Can a private company pay a Texas county to fix specific roads?

Plain-English summary

The San Augustine County auditor asked the Attorney General two questions about a proposed arrangement to have a private company (described as an oil company) pay for repairs to specific county roads. Under the proposal, a construction company would do the work and bill the county, the county would pass the bill along to the private company, and the county would pay the construction company only after receiving matching funds from the private company. The auditor asked whether a single county commissioner could enter this kind of agreement, and whether the county could set up the pass-through payment routine through its treasurer.

On the first question, the Attorney General said no. While the Legislature gives commissioners courts broad authority over building and maintaining public roads, a county can act only through its commissioners court as a body. An individual commissioner has no authority to bind the county by acting alone, so one commissioner cannot sign a private road-funding agreement for roads in his or her precinct.

On the second, the opinion found no specific authority addressing the exact pass-through payment scheme. The county treasurer disburses county money as the commissioners court directs. But Local Government Code section 81.032 gives the commissioners court general authority to accept a donation to perform a function the law confers on the county, and a prior opinion had said a court may accept a donation conditioned on improving a particular road if the condition is reasonable. The court may not accept donations on conditions that are unreasonable or inconsistent with other law (for example, competitive-bidding rules or general county-road requirements). Whether a donation's conditions are reasonable and lawful is left to the commissioners court's good-faith discretion; if they are, section 81.032 lets the court accept the money to further its road duties. The opinion did not decide whether competitive bidding applied, because the auditor did not ask it to.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The San Augustine County Auditor (as the opinion described it): The opinion answered that no single commissioner could bind the county to a private road-funding agreement, and that the route to the arrangement was for the full commissioners court to treat the private money as a donation under section 81.032, accepted only if its conditions were reasonable and consistent with other law. It expressly left the competitive-bidding question undecided.

Commissioners courts and county commissioners (as the opinion described it): The opinion described the commissioners court, acting as a body, as the only county actor that can accept such funds, and described its authority as discretionary. It pointed to competitive-purchasing rules and general county-road requirements as examples of "other law" a donation's conditions must not violate.

Private companies offering to fund roads (as the opinion described it): The opinion treated a conditioned donation to improve a particular road as permissible, but only where the commissioners court finds the conditions reasonable and lawful. The court, not the donor or a single commissioner, makes that call.

Common questions

Can one county commissioner agree to let a company pay for roads in his precinct?
The opinion concluded no. A county acts only through its commissioners court, and individual commissioners have no authority to bind the county by their separate action, citing Canales v. Laughlin.

Can the county accept money from a private company to fix a specific road?
Yes, through the commissioners court. The opinion explained that Local Government Code section 81.032 lets the court accept a donation to perform a county function, including improving a particular road, if the conditions are reasonable.

Are there limits on the conditions a donor can attach?
The opinion said the court may not accept donations with conditions that are unreasonable or inconsistent with other law, pointing to competitive-purchasing requirements and general county-road requirements as examples.

Did the opinion decide whether competitive bidding was required?
No. The opinion noted the auditor stated competitive bidding did not apply and did not ask the office to decide that, so the opinion did not address it.

Background and statutory framework

The opinion grounded the commissioners court's road authority in Transportation Code section 251.003(a)(1)-(2). For the first question, it relied on Canales v. Laughlin for the rule that a county acts only through its commissioners court and that individual commissioners cannot bind the county alone. For the second, it cited Local Government Code section 113.041(a) (the treasurer disburses county money as the court directs) and section 81.032 (general authority to accept donations to perform county functions).

The reasonableness limits drew on prior opinions GA-0359 (a donation may be conditioned on improving a particular road if reasonable) and JC-0073 (no unreasonable or unlawful conditions; good-faith discretion). The opinion cited Local Government Code section 262.023 (competitive requirements for certain purchases) and Transportation Code section 251.008 (general requirements for county roads) as examples of "other law" that conditions must respect, while declining to decide the competitive-bidding question.

