If a Texas county adopted the optional county road law decades ago, is that still in effect, and can the county hire a road administrator instead of a licensed engineer?

Plain-English summary

Texas counties can choose how to run their road departments. One option, the Optional County Road Law of 1947, set up a county-wide "unit road" system run by a county road engineer rather than a precinct-by-precinct system run by individual commissioners. A county adopted that option by a vote of its voters. Waller County adopted it soon after the law passed.

In 1983 the Legislature repealed that 1947 law, but it did not abolish the system. It carried the same provisions forward, with only minor revisions, into subchapter C of the County Road and Bridge Act (article 6702-1). In 1995 the Legislature recodified those provisions again, this time into chapter 252, subchapter D of the new Transportation Code, expressly without substantive change. The county's district attorney asked the Attorney General two main things: did the 1983 repeal-and-recodification wipe out the county's old adoption (so that the county would fall back to the default road system), and does a county operating under this system have to hire a licensed professional engineer?

On the first question, the office concluded the 1983 revision did not render the county's earlier adoption "moot." Because the 1983 act carried the old law's substance forward almost word for word, and because the Legislature did not signal that a fresh election was needed every time it tweaked the law, the office found no basis to treat the county's adoption as undone. The county keeps operating under the system unless its voters use the statutory petition-and-election process to abandon it.

On the second question, the office concluded a county does not always have to employ a licensed county road engineer. The general rule requires the commissioners court to appoint a licensed professional engineer experienced in road work. But a 1957 amendment added an exception: if the commissioners court is "not able to employ a licensed professional engineer for any reason," it may instead appoint a "county road administrator," who needs road or construction experience but not a fixed amount of engineering training. That "for any reason" exception survived the 1983 and 1995 recodifications (the 1995 code drops the literal phrase but the change was nonsubstantive).

The district attorney asked specifically whether "financial inability" or "not enough work for a full-time position" would count as being unable to hire an engineer. The office answered that financial inability can be a sufficient reason if the county is in fact financially unable to employ an engineer. By contrast, "not enough work for a full-time position" is not, by itself, a sufficient reason, because nothing requires the engineer's job to be full-time; it could become relevant if an engineer also could not be found to take the position part-time at a salary the county could pay. The commissioners court makes this determination in the first instance, with discretion subject to judicial review. The office also revisited two older opinions on the subject and disapproved one of them, H-201, to the extent it read the exception too narrowly, reasoning that once the old cap on the engineer's salary was removed in 1983, limiting the exception to "scarcity of engineers" would leave it with almost no effect.

Currency note

This opinion was issued in 1995. 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.

This opinion traces a statute through three numbering systems (the 1947 article 6716-1, the 1983 article 6702-1, and the 1995 Transportation Code chapter 252) and discusses provisions that were being recodified as it was written. The Transportation Code sections it cites have been amended since 1995, and dollar thresholds it mentions (such as the competitive-bidding amount) have changed. Read this page for the office's 1995 reasoning about recodification and the road-administrator exception, and check the current Transportation Code chapter 252 before relying on any specific section number, threshold, or procedure here.

What the opinion meant at the time

For county commissioners courts operating under the optional road system: The opinion meant a county that had adopted the 1947 law remained under that system after the 1983 and 1995 recodifications, without any need to re-vote, and would stay there until its voters affirmatively abandoned the system through the statutory petition-and-election route. It also meant the commissioners court could appoint a county road administrator instead of a licensed engineer when it found the county was, for any genuine factual reason, unable to employ a licensed engineer, with financial inability given as an example.

For county road departments and road administrators: At the time, the opinion confirmed that a county road administrator (a non-licensed officer with road or construction experience) could lawfully perform the county road engineer's duties under the exception, and that a county using an administrator could still obtain professional engineering services separately, for instance by contract, when a project required them.

