Untitled Texas Attorney General Opinion ( 1947 )


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    `` GF§)
    OFFICE oF ' ‘
    THE ATToRNEY GENERAL
    AUST!N. TEXA¢
    R IC E DANIEL
    "ronmaw GENERAL
    July 2, 1947
    Hon. D: C. Greer Opinion No. V~291
    State Highway'Engineer
    Texas H way Department Re: Authority of the
    Austin 2 , Texas Texas Highway Com-
    mission to enter
    into an agreement
    with Galveston
    County for the con-
    struction, mainte-
    nance, and operation
    of a toll tunnel.
    Dear Sir:
    There are submitted for our opinion four ques-
    tions relating to a proposed agreement between the Texas
    Highway Commission and Galveston County for the construc-
    tion, maintenance, and operation of a toll tunnel in Gal-
    weston County. The tunnel is to link State Highway 87
    between Galveston leland and Bolivar Point, and will re-
    place the State-operated ferry services now existing
    between said points. _
    In the negotiations between the Highway Commis-
    sion and Galveston County, the Commission by Minute No.
    22947, has tendered to the County three different propo-
    sals, the third of which has been accepted-by the County,
    as follows:
    'THIRD, if Galveston County desires to pro-
    ceed with the construction of a toll tunnel, it
    should proceed with said construction, in which
    case the State Highway Gommission agrees to re-
    move-that portion of Highway No. 87 from the
    highway system in order that Galvesten Gounty
    might proceed with the construction and opera-
    tion of such tunnel. If upon completion of such
    toll tunnel Galveston County can show its legal
    ability to enter into a binding contract with
    the State relative to the tunnel, and if Galves-
    ton County will agree by binding contract that
    the bonded indebtedness on the tunnel will never
    be the responsibility of the State, and if such.
    lS{N)
    follows:
    Hon. D. C. Greer, Page 2, V-291
    should ever be the case and the Btate High-
    way Department is deprived of revenues,then
    the County will indemnify the Highway Depart_
    ment for such deprivation of revenues, pres_
    ent and future, payable in Travis County,and
    the County will give the Department the right
    to approve the toll charges and examine the
    books under the operation of the tunnel,then
    the Highway Commission will agree in so far
    as its present membership is concerned, to
    cease the operation of the Department's fer-
    ries_ and 't_o invest the annual net operating
    _ loss of said ferries, estimated to be approx~
    imately $2005000.00, in the tunnel each year
    during a current biennium, it being under-
    stood that.such annual payment will be effec-
    .tive only during the period of office of a
    current Commissioner and would not be con-
    strued in any way as obligating a State High-
    way Commission to make authorization for pay~
    ments beyond the current biennium.
    , FIT,IS FURTHER ORDERED THAT.Galveston
    Connty be advised that, due to the need for
    expedition of transportation facilities at
    .1:,this point, it is necessary that complete ac-
    ;ceptance of one of these proposals be made
    within .thirty days from the date of this order,
    after which date this order becomes null and
    void and the State Highway Engineer is directed
    to proceed to the best of his judgment in im-
    \proving_the transportation facilities on State
    }-Highway Noi 87 at Boiivar Point."
    .The_four-questions above referred to are as
    "1. In harmony with the provisions of
    Article_6795b, and Commission Minute No. 22947,
    is the Texas Highway Commission legally author-
    .ized~to.enter into an agreement with the Com»
    missionsrs* Court of-Galveston County, which
    agreement will provide that the Texas Highway
    Commissinn will maintain the tunnel with its
    rown forces out of the State Highway Fund,while
    the County operates the tunnel and collects
    tolls foryits use?
    "2. if the above question is answered in
    Hon. D. C. Greer, Page 3, v-291
    the
    affirmative, can the Tezas Highway Com§
    mission legally contribute Highway Funds to
    Galveston County for the County's use in
    maintaining the tunnel, in lieu of the per~
    formance of the maintenance of the tunnel
    by the State with State forces?
    W3. Is the State Highway Commiesion
    legally authorized to commit and bind the
    State and future State Highway Commissions;
    by agreement with the County, to pay or con-
    tribute to the County a fixed sum of money
    from the Highway Fund each year for the main~
