Arrxmm    $1. TEXAS
PRICE DANIEL
ATTORNEYGENERAL
                                     March 31, 1948

       Hon. H. P. Querra, Jr.                Opinion No. V-532
       county Attorney
       Starr County                          Re:      The validity  of a ~Com-
       Rio Grande City, Texas                         lulssloners' court or-
                                                      der that all road em-
                                                      ployees shall be hir-
                                                      ed and all road mater-
                                                      ials shall be W-
                                                      chased by the 8 omt,
                                                      aatlng through the
                                                      County Judge, rather
                                                      than by lndivldua~~
                                                     ~oounty commiss10n.ra.
       Dear sir:
                   Reference      Is made to your recent      request
       which reads,    in part,     as follows:
                    "The CommIssionera Court 0r Starr
             County has passed a resolution      to the ef-
             fect that from and after the 28th day of
             February 1948, all road hands, foremen and
             any and all persons WW employed on the
             oounty roads, who have been employed by
             the commissioners of the respective       pre-
             cincts,   be discharged and that upon their
             discharge,   the CommissionersCourt &all
             employ akl mob county road workers In
             the various precincts.      The resolutional-
             so provides that all materials and supplies
             necessary   in the malnhainancr bZ such roada
             shall be purchased by the court and not by
             the respecttve    commtssloners and further
             provides that the County Judge 1s thereby
             appolntod the sole person authoriaed to
             employ such m&ma       &ml make all purchases.
             This resolution    vaa passed, two oonasis-
             sloners voting for it, two against It and
             the County Judge voting for it.
                   "The two comisslraers      who voted
             against the resolution,     consider that
Hon. H. P. Cuerra,      Jr.,   page 2, (V-532)


        it Is an attempt on the part of the two
        oommlssloners who voted for it and the
        County Judge to gain control over all
        road matters within the precincts        of
        these two commissioners who voted against
        the resolution.      They considerthat      this
        would be tantamnmt to relieving         them of
        their duties as comuxLss1oners for their
        respective   precincts   which they assumed
        upon being aleCted and that It would ef-
        fect a delegation     of their duties to
        someone who Is not charged by law with
        the performance of such duties.        . .
              ‘1 request yo6r opinion aa to the
        legal effect   of the rasolutlon which I
        have described above.
             You also advised us that Starr County Is not
operating    under the optional County Road Law.
              Article   2351, V. C. S.,   provides,       in part,
that:
              “Each commlssloners     court   shall%...

              “3.   Lay out and establish, change
        and discontinue   public roads and hlgh-
        ways.
              “4.   Build bridges   and keep them in
        repalr i
              “5. Appoint road overseers        and ap-
        portion hands.
              “6.  Exercise general control over
        all roads, highwayg, ferries  and bridges
        in their counties.
              Article   6713, V. 0. S., 1s as follows:
                                         ,
              “Except when road commlssloners are
        employed, the county commissioners shall
        be supervisors   of public roads In their
        respective   counties, and each comml.aslon-                 *
        er shall supervise the public roads within
        his oommlssloners precinct   once each month.
        He shall also mke a sworn report to each
Hon. H. P. Ouerra,       Jr.,   page 3,   (V-532)


     regular term of the cOBfIdBB~OnerS court
     hsld in his county during the ysar, show-
     ing%
             “1.   The condition of all       roads and
     parts    0r roads  in his precinct.
          “2.    The condition       of all   culverts
     and bridges.

          “3.  The amount 0r money remaining in
     the hands of overseeps subject to be expend-
     ed upon the road8 within his precinct.
             “4.   The number of mile posts         and fin-
     ger boar&h defarsd    and torn down.
            ‘5.    What, Lf any, new roads of any
     kind sheoLd be opened ln his preoin&t, and
     what, If any, bridges,      amlverts, or other
     impPOVement8     are necessary to place the
     roads In his precinct      in good GOnditiOn
     and ths probable cost of such improvements;
     also the name of eve-       overseer who has
     failed     to work on the road, OF In any way
     neglected to perform hls duty.
           “Said report shall be spread upon the
     minutes of the cou&, to be considered in
     Improving public roads and deter$.nlng  the
     amount of tares levied therefor.
             Article  6740, V. C. S., provide8 for the ex-
penditure    of the road and bridge fund of the various
counties,    and Article  6741, V. C. S., provides that:
           “The commlssloners court may make and
     enforce all reasonable and necessary rules
     and orders for the working and repairing
     of public roads, and to utillre   the labor
     to be used and money expended thereon, not
     in confliot  with the laws of this State.
     Said court may purchase or hire all nec-
     essary road machinery, tools or toams, and
     hire such labor as may be needed In addl-
     tlon to the labor requ&redWof citizens    to
     build or repair the roads.
             If Starr    County has appointed       a road supsrln-
                                                                 .   -




