads and may      construct,
             grade, or    otherwise     improve    any   road    or
             bridge by contract     in the manner provided       by
             Subchapter   B of this chapter.

                 .   .   .    .

                 Sec. 3.003.     (a) Subiect      to   authoriza-
             tion bv    the   commissioners    court,     each    ex
             officio road commissioner       may employ persons
             for positions    in the commissioner's       precinct
             paid from the county road and bridge            funds.
             Each    ex  officio     road    commissioner       may
             discharge   any county employee working         in the
             commissioner's    precinct   if    the employee      is
             paid from    county    road   and    bridge     funds.
             Each ex officio      road commissioner      also   has
             the duties of a      supervisor    of public     roads
             as provided by Section 2.009 of this Act.

                 (b) Each county commissioner,     when acting
             as a road commissioner,     shall inform himself
             of the condition    of the public roads in his
             precinct,   shall determine   what character      of
             work is to be done      on the roads, and     shall
             direct the manner of the grading,        draining,
r‘           or   otherwise    improving   the   roads,    which




                                           p. 4372
Honorable   Neal    E. Birmingham     - Page     4   (JM-892)




         directions  shall   be  followed   and  obeyed
         by all road overseers  of his precinct.
         (Emphasis added.)                                              -,


Id.   §§3.001(a);    3.002(a);     3.003(a),     (b).

      An ex officio road    commissioner   also has     the duties
of a supervisor    of public roads    within his precinct.        A
road supervisor    is  required    to   "supervise    the   public
roads" in the precinct    once each month and      submit a sworn
report to   each regular    term of   the commissioners      court
showing the following:

            (1) the condition  of all          roads    and     parts
         of roads in his precinct;

             (2) the   condition      of   all       culverts     and
         bridges:

             (3) the amount of money remaining  in  the
         hands of overseers  subject to be expended  on
         the roads within his precinct:

             (4) the number of mileposts              and     finger-
         boards defaced or torn down:

             (5) what. if anv. new      roads of anv   kind
         should be ovened in his vrecinct       and   what,
         If   any,    bridaes.     culverts.    or    other
         imvrovements     are  necessarv     to vlace   the
         roads in his vrecinct     in aood condition    and
         the vrobable   cost of the imvrovements;     and

             (6) the name  of every   overseer who                has
         failed to   work  on the    roads   or who                in
         any way neglected  to perform his duty.
         (Emphasis added.)

Id. 52.009(a).    The supervisor's     report is spread    on the
minutes of the    commissioners   court    "to be considered     in
improving  public roads and determining      the amount of taxes
levied for public roads.Vq Id. 52.009(b).        The report must
also be   submitted   to  the grand    jury at   the term    first
following  the report to the commissioners       court, together
with any contracts   made by the court since its last report
for work on any road.     Id. §2.009(C).

      The underscored    language    in sections   3.001   to 3.003
reflect the general     understanding    that the    commissioners
court   maintains    general    supervisory    control     over   ex




                                 p. 4373
Honorable    Neal   E. Birmingham     - Page   5   (JM-892)




officio road commissioners.          &8   Attorney      General Opinion
JM-801   (1987).    However,     an ex officio       road commissioner
acting alone may discharge        any county      employee working in
his precinct    if the employee is paid from            county road and
bridge funds.     V.T.C.S.      art. 6702-1, 53.003(a);         Attorney
General Opinion MW-362         (1981) (construing       former    article
6763, V.T.C.S.).        It   is also     understood      that a county
commissioner    acting as     ex officio      road commissioner        may
not bind the county to        pay claims that are         not necessary
or proper expenditures       of county funds.         Attorney    General
Opinion JM-170     (1984).    In Attorney     General Opinion JM-334
(1985) we were asked whether a county commissioner                 acting
as ex officio road       commissioner     could maintain       a private
road in his     precinct.     The    opinion did      not discuss      the
scope of a commissioner's         authority    under     sections    3.001
to 3.004,    but    concluded     that    the    commissioners      court
did not    have   aeneral       authority     to    maintain      private
roads in the county.       Comvare      Tex. Const. Art.       III, §52f
(authorizing    counties with population         of 5,000     or less to
maintain   private roads for        a fee).    If    the commissioners
court has no such general authority,           it follows that an ex
officio road     commissioner     possesses      no    such power,     his
authority   being subject to commissioners             court direction.
V.T.C.S.   art. 6702-1, 53.001(a).

