Can a Texas county take money from private companies to fix specific roads?

Plain-English summary

Waller County's criminal district attorney asked the Attorney General whether the county could accept money from private companies in exchange for agreeing to repair or improve specific roads the companies designated. The county runs its roads under the County Road Department System, which is subchapter D of chapter 252 of the Transportation Code, one of four optional systems a Texas county can choose for administering its roads. The district attorney noted that two other subchapters of chapter 252 (sections 252.109 and 252.214) expressly let a county accept donations of labor, money, or property for its roads, and asked whether the county could borrow those donation provisions, or otherwise enter the proposed agreement.

The Attorney General first concluded that the Transportation Code does not supply that authority for a subchapter D county. The donation provisions sit in subchapters B and C, not D, and subchapter D has no equivalent. Because the Legislature plainly knew how to authorize road donations and chose not to do so for the County Road Department System, chapter 252 could not be read as the source of authority here.

The authority came instead from a different statute. Local Government Code section 81.032 lets a commissioners court accept a gift, grant, or donation of money or property to perform any function the law confers on the county, and maintaining county roads is such a function. So a commissioners court running under subchapter D has discretionary authority, subject to judicial review, to decide whether and on what conditions to accept private donations for roads. The conditions have to be reasonable and consistent with other law. The opinion drew an important line: a commissioners court cannot delegate or sign away its decision-making power over which roads to improve, so a contract obligating the county to maintain particular roads or follow a set schedule in exchange for the money would be unenforceable. In each case the court should weigh all factors relevant to the road system as a whole, not just the availability of donated money.

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 Waller County Criminal District Attorney (as the opinion described it): The opinion answered that a subchapter D county may accept private monetary donations for roads, but the authority flows from Local Government Code section 81.032, not from the Transportation Code donation provisions in subchapters B and C. It rejected the argument that subchapter D's silence overrode section 81.032, finding no conflict between the two statutes. It also clarified an earlier opinion (GA-0345) that had assumed Waller County operated under a different subchapter.

Commissioners courts and county road officials (as the opinion described it): The opinion described the commissioners court's authority as discretionary and subject to judicial review. It explained that the court may accept donations conditioned on reasonable terms not inconsistent with other law, but may not delegate its decision-making power over which roads to improve, and that a written agreement locking the county into maintaining certain roads on a schedule would be unenforceable under Grayson Cnty. v. Harrell.

Private companies offering road money (as the opinion described it): The opinion treated conditioned donations as permissible, but described any promise that would preclude the commissioners court from freely exercising its discretion over particular roads as against public policy and unenforceable. The court, not the donor, decides which roads get improved.

Common questions

Can a Texas county accept private money to fix a particular road?
The opinion concluded that a commissioners court has discretionary authority under Local Government Code section 81.032 to accept gifts and donations of money to perform county functions, and road maintenance is one of those functions. So a county may accept such donations subject to reasonable conditions and judicial review.

Why couldn't the county just use the road-donation statutes in chapter 252?
The opinion explained that sections 252.109 and 252.214 sit in subchapters B and C, and Waller County operates under subchapter D, which has no comparable provision. Because the Legislature knew how to authorize road donations and did not do so for subchapter D, chapter 252 was not the source of authority.

Can a company require the county to fix its roads on a set schedule in return for the money?
No. The opinion relied on Grayson Cnty. v. Harrell for the rule that a commissioners court cannot delegate or contract away its discretion over which roads to improve, so an agreement obligating the county to maintain specific roads on a schedule would be unenforceable.

Does the donated money decide which roads get fixed?
The opinion said the availability of donated money is one factor but not the only factor. The commissioners court should evaluate all factors relevant to the county road system as a whole when deciding whether to improve a particular road.

Background and statutory framework

The opinion laid out chapter 252 of the Transportation Code as offering four optional systems for county road administration. It identified sections 252.301-.313 (subchapter D, the County Road Department System) and the donation provisions in sections 252.109 and 252.214 located in subchapters B and C. To explain why subchapter D's silence mattered, the opinion cited FM Props. Operating Co. v. City of Austin and PPG Indus. v. JMB/Houston Ctrs. Partners Ltd. for the principle that the Legislature knows how to enact what it intends and that statutory silence can be significant.

For the affirmative authority, the opinion turned to Local Government Code section 81.032 (acceptance of gifts, grants, and donations) read with Government Code section 311.016(1) (the meaning of "may") and Transportation Code sections 251.003(a) and 252.302(a)-(b) (road maintenance as a commissioners-court function). It cited Government Code section 311.026 on harmonizing general and specific statutes, and Tex. Lottery Comm'n v. First State Bank of DeQueen against reading section 81.032 as a meaningless statute. On the limits of discretion, the opinion relied on Hooten v. Enriquez (judicial review for arbitrary or capricious action) and Grayson Cnty. v. Harrell (no delegation of the road-improvement decision).

