June6,1972

Honorable Ted Butler Criminal District Attorney Bexar County Courthouse SanAntonio, Texas 70204

Dear Mr. Butler: Opinion No. M- 1149 Re: Whether Bexar County pursuant toArticle 6716-1, V.C.S., is required to employ a licensed professional engineer as the County Road Engineer or whether itmay continue to employ the services of a RoadAdministrator in lieu thereof? Your request for an opinion on the above subject matter asks the following question: Whether Bexar County, under the provisions ofArticle 6716-1, Vernon's Civil Statutes, is required to employ a licensed professional engineer tobe County Road Engineer or may Bexar County continue to employ the services of aRoad Administrator. Article 327la. Vernon's Civil Statutes, known as the Texas Engineering Practice Act, is the general act governing any activities by or relating to professional engineers. However, Sec. 19 ofArticle 3271a excludes any roadwork undertaken by the County Commissioners Court. Sec. 19 provides:

II

. . . that theAct shallnot apply to any roadmaintenance orbetterment work undertaken by a County Commissioners Court." Because of this exclusionary provision inArticle 3271a, the specific provisions ofArticle 6716-1,Vernon's Civil Statutes,

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known as the Optional County Road.Law of 1947, are controlling. In 1951 Bexar County adopted Article 6716-1, In its original form Sec. 5of theArticle provided:

"TheCounty Road Engineer shallbe appointed by the Commissioners Court. He shallbe a licensed professional engineer, experienced inroad construction andmaintenance who shallmeet the qualifications required by the State Highway Department for its county engineers." However, during the 55th Regular Session of the State Legislature in 1957,House Bill 577was enacted which amended Section 5 of the Optional County Road Law of 1947. The caption to H.B. 577 stated thebill was "AnAct amending Sec. 5 . . .so as to authorize the employment of a County RoadAdministrator to perform the duties imposed upon the County Road Engineer in the event a county isunable to employ a licensed professional engineer: . . .*I (Emphasis added.) Thus underArticle 6716-1 the Commissioners Court is authorized to employ as the County Road Engineer either a licensed professional engineer or aqualified road administrative officer inview of the fact that Section 5now provides:

"TheCounty Road Engineer shal1be appointed by the Commissioners Court. He shallbe a licensed professional engineer, experienced in road construction andmaintenance, he shall meet the qualifications requiredby the State Highway Department for its county engineers. If the Commissioners Court isnot able to employ a licensed professional engineer for any reason, then the Commissioners Court isauthorized to employ a qualified road administrative officer, who shallbe known as the County RoadAdministrator to perform the duties of the County Road Engineer. The County Road Engineer

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shallhave had experience in roadbuilding ormaintenance or types of construction work qualifying him to perform the duties imposed uponhim, but it shall notbe necessary that he have had any experience in engineering work. The County RoadAdministrator shall perform the same duties as are imposed upon the County Road Engineer, and all references in other sections of thisAct to the County Road Engineer shall include and apply to the County RoadAdministrator." (Emphasisadded.) The phrase "for any reason" is not defined by theAct, nor isthere any other provision which defines thephrase. Therefore, we must look elsewhere for a definition. InDubois v. Gentry, 184 S.W.2d 369, 371 (Tenn.Sup. 1945) itwas held "forany reason" means "any good reason or just reason." In the absence of any evidence of abuse, acts of administrative bodies, including commissioners courts acting in an administrative capacity as in this situation, are assumed to be positive actions within the discretion of the administrative body. Thus, in this instance, it is assumed that the Commissioners Court of Bexar County, acting within itsdiscretion andwithin the confines ofArticle 6716-1, Vernon's Civil Statutes, and for a good and just reason, validly employed andmay continue to employ an experienced County Road Administrator rather than a licensed professional engineer. SUMMARY Bexar County, having adopted the Optional County Road Law of 1947,Article 6716-1, V.C.S., in 1951, may continue to employ the services of a qualified road administrator rather than a licensed professional engineer. 19

At&mey General of Texas -5599-Honorable Ted Butler, page 4 (M-1149)

Prepared by Linda Neeley Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E.Allen, Co-Chairman Lewis Jones Mel Corley Bill Flanary Sally Phillips SAMUEL D. MCDANIEL Staff Legal Assistant ALFRED WALI(ER Executive Assistant NOLA WHITE FirstAssistant

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