For licensed professional engineers and the state engineering board: The opinion described the limits of the licensing requirement for this niche. It read the "for any reason" exception broadly and disapproved the earlier H-201 opinion to the extent it suggested that hiring an administrator when a willing licensed engineer was available "may be an abuse of discretion" controlled the analysis. The office treated the Engineering Practice Act's exclusion for county road maintenance and betterment work as not narrowing the circumstances in which an administrator could be used.

For county voters: The opinion explained that the way to change the system was the ballot. Voters who wanted to leave the county-road-department system could do so through the petition and election procedure (then section 3.201(c), recodified as Transportation Code section 252.301).

Common questions

Did a county have to hold a new election when the optional road law was renumbered in 1983?
No. The office concluded the 1983 revision did not make the county's earlier adoption "moot." The provisions were carried forward with only minor changes, and the office found no legislative intent or constitutional requirement that a county re-vote each time the law was amended or recodified.

How does a county get out of the system if it wants to?
By a vote. The office pointed to the statutory petition-and-election procedure (former section 3.201(c), now Transportation Code section 252.301) as the way a county's voters could abandon the provisions. Until that happens, the county keeps operating under the system.

Does a county operating under this system always have to hire a licensed professional engineer?
No. The general rule requires a licensed county road engineer, but a 1957 exception lets the commissioners court appoint a non-licensed county road administrator when the court is, "for any reason," in fact unable to employ a licensed engineer. The office read that exception broadly.

Is "we can't afford one" a good enough reason to hire a road administrator instead?
The office said financial inability can be a sufficient reason if the county is in fact financially unable to employ a licensed engineer. The commissioners court decides that in the first instance, and its determination is subject to judicial review.

What about "there isn't enough work for a full-time engineer"?
By itself, the office said that is not a sufficient reason, because nothing requires the engineer's position to be full-time. It could become an adequate reason if, on top of the limited work, an engineer could not be found to take the job part-time at the salary the county could pay.

Background and statutory framework

The Optional County Road Law of 1947 (V.T.C.S. article 6716-1) let a county adopt, by majority vote, a county-wide road system administered by the commissioners court with a county road engineer as chief executive officer, in place of the default precinct-based system. In 1983 the County Road and Bridge Act (article 6702-1) repealed the 1947 law but re-enacted its substance as subchapter C ("Court/Engineer System"), including the local-option adoption mechanism. The 1995 Transportation Code recodified subchapter C, again without substantive change, as chapter 252, subchapter D ("County Road Department System"). The office relied on the bill analysis for the 1983 act, which acknowledged it changed and deleted some language but found the changes not significant enough to warrant section-by-section explanation, and on the 1995 act's express statement that it made no substantive change.

The office identified the only substantive change in the 1983 revision as the removal of a ceiling on the engineer's annual salary (set at $12,000, originally $7,200 in 1947). Reasoning that if a re-vote were required after the 1983 change, the same logic would require a re-vote after every prior and later amendment, the office found no indication the Legislature intended that. It cited Slack v. State, 136 S.W. 1073 (Tex. Crim. App. 1911), for the analogous principle that when a county has voted to license liquor sales, later remedial amendments take effect without a new local-option vote.

On the engineer requirement, Transportation Code section 252.304 directs the commissioners court to appoint a county road engineer who must be a licensed professional engineer experienced in road construction and maintenance and meeting the qualifications the Texas Department of Transportation requires of its district engineers. The 1957 amendment to the predecessor law added the exception allowing appointment of a county road administrator "for any reason" the court was unable to employ a licensed engineer; that exception was codified in 1983 (article 6702-1, section 3.204) and carried into section 252.304 in 1995 (the 1995 code omits the literal "for any reason" wording but as a nonsubstantive revision). The office reconciled two earlier opinions, M-1149 (1972) and H-201 (1974), both concerning Bexar County. It read the exception's broad text not to be limited by the emergency-clause reasons (scarcity of engineers and salary limits), since the salary cap was removed in 1983, and disapproved H-201 to the extent inconsistent. It also concluded the Texas Engineering Practice Act exclusion for county road maintenance and betterment work (V.T.C.S. article 3271a, section 19(b)) did not narrow when an administrator could be used, and noted a county could separately retain engineering services (for example by contract) when a project required them.

