Item No. 2.9
r-~J~`~~~~`7
Consider amending Court Order # 21332 per County Attorney Opinion 93-2
('This item was dicussed but no order was done. Leonard Odom and Franklin
Johnston were given the authority to talk to the City of Kerrville about the
Water Street Bridge Project, to find out what the City of Kerrville's portion
of repairs would cost.
COMMISSIONERS' COURT AGENDA REQUEST
~' * PLEASE FURNISH ONE ORIGINAL AND FIVE COPIES OF THIS REQUEST AND
DOCUMENTS TO BE REVIEWED BY THE COURT
MADE BY: Franklin .~ohnston, P.E OFFICE: Road & Bridge Department
Leonard Odom, Jr.
MEETING DATE: A~rii 6, 1993 TIME PREFERRED: __
SUBJECT; (PLEASE BE SPECIFIC): Consider amending Court Order #21332 per County
Attornev Opinion 93-2
EXECUTIVE SESSION REQUESTED: YES N O __XX
PLEASE STATE REASON :Consider amending Court Order #21332 per County Attorney
Opinion 93-2
._ ESTIMATED LENGTH OF PRESENTATION: 15 Minutes
PERSONNEL MATTER -NAME OF EMPLOYEE;
NAME OF PERSON ADDRESSING THE COURT:Franklln Johnston, P.E. /Leonard Odom
Time for submitting this request for Court to assure that the matter is posted (n accordance
with Artiste 6252-17 is as follows:
Meetings held on second Tuesday: 12:00 P.M. previous Wednesday
Meetings held vn Thursdays : 5:00 P.M. previous Thursday
THIS REQUEST RECEIVED BY:
THIS REQUEST RECEIVED ON:

AI! Agenda Requests will be screened by the County Judge's Office to determine if adequate
information has been prepared for the Court's formal consideration and action at time of
Court meetings. Your cooperation will be appreciated and contribute towards your request
being addressed at the earliest opportunity. See Agenda Request Guidelines.
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..- MEMORANDUM
TQ Commissioners Court
1~RQM Franklin Johnston, P.E.
Leonard Odom, Jr., Road Administrator
DATE April 5, 1993
RE County Attorney Opinion 93-2
Commissioners Court on March 9, 1993, Court Order #21332 authorized
expending funds ($60,000) for construction on the bridge on Water Street,
within the Kerrville City limits, with the help of ISTEA Funds from Texas
Department of Tra»sportation.
Quoting from the County Attorney Opinion 93-2:
Gratuitous or unconditional grants are clearly prohibited. Op. Tex.
Att'y Gen. No. M-1189 (1978}; 35 DAVID BROOKS, COUNTY AND
SPECIAL DISTRICT LAW 12.$ (Texas Practice 1989). This prohibition
applies even if such grants are to another governmental entity. Road
^ District No. 4, Shelby County v. Allred, 123 Tex. 77, 68 S. W. 2d 164
(Tex. 1934). It is therefore essential that the Countv receive an
adze uate quid Rro quo in return for the Qpblic fain s. id. That is, the
pursuit of a legitimate governmental objective. Id. In additional,
adequate controls, contractual or otherwise, must govern a
transaction between a county and another entity to insure that the
public purpose is accomplished. Key v. Commissioners Court of
Marion County, 727 S. W. 2d 667 (Tex. App. -- Texarkana 1987, no
writ); Op. 'h'ex Att'y Gen. No. JM-1209 (1990).
"It is essential that the County receive an adequate quid pro quo in return for
public funds." We would like to recommend an amendment to Court Order #
21332 that in return for the County Constructing the bridge expansion an
Water Street, the 'quid pro quo would' be that the City of Kerrville would take
over all maintenance on "G" Street from the Guadalupe river bridge to City
Limits presently maintained by Kerr County Road & Bridge Department, as well
as adjacent access roads off of "G" Street.
_~; ~y
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KERR COUNTY
ROAD AND BRIDGE DEPARTMENT
KERRVILLE, TEXAS 78028
(512) 257-2993
March 9, 1993
Judge Stacy
700 Main Street
Kerrville, Texas 78028
Dear Judge Stacy:
FILE COPY
I noticed on your Regular Commissioners' Court Agenda of March 9, 1993
you have a topic (Item 2.7) which relates to the Road & Bridge Department.
The Commissioners' Court determined that all Road & Bridge topics should
be handled on Road & Bridge Day, the next one being April 6, 1993.
Perhaps you would want to defer Items # 2.7 "Water Street Bridge on
Town Creefc" until the April 6, 1993 meeting. This would be after the
Commissioners' Court delegation attends the I.S.T.E.A. Meeting in San
Antonio, and would give the County engineer time to confer with City
Personnel and the Texas Department of Transportation concerning this
project.
