Arrxmm $1.TEXAS

PRICE DANIEL ATTORNEY

GENERAL March 31, 1948

Hon. H. P. Querra, Jr. county Attorney Starr County Rio Grande City, Texas Opinion No. V-532 Re: Thevalidity of a~Comlulssloners' court order that all road employees shall be hired and all road materials shall be Wchased by the 8omt, aatlng through the County Judge, rather than by lndivldua~~ ~oounty commiss10n.ra. Dear sir:
Reference Is madeto your recent request which reads, in part, as follows:

"The CommIssionera Court 0r Starr County has passed a resolution to the effect that from and after the 28th day of February 1948, all road hands, foremen and any and all persons WWemployed on the oounty roads, whohave been employed by the commissioners of the respective precincts, be discharged and that upon their discharge, the 

### Commissioners Court &all employ akl mob county road **workers** In the various precincts. Theresolutionalso provides that all materials and supplies necessary in the malnhainancr bZ such roada shall be purchased by the court and not by the respecttve commtssloners and further provides that the County Judge 1s thereby appolntod the sole person authoriaed to employ such m&ma &mlmakeall purchases. This resolution vaa passed, two oonasissloners voting for it, two against It and the County Judge voting **for** it. "The two comisslraers whovoted against the resolution, consider thatHon. H. P. Cuerra, Jr., page 2, (V-532)

it Is an attempt on the part of the two oommlssloners whovoted **for** it and the County Judge to gain control over all road matters within the precincts of these two commissioners whovoted against the resolution. They considerthat this would be tantamnmt to relieving them of their duties as comuxLss1onersfor their respective precincts which they assumed upon being aleCted and that It would effect a delegation of their duties to someone whoIs not charged by law with the performance of such duties.

. .

‘1 request yo6r opinion aa to the legal effect of the rasolutlon which I have described above. You also advised us that Starr County Is not operating under the optional County Road Law.

Article 2351, **V.** C. S., provides, in part, that:

“Each commlssloners court shall%...

“3. Lay out and establish, change and discontinue public roads and hlghways.

“4. Build bridges and keep themin repalr i

“5. Appoint road overseers and apportion hands.

“6. Exercise general control over all roads, highwayg, ferries and bridges in their counties. Article 6713, V. 0. S., 1s as follows:

, “Except whenroad commlssloners are employed, the county commissioners shall be supervisors of public roads In their respective counties, and each comml.aslon- * er shall supervise the public roads within his oommlssloners precinct once each month. Heshall also mke a sworn report to eachHon. H. P. Ouerra, Jr., page 3, (V-532)

regular term of the cOBfIdBB~OnerS court hsld in his county during the ysar, showing%

“1. The condition of all roads and parts 0r roads in his precinct.

“2. The condition of all culverts and bridges.

“3. The amount 0r moneyremaining in the hands of overseeps subject to be expended upon the road8 within his precinct.

“4. Thenumber of mile posts and fin**ger** boar&h defarsd and torn down.

‘5. What, Lf **any,** newroads of any kind sheoLd be opened ln his preoin&t, and what, If any, bridges, amlverts, or other impPOVement8 are necessary to place the roads In his precinct in good GOnditiOn and ths probable cost of such improvements; also the nameof eve- overseer whohas failed to work on the road, OFIn any way neglected to perform hls duty.

“Said report shall be spread upon the minutes of the cou&, to be considered in Improving public roads and deter$.nlng the amount of tares levied therefor. penditure counties, Article 6740, V. C. S., provide8 for the exof the road and bridge fund of the various and Article 6741, V. C. S., provides that:

“The commlssloners court maymakeand enforce all reasonable and necessary rules and orders for the working and repairing of public roads, and to utillre the labor to be used and moneyexpended thereon, not in confliot with the laws of this State. Said court maypurchase **or** hire all necessary road machinery, tools **or** toams, and hire such labor as maybe needed In addltlon to the labor requ&redWof citizens to build or repair the roads. If Starr County has appointed a road supsrln-. -

Hon. H. P. ffuerra, Jr., page 4, 

### (V-532)

tendent for the county or one such superintendent for each precinct of the county, pursuant to~Artlcle 6743, v. c. s., then Article 6751, V. C. S., la applicable and is as r0ii0ws:



### 'Thecoamlssioners courtof any such county Is authorized to purchase **or** hire all

. necessary road machinery, tools, Implements, teams and labor required to grade, drain, **or** repair the rwds of such county, and said ,court is authorized and empowered to makeall reasonable and necessary rulea, ordora and regulations not in conflict with law 

### forlaying out, working and otherwise Improving the public roads, and to utilize the labolr and moneynexpended thereon, and to 

### enforcethe 

### same. (01~. App.The court,

t 7 in the cash of Stovall v. Shivers, 

### 7 8.w."(2d)P76,aTfIrmed 129 Tex. 

### 256, 103 9. w. 26 

### 363,said:

'By AFtlole 2342 of the Revlsod Statutes, It ia provided that the several commissioners, together with the county judge, shall composb the lcixnmissloners GOtad.' Such court Is IJEinifeBtly a unit, and Is the agency of the whole county. 

