ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

October 23,2006 

The Honorable Mike Fetter Opinion No. GA-0473 

Upshur County Criminal District Attorney 

405 North Titus Street 

Gilmer, Texas 75644 

Re: Authority of a county commissioners court to 

appoint a county road administrator who is not a 

road engineer (RQ-0472-GA) 

Dear Mr. Fetter: 

You ask about the appointment of a county road administrator by the Upshur County 

Commissioners Court.’ In connection with your request you inform us that Upshur County (the 

“County”) operates under a county road department system pursuant to elections held in 2002 and 

2004. Early in 2005, the County sought to hire a county road engineer. See Request Letter Brief, 

supra note 1, at 1. You inform us that two individuals applied as engineers and four individuals 

applied as road administrators. See id. You further inform us that one of the qualified engineers 

eventually withdrew his name from consideration. See id. Finally, you tell us that the County 

hired one of the road administrators. See id. You state that the issue is whether the County 

Commissioners Court violated the “Transportation Code when it appointed a road administrator even 

though a county road engineer applied for the position.” Id. at 2. Additionally we received a brief 

in response to your request that argues that the County violated section 252.304 ofthe Transportation 

Code by hiring a road administrator when there was a qualified professional engineer candidate? 

Section 252.304(a) of the Transportation Code provides that the commissioners court of a 

county operating under a county road department system “shall appoint a county road engineer”who 

meets certain requirements and qualifications. TEX. TR@.NS~. CODE ANN. 5 252.304(a) (Vernon 

1999). Even though section 252.304(a) uses the word “shall,” a county commissioners court is 

authorized under section 252.304(b) to hire a road administrator “[i]f the commissioners court is 