        The emphasized     language     in section 2.009(a)         clearly
indicates      that    a road     supervisor      has    no    independent
authority    to commit county        resources    to u       project, but
instead serves to inform          the commissioners       court     of road
conditions     and availability      of funds and       to recommend     new
projects     or    maintenance      work.     See     Attorney      General
@k~;z;     MW-331    ,(1981).    The    commissioners     court     retains
            supervisory      authority      over     road    supervisors.
Guerra v. Rodriauez,        239 S.W.2d 915, 920 (Tex. Civ. App. -
San Antonio     1951, no writ).       See also      V.T.C.S.    art. 2351,
subdivs.    2.    and   5.    (commissioners     court's     powers     over
public     roads).      The    commissioners      court      remains     re-
sponsible     for   authorizing      improvements     and    levying     the
taxes needed       to   pay for     such   projects.      V.T.C.S.      art.
6702-1, 52.009(b).         It must act as        a body in      fulfilling
its duties respecting        the    public roads of the         county and
generally    may    not    delegate   such    duties     to road     super-
visors.     Attorney    General OpiniOn      MW-331    (1981).    A county
commissioner,      then, has no authority        to    individually    bind
the county when acting as road            supervisor.       Id.   Whatever
authority    a county      commissioner     exercises    as    road super-
visor must      be    founded    upon    section     2.009    and    cannot
generally    be delegated      by the commissioners       court.     Id.




                                 p. 4374
Honorable   Neal   E. Birmingham   - Page   6   (JM-892)




      Your question    raises two issues.     The  first concerns
the conditions    under which an ex officio road commissioner
may direct     county   employees    to  perform   roadwork     with
county    equipment.     The   second   concerns    the   county's
authority   to   spend county     funds  to construct,     improve,
maintain,   or repair roads within the corporate       limits of a
city or town in the county.

      Turning to the      first issue, the      previous    discussion
demonstrates     that    an   ex   officio     road   commissioner's
authority    under    article    6702-1,     section    3.003(b),    to
"direct the     manner    of   grading, draining,       or   otherwise
improving    the    roads"    of  his    precinct    is    subject   to
direction   from the commissioners       court,    section 3.001(a).
Under your version       of the facts,     there is some      question
whether    the   commissioners      court     exercised     sufficient
supervisory    control over the ex officio         road commissioner
to authorize    the construction     of the alley in question.

      It is   argued that    the   commissioner's   actions  were
authorized   by the   resolution   of   the commissioners   court
adopted pursuant to article 23523, V.T.C.S.          That statute
provides   the following   in major part:

            A commissioners   court of a county may use
        its    road    equipment    . . . and    employees
        necessary   to operate the equipment     to assist
        another aovernmental     entitv   on anv   vroiect
        so long as the     cost does not exceed      $3,000
        if:

            (a) the use of the equipment  or employees
        does not   interfere with   the county's   work
        schedule:  and

            (2) the county     does   not pay    any   costs
        related to    the    use   of  the   equipment     or
        employees   that the county     would not pay      if
        the assistance    were not    given to the     other
        governmental    entity.    (Emphasis added.)

      Assuming   for the moment that article 23525 governs           in
this instance, we      do not believe      that the adoption      of a
resolution   in   general terms      is   sufficient  to    authorize
county assistance      to   another governmental      entity     under
the statute.     First,    we   note    that the   statute    confers
authority   on the commissioners      court and not on individual
commissioners.      The authority    conferred   must   therefore   be
exercised   by the    commissioners     court   as a unit, and       no
individual     commissioner    has    independent      authority     to