    tenance of the tunnel for a term of years be-
    yond the period of office of current Highway
    Commisaioners, or, is the authority of the
    Highway Commission to bind the State in such
    instances limited to one biennium?
    weston County, in harmony with the above
    quoted minutes, and particularly reserving
    to the Highway commission:
    session o
    was law,
    tained.
    light of
    (a) the right to audit the County's
    records of cost of construction, main-
    tenance and operation of the tunnel
    and the disposition of tolls,
    (b) the right to determine the rea-
    sonableness and adequacy of the tolls
    to be collected by the County, and
    (c) the right to renew and resume
    ferry service between Galveston Is-
    land.and Point“Bolivar in the event
    the tunnel is out of service or fails
    to meet the needs of the traveling
    public for such transportation facil-
    ity.
    All of the above questions, negotiations and
    501
    relate directly to the terms and provisions of
    -b, V. C. S., which has been amended by the past
    f the Legislature. During the time this Article
    the constitutionality was never judicially ascer-
    waever, this Department construed the not in the
    this question and held the Act constitutional in
    502
    Hon. D. C. Greer, Page N, V-29l
    Opinion No. 0-6032, a copy of which is enclosed,q¢hs
    Fiftieth Legislature early in the session passed S;_fh
    76, amending Art. 6795-b. 'rhe effect or campaign
    ment was to amend Section 1 of the Article and'ohit
    entirely the remaining sections, thereby destroyi§g
    this bill for all practical purposesc The Legislatupgv
    later in the session, passed H. B. 835, which not on-*‘
    ly carried the amendment as was provided by 8. B. 76,
    but made several changes in Az-ticle 6796»b. s. B. 835
    is now the law governing such a proposal as you hava"'
    outlined in your request. The difference between.nrtr
    6795~b and H~ B. 835 is very slight. The two bills
    are in essence the sameZ The new bill made these
    changes: (l) eliminated from the last line of Sec. 1
    "leading to any port” and adds ”with a maintained
    depth of twenty (20) feet or more"; (2) eliminated
    from Sec. 3 "the county shall be under no obligation
    to accept and pay for any property condemned and shall
    in no event pay for same except from the proceeds de-
    rived from the sale of the revenue bonds, and”; (3)
    eliminated Sec. 6; (L) added to Sec. 8 "operations"
    wherever the word "maintenance" appeared ; (5) eliminated
    Sec. 10 and added: "all laws in conflict herewith to the
    extent of such conflict are hereby repealed." These
    changes are apparently an effort to meet four grounds of
    attack on the constitutionality of Art. 6795-b in a law-
    suit which has arisen in Nueces Gounty.
    The Nueces County suit is for injunction sought
    in the District Court by Sam Wilson against Nueces Connty
    to enjoin the County from proceeding further in the pro-
    posed construction of a causeway within the County pur-
    suant to Article 6795-b. The suit was predicated on-the
    issue that Art. 6795-b was unconstitutional and four
    grounds of attack were made;'
    l. Preliminary expenses for the project
    could not be made from the County's
    general fund;
    2. Inadequate consideration for the
    owner of condemned land;
    3. The negotiable feature of the bonds
    made the bonds a debt of the county;
    and
    4. A board of trustees appointed by the
    commissioners' court of the County
    503
    Hon. D. C. Greer, Page 5, V-291
    was an unwarranted delegation
    of power.
    The District Court granted the injunction without fil-
    ing conclusions of law and findings of fact, but, in
    effect, the ruling was to hold that the act was uncon-
    stitutional. The County duly perfected its appeal to
    sam s. wilson, Jz-., et ai, Appellees, No. 11,726, in
    the Fourth Court of Civil Appeals.
    ¢"that any county proceeding hereunder
    * * * * may enter into any agreement or
    agreements not prohibited by the constitu-
    tion which may be necessary to obtain such
    loans, grants or gifts." -
    ‘Again, in Sec. 8 of the new Act:
    "The State Highway Commission shall
    have authority without further legisla~
    tive enactment to make such provision for
    .contributions toward maintenance of the
    project as it may see fit * * * *."
    By the same provision, the Highway Commission may'
    contribute highway funds to Galveston County for the County's
    use in maintaining-the tunnel, in lieu of the maintenance of
    the tunnel by the State with State forces. The County would
