How can a Texas county legally get rid of worn-out items like old culverts when nobody bids on them at auction?

Plain-English summary

Counties accumulate worn-out gear, broken equipment, and used materials that have outlived their purpose. Cherokee County removes roughly one road culvert a week, and once a culvert can no longer do its job, the county has been treating it as "salvage property" and selling it under Local Government Code section 263.152 through competitive bidding or auction. The catch the county described: sometimes the bids for a used culvert do not even cover the cost of running the legal notice in the local newspaper. So the county asked the AG whether old culverts instead qualify as "items routinely discarded as waste," which could be disposed of directly through a recycling program.

The AG started by drawing a line it would not cross. Whether a specific item is "routinely discarded as waste" turns on facts, and the commissioners court has to make that call in the first instance; an AG opinion cannot resolve it. The AG pointed to an earlier opinion (DM-268, 1993) making the same point, that determining whether property is truly of no use or resale value to the county involves factual issues outside the opinion process.

What the AG could explain is the legal framework. Chapter 263, subchapter D governs how counties dispose of salvage or surplus property. Both "salvage property" and "surplus property" are defined to exclude "items routinely discarded as waste." Section 263.152 lets a county periodically sell its surplus or salvage property by competitive bid or auction. If the commissioners court tries to sell by bid or auction but cannot because no bids are made, it may order the property destroyed or otherwise disposed of as worthless, and that disposal may happen through a recycling program (collecting, separating, or processing the property and returning it to use as raw materials for new products).

The AG then made a second point: authorizing recycling in those specific circumstances does not bar recycling in others. Chapter 263 does not govern how a commissioners court disposes of the routine waste it generates, and no statute expressly addresses that general authority. But a commissioners court has implied authority to do what is necessary to carry out duties the Constitution or Legislature assigns it. Counties run the county's business affairs, build and maintain roads, carry solid-waste responsibilities, and are specifically required to establish a recycling program for materials generated by county operations. From those duties, the AG concluded a commissioners court has implied authority to use recycling programs to dispose of routinely discarded county waste, subject to other applicable law.

What this means for you

If you sit on a commissioners court

Based on this opinion, you have two distinct paths. For salvage or surplus property (worn-out items that still are not mere waste), section 263.152 is your route: sell by competitive bid or auction, and if no bids come in, you may order the property destroyed or disposed of as worthless, including by recycling. For property that is routinely discarded waste, the AG reads your duties (county operations, roads, solid waste, and the required recycling program under Health & Safety Code section 361.425(a)(1)) to give you implied authority to recycle, subject to other applicable law.

If you are a county attorney or auditor

The threshold classification (salvage/surplus versus "routinely discarded as waste") is a fact question for the commissioners court, and the AG will not decide it. The opinion flags two limits on any disposition program: parts of a recycling program may be subject to competitive bidding under Local Government Code section 262.030(a)(3), and no disposition may amount to a gratuitous grant of a "thing of value" prohibited by article III, section 52 of the Texas Constitution.

If you run a county road or facilities department

The opinion confirms there is a lawful off-ramp when auctions fail. If salvage items draw no bids, the commissioners court can order them disposed of as worthless and route them to a recycling program rather than leaving them stuck in the sale process.

Common questions

Q: Our county auctioned old culverts and got no bids. Now what?
A: Under section 263.152, when a county tries to sell salvage or surplus property by bid or auction and no bids are made, the commissioners court may order the property destroyed or otherwise disposed of as worthless, which can include disposal through a recycling program.

Q: Are old culverts "salvage property" or "routinely discarded waste"?
A: The AG would not answer that. Whether a particular item is "routinely discarded as waste" is a fact question for the commissioners court to decide; it cannot be resolved in an AG opinion.

Q: Can a county recycle its routine trash even though chapter 263 talks about salvage?
A: Yes, in the AG's view. Chapter 263 does not govern disposal of routinely discarded county waste, but a commissioners court has implied authority to use recycling programs for that waste to carry out its assigned duties, subject to other applicable law.

Q: Are there limits on how the county disposes of property?
A: Yes. The opinion notes a recycling program may be subject to competitive bidding requirements (section 262.030(a)(3)), and any disposition must not violate the constitutional ban on gratuitous grants of a thing of value (article III, section 52).