Citations

Cases:

• Canales v. Laughlin, 214 S.W.2d 451, 455 (Tex. 1948)

Statutes:

• Tex. Transp. Code Ann. § 251.003(a)(1)-(2) (West 1999); § 251.008
• Tex. Loc. Gov't Code Ann. § 113.041(a) (West Supp. 2012); § 81.032 (West 2008); § 262.023 (West Supp. 2012)

Other authority:

• Tex. Att'y Gen. Op. No. GA-0359 (2005) at 3
• Tex. Att'y Gen. Op. No. JC-0073 (1999) at 3

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1010
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1010.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

July 1, 2013

Ms. JoAnna Johnson Opinion No. GA-1010
San Augustine County Auditor
100 West Columbia Street Re: Whether a commissioners court may enter
San Augustine, Texas 75972 into an agreement with a third party to fund road
construction (RQ-1107-GA)

Dear Ms. Johnson:

You ask two questions concerning the authority of county officials to enter into an agreement with a private entity whereby the entity agrees to fund repairs to specific county roads.[1] As you describe the agreement, a construction company will perform work on a county road and bill the county. Request Letter at 1. The county will then "pass on billings" to the private entity that has agreed to pay for the construction, and the county will "fund such billings only after matching funds are provided" from the private entity. Id.

You first ask whether a county commissioner, acting alone, may enter into an agreement with a private entity to fund the repair of roads in the commissioner's precinct. Id. The Legislature has authorized commissioners courts to "make and enforce all necessary rules and orders for the construction and maintenance of public roads" and to "hire the labor and purchase the machinery and equipment needed" to do so. TEX. TRANSP. CODE ANN. § 251.003(a)(1)-(2) (West 1999). However, a county can act only through its commissioners court, and the "individual commissioners have no authority to bind the county by their separate action." Canales v. Laughlin, 214 S.W.2d 451, 455 (Tex. 1948). Thus, a county commissioner, acting alone, may not enter into an agreement with a private entity to fund the repair of specific roads.

In your second question you ask whether the county may enter into an agreement whereby the treasurer is required to "'send a bill from a construction company to an oil company, the oil company then pay the county, and the treasurer then pay the construction company.'" Request Letter at 2. State law requires that the county treasurer "shall disburse the money belonging to the county . . . as the commissioners court may require or direct." TEX. LOC. GOV'T CODE ANN. § 113.041(a) (West Supp. 2012). We find no authority addressing the ability of the commissioners court to enter into the specific payment arrangement you describe. However, section 81.032 of the Local Government Code provides the commissioners court with general authority to "accept a . . . donation . . . for the purpose of performing a function conferred by law on the county." Id. § 81.032 (West 2008). An opinion of this office concluded that "a commissioners court may accept a donation subject to the condition that it be used to improve a particular road if the court finds the condition to be reasonable." Tex. Att'y Gen. Op. No. GA-0359 (2005) at 3.

A commissioners court may not accept donations with conditions that are unreasonable or inconsistent with other law. Tex. Att'y Gen. Op. No. JC-0073 (1999) at 3; see, e.g., TEX. LOC. GOV'T CODE ANN. § 262.023 (West Supp. 2012) ("Competitive Requirements for Certain Purchases"); TEX. TRANSP. CODE ANN. § 251.008 (West 1999) ("General Requirements for County Roads").[2] It is a matter for the exercise of good-faith discretion by the commissioners court to determine whether the conditions attached to a particular donation are reasonable and consistent with other law. Tex. Att'y Gen. Op. No. JC-0073 (1999) at 3. If the commissioners court determines that all conditions imposed by the donor are reasonable and consistent with other law, section 81.032 of the Local Government Code gives the commissioners court discretion to accept donations of money when doing so would further the county's road-building and maintenance duties.

SUMMARY

A county commissioner, acting alone, may not enter into an agreement with a private entity to fund the repair of county roads. Section 81.032 of the Local Government Code gives a commissioners court discretion to accept donations of money with lawful, reasonable conditions attached when doing so would further the county's road-building and maintenance duties.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[1] Letter from Ms. JoAnna Johnson, San Augustine Cnty. Auditor, to Honorable Greg Abbott, Tex. Att'y Gen. at 1-2 (Jan. 31, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] You write that "competitive bidding does not apply to this situation." Request Letter at 1. You do not ask us to make a separate determination in that regard, and therefore, this opinion does not address whether competitive bidding is required in this instance.