Hon. Joe Resweber OpinionNo. M- 798

County Attorney Harris County Courthouse Re: Can the CommissionersCourt 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 CommissionersCourt order that the responsibility for the operationand maintenance of theWashburn 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", inasmuchas there is no statutory authoritypermitting such transfer. The.control over the roads is vested in the CommissionersCourt, which %ay be delegated by resolution to "theprecinct 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 shallhave control of all roads, bridges, drains, ditches, culverts and all works and constructions incidentto its roads, bridges, and drainage, that have been heretofore laid out or constructed, or thatmay hereafterbe laid out, or constructedby Harris County, or under its direction. (Emphasisadded.)
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Hon. Joe Resweber, page 2 (M-798)

"Section5. From and after the passage of thisAct, each county commissioner shallbe exofficio a precinct road supervisor,and subject to the nrovisions of thisAct, and under the orders and supervisionof 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 connectionwith the constructionand maintenance of county roads, bad as itmay from ri ges an dra nage, except sue time to time, by resoluiigate to the precinct road supervQor, and thenunder such rules and regulations as itmay prescribe,.and subject to their recall at itspleasure. (Emphasis added.) "Section29. Whenever in thisAct, or any neneral law. the word 'Road,'isused, the same u----- ~~~ is hereby defined tomean in so far as Harris County is concerned,a

-road beds, ditches, drains, bridges, culvertsand every part of every road, whether Inside or outside of any incorporatedcity or town inHarris County, or not. (Emphasisadded.) "Section 31-b. The CommissionersCourt of Harris Countsmay enter Into such amreemen ._.-- - _-..- ~~~ contractsand

-~..- ts it-finds necessarywith theUnited States, the State of Texas
. . . in connection with the constructionof a tunnel or tunnels.
. . Such tunnels are hereby decqto be an essentialpublic highwayunit.

. . (Emphasis add d ) e . Sections 1 and 16 place control of the roads in the CommissionersCourt. Section 16 does allow by resolution the delegation of certainpowers to the precinct road supervisor who is designated in Section 5 as the county commissionerof each precinct. This power placed in the CommissionersCourt 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. -3873-Hon. Joe Resweber,page 3 " (M-798)

The control or power delegated to the Court cannot be abrogated by it unless statutoryauthority 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 judgmentand discretion cannotbe delegated.” Citing Guerra v. Rodriguez, et al., 239 S.W.2d 915 (Tex.?Ziv.App. 1951, no writ).
In the Guerra case, triedunder the general law, a commissionermaintainedhis right to hire road workers,buy and rent tools and equipment and make contracts for road labor and machinery, subject to the CommissionersCourt supervision. Some of the duties were being performedby a third party hired by the Commissioners Court. The Court of CivilAppeals posed the following question:

'Since the Legislaturehas specifically authorized the employment of agents having power over the county roads, hedged about with statedprotectiverequirements, can a different method be used?" The Court determined that the prescribedmethod must be followed and held that the statutedid not authorize the pmnct commissioner to exercise the power of a %oad superintendent"and that the CommissionersCourt could appoint a thirdparty superlntendent or control the road themselves,

Following this reasoning, one could conclude that the Harris County CommissionersCourt could appoint some third person to supervise theWashburn Tunnel and the ferry and that the third person could, in fact, be a commissioner of a precinct 'otherthan the one inwhich 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 statutewhereas under theHarris County Road Law, a special law, Section 16 specifies that the CommissionersCourt shall have control of all matters concerningroads".
. . exce t such as itmay from timeto time, by resolution,delegate Tdbie precinct road supervisor.

. .- (Emphasisadded.)

Section 16 if In conflictwith the general law, would controlby 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 CountyRoad Law provide for a road superintendent as was before the Court in the Guerra case.

We believe that control of the tunnel and ferrymust remain with the CommissionersCourt unless delegated to the precinct commissionerwhere the tunneland ferry are located.

At this point we must determinewhether 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 thewords, "publichighwayunit

and by inclusionwithin the Harris County Road Law. It is'therefore subject to and governedby the powers granted the CommissionersCourt in Sections 1 and 16.

We find no Texas authority for a definition of "ferry"; however,we do find the followingrelevant 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 continuationof the highway from one side of the water overwhich it passes to the other, U.S. v. Puget SoundNav. Co., D.C. Wash. 24'F:Supp. 431, 432." (Emphasisadded.)
A ferry is generally a connectionbetween 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 theWashburn Tunnel, are 'roads'and are thereforegoverned by theHarris CountyRoad Law as set out In this opinion. SUMMARY

The Harris CountyRoad Law authorized the transfer of responsibility for operation and maintenance of theWashburn Tunnel and Harris County Ferries to only the commissioner in whose precinct the tunnel and ferries are located.

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xas

Preparedby Melvin E. Corley AssistantAttorney 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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