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 CommlsDear 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 Legislature 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 constructions 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 exofficio 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 

he court for his precinct, and shall 

au erintend the laying out of all work of all 

i precinct subjectT such conas 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. (Emphasis added.) 

"Section 29. Whenever in this Act, or any 

u----- neneral ~~~ law. the word 'Road,' is used, the same 

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 

amreemen 

._.-- - _ -..- ~~~ 

contracts and 

-~..- 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 essential public highway unit. . . (Emphasis 

add e d . ) 

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. 

Jur.26 277, Counties, Sec. 48, reads in part as follows: 

15 Tex. 

“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 following 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 superlntendent 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 'other than 

the one in which the tunnel and ferry are located. 

The Guerra case4 however, is distinguished from the subject 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, delegate Tdbie 

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 Cornmissioners 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 maintenance 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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