Untitled Texas Attorney General Opinion ( 1952 )

March 28, 1952
Hon. Homer L. Moss Opinion No. V-1424
County Attorney
'Wheeler County ' Re: Authority of the com-
Wheeler, Texas missioners' court to-
P charge to the allotment
_ of the road and bridge
fund of one precinct
money expended on roads
in that precinct by a
commissioner of another
Dear Sir: precinct.
Your request for an op9nion ~of this of-
fice presents the following question:
Where a county commissioner of one 1
precinct repairs county roads in another
,commissioner's precinct in his county,
without the consentof the resident com-
missioner, can the commissioners' court
charge to the allotment of the resident
commissioner's precinct the amount of
money expended for such repairs?
Article 2342; V.C.S., provides:
"The several cornmissIoners,to-
gether with the county judge, shall com-
pose the 'Commissioners Court,' and the
county judge, when present, shall be the
presiding officer of said court.'
Article 2351, V.C.S., provides:
"Each commissioners court shall:
. . .
"3. Lay out and establish, change
and discontinue public roads and high-
ways.
"4. Build bridges and keep them In
repair. . . .
Hon. Homer L. Moss, page 2 (v-1424)
"6. Exercise general cbntrol over
all roads, highways, ferries and bridges
in their counties. e . ."
In view of the foregoing provisions it
is the duty of the commissioners' court, and not
the individual commissioners, to construct and
maintain the roads of the county. Each commis-
sioner must keep himself informed of the condi-
tion of the roads and the need for repairs and
improvements in his precinct and report this in-
formation at each term of the commissioners court.
Art. 673, V.C.S. A commissioner should have the
approval of the commissioners' court before any
work on the roads is performed because individual
commissioners have no authority to bind the coun-
t by their separate actions. Canales v. Laughlin,
1$7 Tex. 169, 214 S.W.2d 451 (1948); Swain v. Mont-
gomery County 154 S.W.2d 695 (Tex. Civ. App. 1941,
error ref. ,.A.,.). However, the commissioners'
court may ratify that which it might have author-
ized originally. Cameron County v. Fox, 61 S.W.2d
483 (Tex. Comm. App. 1933); State v. Carries,106
S.W.2d 397 (Tex..Civ. App. 1937). We 'therefore
assume that the work outlined in your request was
either performed upon an order of the commissioners'
court or subsequently ratified.
It was held in Attorney General's Opin-
ion O-4548 (1942) that it is the duty of the com-
missioners' court to construct and maintain the
roads of a county as a whole without regard to pre-
cinct lines. Likewise, in Attorney General's Opin-
ion v-566 (1948), it was held that automobile regis-
tration fees paid into the road and bridge fund of
the county should be expended in such a manner as
to give the county as a.whole a uniform system of
roads without reference to precinct lines.
In Canales v. Laughlin, su ra and Stovall
-9 3 3 (193m
v. Shivers, 129 Tex. 256, 103 S.W.2d
was ,hela that the commissioners' court in maintainina
and repairing the roads of the county shall regard -
the roads as a unit and expend money for such main-
tenance to the best interests and welfare of all
the people of the county. We quote the following
from Stovall v. Shivers:
Hon. Homer L. Moss, page 3 (v-1424)
II
. . . In our opinion, there is ob-
viously nothing in this article which com-
pels the commissioners court to divide
the road and bridge fund according to
any fixed mathematical formula, and ap-
portion same in advance for the purpose
of being expended in any given precinct..
The use of the word 'expended' to our
minds clearly suggests that said funds
shall be apportioned and paid out from
time to time as the necessity for their
use arises in the ordinary administration
of the county affairs. By article 2342
of the Revised Statutes, it is provided
that the several commissioners, together
with the county judge, shall compose the
'commissioners court.' Such court is
manifestly a unit, and is the agency of
the whole county. The respective mem-
~bers of the commissioners court are there-
fore primarily representatives of the whole
county, and not merely representatives,of
their respective precincts. The duty of
the commissioners court is to transact
the business , protect the interests; and
promote the welfare of the county as a
whole. Among~the powers .conferred upon
such court by article 2351 are the fol-
lowing: The power to lay,out and estab-
lish, change and discontinue roads and
highways, the power to build bridges and
keep them in repair, and the power to
exercise general control over all roads,
highways, ferries, and bridges in their
counties. They have the power to levy a
tax not to exceed 15 cents on the $100
valuation for roads and bridges. This
fund is, of course, for the benefit of
all roads and bridges of the county. These
provisions of the law, as well as others
which might be mentioned, clearly contem-
plate that the commissioners court of each
county shall regard the roads and highways
of the county as a system to~be laid out,
changed, repaired, improved, and maintained,
as far as practical, as a whole to the best
interests and we,lfareof all the people
of the county. It is clearly contemplat-
ed that all roads and bridges of the county
i
. -
. 223 Hon. Homer L. Moss, page 4 (V-1424)
shall be maintained, repaired, and im-
proved when necessary, as the conditions
may require, regardless of the precinct
in which same may be located, so far as
the funds will equitably justify. This
being true, we think that a commissioners
court cannot voluntarily disable itself
from performance of this general obliga-
tion by arbitrarily dividing the road
and.bridge fund according to some fixed
'standard, and apportioning same to be
expended in a particular precinct, to
the detriment of roads and bridges in
other precincts." (103 S.W.2d at 366)
Since it is the duty of the commissioners'.
court to maintain and repair county roads as a whole,
It had the authority to authorize the work outlined
In your request, without the consent of the resident
'commissioner, and charge to the allotment of that
precinct the amount of money expended.
SUMMARY P
The commissioners' court has author-
ity to charge to the allotment of the road
and bridge fund of one precinct money ex-
pended on roads situated in that precinct
by a commissioner of another precinct pro-
vided such expenditure was authorized by
-- _ the commissioners' court. Canales v. -
Lau hlin 147 Tex. 169, 214 S.W.2d 451
~*&ovall v, Shivers, 129 Tex. 256,
103 S.W.2d 363 (1937).
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
J. C. Davis, Jr.
County Affairs Division
E. Jacobson
Reviewing Assistant &e&
Assistant
Charles D. Nathews
First Assistant
JR:Ulh