    she performing a governmental function as an agent of the
    "State. A similar performance was upheld in Jefferson County
    vs. County'Bo§rd of District Road Indebtedness (Sup. Ct.) 192
    90 » ' '
    waever,:we do not wish to be understood to be
    _ Hon. D. C. Greer, Page 6, V-291
    passing upon the validity or constitutionality of then
    Act. Since that issue is in the above mentioned inj”":
    tion suit, we will refrain from passing further upon;'
    validity of the Act until final judgment in the pa "*'
    case. We will advise you as soon as this issue has bee§
    finally settled by the Courts. "
    ‘ If the Act is held to be valid, in order ton
    make such contributions as are proposed by the State- ``”
    way Commission to Galveston County for the maintenance§o"
    the tunnel, the State Highway Commission should designa";
    and constitute the tunnel as a part of the State Highwayi
    System. Otherwise, the tunnel would be strictly a county
    project, an exclusive undertaking, independent of performp
    ing a governmental function for the State. This would "
    fall within the prohibition of Section 51 of Article III
    of the State Constitution which provides in effect that
    the Legislature shall have no power to grant or authorize
    the granting of public moneys to any "individual, asso-
    ciation of individuals, municipal or other corporations
    whatsoever." This view was specifically upheld in the"
    case of Road District No. ll-, Shelby County vs. Allred,123
    Tex. 77, 68 S. W. (2d) 164 (Commission of Appeals, opinion
    adopted by the Supreme Court) where it was held that money
    granted to the road district and not used for highway pur-
    poses was unconstitutional.
    From an examination of H. B. 835, it seems appar-
    ent that the Legislature has intended that such a project
    should be a part of the State Highway System, and that both
    County and State may join in the construction, maintenance _
    and operation thereof. In Section 8, there is specific prob
    vision for the Highway Commission to declare the project to
    be a part of the State Highway System, provided that the
    property and contract rights in such project and in the bonds
    are not unfavorably affected thereby. In any event, in Sec-``
    tion 8, the Legislature has declared that the project shall
    become a part of the State Highway System when the bonds
    and interest have been paid or sufficient amount set aside
    in a trust fund for the payment of the indebtedness. This
    view is in harmony with other statutes relati to the
    State Highway System, 6674q-l; 6674q-#; 6674q- , V. G. S.
    These statutes make plain the policy of the State in the im»
    provement, construction, and operation of the State Highway
    System; that is, to-reimburse counties for aid rendered by
    the counties to the State and for the State Highway Commis-
    sion to control the State Highway System. It seems that
    H. B. 835 is consistent with this policy.
    Hon. D. C. Greer, Page 7, V-291
    In answer to your third question, you are ad-
    vised that the prohibition contained in Article.VIII,
    tion 6 of Article VIII limits every appropriation by
    the legislature to a term of two years. Inasmuch as
    two years; the contract for payment of money will not
    be binding beyond a period of two years. This is pro-
    vided for in your proposed draft of contract.
    - In answer to your fourth question, we have
    examined the proposed agreement between the Highway
    Commission and Galveston County, which has .been fur-
    nished to us by Mr. J'ohn Green, and approve said agree-
    ment, subject to the following suggestions: ,
    ,_ (1)' In the third paragraph on page 1,
    inmnediately after the word "Island", add ,
    "pursuant to authority granted under House
    B;}lln835, Acts of the Fiftieth'l¢egislature,
    l 7.. ' . _
    (2) ; ``_The' second paragraph on-page 2_ n
    should-be re-w;ritten in order to. conform to
    the new nct. - _ . o .
    . (3). On page 3, in paragraph.b, in the
    fourth line, immediately after the word '-
    "Island@, add "on state nighway No. 87". In
    the same paragraph, in line 6, after the
    word "be" add the word "possible",‘ ,
    - ~- _ ‘(4) _ .On page 4, paragraph.$,\ in.the_. 7
    eighth_line_thereof, substitute\the.-word j 7
    "be'-' -~for _-'the word "become".\ .-In the next t
    .the last line of said paragraph 3 , eliminate
    the word "-if." and in the place of.the ._word
    "become?' add7 f'be at all times.". At the end of.
    the next -t_o the last line .o.f-_ said paragraph....
    ,»
    -JT
    U``I
