DONATION AGREEMENT (ROAD MATERIALS) [FORM]



§251.003 Trans Code

§252.214 Trans Code

IN THE COMMISSIONERS COURT

OF LLANO COUNTY, TEXAS

AGREEMENT FOR DONATION OF MONEY,

LAND, LABOR, EQUIPMENT, OR

MATERIALS FOR ROADS IN LLANO COUNTY, TEXAS

BE IT REMEMBERED, that on the ____ day of _______________, 2___, came on to be considered the donation of Money, Land, Labor, Equipment or Road Building Materials to Llano County, Texas, by ____________________________, the owner thereof, hereinafter referred to as the Donor. After careful consideration, the Commissioners Court of Llano County, Texas, has determined that the donation, described as follows:___________________________________________________________________ ____________________________________________________________________________________

is suitable to aid road building or maintenance and that the application of same to county roads would improve the all weather capabilities of said roads, and thereby serve a public benefit.

BE IT THEREFORE ORDERED, ADJUDGED and DECREED, that the donated item has a reasonable cash market value of $___________. (Donations valued at more than $500.00 will be reported by Llano County to the IRS on form 8282. Donors should report such donations on IRS form 1040, Schedule A, or IRS Form 8283.)

In return for the donation of materials by the Donor named above, Llano County, Texas, acting by and through its Commissioners Court and its officers and employees, shall be permitted to enter upon private properties owned and/or operated by the named Donor for the purpose of collecting road building materials, or to perform necessary work related to the building or maintenance of county roads. In this regard, removal of the road material by Llano County, and the right to ingress/egress upon the property of the Donor for removal of the material to original, shall constitute satisfactory consideration sufficient to support a purchase of material pursuant to §251.003, and §252.109 or §252.214 of the Texas Transportation Code, V.A.C.S. To this end, the Donor grants a limited right of ingress, egress and access upon and across private lands necessary to permit the collection, loading, and hauling of road building materials. Llano County and its officers and employees shall exercise reasonable care in the collection of said materials, and shall be liable only for unreasonable damage to lands committed by ordinary negligence.

Road building materials received by the county pursuant to this agreement shall only be applied to public roads maintained by the County. Discretion as to which county maintained roads shall receive the improved road building materials shall remain solely in the Commissioners Court, subject to considerations based upon traffic load, costs and availability of materials.

Donations of Money shall be applied to public road maintenance or other related expenses as the Commissioners Court may, in its discretion, deem appropriate to carry out the public purpose of maintaining a public road system in Llano County, Texas.

Executed this ____ day of ______________, 2_____.

APPROVED BY DONOR:

____________________________ Accepted by:

Donor

________________________________

Llano County Judge

Office of the Attorney General

State of Texas

*1 Opinion No. JC-0073

July 6, 1999

Re: Whether a commissioners court may accept a donation conditioned upon spending the money to improve a particular county road ( RQ 1171)

The Honorable Rob Hofmann

Mason County Attorney

County Courthouse

P.O. Box 157

Mason, Texas 76856

Dear Mr. Hofmann:

You ask whether the Commissioners Court of Mason County may accept, under section 252.214 of the Transportation Code, a donation of $50,000 with the condition that the money be used to improve and pave a road in the county specified by the donor. We conclude that the commissioners court may accept a donation for road building subject to reasonable conditions. It is a matter for the exercise of good faith discretion by the commissioners court to determine whether the condition attached to a particular donation is reasonable.

You state that a person owning property in Mason County contacted the county road superintendent offering to donate $50,000 to the county under the condition that the money be used to improve and pave a specific road within the Mason County Road System. Brief from the Honorable Rob Hofmann, Mason County Attorney, to Honorable Dan Morales, Attorney General (July 27, 1998) (on file with Opinion Committee) [hereinafter "Hofmann Brief"]. Neither the commissioners court nor the road superintendent has the paving of this specified road as a priority or even an option in the current road plan. You also state that $50,000 would not pave the entire unpaved portion of the road, nor would it fund the maintenance of the road in the future, but the potential donor has stated that future donations for additional paving and/or maintenance may be forthcoming. Id.

