March 28, 1952

Hon. Homer L. Moss OpinionNo. V-1424 County Attorney 'WheelerCounty 'Re: Authority of the comWheeler, Texas missioners' court toP charge to the allotment

_ of the road and bridge

fund of one precinct money expended on roads in that precinct by a commissioner of another Dear Sir: precinct.

Your request for an op9nion~ofthis office presents the following question:

Where a county commissioner of one 1 precinctrepairs county roads in another ,commissioner'sprecinct inhis county, without the consentof the resident commissioner, can the commissioners' court charge to the allotment of the resident commissioner'sprecinct the amount of money expended for such repairs?

Article 2342;V.C.S., provides:

"The several cornmissIoners,togetherwith the county judge, shall compose the 'CommissionersCourt,' and the county judge,when present,shall be the presiding officer of said court.'
Article 2351,V.C.S., provides:

"Each commissioners court shall:

. . ."3

. Lay out and establish, change and discontinuepublic roads and highways.
"4

. Build bridges and keep them In repair.

. . .Hon. Homer L. Moss, page 2 (v-1424)

"6. Exercise general cbntrol over all roads, highways, ferries and bridges in their counties. e
. ."

In view of the foregoingprovisions it is the duty of the commissioners'court, and not the individual commissioners,to construct and maintain the roads of the county. Each commissionermust keephimself informed of the condition of the roads and the need for repairs and improvements inhis precinctand report this information at each term of the commissioners court. Art. 673, V.C.S. A commissionershouldhave the approval of the commissioners'courtbefore any work on the roads is performedbecause individual commissionershave no authority to bind the count$ by their separateactions. Canales v. Laughlin, 1 7 Tex. 169, 214 S.W.2d 451 (1948);Swain v. Montgomery County 154 S.W.2d 695 (Tex.Civ. App. 1941,
error ref. ,.A.,.). However, the commissioners' court may ratify thatwhich it mighthave authorized originally. Cameron County v. Fox, 61 S.W.2d 483 (Tex.Comm. App. 1933); State v. Carries,106 S.W.2d 397 (Tex..Civ.App. 1937). We 'therefore
assume that thework outlined in your request was either performedupon an order of the commissioners' court or subsequentlyratified.

Itwas held inAttorney General's Opinion O-4548 (1942) that it is the duty of the commissioners' court to constructand maintain the roads of a county as a wholewithout regard to precinct lines. Likewise, in Attorney General's Opinionv-566 (1948),itwas held that automobile registration fees paid into the road and bridge fund of the county shouldbe expended in such a manner as to give the county as a.whole a uniform system of roads without reference to precinct lines.

In Canales v. Laughlin, su ra and Stovall
v. Shivers, 129 Tex. 256, 103 S.W.2d 3 3 (193m -9
was ,helathat the commissioners'court in maintainina and repairing the roads of the county shall regard - the roads as a unit and expendmoney for suchmaintenance to the best interests andwelfare of all the people of the county. We quote the following from Stovall v. Shivers:Hon. Homer L. Moss, page 3 (v-1424)

II

. . . In our opinion, there is obviouslynothing in this articlewhich compels the commissioners court to divide the road and bridge fund according to any fixed mathematical formula, and apportion same in advance for the purpose of being expended in any given precinct.. The use of theword 'expended'to our minds clearly suggests that said funds shall be apportioned and paid out from time to time as the necessity for their
use arises in the ordinary administration of the county affairs. By article 2342 of theRevised Statutes, it is provided that the several commissioners, together with the county judge, shall compose the 'commissionerscourt.' Such court is manifestly a unit, and is the agency of thewhole county. The respective mem- ~bersof the commissioners court are therefore primarilyrepresentatives of thewhole county, and not merely representatives, of their respective precincts. The duty of the commissioners court is to transact the business, protect the interests;and promote the welfare of the county as a whole. Among~the powers .conferredupon such court by article 2351 are the following: The power to lay,out and establish, change and discontinueroads and highways, the power to build bridges and keep them in repair, and the power to exercise general control over all roads, highways, ferries, and bridges in their counties. They have the power to levy a tax not to exceed 15 cents on the $100 valuation for roads and bridges. This fund is, of course, for the benefit of all roads and bridges of the county. These provisions of the law, as well as others which might be mentioned, clearly contemplate that the commissioners court of each county shall regard the roads and highways of the county as a system to~be laid out, changed,repaired, improved, and maintained,

as far as practical, as a whole to the best interests and we,lfareof all the people of the county. It is clearly contemplated that all roads and bridges of the county

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_ Hon. Homer L. Moss, page 4 (V-1424)

shall be maintained,repaired, and improvedwhen necessary, as the conditions may require, regardless of the precinct inwhich samemay be located, so far as the fundswill equitably justify. This being true,we think that a commissioners court cannot voluntarilydisable itself from performance of this general obligation by arbitrarily dividing the road and.bridge fund according to some fixed 'standard,and apportioning same to be expended in a particularprecinct, to the detriment of roads and bridges in other precincts." (103S.W.2d at 366)
Since it is the duty of the commissioners'. court to maintain and repair countyroads as a whole, Ithad the authority to authorize thework outlined In your request,without the consent of the resident 'commissioner,and charge to the allotment of that precinct the amount of money expended.

SUMMARY P The commissioners'courthas authority to charge to the allotment of the road and bridge fund of one precinctmoney expended on roads situated in that precinct by a commissioner of another precinctprovided such expenditurewas authorizedby the commissioners' court. Canales v. - Lau hlin 147 Tex. 169, 214 S.W.2d 451 ~*&ovall v, Shivers, 129Tex. 256, 103 S.W.2d 363 (1937).

Yours very truly,

APPROVED: PRICEDANIEL Attorney General J. C. Davis, Jr. County Affairs Division

E. Jacobson Reviewing Assistant &e& Assistant Charles D. Nathews First Assistant

JR:Ulh