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( GREG ABBOTT

January 19,2005

he Honorable Bruce Isaacks OpinionNo. GA-0295 Denton County Criminal District Attorney 1450East .McKinney, Suite 3100 Re: Operation ofthe ex officio road commissioner PostOfficeBox2850 system and allocation of road .a.nd bridge funds in Denton, Texas 76202 Denton County (RQ-0254-GA) 

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.You seek advice about the ex officio road commissioner systemof county road and bridge :administration as it has been implemented in Denton County.’ See TEX. ‘X~ANSP. CODEANN. ch. 252, subch. A (Vernon 1999) (Ex Officio Road Commissioner System). Transportation Code chapter 252, subchapter A authorizes a county road administration system in which each county : commissioner is the ex officio road commissioner of his precinct. See id. 0252.003.

i. Facts
Prior to October 1,2003, Denton County administered its roads and bridges as a single county-wide systemunder theroad superintendent system authorized by chapter 252, subchapter C.* See id. $0 252.201-.216. A single road superintendent appointed by the commissioners court had general supervision over the county’s roads, subject to the court’s orders. See id. $0 252.203; .205(a). All requests forroad work in the county were made to theroad superintendent, and no work crew was assigned to an individual county commissioner precinct. See Request Letter, supra note 1,at 2.
Effective October 1,2003, Denton County adopted the exofficio road commissioner system authorized, by chapter 252, subchapter A. See id.; TEX. TRANSP. CODEANN. $9 252.001-.006 .(Vernon 1999). At that date, each county commissioner became the ex officio road commissioner for his county commissioner’s precinct. See TEX.TIUNSP.CODEANN. 0 i52.003 (Vernon 1999). Information you provide about county roads in the unincorporated areas of Denton County, excluding, interstate highways, state highways, farm to market roads, and city streets, shows significant variations in county road mileage among the four precincts. See Request Letter, supra

‘Letter from Honorable BruceIsaacks, Criminal District Attorney, Denton County, to Honorable Greg Abbott, TkxasAttorney General (July30,2004) (on file with Opinion Committee, also available at ht@//www.oag.state.tx.us) @ereinafier Request

Letter].

w. at 1.The Honorable Bruce Isaacks - .Page 2 (GA-0295) , ?

note 1,at 2-3. Over 6Q

percent ofthe mileage is located in precinct one and almost 39’percent ofthe mileage in precinct four, while precincts two and three combined have less than one percent ofthe county road mileage. See id at 2. Denton County has divided its centralized road crew into two groups, locating them at facilities m precinct one and precinct four. Id. at 3. No work crew is located in either precinct two orthree, butthe ex officio road commissioner inprecinct two istohave road work performed by the road crew in precinct one, and the precinct three commissioner by the road crew in precinct four. See id.
The Denton County road and bridge fund is comprised 95 percent of motor vehicle registration fees, while 5percent derives from otherrevenue sources, such asthe farmtomarket road tax and flood control tax. Id. See TEX.ASP. CODE ANN. @502.102 (Vernon Supp. 2004-05) (disposition of vehicle registration fees); 502.108 (Vernon 1999) (use of registration fees retained by county). Seealso id 0502.172 (Vernon 1999) (optional vehicle registration fee for county road andbridge fund). The county budget for fiscal year 2004 allocated the county road andbridge fund by “distributing 95% of alI road material funds to Precincts 1 and 4 with Precincts 3 and 123 receiving 5% ofsuchmaterial funds” and distributing all other road andbridge funds equally among the precincts, each receiving 25percent of the remaining fbnds.’.SeeRequest Letter, supra note 1, at 3. The budget.for fiscal year 2005 allocated all road and bridge fundsto the precincts based on the mileage and historical expenditures for the past five years. See id. at4. Road andbridge funds, without distinguishing between materials cost and other budget items, were allocatedfor fiscal year 2005 as follows:

PrecinctOne
Precinct Two 54% c

2%
Precinct Three 1%

Precinct Four 43%
Id. at 4.