Citations

Statutes and authorities discussed:

• V.T.C.S. article 6716-1 (Optional County Road Law of 1947; adopted by local-option vote)
• V.T.C.S. article 6702-1 (County Road and Bridge Act of 1983; subchapter C "Court/Engineer System"; §§ 3.201, 3.204, 3.211)
• Transportation Code § 252.301 (abandonment by petition and election); § 252.304 (county road engineer requirement and road-administrator exception); § 252.308 (designating an officer during the engineer's absence)
• V.T.C.S. article 3271a, § 19(b) (Texas Engineering Practice Act exclusion for county road maintenance and betterment work)
• Senate Comm. on Transportation, Bill Analysis, S.B. 148, 68th Leg., R.S. (1983)
• Attorney General Opinion M-1149 (1972); Attorney General Opinion H-201 (1974) (disapproved in part)

Case cited:

• Slack v. State, 136 S.W. 1073 (Tex. Crim. App. 1911) (later remedial amendments take effect in a county without a new local-option vote)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0368
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0368.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

December 18, 1995

The Honorable Sherry L. Robinson
Waller County Criminal District Attorney
836 Austin Street, Suite 109
Hempstead, Texas 77445

Opinion No. DM-368

Re: Whether the 1983 revision of the provisions of the Optional County Road Law of 1947 as part of subchapter C of article 6702-1, V.T.C.S., now repealed and codified in chapter 252 of the Transportation Code, rendered a county's earlier adoption of that law "moot," and related questions (RQ-795)

Dear Ms. Robinson:

You advise that Waller County adopted the Optional County Road Law of 1947 soon after its passage. Act of Apr. 24, 1947, 50th Leg., R.S., ch. 178, 1947 Tex. Gen. Laws 288. That act, codified as V.T.C.S. article 6716-1, provided for the adoption of its provisions on a local option basis by majority vote of county voters. Id. § 2, at 289.

Article 6716-1 was repealed in 1983 by the County Road and Bridge Act. Act of May 20, 1983, 68th Leg., R.S., ch. 288, § 2, 1983 Tex. Gen. Laws 1431, 1526. The provisions of article 6702-1, the County Road and Bridge Act, contained, however, in subchapter C thereof, captioned "Court/Engineer System," substantially the same provisions as those of the repealed Optional County Road Law of 1947, including the provisions for the optional adoption of the "Court/Engineer System" by majority vote of the county's voters. Id. sec. 1, § 3.201, at 1470-71. The article 6702-1 provisions were in turn codified in 1995 without substantive change in title 6, subtitle C (chapters 251 to 257) of the Transportation Code; in particular, the provisions of article 6702-1, subchapter C were placed in Transportation Code chapter 252, subchapter D, captioned "County Road Department System." See Act of May 1, 1995, 74th Leg., R.S., ch. 165, §§ 1 (enacting Transp. Code chs. 251-257), 24 (repealing V.T.C.S. art. 6702-1), 1995 Tex. Sess. Law Serv. 1025, 1151-95, 1870-71; see also id. § 1, at 1031 (to be codified at Transp. Code § 1.001) (codification without substantive change). You ask whether the fact that the Optional County Road Law was repealed in 1983 rendered the county's adoption of that law "moot," making applicable the provisions which would otherwise govern absent the voters' adoption of the optional law. See V.T.C.S. art. 6702-1, subchs. A, B ("Commissioners as Ex Officio Road Commissioners," "Court/Road Commissioner or Road Superintendent System"), repealed by Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 24, 1995 Tex. Sess. Law Serv. 1025, 1870-71.