### Therespective membersof the colamissioners court are therefore primarily representativss of the whole county, and not merely representatives Of their respective precincts. The duty of the commissioners court is to transact the buslness, protect the interest, and promote the welfare of the county as a whole. Amongthe powers conferred upon such court by article 2351 are the following: Thepower to lay out and establish, change and discontinue roads and highways, the power to build bridges and keep them In repair, and the power to exercise general control over all 

### roads,lU.$hways, ferries, and bridge8 in their counties. Webelieve that the resolution Is merely cumlative Insofar as It states that the Commissioners1 Court shell employ all such county road workers In the various precincts, since it is incumbent upon the Commissioners' Court to perform this duty under the statutea, even in the absence of such a resolution. True,Xon. 11.P. Cuerra, Jr., page 5 (V-532)

each Commissiona) mayrecommendto the Counniaaloners~ Court that it employ certain PSPBOnS~ to work on the county roads in his respective precinct, but the Commissioner himself has no authority to e$log road hands. Nor do webelieve that the Commissioners Court maydelegate this power to the County Judge.

The samerule or lav Is applicable to the Commisalonera* Court relative te purchases madeby the county. Weshall quote only those statutes which deal with county purchases which we deempertinent to your Inquiry. Article 

### 1659,V. C. S,, provides, la part, as r0ii0wS:

“Supplies of every kind, road and bridge material, or any other material, for the use or said county, or any of Its officers, departments, or instltutlona must be purchased on competitive blda , , . . In 

### casesor 

### emergency,purchases not In excess of one hundred and fifty dOllal’ maybe madeupon ZWquiBition to be approved by the commissioners court, “without advertising for competitive bids. Article 6729, V. C. S., provides, In part, a8 r0n0vS:

"Th0 CO~iBBiO~Sl'B COUZ't IE%y'USe either timber, earth, atone, gravel, or other necessary material most convenient therefor to build, repair, or maintain any public road or any part of any public road in the county without regard to the location or extent thereof 

### orthe funds from which said 

### repairor maintenance la paid. In such 

### casethe owner of any such material shall be paid a fair andjust compensation therefor as maybe agreed upon by the owner or tfis agent and the commiBBloners court.

The aot further provides in the event the Commissioners1 Court ancj the owner of the material fail to agree upon the price to be paid for such material that the COdBSi0IKWS t Court maycondemn same.Ron. H. P. ffuerra, Jr., page 6 (V-532)

Article 2368a, Sec. 2, as amended In 1947,R. 3a,50th Leg., provides, lnpart, as follows:

'Qec. 2. No countyacting through it8 Commi8sioner8Court and no city In this State shallhereaftermake any contract oalllng for or requiring the expenditure orpayman% of Two Thousandbllara ($2,000)ormore out of any fund or funds ofany county or subdivisionof amy ooUnty creatingor~imposingan obligation6r llabillty of any nature or characterupon such countyor any subdivisionof such county, orupon such City,without first sUbmittiE%gV suchproposed contractto competitivebids.
It furtherprovides for advertisement,etc., togetherwith a calamity clause.

We think it abundantly clear from the above statutesthat it Is the duty of the cO3UIIiBS~On~rS’ Court tom8.kesuchpurchases and further that thepower 18 a non-delegableone. Rence, the Commissioners'Courtmay not authorize the CountyJudge tomake suchpurchases.

By virtue of the foregoing, it is the opinion of thisDepartment that theresolutionpassed is Ofno force and effect insofaras it attempts to dele$ate to the CountyJudge thepower to employroadhands and to makepurchases for the county. SUMMARY Thatportion of a resolutionpassed by the Commissioners'Court of Starr CountyWhich provide8 that all COUntyroad employees shallbe hired and all road materials Shallbe purchasedby the CountyJudge Is invalid, since this duty Is Imposedupon the Commissioners'Court. Arts. 1659, 2368aand 6729,V. C. 3.
Yours very truly, ATTORNFXGENERAL OF TEXAS

BY Assistant