Hon. Wm. L. Taylor                     Opinion    No. V-1348.
Prosecuting Attorney
Harrison     County                    Re:    Legality of using county
Marshall,     Texas                           equipment and materials
                                              to construct driveways   on
Dear Sir:                                     private property.

            Your   request   for an opinion   is substantially   as fol-
lows:

             If a property owner in Harrison    County re-
        quests a County Commissioner      to build on the
        owner’s priva.te property a driveway entering a
        county or state’ road, and the county commis-
        sioner does so, using county materials,    machin-
        ery, and labor, is the county commissioner      subject
        to prosecution   under Article 95 of the Penal Code
        of the State of Texas 7

           The decisions   of the Texas courts have repeatedly      held
that the commissioners’      court is a court of limited jurisdiction
and has only such powers as are conferred        upon it, either by ex-
press terms or by necessary       implication,  by the statutes and the
Constitution of ,this state.   Childress   County v.. The State, 127
Tex. 343, 93 S.W,Zd KID (1936); Von Rosenberg         v. Lovett, 173
S.W. 508 (Tex. Civ. App. 1919, error ref.); Roper v. Hall, 280
S.W. 289 (Tex. Civ. App. 1925); Art. 2351, V.C.S.;       11 Tex. Jur.
632, Countiesi Sec. 95.

          The only statute we have found which authorizes       the use
of county road equipment     for improvements     on private property
is Article 2372c, V.C.S..    authorizing the, commissioners’    court
to use road equipment and machinery       in soil conservation   work,
for which the county receives     compensation   from the persons
for whom the services     are performed.    We do not find any stat-
ute authorizing the use of county road materials       and equipment
for the construction  of a private road.    And in view of Section 52
Hon. Wm. L. Taylor,         page 2    (V-1348)




of Article III, Constitution of Texas, any statute which at-’
tempted to authorize the use of county material    and equip-
ment for private purposes without compensation      to the county
would be unconstitutional.   See Dunlap v. Hardin, 223 SW.
711 (Tex. Civ. App. 192d); Gray v. Lewis, 88 S.W.Zd 603 (Tex.
Civ. App. 1935); Att’y Gen. Op. O-6670 (1945). qualified on
other points in Att’y Gen. Op. O-6908 (1945).


             Article   95, V.P.C..   provides:


          “If any officer of any county, city or town,
    or any person employed by such officers,      shall
    fraudulently   take, misapply,  or convert to his
    ownuse     any money. property or other thing of
    value belonging to such county, city or town, that
    may have come into his custody ‘or possession
    by virtue of his office or employment,     or shall
    secret the same with intent to take, misapply or
    convert it to his own use. or shall pay or deliver
    the same to any person knowing that he is not en-
    titled to receive it, he shall be confined in the
    penitentiary   not less than two nor more than ten
    years.”     (Emphasis  added.)


           It is our opinion that a county commissioner      who de-
livers county road material      to an unauthorized   private project
may be subject to prosecution       under Art.icle 95. However, the
answer to your questi~on would be controlled       by the facts of the
individu.al situation.   This office does not pass upon fact ques-
tions, but the general rules of l.aw stated above may be of help
to you in considering    specific fact situations.



                                SUMMARY


             The use of county material           and equipment
     in the construction       of private      roads   is unauthor-
     ized.    and is a violation     of Art.     95, V.P.C.,   if all
.




    Hon. Wm. L. Taylor,   pagi   3   (V-1348)




        the elements  of the offense    prescribed      by that
        statute are present.


    APPROVED:                                   Yours   very truly,


    J. C. Davis, Jr.                             PRICE DANIEL
    County Affairs Division                     Attorney General

    Jesse P. L&on, Jr.
    Reviewing Assistant

    Charles D. Mathews
    First Assistant



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