Section 252.214 of the Transportation Code applies to counties that have adopted the county road superintendent system set out in Transportation Code, chapter 252, subchapter C. See Tex. Transp. Code Ann. § 252.203 (Vernon 1999) (commissioners court may adopt this subchapter by appointing a road superintendent for the county or one superintendent in each precinct). We assume that Mason County has adopted this road system so that section 252.214 applies to it. See also id. § § 252.103, .109 (commissioners court or road commissioners of county under road commissioner system may accept donations of money, labor, or other property to aid in building or maintaining roads). Section 252.214 states that "[a] commissioners court may accept donations of labor, money, or other property to aid in building or maintaining roads in the county." Id. § 252.214. You believe that this section does not authorize the county to accept money for a specific road, but only for "roads in the county" in general. You also state that the statute specifies that money may be accepted to "aid in building . . . roads," not to be the sole source of money for a particular county road. Finally, you point out that it is possible to use a donation of money, unlike a donation of land, anywhere in the county. Hofmann Brief, supra, at 3.

*2 Section 252.214 of the Transportation Code does not expressly state that conditions may be attached to donations of money, but this provision may be, and we think should be, construed more broadly than you suggest. While the commissioner's court has only that authority specifically conferred by the constitution and statutes, where a right is conferred upon it, the court has implied authority to exercise broad discretion to accomplish the purposes intended. Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941). Thus, section 252.214 is to be construed as giving the commissioners court broad discretion to carry out the purpose of road building and road maintenance, including discretion to accept donations of money subject to reasonable conditions, when this would help implement the county's road-building and maintenance duties.

The interpretation of section 252.214 is consistent with judicial decisions about the commissioners court's acceptance of donations of money to be used for improvements in a particular location. In Behan v. Ghio, 12 S.W. 996 (Tex. 1889), the court referred favorably to the county's acceptance of donations conditioned on the voters' decision to locate the county seat in a particular place. Behan, 12 S.W. at 997. Contributions to individual voters to secure their votes for a specific site were found to be bribes in Roby v. Carter, 25 S.W. 725 (Tex. Civ. App. 1894, no writ), but the court determined that "the donation of aid in the way of land or money to a state, county, or public body, for the purpose of inducing the location of public buildings or of a county seat at a particular place, is not considered a bribe to the individual voters." Roby, 25 S.W. at 727.

The decision in Board of Permanent Road Commissioners v. Johnson, 231 S.W. 859 (Tex. Civ. App.-Dallas 1921, no writ) addresses the location of a county road and thus is especially relevant to the question before us. When a county board of road commissioners decided to locate a road over a route that qualified for state and federal funding, rejecting its initial choice of the Jacobia route that would serve more people, the court found no abuse of discretion. Johnson, 231 S.W. at 860. There was no evidence of bad faith on the board's part in rejecting the Jacobia route. Id. Both routes had certain merits, and the evidence showed that the board carefully and patiently considered the entire situation, weighing the advantages of the Jacobia route against the loss to the county road system that the loss of federal and state aid would entail. Id. "Not even the semblance of corruption or disregard of duty is discoverable in the record." Id. In this matter, the exercise of discretion meant "a consideration and weighing of whatever entered as a factor to contribute to or detract from the general welfare of the county from the standpoint of a permanent road system for the entire county." Id. On the facts of this case, "a proper exercise of discretion permitted, if it did not require, consideration of the $106,000 of proffered aid." Id.

*3 We conclude that a commissioners court, in a good faith exercise of discretion, has authority under section 252.214 to accept a donation of money subject to the condition that it be used to improve a particular road in the county road system. 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 or not to improve a particular county road. Tex. Transp. Code Ann. § 251.003 (Vernon 1999). The county roads are public roads, built and maintained for the use of the public. See Robbins v. Limestone County, 268 S.W. 915, 919 (Tex. 1925). The county is to exercise its power to provide for the improvement of the public roads for the general good of the public, and not in the interest of any particular individual or entity. Grayson County v. Harrell, 202 S.W. 160, 163 (Tex. Civ. App.-Amarillo 1918, writ ref'd) (dicta).

A commissioners court may not accept a condition that is inconsistent with other law, such as provisions of the road law applicable to the county. Nor may the commissioners court delegate its decision-making authority to others. Id.; see also Clear Lake City Water Auth. v. Clear Lake Utils. Co., 549 S.W.2d 385, 391 (Tex. 1977). In deciding whether or not 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. See generally Tex. Att'y Gen. LO-98-087, at 6. A court will reverse a commissioners court's decision to improve a particular county road only if the 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).