Transportation Code chapter 25 1.setsout the commissioners court’s general authority over roads. while chapter 252 provides for optional systems of road administration that a county may adopt. See TEX. TRANSP. CODE ANN. chs. 251, 252. (Vernon 1999 & Supp. 2004-05). Transportation Code chapter 252, subchapter A authorizes the commissioners court to adopt the ex officio road system, under which each county commissioner is the ex officio road commissioner of his precinct. See id. $0 252.001(a),- .003 (Vernon 1999). See ah id. 0 252.002 (subchapter A controls over conflicting general laws relating to roads). Before assuming the duties ofan exofficio road commissioner, a county commissioner must execute abond conditioned on the individual’s performing “the dutiesrequired ofthe ex officio road commissioner by law orbythe commissioners court” and accounting for money or other county property coming into his possession. Id. 5252.004(a). The commissioners court “shall adopt a system for laying out, working on, draining,TheHonorable Bruce Isaacks - Page 3 (GA-0295)



## I and repai&g the public roads.” Id. 0 252.005(a). The commissioners court may also “purchase

vehicles, tools, and machinery necessary for working on public roads and.may construct, grade, or otherwise improve a road or bridge by contract in the manner provided by Section 252.213.” Id. 9 252.005(b). See id. 0 252.213 (procedures for road work contract). See.also id. 0 251.006 (commissioners court may obtain material necessary to construct, repair, or maintain public roads).
As a general matter, the ex officio road.commissioner exercises certain powers and duties independently within his precinct, and others subject tothe commissionerscourt’s authority. Under the commissioners court’s direction, “an ex officio road~~&mnissioner rs responsible for the vehicles, tools, andmachinery belonging to the county andplaced in the commissioner’s control by the court.” Id. .§ 252.006(a). “[AIn ex officio road commissioner shall,” under rules of the commissioners court, direct the laying out ofnew roads, construction or changing ofroads, andthe building ofbridges. Id. 5252.006(b). See also id. $0251.003(a) (commissioners court may make allnecessary rules and orders forconstruction ofpublic ioads); 251.08 1(authority ofcommissioners court to build and maintain bridges). “Subject to authorization by the commissioners court, an ex officio road commissioner may t%nploypersons for positions in the commissioner’s precinct to be paid from the county road andbridge fund.” Id. $252.006(c). Se.e a&oid. 0256.001 (money in the county road andbridge fund may be spent only by order ofthe commissioners court). The exofficio road commissioner “may discharge any county employee working in the commissioner’s precinct who ispaid from the county road and bridge fund.” Id. 6252.006(d).
An exofficio road commissioner must also determine the condition ofthe public roads inthe

c precinct and thekind ofwork tobe done on them, aswell asdirect “the manner ofgrading, draining,

or otherwise improving the roads.” Id. 0252.006(f). Hehasthe reporting duties that Transportation Code sections 251.004 and 251.005 require of county commissioners serving as road supervisors. See id. 0 252.006(e). See also id. $0 251.004(b) (duty to supervise the public roads in the precinct at least once a month); 25 1.005 (annual report on the condition of each road, culvert and bridge in the precinct; the funds needed to maintain the roads during the next fiscal year; any new road that should be opened; and other information relating to improvements).
III. Questions
You ask the following questions:
1. Is the ex officio road commissioner system as. adopted and functioning in Denton County in accordance with lega! requirements and within the discretion of the Commissioners Court?
21 Was the allocation of road and bridge funds for Fiscal Year 2004 in accordance with legal requirements and within the discretion of the Commissioners Court?
3. Is the proposed allocation of road and bridge funds for Fiscal Year 2005 in accordance with legal requirements andwithin the discretion of the Commissioners Court?TheHonorable Bruce Isaac&s - Page 4 (GA-0295)

