Doing The Best You Can With The Tools Available
In his 1913 autobiography, Theodore Roosevelt referenced a quote from Squire Bill Widener of Virginia that remains popular to this day: “Do what you can, with what you have, where you are.” Over the years, this quote has been rephrased in various ways, often issued as a challenge: “Do the best you can with the tools available.” Enter Texas County Government. While some may assume Commissioners Courts have a wide scope of authority, the “tools available” are directly linked to the Texas Constitution and Statutes. An assumption of broader authority is likely predicated on the way cities operate. In fact, explaining the difference between cities and counties is a key step to understanding county regulatory authority.
- Cities may take action unless it is prohibited by Texas law.
- Counties may only take action if it is permitted by Texas law. In other words, every action taken by Commissioners Court must link back to a Texas Statute.
Atascosa County Judge Weldon P. Cude addressed this very concept during his Aug. 17 installment of Monday Minute With the Judge on social media.
“Unlike cities, counties may exercise only the powers granted to them by the Texas Constitution and Texas Legislature,” Cude specified. “Understanding these distinctions is important. Even when the county shares a community’s concerns, it must operate within the authority provided by state law. Our responsibility is to use every lawful tool available to protect and serve Atascosa County and to be honest with residents when a matter falls outside the county’s legal authority.”
The blurring of lines between city and county responsibility and authority has always raised questions, but never more so than in recent months with an influx of activity, such as hyperscale data centers, in rural areas. Social media has complicated matters, where misinformation can quickly spread.
“When confusion arises, it presents an opportunity, not a setback,” said CJCAT President Kirk Frye, Parmer County Commissioner. “Moments of public concern or criticism are often the best times to explain how county government works, what authority we have, and just as importantly, what limits we operate under.”
The current climate prompted Atascosa County to launch a series designed specifically to help residents understand county government. Along with Monday Minute With the Judge, Cude launched County Corner, an educational series covering a new topic each week in an easy-to-read format. The second and third installments of County Corner addressed the difference between county and city government, and county authority, respectively.
“Limited authority does not mean limited responsibility,” Cude emphasized. “It means county leaders must work within the law, clearly communicate those limits, and responsibly use every available tool to serve residents.”
County Government Basics: “Shall” and “May”
In Texas, State Government and County Government work as partners, with State Government as the senior partner. State lawmakers pass laws that define what counties and Commissioners Courts shall do and may do; shall = mandated; may = optional. These optional actions must still be authorized by law.
State-mandated responsibilities include:
- Set the budget and appropriate tax rate to fund local government.
- Conduct elections.
- Process and maintain voter registration.
- Provide for public safety.
- Maintain and operate the court and jail system including provision for indigent legal defense and indigent parents in CPS cases.
- Provide medical care for indigent county citizens.
- Facilitate the issuance and recording of public documents.
- Process motor vehicle registration and title transfers.
- Collect and remit state motor vehicle taxes.
- Provide local support for state agencies such as the Texas Department of State Health Services, the Department of Public Safety, the Texas Parks & Wildlife Department, and the Texas Alcoholic Beverage Commission.
Come budget time, these mandates must be funded first. Once the letter of the law has been met, Commissioners Courts set their sights on authorized discretionary services, often described as quality-of-life services.
“I ran for County Commissioner to help ensure our community continues to grow thoughtfully, expand opportunities for residents, and improve the overall quality of life across the precinct,” shared Hidalgo County Commissioner Ellie Torres. “Since taking office, I’ve remained focused on delivering results in those areas while staying connected to the people I serve.”
Examples of these quality-of-life services include:
- Emergency medical response
- Senior centers
- Libraries
- Children and family programs
- Parks
- Youth programs
- County fairs
- Mental health resources
- Veterans services
- Safe roads and bridges (provision of roads and bridges is mandatory, but how much to spend is discretionary)
When taxpayers believe their services or resources are being diminished or depleted, they oftentimes ask Commissioners Court to take defensive action. An influx of activity may stress and strain roads, overwhelm emergency services, or deplete natural resources. The current focus on hyperscale data centers has shined the spotlight onto counties, with constituents packing Commissioners Court with the demand that counties “just say no.”
“There are many things’ residents may expect county government to do that state law simply does not authorize,” Cude explained in his social media introduction to the lesson on county authority. For example, counties cannot impose the same broad zoning ordinances cities can, deny lawful development without authority, or override another agency or state law.
Every January following an election, newly elected County Judges and County Commissioners are invited to a four-day seminar where veteran officials and county government experts address a wide range of topics including county authority. The coursework is designed to help new officials understand the law, which helps them explain the law to their constituents.