                               p. 4375
Honorable   Neal   E. Birmingham     - Page   7 (JK-892)




commit county     resources      to assist     another     governmental
entity.    $&? Canales v. Lauahl&.l, 214          S.W.zd 451, 454-455
(Tex. 1948); Attorney General Opinion Nos.              MW-331    (1981);
WW-1401   (1962).      Second, the      language     of article     23523
relating to     costs and      the use    of   county equipment        and
employees   strongly suggests that the           commissioners     court,
in order    to make     an informed      and responsible       decision,
must review and      approve svecific        projects   in advance      of
their undertaking.         It   is doubtful       that   a   resolution
committing   unspecified      county assistance      of uncertain    cost
to a city or town at        some time in the future         would serve
this purpose.       In    the   absence    of    commissioners      court
approval of a particular         project,     a county     commissioner
has no    authority    to   direct county      employees    to   provide
assistance   to   a municipality        in the    county pursuant       to
article 23523.1

      We do   not   believe    article 23525     governs     in   this
instance,    however.     Section    2.010   of    article      6702-l
addresses   the county's authority     to construct,     improve, or
maintain  roads    within    the corporate    limits     of a city.
Section 2.010     prescribes   the   procedures   for    authorizing
such work, the types      of projects that may       be undertaken,
and the   methods whereby      such work    may   be performed       or
financed.    It contains the following      relevant   language:

             (a) The commissioners    court   of a   county
         may   expend  county    funds   to   finance   the
         construction,   improvement,    maintenance,     or
         repair of a street     or alley located in the



    1. We should note that article 23523 raises               questions
under article III,       section 52 of      the Texas     Constitution
because there is       no express requirement        that the     county
receive an adequate consideration          or quid pro guo for        the
assistance    it provides to      the other governmental        entity.
Also, a proposed       amendment    to article      III, which     would
authorize   the   use of     county employees       and equipment      to
perform    work    for   another    governmental      entity    without
compensation,    was defeated by       the voters at the       November
3,   I987   election.       The   proposed     amendment      contained
language virtually      identical to     article 2352j.      See    text
of proposed    Tex. Const. art. III, 552g (reprinted           in   1988
cumulative     annual    pocket    part    for   vol.    lA,   Vernon's
Annotated   Constitution     of Texas).     We need not decide this
issue at this time, for we conclude that article 2352j                 is
inapplicable    in this instance.




                                p. 4376
Honorable   Neal   E. Birmingham     - Page   8   (JM-892)




         county within the limits of an    incorporated
         city or town   if the work  on the street      or
         allev is done with the consent and     avnroval                      --.
         of the aovernina  bodv  of the citv or     town.
         (Emphasis added.)

V.T.C.S.   art. 6702-1,    52.010(a).    The county's     authority
thus hinges on     the consent or     approval   of the   governing
body of the city or town in which the work          is to be done.
It is also clear that the statute confers authority           on the
commissioners   court, which must act as a body in approving
the expenditure    of county funds to      finance such projects.
Se   aen r llv Canales v. Lauahlin,       suvra; Attorney   General
Op?nioneI&331     (1981).

      Two   rules    of   statutory     construction      support      the
conclusion   that section 2.010 rather than article 23523 is
the controlling      statute.      One familiar      and    established
rule is that     when two statutes       concern the same         general
subject matter,      the   more    specific     statutory     provision
prevails.    See Garza v. State, 687 S.W.Zd           325 (Tex. Crim.
App. 1985).      Another    is that     in   the    case of     a    clear
conflict between      two statutes,      the    later expression         of
legislative   intent prevails to the extent of the conflict.
Brown v.    Patterson,     609 S.W.Zd      287    (Tex. Civ.      App.    -
Dallas 1980, no writ).        Section 2.010 is the more specific
and recent expression      of legislative      intent.    Comvare Acts
1985, 69th Leg., ch. 625, at 2323 (enacting section 2.010)
with Acts    1981,    67th Leg.,     ch.    260, at     668    (enacting
article 23523).