4. Does the ex officio road commissioner of Precinct 2 have joint authority with the ex officio road commissioner ofPrecinct 1to hire the road and bridge crew to perform work in Precincts 1and 2? 1

i

5. What authority, if any, does one Denton County ex officio road commissioner who shares a road crew with another ex officio road commissioner have over the road crew while it isperforming work in the other commissioner’s precinct?
6. What authority does the Commissioners Court acting as a unit have over the individual ex officio road commissioner?
7. Ifnot answered in Question 6,what authority doesthe Commissioners Court acting as aunit have over the budget allocated to an individual ex officio road commissioner during the fiscal year other than its annual budgeting author-i@’
8. May an ex officio road commissioner system continue to be used in a County in which there areno longer any county roads in one ofthe commissioner precincts? Request Letter,supra note 1,at 4-5.
We will first answer questions 2through 5,which relate tothe legality of specific aspects of ( the Denton County road system and then answer question 1;which relates to the system’s legality in its entirety, and then questions 6 through 8.
Iv. Questions 2 and 3: Allocation of Road and Bridge Funds
You ask whether the allocations of road and bridge funds for fiscal years 2004 and 2005 complied with the law and were within the commissioners court’s authorized discretion. Article V, section 8 of the Texas Constitution gives the district ‘court “appellate jurisdiction and general supervisory control over the County Commissioners Court.” TEX. CONS-K art. V, 08. Discretionary matters are for the commissioners court to resolve in the first instance, subject tojudicial review. See Comm‘

rsCourtofTitus County v.Agan, 940 S.W.2d 77,80 (Tex. 1997).
The leading case on allocating the county road andbridge fund among the precincts isSto&ZZ v.Shivers, 103 S.W.2d 363 (Tex. 1937). The court in Stovall interpreted former article 6740 ofthe Revised Civil Statutes: the predecessor ofTransportation Code section 252.108, which provides as follows:

3ActapprovedApri16,1889,21stLeg.,RS.,ch. 111,$6,1889Tex.Gen.Laws 134,135,reprintedin9H.P.N. GAMMEL,

THELAWS

OF TEXAS1822-1897, at 1162,1163 (Austin, Gammel Book Co. 1898). Cf TbeHonorableBruce Isaacks - Page 5 (GA-0295)

(a) In a county that employs road commissioners under this subchapter, the commissioners court shall ensure that the county road and bridge fund isjudiciously and equitably spent on the roads and bridges in the county. As nearly as the condition and necessity ofthe roads permit, the fund shall be spent in each county commissioner’s precinct in proportion to the amount of money in the fund collected in the precinct.
TEX.TFMNSP.

CODE ANN. $ 252.108(a) (Vernon 1999). This provision, found in chapter 252, subchapter B, does not apply to Denton County or to other counties that have adopted the ex officio road commissioner system under subchapter A. It nonetheless states some general rules about a county’s exercise of discretion in allocating the road and bridge fund among the precincts that provide guidance in addressing questions like yours. See Tex. Att’y Gen. LO-98-087 (relying on section 252.108 to consider allocation ofroad and bridge fund among precincts in county subject to Transportation Code chapter 251 and special road law).
In StovuZZ,

the Texas Supreme Court stated that a district court may review and abrogate an action of the commissioners court if it “acted arbitrarily without the exercise of any discretion, or clearly abused its discretion,

. . .especially ifthe action ofthe court involves a failure to perform a duty affecting the public welfare.” StovuZZ, 103 S.W.2d at 366. It noted that the members of the commissioners court are “primarily representatives of the whole county, and not merely representatives of their respective precincts.” Id. It is their duty to “transact the business, protect the interests, and promote the welfare ofthe county as awhole.” Id. The commissioners court had mechanically allocated one-fourth of the fund to each precinct, regardless of the amount of taxes collected in the precincts or condition and needs of the roads, and the Texas Supreme Court found that this allocation was “not authorized by article 6740, or any other statute.” Id. at 367. By contrast, in another case under former article 6740, the court uPheld acommissioners court’s allocation ofthe road and bridge fundto the precincts because the order was “supported by substantial evidence” and involved “noarbitrary action.” SeeAZZey v.Jones, 311 S.W.2d 717,723 (Tex. Civ. App.-Beaumont 1958,writ refd n.r.e.). See ako Jams v.Morton, 385 S.W.2d 702,706 (Tex. Civ. App.-Amarillo 1964,writ ref d n.r.e.) (upholding commissioners court’s allocation of road and bridge fund under article 6740 because it was not arbitrary and was supported by substantial evidence). Relying on StovuZZ,