Subchapter C of article 6702-1, the "Court/Engineer System," is characterized in Mr. Brooks's 1989 treatise, County and Special District Law, as requiring, on the law's adoption, "the commissioners court to administer and maintain the county road system on a county-wide basis and not a precinct-by-precinct basis," with "the county road engineer as the 'chief executive officer.'" DAVID B. BROOKS, COUNTY AND SPECIAL DISTRICT LAW § 40.19 (Texas Practice 1989); cf. V.T.C.S. art. 6702-1, § 3.001 (repealed 1995) (individual county commissioners act as "ex officio road commissioners of their respective precincts"). Mr. Brooks's treatise still refers to the provisions, which had been subchapter C of article 6702-1 since 1983, as the Optional Road Law of 1947, "also known as the Unit Road Law." Indeed, the provisions of the Optional County Road Law of 1947, although revised as to their language when incorporated in subchapter C of article 6702-1 in 1983, appear to be virtually identical in substance to those of subchapter C. The bill analysis of the bill adopting article 6702-1, of which subchapter C is a part, indicates that all the subchapter C provisions derive from those formerly in the Optional County Road Law and that provisions of all the sections of the latter were carried forward into subchapter C. The bill analysis acknowledges that the bill "does change and delete some language in existing law, but these changes are not significant enough, in this committee's opinion, to warrant section-by-section explanation." Senate Comm. on Transportation, Bill Analysis, S.B. 148, 68th Leg., R.S. (1983).

The only substantive change we find made from the Optional Road Law's provisions in revising them in 1983 as subchapter C of article 6702-1 is the removal of the ceiling on the engineer's annual salary, set in section 6 of the Optional Road Law as $12,000. However, we note that the $12,000 ceiling amount had originally been set at $7,200 when the Optional Road Law was adopted in 1947, and had been increased to $12,000 by a 1957 amendment to that law—that is, before the Optional Road Law was repealed and carried forward as subchapter C of article 6702-1 in 1983. Act of Feb. 16, 1955, 54th Leg., R.S., ch. 17, 1955 Tex. Gen. Laws 22. Various other provisions of the Optional Road Law had also been amended prior to 1983. Act of Apr. 25, 1957, 55th Leg., R.S., ch. 176, 1957 Tex. Gen. Laws 371. We note too that subsequent to the 1983 adoption of article 6702-1, and subchapter C as a part thereof, the legislature has also amended section 3.211 of subchapter C to raise the threshold amounts for purchases requiring competitive bidding, which amount is currently $15,000. Act of May 25, 1991, 72d Leg., R.S., ch. 786, 1991 Tex. Sess. Law Serv. 2783; Act of May 29, 1993, 73d Leg., R.S., ch. 757, 1993 Tex. Sess. Law Serv. 2956.

If it were argued that a new election was required to readopt the provisions in question when they were placed in subchapter C in 1983 with only the minor substantive change mentioned above, that argument would also suggest that a new election would have been required to readopt the law after each of the other changes mentioned, both before and after the 1983 revision. We find no indication that the legislature intended that new elections were necessary in order to implement the law as changed by each of these amendments, nor do we find any constitutional requirement of such. Cf. Slack v. State, 136 S.W. 1073 (Tex. Crim. App. 1911) (where county has voted to license liquor sales, subsequent remedial amendments of licensing law by legislature take effect in county without necessity for new vote to adopt such changes). In any case, if the county's voters wish to abandon the provisions of subchapter C, they may do so through the petition and election procedures provided for in section 3.201(c), now in section 252.301 of the Transportation Code. In answer to your question, we do not believe that a court would find that the 1983 revision of the provisions of the Optional Road Law as part of subchapter C of article 6702-1 rendered the county's earlier adoption of the law "moot." The county continues to operate under the subchapter C provisions—now, chapter 252, subchapter D, Transportation Code—unless it votes to abandon those provisions.

