February 13, 1952 

Hon. William L. Taylor Opinion No. V-1407 

Prosecuting Attorney 

Rarrison County Re: Mandatory or permissive 

Marshall, Texas character of provisions 

for a county engineer 

in the Harrison County 

Dear Mr. Taylor: Road & Bridge Law. 

Your request for an opinion from this office presents the following question: 

Does House Bill No. 812, Special Laws 

of the 42nd Legislature, R.S. 1931, ch. 156, 

p. 303 (Harrison County Road Law), make it 

mandatory for the commissioners' court of 

Harrison County to employ a county engineer 

and to have a county engineer in constant 

employment with Rarrison County? 

The pertinent sections of House Bill No. 812, 

Special Laws 42nd Leg., R.S. 1931, ch. 156, p. 303 

(Harrison County Road Law), provide in part: 

"Section 1. That Chapter 42, Acts of 

the First Called Session of the 37th Legislature, (the same being known as the Davidson Road Law) be and the same is hereby In 

all respects repealed insofar as the same 

applies to Harrison County. 

"Section 2. The Commissioners' Court 

of Harrison County Is hereby authorized and 

empowered to employ a County Rngineer, whose 

duties, compensation and liabilities shall be 

such as are imposed by this Act. The said 

County Engineer shall devote his entire time 

to the construction and maintenance of the 

county Roads. 

"Sec. 3. That said County Engineer 

shall be appointed by the Commissioners' 

Court of said county within ninety (90) days 
. . 

Hon. William L. Taylor, page 2 (w-1407) 

after the passage of this Act at a Regular 

Meeting or Called Session thereof. That he 

shall have charge of all public road construction and public road maintenance, together with the building of bridges and culverts, in his County except as is otherwise 

herein expressly provided. Said County Engineer within twenty (20) days after his appointment shall take and subscribe to the 

oath required by the Constitution, and enter 

into bond, payable to the County Judge or 

his successors in office, with good and sufficient sureties to be approved by the-County 

Ju;z,;t&in the sum of Five Thousand ($5,000.00) 

fully a;d 

conditioned upon said Engineer faitheffectively discharging and performing all the duties required by law or imposed 

on him by the Commissioners' Court of his 

County, which bond shall be filed and recorded as other official bonds and shall not be 

void for the first recovery, but may be sued 

on from time to time until the whole amount 

is exhausted. 

"Sec. 4. Said County Engineer shall 

be a qualified Civil Engineer and a resident 

of the State of Texas; he shall serve at the 

will of the Commissionerst Court, and may be 

removed by said Commissioners' Court for any 

reason which in the opinion of said Court 

justifies removal. He shall receive such 

salary as may be determined by the Commissioners' Court to be oaid out of the Road 

and Bridge Fund. That said County Engineer 

shall subject to the orders of the Commissioners' Court, have general supervision over 

the construction and maintenance of all p blit roads and highways of his couute to-U 

nether ..- ~~ with ~~~ the bulldinn of bridees &d cnlverts; he shall superinTend the~~raying out of 

new roads subject to the orders of the Commissioners' Court, and shall forthwith make 

or cause to be made a road map of the county 

showing the location, mileage, and classlfication of the different roads and highways 

in said county. s . .5 

throughout.) 

(Emphasis added 
I. - 

Hon. William L. Taylor, page 3 (V-1407) 

An act should be given a fair, reasonable, 

sensible construction, ~oonsidering its language and 

subject matter with a view of accomplishing the legislative intent and purpose. In other words, construction.should accord with common sense and justice. 

and irrational conclusions or deductions should be 

avoided. Clark v. W. L. Pearson & Co., 121 Tex. 34, 

39 S.W.2d 8 (1 31) State v. Stein, 36 S.W.2d 698 (Tex. 

Corn. ADD. 1931 . doubtless a court will give due regard to-the language used in a statute or i;rovision 

thereof in determining whether it is mandatory or merely directory. Words of permissive or mandatory character ~111 ordinarily be given their natural effect, but 

when there is room for constriiction permissive words 

will be given mandatory significance or mandatory 

words will be held to be directory, as appears to be 

necessary to effectuate the legislative intent. Hess 

& Skinner Engineering Co. v. Turney, 109 Tex. 208-3 

S.W. 593 (191cJ) H Laren v. State, g2 Tex. Crim. 449, 

lgg S.W. 811 (&;. 

It is stated in 2 Sutherland Statutory Construction (3rd Ed. 1943) 338, Sec. 4704: 

I’ 

. A statute is to be construed 

with rifirence to its manifest object, and 

if the language is susceptible of two constructions, one which will carry out and 

the other defeat such manifest object, It 

should receive the former construction. . . . 

"If upon examination the general meaning and object of the statute is inconsistent 

with the literal import of any clause or section, such clause or section must, if possible, 

be construed according to that purpose. But 

to warrant the change of the sense to accommodate it to a broader or narrower import, the 

intention of the legislature must be clear and 

manifest." 

The court stated in Wood v. State, 133 Tex. 

110, 126 S.W.2d 4, 7 (1939): 

'It is the settled law that statutes 

should be construed so as to carry out legislative intent, and when such intent is ascertained it should be given effect even 
Ron. William L. Taylor, page 4 (v-1407) 

though literal meaning of words usea in 

the statute is not followed. . . ." 

In the light of the above authorities, 

section 2 of House Bill 8,12 should be interpreted 

as being mandatory in nature, although the actual 

wording of it is merely directory, if such is the 

intent of the Legislature as determined from the 

act as a whole. 

Looking to the remainder of the act, we 

find in Section 3 provisions which clearly indicate 

a mandatory intention on the Eart of the Legislature. 

The first sentence says that said County Engineer 

shall be appointed by the Commissioners Court of said 

county within ninety (90) days after the passage of 

this Act at a Regular Meeting or Called Session thereof.@ The balance of Section 3 and all of Section 4 

indicate that the appointment of an engineer was to 

be mandatory. 

In vSew of the foregoing, it is our opinion 

that the Legislature intended to provide a county engineer to be in constant charge of all public road 

tionstruction and maintenance in Rarrison County, subject of course to over-all supervision by the~commissioners' Court. See Att'y Gen. Op. V-1315 (1951). 

Although the engineer serves at the will of the county 

commissioners, the statute contemplates that upon the 

removal of one county engineer another will be appointed. 

SUMMARY 

House Bill Bo. 812; Acts 42nd Le 

cial Laws R.S. 193I, ch. 156, p. 303 f" Harrison Spe-, 

County Road Law), makes it mandatory for the commi5sioners' court of Harrison County to employ a 

county engineer and to have a county engineer in 

constant employment with HarrisonCounty. 

APPROVED: 

J. C. Davis, Jr. 

County Affairs Division 

E. Jacobson 

Reviewing Assistant 

Yours very truly, 

PRICE DAEIEL 

Attorney.Gener 

BY 

Charles D. Mathews 

First Assistant 

Assistant 

RW:mh 

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