Travis County Commssioners Court
August 12, 2003
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Item 8
Number 8, consider and take appropriate action on additional recommendations on air quality initiatives. Stay real close, roger.
>> sell lean walker with tprbgt t.n.r. This is a roll overitem from several weeks ago and i'll remind you briefly what we were discussing. In light of the fact Travis County monitors violations of the 8-hour and national air quality standard, the court has approved the -- additional f.t.e. Position, but there was a question about how the county could actually fund that new position. And the question was left with the county attorney's office to determine whether or not the road and bridge fund may be used to fund such position. And county attorney tom nuckols has been looking into that so i'll turn it over to him now.
>> it would have been a much easier question to answer before about six weeks ago. Six weeks ago the Texas supreme court issued an opinion that interpreted what is really the basic grant of statutory power to counties over roads. Road and bridge -- the statutory and cons tugsal provisions on the road and bridge fund basically say you can spend it to do whatever the legislature tells you to do in terms of road construction and maintenance and the like. There's a provision in the transportation code or the subchapter of chapter 251 of the transportation code that's commonly referred to as the county road and bridge act that says the Commissioners court shall have general control over roads in the unincorporated areas. Which on its face is very broad and I think traditionally has been looked at as allowing the Commissioners court to do a lot. Generally the words "general control" means if something is related to roads, you can do it. And i'll throw out an example, the ability of a county Commissioner to sit on the campo board is related to county roads. Therefore you can do it. There's no statute anywhere that says you have the authority to sit on the campo board, but since it's a matter relating to the general control of roads, I think until six weeks ago before this opinion came out, everybody would have said yeah, it's something you can do. Let me give you a little background on the case the supreme court ruled on. It was the city of san antonio versus the city of boerne. And it essentially involved kendall and comal counties getting involved in an annexation battle between san antonio and boerne. What happened was city of san antonio was eyeing some areas and kendall and comal counties for annexation. The landowners out there in the county got wind of it and the day before san antonio proposed their annexation ordinance the landowners and the county got together and requested boerne to annex them. The county got involved because of the contiguity issue. A city can only annex land that's contiguous to it and these landowners needed county roads to link up some of their tracts. So together the landowners and the counties requested annexation. San antonio followed through, annexed anyway, and it came down to did the counties have the ability to request the annexation. If they didn't, there was no contiguity and the whole thing fell apart and san antonio won. So the supreme court basically came down to interpreting this idea the Commissioners court have, quote, unquote, general roll over the roads, and done general control authorize the county to request the city to annex a county road. The supreme court basically said when it comes to the general control idea, it can't just be something that's related to roads. The general control grant of authority only authorizes you to do something that is, quote, unquote, necessary to operate the county road system. And the supreme court even goes on to talk about -- seems to imply what you are really talking about is the safety of public roads and things of that nature. And they basically said the general control grant of authority does not authorize the county to request a city to annex a county road. So in deciding whether you can spend road and bridge money to fund this position, I think the test you now have to apply and what have you to decide is is it necessary -- is it something that's necessary to operating a county road system. So you have to decide how necessary is necessary. I mean, obviously it's possible to operate a county road system without funding this position out of road and bridge fund. Or I guess put it this way, for many counties in Texas, it's absolutely possible because they are not facing the issues Travis County and other urban counties face. But given our circumstance, given that we have entered into an early action compact and agreed to do certain things with, you know, e.p.a., Given the fact that we're facing a non-attainment designation, our facts may be different than the other 253 counties in Texas. But what it's going to come down to is for you to spend this money in this way, you've got to decide that it's necessary for your operation of the county road system.
>> so in essence it didn't really preclude us from not doing it, per se, using road and bridge funds to fund this f.t.e. Position.
>> they didn't absolutely rule it out absolutely, yes.
>> that's the bottom line.
>> I can tell you that.
>> okay. Go ahead. I'm sorry.