this office has developed a test for allocating vehicle registration fees placed in the county road and bridge fund pursuant to section 502.102 of the Transportation Code. See TEX.TRANSP.

CODE ANN.0 502.108 (Vernon Supp. 2004-05) (motor vehicle registration fees in road and bridge fund may only be used for the road construction, improvement, and maintenance purposes set out in statute). Attorney General Opinion O-1091 (1939) determined that the commissioners court,in spending the vehicle registration feesforcounty roadpurposes, “shah regard the roads and highways of the county as a system to be built, improved and maintained as a whole to thebest interests and welfare of all the people ofthe county and of all the precincts ofthe county.” Tex. Att’y Gen. Op.No. O-1091 (1939) at 7. Accord Tex. Att’y Geri. Op. Nos. H-428 (1974) at 3, V-566 (1948) at 4. See also Tex. Att’y Gen. Op. No. GA-0128 (2003) at 3; Tex. Att’y Gen. LO-98-087, at 6.The Honorable Bruce Isaacks - Page 6 (GA-0295) 1

We conclude that the Denton County Commissioners Court has broad discretion to allocate the road and bridge fund among the precincts, keeping in mind its duty to represent the county as a whole. This authority applies to the allocations for fiscal years 2004 and 2005, as well as other budget years. We note, however, that in 2004 the county divided a portion of the fund equally among the four precincts, an allocation that may raise a question as to whether the commissioners court has exercised its discretion in the best interest of the county as a whole. See StovuZZ, 103 S.W.2d at 367; Tex. Att’y Gen. LO-98-087, at 6. The county’s allocation of the road and bridge fund is subject tojudicial invalidation for arbitrary action or other abuse of discretion. Whether the commissioners court abused its discretion in adopting the allocation for 2004 or 2005 must be determined by considering the evidence relevant to each annua.Iallocation, something that cannot be resolved in an attorney general opinion. See, e.g., Tex. Att’y Gen. Op. Nos. GA-0139 (2004) at 5, GA-0003 (2002) at 1;Tex. Att’y Gen. LO-98-087, at 6.
You are also concerned about arestriction on the 2005 allocation to precincts two and three. SeeRequest Letter,suprunote 1,at 4,12. The commissioners court’s order allocating the road and bridge fund provides that “funds for Precincts 2 and 3 shall be deposited in ‘contract labor, road work.“’ Id. at 4, You state that the “probable interpretation” of this phrase “is that the ex officio mad commissioners for Precincts 2 and 3w& not have the use ofthe road and bridge crews and will have to contract with private sources for any road workthat either seeks to do during the next fiscal year.” Id. In answering your question, we will rely on your interpretation of the restriction.
As already noted, an ex officio road commissioner may hire employees for his precinct ifthe commissioners court authorizes theposition. TEX.TRANSP. CODE ANN.$252.006(c)

(Vernon 1999). Chapter 252, subchapter Adoes not, however, authorize the exofficio commissioner tocontract with apublic orprivate.entity tohave road work done in his precinct. A county may act only through its commissioners court, and individual commissioners have no authority to make contracts that are binding on the county, except where authorized to do so by statute. See Canales v.Laughlin,214 S.W.2d 451,455 (Tex. 1948);Anderson v. Wbod, 152 S.W.2d 1084,1085 (Tex. 1941). See also Tex. Att’y Gen. Op. No. GA-0139 (2004) at 6 (ex officio road commissioner has no authority to accept a street for county maintenance). Subchapter A authorizes a commissioners court to