Citations

Cases:

• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000)
• PPG Indus. v. JMB/Houston Ctrs. Partners Ltd., 146 S.W.3d 79, 84 (Tex. 2004)
• Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 637 (Tex. 2010)
• Hooten v. Enriquez, 863 S.W.2d 522, 528 (Tex. App.-El Paso 1993, no writ)
• Grayson Cnty. v. Harrell, 202 S.W. 160, 163 (Tex. Civ. App.-Amarillo 1918, writ ref'd)

Statutes:

• Tex. Transp. Code Ann. §§ 252.301-.313 (West 1999 & Supp. 2012); §§ 252.001-.216; §§ 252.109, .214; §§ 251.003(a), 252.302(a)-(b)
• Tex. Loc. Gov't Code Ann. § 81.032 (West 2008)
• Tex. Gov't Code Ann. § 311.016(1); § 311.026 (West 2013)

Other authority:

• Tex. Att'y Gen. Op. No. GA-0345 (2005) at 2 n.5
• Tex. Att'y Gen. Op. No. GA-1010 (2013) at 2
• Tex. Att'y Gen. Op. No. GA-0359 (2005) at 3
• Tex. Att'y Gen. Op. No. JC-0073 (1999) at 2-3

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1014
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1014.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 22, 2013

The Honorable Elton R. Mathis Opinion No. GA-1014
Waller County Criminal District Attorney
645 12th Street Re: Whether counties operating under the
Hempstead, Texas 77445 County Road Department System may accept
money from private entities in exchange for
agreeing to repair or improve county roads
designated by the private entities (RQ-1111-GA)

Dear Mr. Mathis:

You inquire about the authority of Waller County (the "County") to accept monetary donations from private entities in exchange for maintenance of roads designated by the entities.[1] In describing a proposed agreement, you state that "[t]here are several private companies that wish to donate money for materials to the county to repair and improve a particular public road as designated by the private companies." Request Letter at 1. You tell us that "[i]n consideration for the donations, the county would agree to expend county labor and equipment to work on the specific roads under the agreement and to complete the work in a set amount of time." Id. You indicate that the County operates under subchapter D, chapter 252, of the Transportation Code, which provides for the County Road Department System. Id. at 2. You ask whether the County may make use of donation provisions from the other subchapters of chapter 252. See Request Letter at 3. You also ask generally about the County's authority to enter into the proposed agreement. See id.

Subchapter D, chapter 252, is one of four optional, alternative statutory systems for the administration of county roads. See TEX. TRANSP. CODE ANN. §§ 252.301-.313 (West 1999 & Supp. 2012); see also id. §§ 252.001-.216 (West 1999) (setting out three other systems for county road administration). The two donation provisions to which you refer-sections 252.109 and 252.214-provide for the county to accept "donations of labor, money, or other property to aid in building or maintaining roads in the county." Id. §§ 252.109, .214. Contained in subchapters B and C respectively, sections 252.109 and 252.214 do not apply to a county operating under subchapter D, and there is no similar provision in subchapter D. See generally id. §§ 252.301-.313 (West 1999 & Supp. 2012). Sections 252.109 and 252.214 are evidence that the Legislature knows how to authorize a county to accept donations with respect to county roads. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000) (relying on principle of statutory construction that the Legislature knows how to enact laws effectuating its intent). The Legislature has not done so for counties that operate under subchapter D. See PPG Indus. v. JMB/Houston Ctrs. Partners Ltd., 146 S.W.3d 79, 84 (Tex. 2004) (noting that a statute's silence can be significant and that an analysis begins with presumption that the Legislature knows how to enact what it intends). Absent such express provision, we cannot conclude that the Transportation Code is a source of authority for the County to accept donations for the maintenance and construction of county roads.[2]

The Local Government Code, however, separately provides that any county commissioners court "may accept a gift, grant, [or] donation . . . of money or other property on behalf of the county for the purpose of performing a function conferred by law on the county or a county officer." TEX. LOC. GOV'T CODE ANN. § 81.032 (West 2008); see TEX. GOV'T CODE ANN. § 311.016(1) (West 2013) ("'May' creates discretionary authority or grants permission or a power."). Maintenance of a county road is a function conferred on the commissioners court by statute. TEX. TRANSP. CODE ANN. §§ 251.003(a), 252.302(a)-(b) (West 1999). Under section 81.032, a commissioners court has discretionary authority to accept a gift, grant, or donation of money for the purpose of maintaining county roads. TEX. LOC. GOV'T CODE ANN. § 81.032 (West 2008).

