Untitled Texas Attorney General Opinion ( 1959 )

Tmm 7rromv`` GENERAL
OFTEXAS
June 16, 1959
Hon. William J. Gillespie Opinion NO. ``-641
County Attorney
Lubbock County Re: Use of funds derived
Lubbock, Texas from the levy of an
additional ad~valorem
tax for the maintenance
of county roads, as
authorized by Art.,VIII,
-a_. Sec.
. 9 -of
- the Constitu-
Dear Mr. Gillespie: tion or Texas.
Your recent request for an opinion from this office
reads in part as follows:
"The Lubbock County Commlssloner~s Court desires
to reise funds for the purpose of re-locating,
laying out, widening and repairing County roads.
To do so, it will be necessary for the County to
Impose a tax burden which is not authorized at
this time. In furtherance of this desire to raise
additional funds for general road purposes, such
as purchasing new right-of-way for,relocating of
some existing roads, purchase of additional right-
of-way for widening of existing roads and generally
improving the County road system, the Court has
decided to call for an election under the provl-
slons of Article 6790, Revised Texas Statutes, and
if approved by the election, impose a tax under the
provisions of Section 9, Article 8 of the Texas
Constitution. This provision reading as follows,
'and the Legislature may also authorize an addi-
tional annual ad Valorem tax to be levied and col-
lected for the further maintenance of the public
roads;provided, that a majority of the qualified
property tax paying voters of the County voting at
an election to be held for that purpose shall vote
such tax, not to exceed fifteen cents (15+!)on the
One Hundred Dollars ($100.60) valuation of the
property subject to taxation in such County.'
"The Court desires your opinion on the question;
if properly authorized by election held under the
above provisions, could taxes imposed for the
Hon. William J. Gillespie, page 2 (Opinion No. ``-641)
approved purpose of 'for the further maintenance of
public roads;' be expended for the desired purposes
as set out above, or, would such tax funds have to
be expended for the maintenance of existing roads?"
For clarity we quote more fully from Article VIII,
Section 9 of the Constitution:
.and the Legislature may also authorize an
additional annual ad valorem tax to be levied and
collected for the further maintenance of the public
roads; provided, that a majority of the qualified
property tax paying voters of the county voting at
an election to be held for that pur ose shall vote
such tax, not to exceed fifteen (15P cents on the
one hundred dollars valuation of the property sub-
ject to taxation In such county. And the Legisla-
ture may pass local laws for the maintenance of the
public roads and highways, without the local notice
required for special or local laws. This section
shall not be construed as a limitation of powers
delegated to counties, cities or towns by any other
section or sections of this Constitution. . . .'
The Legislature has authorized the levy and collec-
tion of the additional tax thus provided for, and made provi-
sion for the required election. See Articles 7048 and 6790,
V.C.S.
In an 1897 case, Smith v. Grayson County, 44 S.W.
921 (Tex.Civ.App., error ref.), the Court of Civil:Appeals
has before it the-question of.the constitutionality of a
local road law passed by the Legislature. It was there con-
tended that the word "maintenance," as used In that part of
the above section authorizing the Legislature to "pass local
laws for the maintenance of the public roads and highways,
without the local notice required for special or local laws,"
meant that such laws could only be passed for maintenance of
roads already constructed, and would not authorize the pas-
sage of a statute creating a road'system. In rejecting this D
contention the Court said (p. 923):
I, . .We do not think the word ‘maintenance’ as
used in this section of the constitution was intend-
ed to be used in this restricted sense. Ey the use
of the words 'maintenance of public roads and high-
ways,' the framers of the constitution had reference
to maintaining a system of public roads and highways,
which would include all the necessary powers to pro-
vide and keep up a system of highways. . . .'
. .
