Can a single Texas county commissioner, acting alone as the ex officio road commissioner for his precinct, accept a donation of gravel or equipment for road repairs, or donate his own materials, without getting the whole commissioners court to approve it first?

Texas AG Opinion JM-1155: Only the Full Commissioners Court Can Accept Road-Material Donations

Plain-English summary

A county attorney in Castro County asked whether an individual county commissioner, serving under the county's optional system as an "ex officio road commissioner" for his own precinct, could accept a donation of material to help maintain county roads without getting approval from the full commissioners court, and whether that commissioner could instead donate material from his own property to his own precinct's roads without that court approval.

The Attorney General answered no to both questions. The County Road and Bridge Act lets the commissioners court, or its appointed road commissioners, accept donations of money, land, labor, equipment, or other property to help build or maintain county roads, but the statute has always required ex officio road commissioners to act "under the direction of the commissioners court." Texas law is clear that a county can act only through its commissioners court as a governing body; an individual commissioner, even one with substantial day-to-day influence over his precinct's roads, does not have independent legal authority to bind the county. The donation-acceptance provision does not carve out an exception to that rule, and the opinion found no meaningful difference between a commissioner accepting a third party's donation and a commissioner trying to donate his own material to his own precinct: either way, the full commissioners court has to approve it.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG 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.

Common questions

Can a Texas county commissioner accept a donated load of gravel for his precinct's roads on his own authority?
No. The opinion held that acceptance of donated materials for county road maintenance must be approved by action of the full commissioners court, even where a commissioner is serving as an ex officio road commissioner for that precinct.

Can a commissioner donate materials from his own property to maintain roads in his own precinct without a vote of the commissioners court?
No. The opinion found no legal difference between accepting a third party's donation and the commissioner making his own donation; both require commissioners court approval.

Why can't an individual commissioner just handle this himself, since he's responsible for his precinct's roads day to day?
Because Texas law holds that a county can act only through its commissioners court as a body. Individual commissioners have real influence over precinct road matters but no independent authority to legally bind the county, including through accepting or making donations.

Background and statutory framework

The County Road and Bridge Act, V.T.C.S. article 6702-1, lets a county adopt an optional system under which individual county commissioners serve as ex officio road commissioners for their own precincts (sections 3.001-3.004), with authority to employ precinct personnel subject to commissioners court approval (section 3.003). Section 2.002 provides that road contracts, equipment and material purchases, and personnel decisions are all consummated by action of the commissioners court as a body. Since the statutory scheme's original enactment in 1901, ex officio road commissioners have been required to act "under the direction of the commissioners court." Section 3.103 separately authorizes "the commissioners court or road commissioners" to accept donations of money, land, labor, equipment, or other property or material to help build or maintain county roads (note that "road commissioners" under section 3.101, a distinct, commissioners-court-appointed position limited to no more than four per county, are not the same as county commissioners serving ex officio).

The opinion applied the settled rule from Wilson v. County of Calhoun that a Texas county can act only through its commissioners court, and that individual commissioners cannot bind the county through separate actions or agreements, together with prior Attorney General Opinions JM-892 (1988) and JM-801 (1987) applying the same principle to road matters. Because section 3.103's donation-acceptance authority does not expressly exempt ex officio road commissioners from the general "under the direction of the commissioners court" requirement, the opinion concluded that donations, whether from third parties or from the commissioner's own separate property, require commissioners court approval either way.

Citations

Statutory provisions:

• V.T.C.S. art. 6702-1, §§ 2.002, 3.001-3.004, 3.101, 3.103

Cases:

• Wilson v. County of Calhoun, 489 S.W.2d 393 (Tex. Civ. App.-Corpus Christi 1972, writ ref'd n.r.e.)

Prior Attorney General opinions cited: JM-892 (1988); JM-801 (1987).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1155
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1155.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

April 13, 1990

Honorable Jimmy F. Davis
County-District Attorney
Castro County Courthouse
Dimmitt, Texas 79027-2689

Opinion No. JM-1155

Re: Authority of an individual county commissioner to act with regard to road maintenance (RQ-1902)

Dear Mr. Davis:

Your questions concern the authority of a county commissioner to accept donations of material to aid in maintaining county roads. You advise that the Commissioners Court of Castro County has adopted the optional method of commissioners serving as ex officio road commissioners. V.T.C.S. art. 6702-1, §§ 3.001-3.004. You ask:

(1) May a county commissioner serving as an ex officio road commissioner accept donations of material to aid in maintaining roads in a county or must the acceptance of such material be approved by action of the entire commissioners court?

(2) May a county commissioner serving as an ex officio road commissioner donate material from his own separate property to aid in maintaining roads in his precinct without the acceptance and approval of the action by the entire commissioners court?

The county commissioners serving as ex officio road commissioners may employ personnel for their precinct subject to commissioners court approval. Id. § 3.003. All road contracts, purchases of road equipment and materials, and employment of personnel are consummated by actions of the commissioners court as a body. Id. § 2.002. While individual commissioners have substantial influence over these matters, they do not have any authority to legally bind the county for the most part. See Attorney General Opinion JM-892 (1988); 36 D. Brooks, County and Special District Law § 40.7 (Texas Practice 1989). A county can act only through its commissioners court, and the individual commissioners have no authority to bind the county by their separate actions or agreements. Wilson v. County of Calhoun, 489 S.W.2d 393, 397 (Tex. Civ. App.-Corpus Christi 1972, writ ref'd n.r.e.). In short, even though each county commissioner is responsible for supervising road work in his precinct and keeping himself informed as to road conditions, he generally has little further authority. The County Road and Bridge Act, V.T.C.S. art. 6702-1, essentially means that county roads are opened, constructed, and maintained by the commissioners court as a whole and not by individual county commissioners. Brooks, supra.

The statutes governing ex officio road commissioners have provided since their enactment that ex officio road commissioners act "under the direction of the commissioners court." Acts 1901, 27th Leg., ch. 114, at 277; Attorney General Opinion JM-801 (1987).

Section 3.103 of article 6702-1 addresses the matter of donations to aid in the building and maintaining of county roads. Section 3.103 provides:

The commissioners court or road commissioners may accept donations of money, land, labor, equipment, or any other kind of property or material to aid in building or maintaining roads in the county. (Emphasis added.)

Road commissioners are not to be confused with county commissioners. Section 3.101 of article 6702-1 authorizes the commissioners court to employ not more than four road commissioners. Subsection (b)(1) provides that a road commissioner controls all overseers, hands, and machinery and sees that all roads and bridges in his district are kept in good repair.

The provision permitting the acceptance of donations of material to maintain county roads does not provide an exception to the statutory requirement that an ex officio road commissioner acts under the direction of the commissioners court so as to allow him to accept such donations without the court's approval. We perceive no distinction under the scenario in your second question where the commissioner donates material from his own separate property to aid in maintaining roads in his precinct.

SUMMARY

The acceptance of donations of material to aid in maintaining county roads must be approved by action of the commissioners court. An ex officio road commissioner may not donate material from his own separate property to aid in maintaining roads in his own precinct without approval of the commissioners court.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General