‘,‘construct,

grade, or otherwise improve aroad orbridge by contract,“see TEx.TRANSP. CODE ANN. 6 252.005(b)(Vernon 1999), ,but ex officio road commissioners do not have such authority. Accordingly, the ex officio road commissioners for precincts two and three may not individually contract with an entity for road work within their precincts. They may, however, request the commissioners court to contract pursuant to section 252.005(b) with a public or private entity to construct, grade, or improve aroad or bridge within their respective precincts.
V. Questions 4 and 5: Hirimand Suuervisine Road Crews
The Denton County Commissioners Court, having adopted subchapter A, must administer the county roads consistently with its provisions. Commissioners courts possess only those powers expressly confkrredby the Texas Constitution and the legislature. See City ofSun Antonio v. City ofBoerne, 111 S.W.3d 22,28 (Tex. 2003); Canales, 214 S.W.2d at 453. While a commissioners court has broad discretion in exercising powers expressly conferred upon it, the legal basis for any action by the court must be found in the constitution or statutes. See Canales, 214 S.W.2d at453. See aZsoCity ofSanAntonio; 111 S.W.3d at 28;Anderson, 152 S.W.2d at 1085. ( P, TheHonorableBruce Isaacks - Page 7 (GA-0295)



## I In C&ales v.Laughlin, the Jim Wells County Commissioners Court adopted a resolution

providing that the roads in the county would be built, operated, and maintained on a county-wide basis and that the county would employ a county road unit administrative officer, who would exercise broad powers over county road administration, such ashiring and thing employees, setting their compensation, and purchasing equipment, materials, and supplies. See Canales, 214 S.W.2d at 454,456. The Texas Supreme Court determined that the commissioners court was statutorily authorized to provide for administering the roads on a county-wide basis, but that no statute authorized the court to create the position of county road unit administrative officer. See id at 454-55. The court reviewed statutes authorizing the commissioners court to employ road commissioners, road superintendents, andacounty engineer. Seeid Finding that the commissioners

. court’s employment of a county road unit administrative officer did not comply with any of these provisions, the court reached the following conclusion:

{S]incethe legislature has expressly provided that the commissioners courts may employ persons to superintend or supervise the county road system and has placed certain conditions andrestrictions on the exercise of this power, these conditions and restrictions must be observed if the authority is to be exercised.
Id. at 457. Accord Starr County v. Guerru, 297 S.W.2d 379,380 (Tex. Civ. App.-San Anton@ 1956,no writ) (commissioners court may employ road commissioner only as authorized by statute); Guerruv.Rodriguez, 239 S.W.2d 915,918 (Tex. Civ. App.-San Antonio 1951,no writ) (position of ex officio road commissioner for precinct does not exist in county absent a statute creating that position).
These decisions about the authority ofthe commissioners court andindividual commissioners guide usin addressing your fourth question, asto whether the ex officio road commissioners oftwo precincts havejoint authority to hire the road and bridge crew to work in both precincts. Subchapter A provides that “[slubject to authorization by the commissioners court, an ex officio road commissioner may employ persons for positions in the commissioner’s precinct to be paid from the county road andbridge fund.” TEX. TR~NSP.

CODE ANN.0252.006(c) (Vernon 1999). It also authorizes an ex officio road commissioner to discharge any county employee working in his precinct who is paid from the county road and bridge fund. See id. 0 252.006(d). Once the commissioners court has authorized an employee position in a precinct, the ex officio road commissioner has authority to hire someone forthat position aswell as authority to fire that person. See Tex. Att’y Gen. id-97-021, at 2; Tex. Att’y Gen. Op. Nos. DM-158 (1992) at 4, MW-362 (1981). Thus, acommissioners court lacks authority to overturn an ex officio road commissioner’s discharge of an employee working in that commissioner’s precinct and paid from county road and bridge fin&. See Tex. Att’y Gen. Op. No. DM-158 (1992) at 4. Subchapter A,however, includes noprovision authorizing twoexofficio road commissioners jointly to hire a person to work in both precincts. Nor does it provide that the crew hired by one ex officio road commissioner may work on roads in another commissioner’s precinct or be supervised by the other precinct’s ex officio road commissioner: If a county adopts subchapter A,TheHonorableBruce Isaacks - Page 8 (GA-0295) 1 1