>> i'll throw in one other thing, and I think it sort of redoubles that, Commissioner. This is one of those cases where I think you've heard the saying bad facts make bad law. I think if you read the opinion, it's clear that what the supreme court thought was going on that was really improper was the fact that the counties were siding with this small group of landowners because the opinion talks about this was really done to serve parochial interest instead of the public interest at large. One thing that helps in this case is the funding of this position is not something that is benefitting a small number of people in Travis County. It truly is benefitting the county as a whole given the air quality issues the county is facing. I would hope that this opinion is something that's limited to the facts. It's a new opinion. Any time you've got new caseņi law, it throws a lot of unpredict kwrablgt into how the attorney is going to issue opinions from now on or whether other courts are going to come in and say this is really limited county authority, but I think clearly you can distinguish this san antonio, boerne case by the fact that the supreme court put a lot of emphasis on the fact that the counties appeared to be adding a small number of people and not the interest of the county.
>> I guess my concern again was to the point that the opinion rendered by the attorney general really is not telling us that we can't do it, and that's what -- that's really where I'm leaning. If we can do it using the funds from the road and bridge fund or using the money from the road and bridge fund, I can kind of lean towards that because it is something I think is very necessary, especially looking at the situation out there we're dealing with as far as the e.p.a. And the federal government mandating and then the 8-hour standard for air emissions and a whole bunch of things we're looking at in the early action compact plan. And I think Travis County definitely does need a position as such [inaudible]. So I don't have any problems with it per se.
>> if we do it in -- later on and should not have done it, do we blame you and carol? [laughter]
>> can I add one thing? I mean the clean air act clearly sets a precedent, I don't know if I can use the word nexus, but it ties clean air funding and transportation funding, they are tied together. They -- clearly one is associated with the other. Which is the whole reason that joe originally went to the road and bridge fund. The other reason is that it's actually closer to 70% of our problem here in this region is directly related to non-road issues and the early action compact that we are working on, a majority of industry and [inaudible] that we are looking at are fairly related to road issues. And so transportation funding can be cut off if we don't clean up the air, so we believe that there is an argument to be made that this is directly tied to the road building program.
>> this is a department that's split. Some of it from the general fund, most of it is from road and bridge. Are we absolutely convinced there aren't some things on the general fund side that can be actually funded by the road and bridge fund, and you just swap them out in terms of this air quality thing gets funded by the general fund because there's a swapout of something in the general fund that appropriately without question solid gold take it to the bank can come out of the road and bridge fund. In which case two good things happen. This is a rather small item. It's not like you've got a $500 million item. I just throw that out as a for instance. Next, if I would be uneasy, it's not going to be about this case example. It's if I'm a dallas county Commissioner because they are paying for sheriff's deputy salaries out of their road and bridge fund, which is really a stretch, but they are doing it. Thirdly, and this is for --
>> to my friend in dallas --
>> we'll see them on Thursday. I'm sure we'll hear bit. In the same way that a county can't block an annexation, you are bringing up a whole new thing that could you please give back -- could you please get back to us on and that is oftentimes we have assisted cities at their request to help an annexation. It's been just the opposite of what you said. So if we can't block it, are we also allowed to assist when everybody, including the city, says it's a good thing. Because we've had quite a few of those in this Cedar Park area and definitely out in lago vista area when that used to be my area.
>> I can count half a dozen instances where we requested annexation and that immediately came to mind. Again, I would just say I hope those are distinguishable on the facts because they were not done at the bee heft of landowners who were trying to keep a city from incorporating. They were really done so there was a clearer boundary line between what the city was regulating and paying for and what the county was regulating and paying for.
>> two things. One is just for the record, we are not attempting to circumvent the law or a a.g. Opinion. Secondly, I move approval because this job has to get posted.
>> second.
>> before funding is identified as the road and bridge fund. Third, if there is a better funding source before we approve the higher and [inaudible] to the funds we revisit this. Is that clean? Seconded by Commissioner Davis. Any more discussion today? This is a critical position that we need on board and working as soon as possible.
>> you bet.
>> it's given [inaudible]. All in favor? That passes by unanimous vote. Thank you all very much. Tom, thank you for the excellent legal analysis. Some thought you took too long to do it, but I know you were --
>> one reason I did it, probably ought to be an issue on next session's legislative agenda to sort of clean up the county road and bridge act on that so that -- I know --
>> I don't blame you at all.
>> the dallas county Commissioners, it's all your fault.
>> thank you, tom.
Last Modified: Wednesday, August 13, 2003 7:52 AM