Sincerely,
Franklin Johnston, P.E.
County Engineer
cc: Commissioners' Court
FILE COPY
COUNTY ATTORNEY
COUNTY OF KERB
STATE OF TEXAS
D.+vID MOTLEY, Counq Attorney
$TAN REID, Aawtm[ Count, Anotney
I15E D. BAIIFY, Arixan[ Coun[y Attorney
March 16, 1993
The I~onorable W' am G. Stacy
County 7udg err County, Texas
Kerr Co Courthouse
700 t Main Street
' e. Texas 78028
KERR COUNTY COURTHOUSE
700 EAST MAIN STREET
KERRVILiE, TEXAS 78028.5)24
TEL. (210) 896-5138
FAX (210) 896.7}80
Re: County Attorney Opinion 93-2: Authority of a county to expend funds for the
construction or repair of bridges within the corporate limits of the City of Kerrville.
Deaz judge Stacy:
You have asked that this office provide you a general opinion regarding the County's authority
to expend funds for the construction or repair of bridges within the corporate limits of the City
of Kerrville.
Rules Regarding the Expenditure of County ~`unds
A county has only such powers expressly conferred upon it by the constitution and the
legislature, as well as the implied powers necessary to exercise its express powers. Can:.les v.
Laughlin, 214 S.W.2d 451 (Tex. 1948). This means that the County may not contribute its
funds, even to another local government, unless it is in pursuit of an authorized activity. 35
DAVID BROOKS, COUNTY AND SPECIAL DISTRICT LAW § 12.13 (Texas Practice 1989) (and cases
cited therein).
Gratuitous or unconditional grants aze clearly prohibited. Op. Tex. Att'y Gen. No. M-1189
(1978); 35 DAVID BROOKS, COUNTY AND $PECIAI. DISTRICT LAW § 12.8 (Texas Practice 1989).
This prohibition applies even if such grants are to another governmental entity. Road District
No. 4, Shelby County v. Allred, 123 Tex. 77, 68 S.W.2d 164 (Tex. 1934). It is therefore
essential that the County receive an adequate quid pro quo in return for the public funds. Id.
That is, the pursuit of a legitimate governmental objective. Id. In addition, adequate controls,
contractual or otherwise, must govern a transaction between a county and another entity to insure
that the public purpose is accomplished. Key v. Commissioners Court of Marion County, 727
S.W.2d 667 ('Tex. App.--Texarkana 1987, no writ); Op. Tex. Att'y Gen. No. JM-1209 (1990).
Checklist for Exuenditures
Considering the above, the Court must analyze its outside expenditures as follows:
1. Is there specific constitutional or statutory authorization for the expenditure?
If not:
2. Is the expenditure for a constitutionally or statutorily authorized county function
or purpose or is it incidental and necessary to such a purpose?
If neither 1 nor 2 can be answered in the affirmative, then the expenditure cannot be made. If
either 1 or 2 can be answered in the affirmative, then:
3. Is the County receiving an adequate return on its expenditure, (i. e. , is it getting
what it's paying for)?
if the answer is "no", then the funds cannot be appropriated. If "yes", then:
4. Are there adequate controls, contractual or otherwise, governing the transaction
which ensure that the authorized public purpose will be accomplished.
If not, the funds cannot be appropriated.
There are other factors which can come into play when considering whether or not to contract
out governmental functions. One fundamental rule is that discretionary governmental powers
cannot be contracted out. Those factors, however, exceed the scope of this brief.
Construction or Repair of Bridges
As to expenditure of County funds for the cbnstruction or repair of bridges within the corporate
limits of a city:
~~estions 1 and 2:
The general ,law is replete with statutes authorizing counties to expend money for the
construction or repair of bridges within the county. TEX. REV. CIV. $TAT. art. 2351(3) and (5)
(Vernon Supp. 1993); TEX. REV. CIV. STAT. art. 2356 (Vernon 1971); TEX. REV. CIV. STAT.
2
art. 2357 (Vernon 1971); TEX. REV. Civ. STAT. art. 6702-1, § 2.201 (Vernon Supp. 1993).
Article 2351 provides that each commissioners' court shall:
3. Build bridges and keep them in repair.
5. Exercise general control over all roads, highways, ferries and bridges in
their counties.
Article 2356 provides that commissioners' courts may erect bridges within the corporate limits
of any city or town to the same extent and under the same conditions now prescribed by law for
the construction of bridges outside the limits of any city or town. TEX. REV. CIV. STAT. art.