You also ask, if the county has adopted and operates under the subchapter C provisions, whether it is required to hire a "licensed professional County Road Engineer." Subchapter C of article 6702-1, again, is now codified as chapter 252, subchapter D, Transportation Code. Transportation Code section 252.304 provides that the commissioners court is to appoint a county road engineer who must "be a licensed professional engineer experienced in road construction and maintenance . . . and . . . meet the qualifications required by the Texas Department of Transportation for its district engineers." In 1957, however, language was added to the predecessor provisions of section 252.304 creating an exception to the requirement that a licensed engineer be appointed. Act of Apr. 25, 1957, 55th Leg., R.S., ch. 176, 1957 Tex. Gen. Laws 371. The 1957 amendment read in part:

If the Commissioners Court is not able to employ a licensed professional engineer for any reason, then the Commissioners Court is authorized to employ a qualified road administrative officer, who shall be known as the County Road Administrator, to perform the duties of the County Road Engineer. The County Road Administrator shall have had experience in road building or maintenance or other types of construction work qualifying him to perform the duties imposed on him, but it shall not be necessary that he have had any fixed amount of professional training or experience in engineering work. The County Road Administrator shall perform the same duties as are imposed upon the County Road Engineer, and all references in other sections of this Act to the county road engineer include and apply to the County Road Administrator. [Emphasis added.]

The 1957 addition was codified virtually verbatim in 1983 in section 3.204 of article 6702-1, including the "for any reason" language emphasized in the above quote. The article 6702-1 language was in turn codified in 1995 in section 252.304. The current codification of this language in Transportation Code section 252.304 omits the words "for any reason"; but, again, the 1995 Transportation Code was expressly a nonsubstantive revision. In any case, we think it clear from the detailed provisions for the appointment of a county road administrator in lieu of a licensed county road engineer that the commissioners court is not required under all circumstances to appoint a licensed county road engineer when the county has adopted the Optional Road Law, or as it is now called in the Transportation Code, the "County Road Department System." You ask further, however, under what circumstances the commissioners court may be considered, in the words of the provisions, as "unable" to appoint a licensed county road engineer so that a county road administrator may be appointed instead, and specifically whether "financial inability and/or not enough work for a full-time position" would be sufficient reasons.

We note first that we do not believe that "not enough work for a full-time position" would in itself be sufficient reason for not employing an engineer. Nothing in the applicable provisions requires that the engineer's position—or, for that matter, the administrator's position, if an administrator is employed instead of an engineer—be full-time. "Not enough work for a full-time position" would, however, be an adequate reason if, for example, it were also the case that an engineer could not be found to take the position on a part-time basis at the salary the county could pay. As a general matter, for the reasons given below, we believe that so long as the reasons determined on by the commissioners court for not employing an engineer indeed reflect factual conditions under which the county is "unable" to employ an engineer, "any reason" would suffice for its determining to appoint a road administrator instead.

Again, the original 1957 amendment as well as the language of section 3.204 of now repealed article 6702-1 expressly provided that the commissioners may appoint a county road administrator instead of a licensed county road engineer if it "is not able . . . for any reason" (emphasis added) to employ the latter. These provisions as nonsubstantively revised in Transportation Code section 252.304 must be read to carry the same meaning, although the Transportation Code revision omits the "for any reason" language. Two attorney general opinions have addressed the scope of this exception to the requirement that a licensed engineer be appointed; both dealt specifically with Bexar County's not having employed such an engineer. Attorney General Opinion M-1149 (1972), in response to a request from the Bexar County District Attorney, focused on the "for any reason" language of the exception, then found in section 5 of now repealed article 6716-1, and concluded that the commissioners court had discretion which, "in the absence of abuse," would be assumed to have been validly exercised if it determined there was a reason why a licensed engineer could not be employed and employed a county road administrator instead. Attorney General Opinion H-201 (1974), at the request of the Texas State Board of Registration for Professional Engineers, was asked to reconsider the conclusion of Attorney General Opinion M-1149 (1972). Attorney General Opinion H-201 considered the language of the emergency clause of the 1957 bill adding the exception—to the effect that the exception was necessary because of the scarcity of professional engineers and the limitations on the engineer's salary then in the act. The opinion also recognized a "need for licensed professional engineers to design today's modern superhighways." It concluded that "[w]here it can be shown that a licensed professional engineer, who meets the standards authorized by the Commissioners' Court, is available and willing to accept the job, it may be an abuse of discretion for the Commissioners Court to hire a road administrator."