Hon. H. P.   ffuerra,   Jr.,   page 4,   (V-532)


tendent for the county or one such superintendent    for
each precinct  of the county, pursuant to~Artlcle   6743,
v. c. s., then Article  6751, V. C. S., la applicable
and is as r0ii0ws:
           'The coamlssionerscourt of any such
     county Is authorized to purchase or hire all        .
     necessary road machinery, tools,  Implements,
     teams and labor required to grade, drain, or
     repair the rwds of such county, and said
     ,court is authorized and empowered to make all
     reasonable and necessary rulea, ordora and
     regulations  not in conflict with law for lay-
     ing out, working and otherwise Improving the
     public roads, and to utilize  the labolr and
     moneynexpended thereon, and to enforce the
     same.
          The court, in the cash of Stovall v. Shivers,
(01~. App. 7 8. w."(2d) P76, aTfIrmed 129 Tex. 256,
103 9. w. t 26 7 363, said:
            'By AFtlole 2342 of the Revlsod Stat-
     utes, It ia provided that the several com-
     missioners,    together with the county judge,
     shall composb the lcixnmissloners GOtad.'
     Such court Is IJEinifeBtly a unit, and Is the
     agency of the whole county.         The respective
     members of the colamissioners court are there-
     fore primarily representativss        of the whole
     county, and not merely representatives         Of
     their respective     precincts.     The duty of the
     commissioners court is to transact the busl-
     ness, protect the interest,        and promote the
     welfare of the county as a whole.         Among the
     powers conferred upon such court by article
     2351 are the following:         The power to lay
     out and establish,     change and discontinue
     roads and highways, the power to build bridges
     and keep them In repair,        and the power to exer-
     cise general control over all roads, lU.$hways,
     ferries,    and bridge8 in their counties.
            We believe    that the resolution Is merely   cum-
lative  Insofar as It states that the Commissioners1
Court shell    employ all such county road workers In the
various precincts,     since it is incumbent upon the Com-
missioners'   Court to perform this duty under the stat-
utea, even in the absence of such a resolution.         True,
Xon. 11. P. Cuerra,       Jr.,   page 5    (V-532)


each Commissiona) may recommend to the Counniaaloners~
Court that it employ certain PSPBOnS~ to work on the
county roads in his respective  precinct, but the Com-
missioner himself has no authority to e$log   road hands.
Nor do we believe  that the Commissioners  Court may de-
legate this power to the County Judge.
             The same rule or lav Is applicable  to the
Commisalonera* Court relative  te purchases made by the
county.  We shall quote only those statutes which deal
with county purchases which we deem pertinent   to your
Inquiry.
                Article     1659, V. C. S,,        provides,   la part,
as   r0ii0wS:

                “Supplies of every kind, road and
       bridge material,    or any other material,
       for the use or said county, or any of
       Its officers,    departments, or instltu-
       tlona must be purchased on competitive
       blda , , . . In cases or emergency,pur-
       chases not In excess of one hundred and
       fifty  dOllal’ may be made upon ZWquiBi-
       tion to be approved by the commissioners
       court, “without advertising   for competitive
       bids.
                Article     6729, V. C. S.,        provides,   In part,
       a8   r0n0vS:

                 "Th0   CO~iBBiO~Sl'B     COUZ't    IE%y'USe
       either timber, earth, atone, gravel,    or
       other necessary material most convenient
       therefor  to build,  repair, or maintain
       any public road or any part of any pub-
       lic road in the county without regard
       to the location   or extent thereof or the
       funds from which said repair or mainte-
       nance la paid.    In such case the owner of
       any such material shall be paid a fair
       and just compensation therefor as may be
       agreed upon by the owner or tfis agent
       and the commiBBloners court.
             The aot further provides in the event the
Commissioners1 Court ancj the owner of the material fail
to agree upon the price to be paid for such material
that the COdBSi0IKWS    t Court may condemn same.
Ron. H. P. ffuerra,Jr., page 6    (V-532)


           Article 2368a, Sec. 2, as amended In 1947, R.
3 a, 50th Leg., provides, ln part, as follows:
           'Qec. 2. No county acting through
     it8  Commi8sioner8 Court and no city In
     this State shall hereafter make any con-
     tract oalllng for  or requiring the expen-
     diture or payman% of Two Thousand bllara
     ($2,000) or more out of any fund or funds
     of any county or subdivision of amy ooUnty
     creating or~imposing an obligation 6r lla-
     billty of any nature or character upon such
     county or any subdivision of such county,
     or upon such City, without first sUbmittiE%gV
     such proposed contract to competitive bids.
          It further provides for advertisement, etc.,
together with a calamity clause.
          We think it abundantly clear from the above
statutes that it Is the duty of the cO3UIIiBS~On~rS’ Court
to m8.kesuch purchases and further that the power 18 a
non-delegable one. Rence, the Commissioners' Court may
not authorize the County Judge to make such purchases.
          By virtue of the foregoing, it is the opinion
of this Department that the resolution passed is Of no
force and effect insofar as it attempts to dele$ate to
the County Judge the power to employ road hands and to
make purchases for the county.
                       SUMMARY
          That portion of a resolution passed
     by the Commissioners' Court of Starr Coun-
     ty Which provide8 that all COUnty road em-
     ployees shall be hired and all road mater-
     ials Shall be purchased by the County Judge
     Is invalid, since this duty Is Imposed up-
     on the Commissioners' Court. Arts. 1659,
     2368a and 6729, V. C. 3.
                                      Yours very truly,
                                 ATTORNFX GENERAL OF TEXAS


                                 BY

                                      Assistant