Background and statutory framework

Local Government Code chapter 263, subchapter D (sections 263.151-.158) governs county disposition of salvage or surplus property, and the commissioners court may adopt rules to administer it (section 263.158). "Salvage property" is "personal property, other than items routinely discarded as waste, that because of use, time, accident, or any other cause is so worn, damaged, or obsolete that it has no value for the purpose for which it was originally intended" (section 263.151(1)); the "surplus property" definition likewise excludes "items routinely discarded as waste" (section 263.151(2)(A)). Section 263.152 authorizes a county to periodically sell surplus or salvage property by competitive bid or auction (subsection (a)(1)); if the court cannot sell because no bids are made, it may order the property destroyed or disposed of as worthless (subsection (a)(3)), and that disposal may be accomplished through a recycling program that returns the property to use as raw materials for new products (subsection (c)).

Because authorizing recycling in those circumstances does not preclude recycling in others, and because chapter 263 does not govern routinely discarded waste, the AG turned to the commissioners court's implied authority. A commissioners court has "only those powers expressly given by either the Texas Constitution or the Legislature," but when the Constitution or Legislature imposes an obligation, the court "also has the implied authority to exercise the power necessary to accomplish its assigned duty" (City of San Antonio v. City of Boerne). Relevant duties include administering the county's business affairs (Boerne), constructing, repairing, and maintaining public roads (Smith Cnty. v. Thornton), regulating solid waste collection, handling, storage, and disposal (Health & Safety Code section 364.011(a); see sections 361.151-.153), and establishing a recycling program for materials generated by county operations (section 361.425(a)(1)). From those duties, the AG concluded a commissioners court has implied authority to use recycling for routinely discarded county waste, subject to other applicable law, including competitive-bidding requirements (Local Government Code section 262.030(a)(3)) and the constitutional bar on gratuitous grants (article III, section 52).

Citations and references

Statutes:

• Tex. Loc. Gov't Code § 263.152 — sale of county surplus or salvage property; recycling disposal when no bids
• Tex. Loc. Gov't Code § 263.151 — definitions of "salvage property" and "surplus property"
• Tex. Health & Safety Code § 361.425 — county recycling program for materials generated by county operations

Key cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003) — commissioners court has implied authority to exercise powers necessary to accomplish assigned duties
• Smith Cnty. v. Thornton, 726 S.W.2d 2 (Tex. 1986) — commissioners courts have general authority over public roads

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0420
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0420.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

October 18, 2022

The Honorable Dana Young
Cherokee County Attorney
Post Office Box 320
Rusk, Texas 75785

Opinion No. KP-0420

Re: Authority of a county to dispose of salvage property as salvage or waste under section 263.152 of the Local Government Code (RQ-0455-KP)

Dear Ms. Young:

You ask about the authority of a county to dispose of salvage property as salvage or waste under section 263.152 of the Local Government Code.¹ Specifically, your question concerns "the disposal of old culverts² which have been removed from real property, are no longer suitable to function as a culvert should, and have no value for the purpose for which the culverts were originally intended." Request Letter at 1. You tell us that Cherokee County removes approximately one culvert per week and disposes of them as "salvage property" under section 263.152 of the Texas Local Government Code through competitive bidding or auction. Id.; see TEX. LOC. GOV'T CODE § 263.152(a)(1). But, you explain, "[t]here have been instances where the bids for the used culverts do not exceed the cost of placing the notice in the local paper." Request Letter at 1. You ask whether "the old culverts meet the definition of 'items routinely discarded as waste' which can be disposed of through a recycling program." Id.

Whether culverts are "routinely discarded as waste" by the county presents fact questions for the commissioners court to determine in the first instance and cannot be resolved in an attorney general opinion. See Tex. Att'y Gen. Op. No. DM-268 (1993) at 2 (stating that "the determination whether a particular item of property is truly of no use or resale value to the county would involve the resolution of factual issues and therefore is not amenable to the opinion process"). But we can provide guidance about a county's legal authority to dispose of property generally.

Chapter 263, subchapter D of the Local Government Code governs county disposition of salvage or surplus property.³ See TEX. LOC. GOV'T CODE §§ 263.151–.158. The subchapter defines "salvage property" as "personal property, other than items routinely discarded as waste, that because of use, time, accident, or any other cause is so worn, damaged, or obsolete that it has no value for the purpose for which it was originally intended." Id. § 263.151(1) (emphasis added). Similarly, the definition of "surplus property" excludes "items routinely discarded as waste." Id. § 263.151(2)(A).