unable to employ a licensed professional engineer.” Id. 5 252.304(b). By its plain language, the 

~~~~~~.~~~~~.~~~~~~~~ ~~~~~~~~~~~~ .~~ ~~~.~ ~~~~ 

‘~izxception~~authorizing a commrsstoners court to hue a road administrator~reqtiires~ only that the 

commissioners court be “unable to employ” a professional engineer. See id.; see tilso TEX. GOV'T 

‘Letter and Brief from Honorable Mike Fetter, Upshur County Criminal District’ Attorney, to Honorable Greg 

Abbott, Attorney General of Texas (Mar. 13, 2006) (on file with the Opinion Committee, also availabk at 

http://www.oag.state.tx.us) [hereinafter Request Letter Brief]. 

2Brief from Honorable James Crittenden, Upshur County Commissioner, Precinct 1, to Nancy Fuller, Chair: 

Opinion Committee, Office of the Attorney General of Texas (May 3,2006) (on file with the Opinion Committee). 
The Honorable Mike Fetter - Page 2 (GA-0473) 

CODE ANN.’ 5 311 .Ol l(a) (Vernon 2005) (p roviding that a phrase in a statute is to be construed 

according to its common meaning). The statute does not specify any reasons or standards by which 

a commissioners court would determine it was unable to employ a professional engineer. Thus, 

section 252.304 grants a commissioners court the authority to determine, in the first instance, 

whether it is unable to hire a licensed professional engineer. 

In your brief, however, you refer us to several prior opinions from this office. Because we 

believe that two of the prior opinions provide conflicting advice, we briefly examine them here. In 

Attorney General Opinion H-201, this office said that “[wlhere it can be shqwn that a licensed 

professional engineer, Who meets the standards authorized by the Commissioners’ Court, is available 

and willing to accept the job, it may be an abuse of discretion for the Commissioners’ Court to hire 

a road administrator.” Tex. Att’y Gen. Op. No. H-201 (1974) at 3 (emphasis added). Because a 

qualified licensed engineer was a candidate for the position in Upshur County, it might appear as if 

your question about the Upshur County Commissioners Court’s action is answered by this statement 

in Opinion H-201. In 1974 when H-201 was issued, the road administrator exception provision 

stated that “[i]f the Commissioners Court is not able to employ a licensed engineer for any reason,” 

the commissioners court was authorized to hire a road administrator. Act of Apr. 25, 1957, 

55th Leg., R.S., ch. 176, 5 1, 1957 Tex. Gen. Laws 371, 371. Attorney General Opinion H-201 

considered the “for any reason” language of the road administrator exception in light of the 

emergency clause in the enacting legislation. Tex. Att’y Gen. Op. No. H-201 (1974) at 3. The 

opinion noted that the exception had been enacted to “provide an alternative to a county road 

engineer for counties which were not able to hire a licensed professional engineer.” Id. Because of 

the emergency justifying the initial enactment ofthe exception, H-20 1 construed the “for any reason” 

to mean “any reason having to do with inability to hire a professional engineer who is qualified 

according to the standards set by the Commissioners’ Court.” Id. 

Attorney General Opinion H-201, however, was disapproved in part by Attorney General 

Opinion DM-368. In Opinion DM-368, this office recognized that H-201 could be read to sanction 

only two reasons for not hiring a professional engineer as county road engineer-the “scarcity of 

professional engineers and the limitations on the engineer’s salary.” Tex. Att’y Gen. Op. No. DM368 (1995) at 5. Opinion DM-368 then clarified that the plain language of the exception was broad 

and not to be construed as limited to just the two reasons contemplated in Opinion H-201. See id. 

(disapproving Opinion H-20~1 to the extent it is inconsistent with Opinion DM-368). Additionally, 

in Opinion DM-368 this office construed the exception to retain the same meaning as it had before 

a nonsubstantive revision omitted the words “for any reason.” Id. at 4; see dlso ‘I&x. TRANSP. CODE 

ANN. 5 252.304 revisor’s~note (Vemon~ 1~999) (stating~mat~ me revised law omit$‘for any reason” 

asunnecessary). Thus, OpinionDM-368 concludedthat,subjecttojudicialreview,acommissioners 

court “may employ a road administrator instead of an engineer if ‘for any reason’ it is, in fact, unable 

to employ an engineer.“, Tex. Att’y Gen. Op. No. DM-368 (1995) at 6. 

There have been no subsequent attomey.general opinions or judicial opinions construing the 

exception in section 252.304 of the Transportation Code, so we follow the plain language of the 

statute as construed by Attorney General Opinion DM-368. Under section 2521304, where a county 

commissioners court is in fact unable to employ a licensed engineer, it may employ a road 
The Honorable Mike Fetter - Page 3 (GA-0473) 

administrator. See TEX. TRANSP. CODE ANN. 5 252.304(b) (Vernon 1999); see also Tex. Att’y Gen. 

Op. No. DM-368 (1995) at 6. And, a county commissioners court has discretion to determine 

whether it is in fact unable to employ a licensed engineer. See Tex. Att’y Gen. Op. No. DM-368 

(1995) at 6. 

You inquire whether the Upshur County Commissioners Court violated this provision of the 

Transportation Code by hiring a road administrator when a licensed engineer was also a candidate. 

See Request Letter Brief, supra note 1, at 2. We cannot determine as a matter of law whether.the 

Upshur County Commissioners Court violated section 252.304. The sole fact that a licensed~ 

engineer was a candidate is not dispositive that the Commissioners Court abused its discretion. We 

do not know on what factual basis the Upshur County Commissioners Court determined it was 

unable to employ a licensed engineer. And the determination of whether that factual basis falls 

within the scope of the discretion ofthe Upshur County Commissioners Court granted by the statute 

is a question we must leave to the courts. See Tex. Att’y Gen. Op. Nos. DM-368 (1995) at 6 (“The 

commissioners court has discretion in making such determinations in the first instance, subject to 

judicial review.“); GA-0430 (2006) at 3 n.4 (stating this office does not resolve fact questions). 
The Honorable Mike Fetter - Page 4 (GA-0473) 

SUMMARY 

Under section 252.304 of the Transportation Code, a 

commissioners court may employ a road administrator when it is 

in fact unable to hire a licensed engineer as county road engineer. 

A commissioners court has discretion, subject to judicial review, 

to determine in the first instance whether it is unable to employ 

a licensed engineer. The determination of whether a county 

commissioners court violates section 252.304 involves a 

consideration of facts and, therefore, is a question we must leave to 

the courts, 

Very truly yours, 

General of Texas 

RENT C. SULLIVAN 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Charlotte M. Harper 

Assistant Attorney General, Opinion Committee