    506
    Hon. D. G. Greer, Page 8, V-'291
    "The tunnel shall be a part of the State
    Highway System and shall be turned over by '
    the County to the State H.ighway Commission in'
    good repair and operating condition. ?revided,
    however,'that said tunnel shall be at all
    times a part of the State Highway Sys‘tem, the
    same as any other part of said System and shall
    be‘ considered as such." '
    (5) On page 5, in paragraph 2,`` in the
    second line thereof, add immediately after the
    word ”tunnel" these words: "and in lieu of
    such maintenance". '
    (6) Eliminate all of the provisions of
    paragraph 6 on page 6.
    (T) la addition to the terms of paragraph
    7, add the following after the last word in said
    paragraph: £'It is understood and agreed that the
    State Highws.y Gommission reserves the right to
    determine the reasonableness and adequacy of the
    tolls to be collected by the county for the oper-
    ation and maintenance of the tunnel.”
    (8) On page 8, eliminate the terms and
    provisions under paragraph ll. We do not believe
    that a person selected by the parties to the
    agreement should make a binding decision on a con-
    troversial matter which would be binding upon the
    State.
    (9) Eliminate all of the provisions in
    paragraph 15 and substitute therefor the follow-
    ing:
    "That nothing in this contract is, nor is
    intended to be , a direct or binding commitment
    or obligation on the part cf the State of Texas
    or the Highway Commission to pay any amount be-
    yond the end of the current bienniu.m, and this
    contract shall always be subject to the regular
    biennium appropriation bill or other act of the
    legislature of Texas. It is understood and
    agreed that this contract met be renewed and
    extended every two years thereafter by official
    action cf the State Highway Ccoosis``sion at the
    First Regular Monthly Meeting of the State fligh-
    way Commission following the appointment and
    Hon. D. C. Greer, Page 9, V-291
    qualifying of each new State Highway Commis-
    sioner throughout the life of the contract;
    and if the State Highway Commission in its
    discretion, at any such meeting of the State
    Highway Commission, fails or refuses to renew
    and extend this contract; then in that event,
    this contract shall thereafter be null and
    void; and no further payments may be made
    thereunder to Galveston Connty by the State
    Highway Gommission. If in the event any pro-
    vision of this contract conflicts with the
    provisions of this section (l§th), then it
    is stipulated by the parties hereto that the
    provisions of this section (l§th) of the ccn-
    tract shall prevail."
    SUMMARY
    (l) The;Texas Highway Commission and
    Galveston County, through its Commissioners'
    Court,-are_authorized under the provisions of
    --H. B. ~835,~F1rts_e1:h Legislature, to enter in-
    to an agreement providing that the Texas High-
    way Commission will maintain a proposed tunnel
    to_beaconstructed between Galveston leland and
    Boliver Point in Galveston County with its own
    forces out of the-State Highway Fund, while
    the County operates the tunnel and collects
    = tolls_for its use; subject, however,-to the va-_
    lidity of the Act being upheld in the case of
    George A. Prowse, et al, vs. Sam.E. Wilson; et
    al, now pending in the Court_of¢Givil Appeals
    at San Antonio.
    (2) The Texas Highway Commission may
    legally contribute highway funds to Galveston
    ;County for the County's use in maintaining the
    proposed tunnel,mentioned above, in lieu of the
    .performance of the maintenance of such tunnel
    .by the State forces; provided, that such tunnel
    shall be designated and constitute a part of the
    State Highway System, and subject_to the validity
    of H. B. 835, Fiftieth Legislature, as above men-
    tioned. ' -
    ' (3) The State nghway Gommission is not
    legally authorized to commit and bind the-State
    and future State Highway-Commissions by agreement
    507
    503 son. D§ o'. creer, Page 10, v-291
    with Galveston'County to pay the County
    $200,000.00 each year for the maintenance of
    the proposed tunnel referred to'for a term
    of more than two years. Article vIII, Sec-
    tion 6, Constitution of Texas. ~
    fours very truly
    ATToRnsY onmnm. or ms-_
    By @_C-e'-/é-@M
    ' Charles E. Crenshaw
    CEC/JMc/RT _ Assistant
    A PROVED'
    f
    hour/w
    ATTORNEY GENERAL
    

Document Info

Docket Number: V-291

Judges: Price Daniel

Filed Date: 7/2/1947

Precedential Status: Precedential

Modified Date: 2/18/2017