“Generally speaking, Texas counties cannot enact general land-use zoning or pass broad ordinances in unincorporated areas unless authorized by specific legislation, explained CJCAT Senior General Counsel Jim Allison during the latest training session. “Select areas where limited regulatory authority is allowed include the following: subdivision regulations, solid waste disposal, game rooms, sexually oriented businesses, public nuisance/illegal dumping, certain floodplain development, mass gatherings, and airport zoning.” County Progress has worked with the CJCAT General Counsel’s office to define some of these areas, including the statutory reference authorizing the action. Perhaps sharing this information – linking statutes to actions – will help constituents understand the principle: If the law says it, we can do it. If no such law exists, we can’t.
Subdivision Regulations
Chapter 232 of the Local Government Code outlines a county’s regulatory authority related to subdivisions. The County Commissioners Court is not required to adopt subdivision regulations, but the Commissioners Court must vote on every subdivision plat.
Sec. 232.001. PLAT REQUIRED.
- The owner of a tract of land located outside the limits of a municipality must have a plat of the subdivision prepared if the owner divides the tract into two or more parts to lay out:
- a subdivision of the tract, including an addition;
- lots; or
- streets, alleys, squares, parks, or other parts of the tract intended by the owner of the tract to be dedicated to public use.
If the county does not adopt regulations, subdivision plats will only include a minimal description of the boundaries of the streets and lots, as required by the statute. If a county wants to impose additional requirements, the county must adopt regulations following the procedures outlined in Section 232.003 of the Local Government Code. Generally speaking, the scope of authority includes road construction and rights of way, road drainage, water use in certain situations, and other actions to promote the “health, safety, morals, or general welfare of the county…”
Solid Waste Disposal Ordinance
Texas Health and Safety Code 364.012 authorizes a county to pass an ordinance prohibiting the disposal of municipal or solid waste in a county. The ordinance must specify a designated area where solid waste disposal is not prohibited.
Game Rooms
Texas Local Government Code 234.133 gives counties the authority to regulate the operation of game rooms. A county may:
- restrict the location to a specified area of a county;
- prohibit the location within a certain distance of a school, regular place of worship, or residential neighborhood; or
- restrict the number of game rooms that may operate in a specific area of the county.
Sexually Oriented Business Regulations
Texas Local Government Code 243.002 and .003 authorize a county to adopt regulations regarding sexually oriented businesses, which are defined in this statute. The location of sexually oriented businesses may be:
- restricted to particular areas; or
- prohibited within a certain distance of a school, regular place of religious worship, residential neighborhood, or other specified land use the governing body of the municipality or county finds to be inconsistent with the operation of a sexually oriented business.
In addition, a county may restrict the density of sexually oriented businesses. The statute also allows a county to “require that an owner or operator of a sexually oriented business obtain a license or other permit or renew a license or other permit on a periodic basis for the operation of a sexually oriented business. An application for a license or other permit must be made in accordance with the regulations adopted by the municipality or county.” The statute also addresses inspections and fees.
Public Nuisance/Illegal Dumping
Texas Health and Safety Code 365.012, .017, and .034 discuss illegal dumping, discarding lighter materials, regulation of litter, and regulation of litter near public highways.
Section 365.017 says, “Commissioners Court may adopt regulations to control the disposal of litter and the removal of illegally dumped litter from private property in unincorporated areas of that county.”
Section 365.034 says, “Commissioners Court by order may: (1) prohibit the accumulation of litter for more than 30 days on a person’s property within 50 feet of a public highway; (2) order for the removal and disposition of litter; and (3) provide for the assessment against a person who owns the property from which litter is removed.
Flood Plain Management
According to Texas Water Code Sections 16.3145 and 16.315, counties may take all necessary and reasonable actions to comply with the requirements and criteria of the National Flood Insurance Program.
Mass Gatherings
According to Texas Health and Safety Code Chapter 751, a person may not promote a mass gathering without a permit from the County Judge.
The permit is sent to the county health authority, the county fire marshal or another designee as authorized by statute, and the sheriff. The Health and Safety Code specifies a process including a hearing and a report stating whether the health authority believes that the minimum standards of health and sanitation prescribed by state and local laws, rules, and orders will be maintained.
Airport Zoning Authority
Local Government Code Chapter 241 grants counties the authority to regulate land use and structure heights near airports through a joint board, an airport zoning commission, and a board of adjustment.
The Learning Never Ends
Texas county government is regulated by hundreds of statutes covering other permissible actions. For example, Local Government Code Section 352.051 authorizes the Commissioners Court to adopt an order to regulate “restricted” fireworks in a county’s unincorporated areas during drought conditions.
Title 7, Subtitle C of the Transportation Code states that a county may regulate traffic only in a manner that does not conflict with state regulations.
The CJCAT support staff studies all of the county-related statutes, keeps apprised of legislative changes, and is available to answer your questions on county authority so that you may, in turn, help educate your constituents. For more information, please email CJCAT Legislative Director Rick Thompson at r.thompson@allison-bass.com.
