Hon. Joe Resweber               Opinion No. M- 798
County Attorney
Harris County Courthouse        Re:   Can the Commissioners Court of
Houston, Texas 77002                  Harris County order that the
                                      responsibility for the operation
                                      and maintenance of the Washburn
                                      Tunnel and Harris County Ferries
                                      In Commissioner Precinct 2 be
                                      transferred from the Commissioner
                                      of that precinct to the Commls-
Dear Mr. Resweberf                    sioner of another precinct?
          In your letter of December 22, 1970, you request our
opinion in answer to the following question:
         'Can the County Commissioners Court order
    that the responsibility for the operation and
    maintenance of the Washburn Tunnel and Harris
    County Ferries In Commissioners Precinct 2 be
    transferred from the Commissioner of that
    Precinct to the Commissioner of another Precinct?"
          Our answer is "No", inasmuch as there is no statutory
authority permitting such transfer. The.control over the roads
is vested in the Commissioners Court, which %ay be delegated by
resolution to "the precinct road supervisor.
           The Harris County Road Law passed by the 33rd Legisla-
ture Is cited under the Special Laws, Acts 1913, 33rd Legislature,
page 64, chapter 17.   We believe that the following sections of
that Law control this situation.
          "Section 1. That;subject to the provisions
     of this Act, the commissioners' court of Harris
     County shall have control of all roads, bridges,
     drains, ditches, culverts and all works and con-
     structions incident to its roads, bridges, and
     drainage, that have been heretofore laid out or
     constructed, or that may hereafter be laid out,
     or constructed by Harris County, or under its
     direction. (Emphasis added.)

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Hon. Joe Resweber, page 2        (M-798)


           "Section 5.  From and after the passage of
     this Act, each county commissioner shall be ex-
     officio a precinct road supervisor, and subject
     to the nrovisions of this Act, and under the
     orders and supervision of the court, shall have
     charge of all teams, tools, equipment, and
      roperty of ail kinds committed to his care by
              for
       he court             his precinct, and shall
     au erintend the laying out of all work of all
     i             precinct subjectT    such con-
     as the court  may see &t to provide. (Emphasis
     added.)
          "Section 16.  The commissioners' court shall
     have control of all matters in connection with
     the constructionand maintenance of county roads,
     bad
      ri ges an dra nage, except sue as it may from
     time to time, by resoluiigate         to the
     precinct road supervQor, and then under such
     rules and regulations as it may prescribe,.and
     subject to their recall at its pleasure. (Em-
     phasis added.)

         "Section 29. Whenever in this Act, or any
    neneral law. the word 'Road,' is used, the same
    u-----   ~~~

    is hereby defined to mean in so far as Harris
    County is-road
               concerned, a       beds, ditches,
    drains, bridges, culverts and every part of
    every road, whether Inside or outside of any
    incorporated city or town in Harris County, or
    not. (Emphasis added.)
          "Section 31-b. The Commissioners
                                      ._.-- - Court
                                              _ -..- of
                                                     ~~~
     Harris Counts may enter Into such contracts and
     amreemen
     -~..-    ts   it-finds necessary with the United
     States, the State of Texas . . . in connection
     with the construction of a tunnel or tunnels. . .
     Such tunnels are hereby decqto        be an es-
     sential public highway unit. . .     (Emphasis
     added .)
          Sections 1 and 16 place control of the roads in the
Commissioners Court. Section 16 does allow by resolution the
delegation of certain powers to the precinct road supervisor
who is designated in Section 5 as the county commissioner of
each precinct. This power placed in the Commissioners Court
by Sections 1 and 16 of the Harris County Road Law is also
set out in the general law. Article 2351, Sec. 6, Vernon's
Civil Statutes.
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Hon. Joe Resweber, page 3   "   (M-798)