2356 (Vernon 1971). It further provides that the court and the governing body of any city or
town may co-operate in the erection of a bridge within the corporate limits of a city or town,
and jointly erect such bridge upon terms and conditions mutually agreed upon. Id.
Article 2357'requires the commissioners' courts of counties owning bridges which are situated
within the corporate limits of cities and towns to keep them in repair. TEX. REV. Crv. STAT.
art. 2357 (Vernon 1971). This article does not, however, diminish the liability of a city for
injuries caused by defective conditions of such bridges. Id.
Section 2.201 of the Road and Bridge Act (Article 6702-1) provides a commissioners' court with
the authority to cause all necessary bridges to be built and kept in repair in their respective
counties and to make necessary appropriations of money of the counties for that purpose. TEx.
REV. CIV. STAT. art; 6702-1, § 2.201 (Vernon Supp. 1993). Finally, the Texas Constitution
authorizes the collection of tax for road and bridge purposes. TEX. CONST. art. VIII, § 9
(Vernon Supp. 1993). The right to levy and collect taxes for certain purposes carries with it the
right to expend the funds when so collected to carry out the purposes for which it was collected.
Hughes, 35 S.W.2d at 820-21.
Bridges are treated as a separate category from roads in Texas law although a bridge is little
more than an elevated road. BROOKS, § 40.16. The legislature many years ago decided that
it was more equitable to place the expense bf bridge contruction and maintenance on counties
rather than cities depite their location within municipal city limits. (Article 2356 was enacted
in 1895 and Article 2357 was enacted in 1897.) Bridge construction as opposed to constuction
of roads within a city may or may not be with the cooperation of the city. However, any such
bridges constructed by a county and located within a city (or annexed by a city) are nevertheless
the responsibility, as to care and maintenance, of the county. City of Llano v. Wilbern, 152
S.W. 474, 477 (Tex. Civ. App.--Austin 1912, writ ref d). The construction of bridges within
the corporate limits of a city is, therefore, an authorized purpose of county government.
3
In general, the question of whether the County is getting (or will get) an adequate return on its
expenditure is one for the Court, in the sound exercise of its discretion, to determine. As long
as the decision is not arbitrary or capricious, abusive of the Court's discretion, or based on
fraud, its decision on this point will stand. It is here that questions of exposure to liability
should be considered.
With regazd to bridges, however, the legislature has not only authorized the construction of
bridges within the corporate limits of a city but has, through the several statutes on the subject,
provided the public purpose sufficient to establish, without a finding by the commissioners'
court, the quid pro quo for constitutional purposes. This is especially true since all public roads
belong to the state and not the counties. Robbins v. Limestone County, 268 S.W. 915, 918 (Tex.
1925). Even though title to a road is in the name of the county and the county is charged with
maintenence of the public roads within its boundaries, title is taken for the state and for the
benefit of th~ state and the people thereof. Id.
I would suspect, however, that if the county denies any and all ownership in a bridge to be
constructed or repaired, this denial might raise the issue of a sufficient quid pro quo because the
expenditure would no longer be for a county purpose but for a city bridge. See generally, Op.
Tex. Att'y Gen. No. H-345 (1974); see contra, Op. Tex. Att'y Gen. No. H-1018 (1974). The
court in such a case would then need to make the necessary findings by formal order. The
..-_ benefit to the county road system coupled with the absolution from liability and maintenance
might be such a finding.

The question of whether adequate controls exist to ensure that the public funds are being spent
for bridge construction or repair is also a question of fact for the Court. The best practice,
however, is to contract with the city. The Interlocal Cooperation Act is such a mechanism and
should be followed. TEX. REV. CIV. STAT. art. 4413(32c) (Vernon Supp. 1993).
Conclusion
Kerr County has the authority to expend county funds for the construction and/or repair
of bridges within the corporate limits of the City of Kerrville.
THE ABOVE OPINION IS BASED UPON THE FACTS PRESENTED AND RECTTID
WITHIN THE OPINION. THIS OPINION IS OF A GENERAL NATURE AND IS NOT
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..._ INTENDED AS A COMPREHENSIVE TREATMENT OF 1~IE SUBJECT. A CHANGE
IN FACTS CAN MATERTAT-LY ALTER THE CONCLUSIONS REACHED HEREIN.
ANY FACTS KNOWN TO YOU WHICH ARE NOT RECITED ABOVE SHOULD BE
PROVIDED TO TffiS OFFICE, IN WRITING, AT THE EARLIEST POSSIBLE DATE.
Very truly yours,
D vid Motley
County Attorney
C
Stan id
Assistant County Attorney
/hh
cc: Commissioner Holekamp
Commissioner Oehler
Commissioner Lackey
Commissioner Lehman
County Auditor
County Treasurer
,/County Engineer

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