“[a] county commissioner is the ex officio road conimissioner of the county commissioner3 precinct:“- TEX.TRANSP.CODEANN. 0252.003 (Vernon 1999) (emphasis added). The ex officio road commissioner’s authority under subchapter A is limited to his own precinct.
We conclude, in answer to question 4,that the ex officio road commissioner ofprecinct two does not havejoint authority with the ex officio road commissioner ofprecinct one to hire the road andbridge crew to perform work in precincts one and two. The answer to question 5 follows from our answer to question 4. A Denton County ex officio road commissioner has no authority to supervise a road crew jointIy with the ex officio road commissioner of another precinct or to supervise employees other than those he has hired to work in his precinct.
VI. Lwalitv ofDenton Countv Ex Officio Road Commissioner Svstem
We now.address your first question, whether the ex officio road commissioner system is operating in Denton County in accordance with legal requirements and within the discretion ofthe commissioners court. As we concluded in answering questions 2 and 3 about the allocation of the r&d and bridge fund, ,theDenton County Commissioners Court hasbroad discretion to allocate this $md among the four precincts, subject to its duty to represent the county as a whole. An attorney general opinion cannot, however, determine the validity ofthe court’s decision as a matter of law. See Tex. Att’y Gen. Op. Nos. GA-0139 (2004) at 5, GA-0003 (2002) at 1. Thus, we caflIlot advise you whether the Commissioners Court has funded its road system in accordance with law.
In answering questions 4 and 5, however, we have determined that the ex officio road commissionersystem asimplementedinDentonCountyisnotoperatinginaccordancewiththelegal requirements set out in Transportation Code chapter 252, subchapter A. The ex officio road commissioner of aprecinct does not havejoint authority with the ex officio road commissioner of another precinct to hire a road and bridge crew to perform work in both precincts. Nor is an ex officio road commissioner authorized to supervise employees other than those he has hired to work in his precinct. In addition, we determined in auswer to question 3regarding the 2005 funding for thecounty road system that an exofficio road commissioner lacks authority to c&&act forroad work tobe done inhisprecinct. Inthese respects, the Denton County exofficio road commissioner system

‘isnot operating in accordance with the relevant law.
.Vn. Chestions 6 and 7: Commissioners Court’s Authority asaUnit over an Individual Ex Officio Road Commissioner
You wish to know what authority the commissioners court acting as a unit has over an individual ex officio road commissioner. Under the ex officio road commissioner system, the commissioners court exercises anumber of powers on behalf ofthe county and the road system as a whole. Chapter 252, subchapter A grants an individual ex officio road comn@sioner certaiu express powers to be exercised in his precinct, in most cases subject to the commissioners court’s supervision.
We first note that money in the county road and bridge fund may be spent only by order of the commissioners court. See TEX.TRANSP.CODE ANN. 6 256.001(b) (Vernon 1999). Thel The HonorableBruce Isa&s - Page 9 (GA-0295)

commissioners court’s authority over spending for roads has at least a practical effect on what an individual road commissioner may do in his precinct. For example, an ex officio road commissioner’s authority to hire au employee to work in his precinct depends upon the commissioners court’s authorizing the position and funding it t%om the county road andbridge fund. See id. 0 252.006(c); see also Tex. Att’y Gen. Op. No. JM-1070 (1989) at 4 (in county with ex officio road commissioner system, commissioners court sets working hours and holidays for road employees as au aspect of compensation). Once an authorized position is filled, the ex officio road commissioner may discharge an employee in his precinct without the commissioners court’s supervision or approvak See Tex. Att’y Gen. Op. No. DM-158 (1992) at 4 (commissioners court does not have authority to reinstate an employee discharged by ex officio road commissioner from position in his precinct).
The commis~oners court is responsible for adopting ‘a system for laying out, working on, draining, ,andrepairing the public roads.” 'l?EX. TRANSP.