          The control or power delegated to the Court cannot be
abrogated by it unless statutory authority can be found. 15 Tex.
Jur.26 277, Counties, Sec. 48, reads in part as follows:
          “In the absence of an enabling statute the
     power of a commissioners’ court that involves
     exercise of judgment and discretion cannot be
     delegated.” Citing Guerra v. Rodriguez, et al.,
     239 S.W.2d 915 (Tex.?Ziv.App.1951, no writ).
          In the Guerra case, tried under the general law, a
commissioner maintainedhis right to hire road workers, buy and
rent tools and equipment and make contracts for road labor and
machinery, subject to the Commissioners Court supervision. Some
of the duties were being performed by a third party hired by the
Commissioners Court. The Court of Civil Appeals posed the follow-
ing question:
          'Since the Legislature has specifically
     authorized the employment of agents having
     power over the county roads, hedged about with
     stated protective requirements, can a different
     method be used?"
          The Court determined that the prescribed method must be
followed and held that the statute did not authorize the pmnct
commissioner to exercise the power of a %oad superintendent" and
that the Commissioners Court could appoint a third party superln-
tendent or control the road themselves,
          Following this reasoning, one could conclude that the
Harris County Commissioners Court could appoint some third person
to supervise the Washburn Tunnel and the ferry and that the third
person could, in fact, be a commissioner of a precinct 'otherthan
the one in which the tunnel and ferry are located.
          The Guerra case4 however, is distinguished from the sub-
ject problem Inthat the third party", the road superintendent,
was authorized by statute whereas under the Harris County Road Law,
a special law, Section 16 specifies that the Commissioners Court
shall have control of all matters concerning roads". . . exce t
such as it may from timeto time, by resolution, delegateTdbie
precinct road supervisor. . .- (Emphasis added.)
          Section 16 if In conflict with the general law, would
control by reason of Section 33 of this Act. Section 16 is the only
authority for s   delegation of authority by the Harris County Corn-
missioners Court. Further, neither Section 16 nor any other section

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Hon. Joe Resweber, page 4         (M-798)


of the Harris County Road Law provide for a road superintendent
as was before the Court in the Guerra case.
          We believe that control of the tunnel and ferry must
remain with the Commissioners Court unless delegated to the
precinct commissioner where the tunnel and ferry are located.
          At this point we must determine whether this tunnel
and the ferries are "roads, bridges, etc." within the purview
of the Harris County Road Law.
          Section 31-b of the law clearly establishes the tunnel
as a Fart of the road system by the words, "public highway unit
       and by inclusion within the Harris County Road Law. It
is'therefore subject to and governed by the powers granted the
Commissioners Court in Sections 1 and 16.
          We find no Texas authority for a definition of "ferry";
however, we do find the following relevant definition in Blacks
Law Dictionary, 4th Edition, which states in part, as follows:
          'Ferry . . . or to connect a continuous line
     of road leading from township or fiii/ to another.
     Canadian Pac. Ry. Co. v. U.S.C.C.k. rash., 73 F.2d
     831,   832."

          "A continuation of the highway from one side
     of the water over which it passes to the other,
           U.S. v. Puget Sound Nav. Co., D.C. Wash.
     24'F:Supp. 431, 432." (Emphasis added.)
          A ferry is generally a connection between highways
located on opposite sides of the body of water. 25 Tex.Jur.2d
312, Ferries, Sec. 1. We therefore conclude that the Harris
County Ferries, as well as the Washburn Tunnel, are 'roads'and
are therefore governed by the Harris County Road Law as set out
In this opinion.
                     SUMMARY
          The Harris County Road Law authorized the
     transfer of responsibility for operation and main-
     tenance of the Washburn Tunnel and Harris County
     Ferries to only the commissioner in whose precinct
     the tunnel and ferries are located.



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Hon. Joe Resweber, page 5          (M-798)




                                             xas

Prepared by Melvin E. Corley
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Kenneth Nordquist
Max Hamilton
R. D. Green
Sarah Phillips
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant




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