Section 263.152 authorizes a county to "periodically sell the county's surplus or salvage property by competitive bid or auction." Id. § 263.152(a)(1). When the commissioners court undertakes to sell property by competitive bid or auction, but "is unable to do so because no bids are made," the commissioners court may "order any of the property to be destroyed or otherwise disposed of as worthless." Id. § 263.152(a)(3). When that happens, disposal "may be accomplished through a recycling program under which the property is collected, separated, or processed and returned to use in the form of raw materials in the production of new products." Id. § 263.152(c). Thus, section 263.152 authorizes disposal through recycling for salvage or surplus property, i.e., property not routinely discarded as waste, when the commissioners court attempted to sell the property by competitive bid or auction but received no bids. Id. §§ 263.151(1), .152(a)(1), (a)(3), (c).

But by authorizing recycling in specified circumstances, section 263.152 does not thereby preclude utilizing recycling programs in other circumstances. Chapter 263 does not govern the commissioners court's authority to dispose of the county's routinely discarded waste, and we find no statute expressly addressing a commissioners court's general authority to dispose of the waste it regularly discards. A commissioners court possesses "only those powers expressly given by either the Texas Constitution or the Legislature," but "[w]hen the Constitution or Legislature imposes an obligation on a commissioners court, that commissioners court also has the implied authority to exercise the power necessary to accomplish its assigned duty." City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003). Texas law imposes several specific duties on a commissioners court relevant to your question. A commissioners court has as its primary function the administration of the county's business affairs. Id. at 27. Commissioners courts possess general authority to construct, repair, and maintain public roads. See Smith Cnty. v. Thornton, 726 S.W.2d 2, 3 (Tex. 1986). They also possess certain duties and responsibilities with respect to landfills and other solid waste disposal in the county. See TEX. HEALTH & SAFETY CODE § 364.011(a) (stating that a commissioners court "may regulate solid waste collection, handling, storage, and disposal in areas of the county" in certain circumstances); see also id. §§ 361.151–.153 (concerning county authority under the Solid Waste Disposal Act).

Moreover, commissioners courts have the responsibility to establish a program for recyclable materials generated by their county's operations. Id. § 361.425(a)(1). To the extent necessary to accomplish its assigned duties, a commissioners court possesses implied authority to utilize recycling programs for the disposition of routinely discarded county waste, subject to other applicable law.⁴

S U M M A R Y

Section 263.152 of the Local Government Code authorizes a county to periodically sell the county's surplus or salvage property by competitive bid or auction. "Salvage property" is personal property, other than items routinely discarded as waste, that because of use, time, accident, or any other cause is so worn, damaged, or obsolete that it has no value for the purpose for which it was originally intended. When a county attempts to sell salvage property by competitive bidding or auction but receives no bids, the county may dispose of the property through a recycling program under which the property is collected, separated, or processed and returned to use in the form of raw materials in the production of new products.

A commissioners court possesses implied authority to utilize recycling programs for the disposition of routinely discarded county waste, subject to other applicable law. Whether culverts the county removes from real property are "routinely discarded as waste" presents fact questions for the commissioners court to determine and cannot be resolved in an attorney general opinion.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

CHARLOTTE M. HARPER
Acting Chair, Opinion Committee

¹ See Letter from Honorable Dana Young, Cherokee Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Apr. 21, 2022), https://texasattorneygeneral.gov/sites/default/files/request-files/request/2022/RQ0455KP.pdf ("Request Letter").

² We assume you refer to the types of culverts commonly used in county road construction: "A culvert is a structure that allows water to flow under a road, railroad, trail or similar obstruction. Typically surrounded by soil, culverts may be made from pipe, reinforced concrete or other material." TEX. DEPT. OF TRANSP., TxDOT Visual Dictionary, https://www.txdot.gov/driver/txdot-visual-dictionary/culvert.html (last visited June 13, 2022).

³ The commissioners court may adopt rules necessary to administer chapter 263, subchapter D of the Local Government Code. TEX. LOC. GOV'T CODE § 263.158.

⁴ For example, aspects of a particular recycling program may be subject to competitive bidding or similar requirements. See, e.g., TEX. LOC. GOV'T CODE § 262.030(a)(3). And any disposition of county property must not violate the constitutional prohibition against gratuitous grants of a "thing of value." See TEX. CONST. art. III, § 52.