You have mentioned various factors indicating that the county's acceptance of the donation to pave the county road in question would not benefit the Mason County road system. It is for the commissioners to evaluate these and all other relevant matters and to decide, in the exercise of good faith discretion, whether to pave the road and to accept the donation to be used for that purpose. If it makes this determination, the court may agree to accept the donation with the specified condition, the agreement subject to being overturned only for an abuse of discretion. Of course, the commissioners court may not agree to any condition contrary to relevant statutes or constitutional provisions.

Summary

A commissioners court has authority under section 252.214 of the Transportation Code to accept a donation for improving a specific county road subject to reasonable conditions. It is a matter for the exercise of good faith discretion by the commissioners court, subject to judicial review for abuse of discretion, to determine whether the condition attached to a particular donation is reasonable.

Yours very truly,

John Cornyn

Attorney General of Texas

Andy Taylor

First Assistant Attorney General

*4 Clark Kent Ervin

Deputy Attorney General - General Counsel

Elizabeth Robinson

Chair

Opinion Committee

Prepared by Susan L. Garrison

Assistant Attorney General

Tex. Atty. Gen. Op. JC-0073, 1999 WL 499819 (Tex.A.G.)

VERNON'S TEXAS STATUTES AND CODES ANNOTATED

TRANSPORTATION CODE

TITLE 6. ROADWAYS

SUBTITLE C. COUNTY ROADS AND BRIDGES

CHAPTER 252. SYSTEMS OF COUNTY ROAD ADMINISTRATION

SUBCHAPTER C. ROAD SUPERINTENDENT SYSTEM

Copr. © West Group 2003. All rights reserved.

Current through End of 2001 Regular Session.

§ 252.214. Donations

A commissioners court may accept donations of labor, money, or other property to aid in building or maintaining roads in the county.

CREDIT(S)

1999 Main Volume

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.

REVISOR'S NOTE

1999 Main Volume

Section 3.103, V.A.C.S. Article 6702-1, refers to "land, ... equipment, or any other kind of property or material." The references to "land," "equipment," and "material" are omitted from the revised law because "land," "equipment," and "material" are included within the meaning of "property."

HISTORICAL AND STATUTORY NOTES

1999 Main Volume

Prior Laws:

Acts 1889, 21st Leg., p. 134.

Acts 1891, 22nd Leg., p. 149.

G.L. vol. 9, p. 1162.

G.L. vol. 10, p. 151.

Rev.Civ.St.1895, arts. 4761, 4778.

Rev.Civ.St.1911, arts. 6951, 6968.

Vernon's Ann.Civ.St. arts. 6742, 6754.

Acts 1983, 68th Leg., p. 1431, ch. 288, § 1.

Acts 1984, 68th Leg., 2nd C.S., ch. 8, § 1.

Vernon's Ann.Civ.St. art. 6702-1, § 3.103.

NOTES OF DECISIONS

In general 1

1. In general

Under section 4 of the special road law of 1903 for Nacogdoches county, where private parties donated $1,200, to be expended on a road, and the commissioners' court appropriated only $800, it could authorize the commissioner to contract for services in a sum not exceeding the balance of the $1,200 not appropriated, and the county would be liable therefor. Millard v. Nacogdoches County (Civ.App. 1914) 170 S.W. 828.

The commissioners' court can build a road and create an indebtedness to be paid by interest-bearing warrants in future years, although bond issue for such purpose has been voted down in an election. Lasater v. Lopez (Civ.App. 1918) 202 S.W. 1039, error granted, affirmed 110 Tex. 179, 217 S.W. 373.

Acceptance of donations of material to aid in maintaining county roads must be approved by action of the commissioners court, and 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. Op.Atty.Gen.1990, No. JM-1155.

A commissioners court has authority under section 252.214 of the Transportation Code to accept a donation for improving a specific county road subject to reasonable conditions. It is a matter for the exercise of good faith discretion by the commissioners court, subject to judicial review for abuse of discretion, to determine whether the condition attached to a particular donation is reasonable. Op.Atty.Gen.1999, No. JC-0073.

V. T. C. A., Transportation Code § 252.214

TX TRANSP § 252.214

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