Hon. William J. Gillespie, page 3 (Opinion No. ~-641)
The Supreme Court of Texas referred to this result
in the Smith case, supra, In Dallas County v. Plowman, 99
Tex. 5097JT S.W. 221. In that case also the question was
the constitutionality of a local road law passed by the Leg-
islature. After quoting that part of Article VIII, Sec. 9
of the Constitution, set out above the Court proceeded as
follows:
.The validity of the local law for Dallas
County,depends upon the meaning of the phrase 'main-
tenance of public roads,' as used in the paragraph
of the Constitution last quoted. The literal mean-
ing of the word 'maintenance' would not Include the
laying out or construction of a road, but would re-
late to the repair and improvement of roads already
laid out and constructed. In article 3, c)56, subd.
5, of the Constitution, the different stages in the
preparation and construction of a road are enumera-
ted, and by the use of the words 'opening, laying
out, altering' the word 'maintaining is restricted
to its literal meaning; it could not have been in-
tended to embrace in it that which was otherwise
expressed. But the paragraph of section 9, art. 8,
above copied, was not a part of the ori inal section;
it was added by amendment in the year 1890, for the
evident purpose of conferring upon counties the power
to lay out, construct, and maintain better systems of
public highways than they were able to do under the
restricted taxation before provided for,. . . .The
meaning of the word 'maintenance,' in the clause of
the Constitution whereby authority is given to pass
local road laws for a particular county, and the same
word as used in the preceding part of that paragraph,
must be the same, because they~concern the same sub-
ject matter and express the same purpose. If we give
to the word 'maintenance' its literal meaning in this
part of the paragraph, 'The Legislature may also
authorize an additional annual ad valorem tax to be
levied and collected for the further maintenance of
public roads,' then the money derived from the tax so
levied would constitute a special fund for the repair
of public roads, and in keeping them in order after
they were constructed, and could not be used for the
purpose of laying out and constructing such highways.
It would be a narrower interpretation to hold that
the people adopting this amendment to the Constitu-
. tion had in view to provide a fund to be used only in
repairing roads already laid out, instead of the evi-
dent and broader policy to create a better and more
extensive system of public highways. It could not
Hon. W-i
,ll
,iam J. Gillespie, page 4 (Opinion No. ``-641)
have been the intention thus to restrict the use of
the fund and to create such confusion and embarass-
ment in the handling and disbursement of the funds
of the county as would arise from such construction.
The purpose of the Legislature In making the amend-
ment was to Increase the capacity of the county to
maintain a system of public roads, and the word
'maintenance' must be held to include all of the
things necessary to be done to accomplish that pur-
pose. , .'I
The rule so stated has been consistently followed.
See, e.g., Henderson County v. Allred, 120 Tex. 483, 40 S.W.
2d 17 (1931);nner v. Crow, 124 Tex. 368, 78 S.W.2d 588
(1935); Tarrantty v. Sfi
annon, 129 Tex. 264, 104 S.W.2d
4 (1937).
While the Plowman case, supra, cannot be said to
decide the precise question involved here, since it was con-
cerned with the interpretation of the word "maintenance" in
the last clause of Constitution, Article 8, Sec. 9, still we
believe the language of Chief Justice Brown in that opinion
makes it clear that this same construction should be given
the same word as used In the preceding clause; i.e., author-
izing an additional tax assessment for "maintenance of the
public roads."
You are accordingly advised that funds raised
through this constitutional authorization, assuming due com-
pliance with the legislative provisions governing such levy,
may be used for the purpose of improving the county road
system in general, including purchase of additional right-.
of-way, and the re-location and widening of existing roads.
SUMMARY
--
The funds collected under the auth-
orization contained in Article VIII, Section
9, Constitution of Texas, providing for the
levy of an additional ad valorem tax "for the
further maintenance of the public roads" may
be used for the general improvement of the
county road system. It is not required that
such funds be used only for the repair and
upkeep of existing roads.
. -
Hon. William J. Gillespie, page 5 (Opinion No. w-641)
Very truly yours,
WILLWILSON
Attorney General of Texas
JRI:bct
APPROVED:
OPINION COMMITTEE?
George P. Blackburn, Chairman
Howard Maya
John B. WeDster
James H. Rogers
REVIEWED FOR THE ATTORNEY GENERAL:
By: W. V. Geppert