Untitled Texas Attorney General Opinion ( 1988 )

,
THE ATTORNEY GENERAL
OF TEXAS
November 14. 1988
Honorable John T. Montford. Opinion No. JM-979
Chairman
State Affairs Committee Re: Whether mass transit taxes
Texas State Senate collected under article 11182,
P. 0. Box 12068 V.T.C.S., may be used by a mun-
Austin, Texas 78711 icipality to maintain its
streets (RQ-1535)
Dear Senator Montford:
you ask whether taxes dedicated to mass transit and
collected pursuant to article 11182, V.T.C.S., may be used
by a municipality to maintain its public streets. We
conclude that such taxes may not be used for that purpose.
Article 11182 permits certain incorporated cities and
towns to establish a mass transit department. Id. 5 Z(a).
If a local sales and use tax dedicated to providing a method
of funding a mass transit system is approved by the voters,
then the city transit department may build or acquire and
operate such a system. Id. S§ 3, 4, 5, 7. Taxes collected
pursuant to article 11182 “may be used only for mass transit
purposes." Id. 9 8(f).
The statute defines a mass transit vfSystem’v to mean
all real and personal property owned or held
by an incorporated city or town and operated
for mass transit purposes, including
iand; easements, rights-of-way, other
interests in land, franchises, rail and bus
lines, stations, platforms, terminals,
garages, shops, control houses, other
buildings and structures, rolling stock,
signals, other equipment, supplies, and other
facilities necessary or convenient for the
use of or access to mass transit by persons
or vehicles or for the protection or
environmental enhancement of mass transit.
p. 5000
Honorable John T. Montford - Page 2 (JM-979)
V.T.C.S. art. 11182, 5 l(6). "Mass transit" is
the transportation of passengers and their
hand-carried packages or baggage by means of
surface, overhead, or underground transporta-
tion except aircraft or taxicab.
Id. 5 l(5).
The relevant powers of a municipal transit department
operating a mass transit system include the power to:
acquire, construct, own, operate, and main-
tain a system within a city or town. A
department may use the streets, alleys,
roads, highways, and other public ways within
the city or town. In the construction,
reconstruction, repair, maintenance, or
operation of a system, a department may
relocate, raise, reroute, change the grade
of, or otherwise alter the construction of
any:
(1) street, alley, highway, road,
or railroad . . . .
V.T.C.S. art. 11182, 5 6(c).
Thus, nothing in the statute permits a municipality
which has adopted a local sales and use tax to fund a
municipal transit department to use those tax funds for the
aeneral maintenance of its public streets. Additionally,
the statute unequivocally states that a transit department
"may use the streets, alleys, roads, highways, and other
public ways within the city or town." V.T.C.S. art. 11182,
§ 6(c).
In our opinion, a transit system's right to Wse" city
streets necessarily includes the right to subject such
streets to normal wear and tear such as must have been
contemplated by the legislature when it adopted article
11182 with this provision. Nowhere does the statute tie the
ordinary use of a public street to the payment of a fee by
the transit department from tax funds raised solely for the
purpose of funding the department's operation of a mass
transit system.
Although the statute contemplates that the construction
and operation of a mass transit system may require the
department to undertake construction projects affecting city
p. 5001
.
Honorable John T. Montford - Page 3 (JM-979)
,-
streets, it limits the department's powers to only those
circumstances requiring the relocation raisinq, reroutinq,
alteration, or chanainq of the streets used by the mass
transit system. V.T.C.S. art. 11182, 8 6(c). The ordinary
maintenance of a city street over which the vehicles of a
mass transit system may pass is thus not with the enumerated
powers of the transit department upon which tax funds may be
spent.
SUMMARY
Taxes raised to pay for the acquisition
and operation of mass transit system under
the aegis of the mass transit department of a
city or town, article 11182, V.T.C.S., may
not be used to pay for the maintenance of
city streets.
J-h
Very truly yo
JIM
.
MATTOX
,
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
MU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by D. R. Bustion, II
Assistant Attorney General
P. 5002