CODE &TN.5252.005(a) (Vernon 1999). Thus, the commissioners court makes decisions about locating and building new roads and the methods for working on, draining, and repairing the public roads. See also id. $ 251.05 1 (cornmursioners court may order roads to be “laid out, opened, discontinued, closed, abandoned, vacated, or altered”); 025 1.081(commissioners court may erect andmaintain bridges). Under rules adopted by the commissioners court, an ex officio road commissioner shall direct the

(1) laying out ofnew roads; (2). construction or changing ofroads; and (3) building of bridges.
Id. 6 252.006(b), An ex officio road commissioner thus implements the commissioners court’s decisions on a day-today basis, by directing the work in his precinct according to rules established Joythe court.

. ._ The commissioners courthas authority to “purchase vehicles, tools, andmachinery necessary forworking on public roads.‘: Id. 0252.005(b). An ex officio roadcommissioner has no authority tomake such purchases on behalf of the.county. See Tex. Att’y Gen. Op. No. JC-0100 (1999) at 2. Under the commissioners court’s direction, “an ex officio road commissioner is responsiile for the .vehicles, tools, andmachinery belonging to the county andplaced iu the commissioner’s control by the court.” TEX.TRANSP, CODEANN. 0 252.006(a) (Vernon 1999). Au ex officio road comnzissioner istherefore accountable to the commissioners court forhis use ofcounty property for road work in his precinct. The cormnissioners court may also “construct, grade, or otherwise improve a road or bridge by contract.” Id. 0 252.005(b). As we have already concluded, an ex officio commissioner has no independent authority to contract for road work in his precinct. Only the commissioners court acting as aunit may enter into such contracts. In summary, the ex officio commissioners are under the direction of the commissioners court in the exercise of most of their duties, as they implement the court’s plans on a day-today basis. Ex officio road commissioners dohave authority, subject to thebudget, tohire and tire employees fortheir precincts. See Tex.Att’y Gen. Op. No. DM-158 (1992) at 3.The Honorable Bruce Isaacks - Page 10 (GA-0295) t

You also wish to know what authority the commissioners court acting as aunit has over the budget allocated to an individual ex officio road commissioner during the fiscal year, other than its annual budgeting authority. Section 111.070 of the Local Government Code provides the auswer tothis question. SeeTex. Att’y Gen. Op.No. GA-008l(2003) at 1(section 111.070 governs budget amendment process in Denton County). See akroTEX.UK. GOV’TCODE ANN.ch. 111, subch. C (Vernon 1999 & Supp. 2004-05) (alternative method of budget preparation in countries with a population ofmore than 125,000). After the commissioners court gives final approval to the county budget, it may spend county funds only in strict compliance with it, except as provided by section 111.070. See id. $111.070(a) (Vernon 1999). The commissioners court may amend the budget to authorize an emergency expenditure “‘onlyin acase ofgravepublic necessity tomeet an unusual and unforeseen condition that could not have been included in the original budget through the use of reasonably diligent thought and attention.” Id. 0 111.070(b). The commissioners court may also transfer funds budgeted for one item to another budgeted item without authorizing an emergency expenditure. See id. 0 1II.070(c); Tex. Att’y Gen. Op. No. GA-0081 (2003) at 1-2. Thus, a commissioners court may transfer funds originally budgeted for one road precinct to another road precinct. See Tex. Att’y Gen. Op. No. DM-158 (1992) at 5.
VIII. guestion 8: Ex Officio Road Commission’er Svstem Where One Precinct Has No Conntv Roads
You ask whether an ex officio road commissioner system may continue to be used iu a county where there areno longer any county roads in one ofthe precincts. SeeRequest Letter, supra note 1,at 5. You state that when Denton County adopted the ex officio road commissioner system, there were only ,075 miles .ofcounty roads in precinct three, exchrding interstate highways, state ( highways, farm to market roads, and city streets, and that there may be no county roads in precinct three in the near future. See id. at 2-3,15. “Ifthere are no county roads in a precinct,” you write,