      Section 2.010 codifies       in part the     rule developed     by
the   courts    concerning     the   authority     of   a   county    to
construct,   improve, repair       or maintain     roads within      the
boundaries   of a city.     That rule states that         a county may
exercise   such limited authority       over city streets provided
the city consents and       provided    further that      such streets
form an "integral      part" of     the county     road system or       a
"connecting    link"   therewith.       Citv   of   Breckenridae      v.
Stevhens   Countv     40   S.W.Zd    43 (Tex.     1931);    Huahes    v.
Count? Commissi&ers       Court of Harris County        35 S.W.Zd 818
(Tex. Civ.     App.   - Galveston      1931,   no   writ);    Attorney
General Opinion Nos. H-1018        (1977); WW-1401       (1962); V-971
(1949); V-261 (1947):       O-7465    (1946); O-4256      (1941).    The
consent of     the   municipality    is   required     because,   as    a
general matter, both       general law municipalities          and home
rule cities     have exclusive      control    over their      streets,
alleys,    and   public    highways     and    their    incorporation
removes from     the   commissioners      court the     authority     to
                                                                              ,-,
construct   or maintain    roads within their       boundaries.      See




                                p. 4377
 ,
     Honorable   Neal   E. Birmingham     - Page   9 (JE-892)




     Attorney   General    Opinion     H-1018   (1977).     The    "integral
     part/connecting      link"    requirement      is   the     result      of
     article III, section       52 @I,     of  the   Texas     Constitution
     which authorizes     counties,     other political       subdivisions,
     or   "any defined     district    . . . which     may    or    may    not
     include" municipalities       to   issue bonds     for, among       other
     purposes,   the construction      and maintenance     of    roads.    The
     supreme court     determined      long   ago   that    since     munici-
     palities may be an "integral part" of a road district,                the
     commissioners    court may expend road district bond funds on
     town or city streets "where such streets are              parts of and
     form connecting    links in county or        state highways."        City
     of Breckenridae    v. Stevhens County, 40 S.W.2d 43, 44 (Tex.
     1931).

           Section 2.010 does       not expressly    impose     this latter
     requirement.     We    note, however,     that   upon its      original
     enactment,   the County Road and Bridge Act          did not purport
     to expand the powers of the         commissioners    court.     Rather,
     it was     merely     intended   as   a   revision      of   the    laws
     concerning    countv    roads   and   bridges.     Acts    1983,    68th
     Leg., ch. 288, at       1431 (caption).     We are     constrained    to
     interpret   section 2.010      in that light.       Accordingly,     the
 P
     commissioners    court of a county may spend         county funds to
     finance the     construction     of a    street    or alley     located
     within the boundaries       of an incorporated     city or town in a
     manner provided     in section 2.010 if the        governing    body of
     the city or town       consents and the     street or alley        is an
     integral part      of   the public    roads    or highways      of   the
     county or a connecting       link therewith.

           Under your description       of   the facts, it      is apparent
     that the commissioners       court took       no action pursuant     to
     section 2.010      with   respect to      the   specific project     in
     question.     Furthermore,     the    facts    you describe    do   not
     indicate that      the governing      body of    the   city gave    its
     consent    or   approval    to   the    project.       Thus,   in   the
     circumstances    you describe a county commissioner          acting as
     ex officio road      commissioner     would    not be authorized     to
     use   county     equipment,     materials,       and   employees     to
     construct   an   alleyway within       the corporate     limits of     a
     city in the commissioner's       precinct.

           We note in closing that a county     may construct   roads
     within a city that are not public roads of the county by a
,-
     contract made in accordance   with the    provisions  of Inter-
     local    Cooperation    Act,  V.T.C.S.    article    4413(32c).
     Attorney   General Opinion H-1018  (1977).




                                     p. 4378
Honorable   Neal   E. Birmi,ngham     - Page       10 (JM-892)




                               SUMMARY

              In the    absence of    commissioners      court
        approval pursuant     to section 2.010 of article
        6702-1,    V.T.C.S.,    or   a contract      made    in
        accordance   with the provisions     of the     Inter-
        local   Cooperation     Act,   article     4413(32c),
        V.T.C.S.,   a county commissioner      acting as     ex
        officio road commissioner      has no    independent
        authority    to     use  county     equipment       and
        employees   to construct    a road or alley within
        the corporate    limits of a city located in the
        commissioner's    precinct.




                                             Attorney    General   of Texas

MARY KELLER
First Assistant     Attorney     General

LOU MCCREARY
Executive  Assistant     Attorney        General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney         General

RICK GILPIN
Chairman,  Opinion     Committee

Prepared by Steve Aragon
Assistant Attorney General




                                p. 4379