You suggest that section 81.032 of the Local Government Code is inapplicable. See Request Letter at 3. You assert that the silence in subchapter D, chapter 252 of the Transportation Code is a more specific indication of legislative intent that prevails over the general provision in section 81.032. See id. We disagree. Absent a conflict between statutes there is no need to resort to the canon of statutory construction that a specific statute prevails over a general one. See TEX. GOV'T CODE ANN. § 311.026 (West 2013). To conclude that a county operating under the County Road Department System is not authorized to accept donations pertaining to county roads as a county function under section 81.032 because of the absence of express authority to accept donations in subchapter D ignores the existence and plain language of section 81.032. Courts "'do not lightly presume that the Legislature may have done a useless act'" or enacted a meaningless statute. Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 637 (Tex. 2010) (citation omitted).

You also suggest that the conditions attached to the proposed agreement are such that the proffered money is not a gift, grant, or donation. See Request Letter at 6-7 (arguing that money offered to induce the County's agreement regarding the roads is akin to consideration to support contractual obligations and is not a voluntary gift). This office has previously concluded that a commissioners court does have authority to accept a donation for a specific county road subject to reasonable conditions so long as the conditions are not inconsistent with other law. See Tex. Att'y Gen. Op. Nos. GA-1010 (2013) at 2, GA-0359 (2005) at 3, JC-0073 (1999) at 2-3. Generally, the discretionary authority in section 81.032 includes the authority to evaluate whether money proffered to a county constitutes a gift as well as whether any conditions attached to a particular offer of money are reasonable and consistent with other law. See Tex. Att'y Gen. Op. No. GA-1010 (2013) at 2; see also Tex. Att'y Gen. Op. No. JC-0073 (1999) at 2-3 (advising that the "availability of donated money for improving a road is one factor, but certainly not the only factor, for the court to consider in deciding whether . . . to improve a particular county road"). A court has authority to disturb a commissioners court's decision to improve a particular county road where the commissioners court "has acted arbitrarily, capriciously, collusively, fraudulently, or otherwise in abuse of its discretion." Hooten v. Enriquez, 863 S.W.2d 522, 528 (Tex. App.-El Paso 1993, no writ).

We caution that this discretion is not unfettered. A Texas court has stated that a commissioners court "cannot delegate" its decision-making power over improving public roads, "nor can it divest itself of such power by agreements in advance to exercise such discretion in any particular manner, and any agreement, the tendency of which is to preclude the court from a full and free exercise of its discretion as to the particular roads that were to be improved . . . would be against public policy." Grayson Cnty. v. Harrell, 202 S.W. 160, 163 (Tex. Civ. App.-Amarillo 1918, writ ref'd). Under this precedent, a written agreement with a private party that purported to obligate the County to maintain certain roads or conduct improvements on a certain schedule would be unenforceable. In addition, a prior attorney general opinion pertaining to donations under section 252.214 advised that "[i]n deciding whether . . . to improve a particular county road, the commissioners court should evaluate all factors in terms of their contribution to the county road system as a whole" and that the "availability of donated money for improving a road is one factor, but certainly not the only factor, for the court to consider in deciding whether . . . to improve a particular county road." Tex. Att'y Gen. Op. No. JC-0073 (1999) at 2-3.

In sum, in counties operating under the County Road Department System, the county commissioners court has discretion, subject to judicial review, under section 81.032 of the Local Government Code to determine whether and under what conditions to accept monetary donations from private entities. While a county commissioners court may not delegate its decision-making power over improving public roads, it has the authority to accept donations subject to conditions so long as the conditions are reasonable and not inconsistent with other law. In deciding whether to accept any specific donation, the commissioners court should carefully evaluate all factors relevant to the improvement of any particular road.

SUMMARY

In counties operating under the County Road Department System, the county commissioners court has discretion, subject to judicial review, under section 81.032 of the Local Government Code to determine whether and under what conditions to accept monetary donations from private entities. While a county commissioners court may not delegate its decision-making power over improving public roads, it has the authority to accept donations subject to conditions so long as the conditions are reasonable and not inconsistent with other law. In deciding whether to accept any specific donation, the commissioners court should carefully evaluate all factors relevant to the improvement of any particular road.

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Elton R. Mathis, Waller Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Feb. 14, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] You state that a prior opinion from this office, Texas Attorney General Opinion GA-0345 (2005), seems to suggest that the County could incorporate donation provisions from the other subchapters of chapter 252. Request Letter at 3. Because the request letter seeking that opinion did not indicate under which system Waller County operated and because it specifically raised section 252.214 in subchapter C, opinion GA-0345 assumed the County operated under that subchapter and based its conclusions on that assumption. See Tex. Att'y Gen. Op. No. GA-0345 (2005) at 2 n.5. The opinion is correctly decided given the assumption. However, to the extent that assumption was incorrect, we clarify the opinion with our conclusion here.