“there is no reason for the existence of an ex officio road commissioner.” See id. at 15. Transportation Code chapter 252, subchapter A does not specifically address such a case. However, an ex officio road commissioner may still have some statutory powers and duties even if most ofthe precinct is within the boundaries ofincorporated municipalities and there areno county roads iu the unincorporated area of his precinct.
A county has long had authority under common law to improve a city street that forms au integral part ofor connecting link with county roada or statehighways. See City ofBreckem-idgev. Stephens ‘Cow@,40 S.W.2d 43,43-44 (Tex. 1931); Tex, Att’y Geu. Op. No. JC-0036 (1999) at 1. See also TEX,‘I’RANSP. CODEANN. 0 251.101 (Vernon 1999) (county may condemn, with municipality’s consent, real property interest within municipality necessary orconvenient to aroad forming aconnecting link in county road system or in astatehighway). Transportation Code section 25 1.012 authorizes the commissioners court of a county to build, maintain, or improve city streets within the county that are not integral parts of or connecting links with the cotmty roads, where this expenditure would serve a cotmty purpose. See id. $25 1.012 (Vernon Supp. 2004-05); Tex. Att’y Gen. Op. No. JC-0036 (1999) at 11. If the commissioners court decides to build, maintain, or improve a city street, the ex officio road commissioner of the precinct where the city street is located may be involved in implementing this decision. SeegeneraZZy TEX. TRANSP.

CODE ANN.f The Honorable Bruce Isaacks - Page 11 (GA-0295)

i t $ 251.0!2(b) (Vemon Supp. 2004-05) (county work on city road may he done by couuty, by

independent contractor with whom county has contracted, or pursuant to other specified methods). Moreover, an ex officio road comrrkioner is required to report on the condition ofroads, culverts, andbridges in his precinct. Seeid. 0251.005(Vernon 1999). Seealso id. 6252.006(e) (ex officio road commissioner has duties of supervisor of public road under sections 251.004 and 251.005). This duty would apply to any county roads iu an incorporated area. The. ex officio road commissioner must also report if any new road should be opened in his precinct. See id. 0 251,005(a)(4). Even if there are no roads in the unincorporated area of the precinct at present, circumstauces may change sothat roads will beneeded in the future. Accordingly, we conclude that a county may continue to admiuister its roads under the ex officio road commissioner system even if there are no longer any county roads in the unincorporated area of one precinct.TheHonorableBruce Isaacks - Page 12 (GA-0295)

SUMMARY t

In acounty operating under the ex officio road commissioner systemauthorized by Transportation Code chapter252, subchapter A, the ex officio road commissioners of two precincts may not jointly hire aroad andbridge crew to work in both precincts. Nor may an ex officio road commissioner contract with apublic or private entity to perform road work in his precinct, although the commissioners court may enter into such contracts. Denton County, in attempting to implement the ex officio road commissioner system in these ways, .does not’comply with chapter 252, subchapter A.
The commissioners court of a county has broad discretion, subject tojudicial review and abrogation for abuse of discretion, to allocate the road and bridge fimd among the county’s precincts, keeping in mind its duty to represent the county as a whole. The Denton County Commissioners Court may amend its budget to authorize an emergency expenditure under the circumstances stated in Local Government Code section 111.070 and may transfer funds originally budgeted for one precinct to another precinct without authorizing an emergency expenditure.
A county may continue to administer its roads under the ex officio road commissioner system even if there are no longer any county roads in the unincorporated area of one precinct. Very trvly

YOU,

BARRY R. MCBEE First Assistant Attorney General
DON R. WILLETT Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee Attor&q&!eneral of Texas

Susan L. Garrison Assistant Attorney General, Opinion Committee