## 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 ofacounty 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 acounty road department system pursuant to elections held in 2002 and 2004. Early in 2005, the County sought to hire acounty 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 itappointed aroad administrator even though acounty road engineer applied for the position.” Id. at2. Additionally we received abrief inresponse to your request that argues that the County violated section 252.304 ofthe Transportation Code by hiring a road administrator when there was aqualified professional engineer candidate?
Section 252.304(a) ofthe Transportation Code provides that the commissioners court of a county operating under acounty road department system “shall appoint acounty 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~~authorizinga commrsstoners court to hue a road administrator~reqtiires~ only that the commissioners court be “unable to employ” aprofessional 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 ofthe 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.Oll(a) (Vernon 2005) (providing 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 aprofessional engineer. Thus, section 252.304 grants a commissioners court the authority to determine, in the first instance, whether it is unable to hire alicensed professional engineer.

In your brief, however, you refer us to several prior opinions from this office. Because we believe that two ofthe 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, Whomeets the standards authorized bythe Commissioners’ Court, isavailable and willing to accept thejob, it may be an abuse ofdiscretion 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 acandidate for the position in Upshur County, itmight appear asif your question about the Upshur County Commissioners Court’s action isanswered bythis statement in Opinion H-201. In 1974 when H-201 was issued, the road administrator exception provision stated that “[i]f the Commissioners Court isnot able to employ alicensed 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 alicensed professional engineer.” Id. Because of the emergency justifying the initial enactment ofthe exception, H-20 1construed the “for anyreason” to mean “any reason having to do with inability to hire aprofessional 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 aprofessional 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 ofthe exception was broad and not to be construed as limited tojust the two reasons contemplated in Opinion H-201. See id. (disapproving Opinion H-20~1to the extent itis inconsistent with Opinion DM-368). Additionally, in Opinion DM-368 this office construed the exception to retain the same meaning as ithad before
anonsubstantive revision omitted the words “for any reason.” Id. at4; 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 aroad administrator instead ofan engineer if ‘for anyreason’ itis,infact, unable to employ an engineer.“, Tex. Att’y Gen. Op. No. DM-368 (1995) at 6.
There have been no subsequent attomey.general opinions orjudicial opinions construing the exception in section 252.304 of the Transportation Code, so we follow the plain language ofthe statute asconstrued by Attorney General Opinion DM-368. Under section 2521304, where acounty commissioners court is in fact unable to employ a licensed engineer, it may employ a roadThe Honorable Mike Fetter - Page 3 (GA-0473)

administrator. See TEX. TRANSP.

CODE ANN.5252.304(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 ofthe Transportation Code by hiring aroad administrator when alicensed engineer was also acandidate. See Request Letter Brief, supra note 1, at2. We cannot determine as amatter oflaw whether.the Upshur County Commissioners Court violated section 252.304. The sole fact that a licensed~ engineer was acandidate isnot 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 ofthe discretion ofthe Upshur County Commissioners Court granted bythe statute is aquestion 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 3n.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