Notably, although Attorney General Opinion H-201 could be read to suggest that the only legitimate reasons for not employing a licensed professional county road engineer would be those set out in the emergency clause of the bill adding the exception—that is, the scarcity of professional engineers and the limitations on the engineer's salary—it nevertheless concluded only that the county's not employing an engineer for other reasons "may be an abuse of discretion." (Emphasis added.) It is our opinion that the reasons invoked for utilizing emergency procedures for the exception's adoption should not be read strictly to limit as a matter of law the broad language set out in the text of the exception itself. If this were the case, as the ceiling on the engineer's salary was removed from the provisions in 1983, the exception would now be virtually nonexistent: where there was no limit on what the county could pay, it would be rather rare, we think, that the "scarcity" of engineers would be such that the county could not employ one. For this exception—which the legislature has left in the provisions now for over ten years since the engineer's salary limitations were removed—to be given any current substance, it cannot, we think, be limited to only those parameters suggested in the emergency clause.[1]

We note that both Attorney General Opinion M-1149 (1972) and Attorney General Opinion H-201 (1974) cited, in support of their conclusions, the provision of the state's engineer licensure and practice law, the Texas Engineering Practice Act, that the "Act shall not apply to . . . road maintenance or betterment work undertaken by the commissioners court of a county." V.T.C.S. art. 3271a, § 19(b). Attorney General Opinion M-1149 stated that "[b]ecause of this exclusionary provision in Article 3271a, the specific provisions of Article 6716-1 [now Transportation Code section 252.304] are controlling." Attorney General Opinion H-201, on the other hand, opined that "the more logical interpretation" of the exclusion "is to apply such descriptive terms to the more routine maintenance and betterment work . . . rather than . . . to traditional engineering work involving design drawings, and supervision requiring professional engineering expertise." We do not believe that the referenced "exclusion" in the Engineering Practice Act, which has been in that act since its 1937 adoption, should be taken to limit situations in which a road administrator rather than an engineer could be employed under the exception now section 252.304 at issue here, which was first adopted in 1957. We find nothing in the applicable provisions thus limiting the circumstances in which a road administrator could be employed. In any case, where a road administrator was employed and it was determined that engineering services were also required, such services could be obtained by the county's also employing an engineer as necessary, for instance on a contract basis. Thus a county could operate with a road administrator and still engage engineering services where necessary, for instance, "to design today's modern superhighways."

In conclusion, the commissioners court, under section 252.304 of the Transportation Code, may employ a road administrator instead of an engineer if "for any reason" it is, in fact, unable to employ an engineer. "Financial inability," for example, would, we think, be a sufficient reason if it were determined the county was indeed financially unable to employ an engineer. Again, the commissioners court has discretion in making such determinations in the first instance, subject to judicial review. To the extent that Attorney General Opinion H-201 may be inconsistent with this opinion, it is disapproved.

SUMMARY

The 1983 revision of the provisions of the Optional County Road Law of 1947 as part of subchapter C of article 6702-1 did not render a county's earlier adoption of that law "moot." Rather, the county continues to operate under the provisions, now codified in chapter 252, subchapter D, Transportation Code, unless it votes to abandon those provisions. The commissioners court of a county operating under said system may employ a road administrator instead of an engineer if, for instance, it determines that the county is financially unable to employ an engineer, or that for any other reason the county is in fact unable to employ an engineer. The commissioners court has discretion in making such determinations in the first instance, subject to judicial review.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General

Footnotes:

[1] We note, too, that such a restrictive reading would by implication suggest that the commissioners court's ability, under section 252.308, Transportation Code, to designate a "qualified administrative officer to perform the county road engineer's duties during any period in which the county road engineer is absent or unable to perform those duties" should also be similarly restricted—restrictions for which we find no basis in the applicable provisions.