Untitled Texas Attorney General Opinion ( 1957 )

THE A~ORNEY GENERAL
0,~ TEXAS
Honorable Donald E. Short Opinion NO. WW-6
County Attorney
Wichita County Re: Constltutionallty of the
Wichita Falls, Texas. Wichita County Road Law
Dear Mr. Short:
You have requested an opinion on the constitutionality
of Senate Bill 145, Acts of the 36th Legislature, Second Called
Session, 1319, Local and Special Laws, Chap. 85, Page 261, as
amended by House Bill 637, Acts of the 38th Legislature, Second
Called Session, 1923, Special Laws, Chap. 100, page 372, entitled
"An Act. creating a more efficient road system for Wichita County,
Texas."
Senate Bill No,.145 provides that the members of the
Commlsslonera Court shall be ex-officio Road Commissioners and
shall have the right to adopt rules and regulations for proper
maintenance of the roads; provides that the members of the
Commissioners Court when acting as road commissioners shall re-
ceive additional compensation; authorizes the Issuance oft
bonds for the construction of roads, but falls to provide for
the levying of taxes, provides for the employment of a road
superintertdent;and provides for the use of convict labor on
roads.
Section 56 of Article III of the Constitution of Texas
provides in part:
'The Legislature shall not, except a8 otherwise
provided in this Constitution, pass any local or
special law, authorizing:
. . .
"Regulating the affairs of counties, cities, towns,
wards or school dis,trlcta;
. . .
"Authorizing the laying out, opening, altering or
,maintalning of roads, highways, streets or alleys;
. * .
Hon. Donald E. Short, page 2 (WW-6)
"And Ln all other cases where a Seneral law can be
made aoplicablc, no local or special law shall be
enacted; . . .'-
Section 9 of Article VIII of the Constitution of Texas
provides Fn part:
II
. . . 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
one hund;ed dollars valuation of the property sub-~.
ject to taxation in such coutity. And the Le isla-
ture may pass local laws for the maintenance
*e o
ocal notice
The scope of the term "maintenance of the public robdv
and highways" adsused in Section 9 of Article VIII of the Constl-
tution of Texas has been discussed in several cases. Smith v.
Grayson County, 24 S.W., 921 (Tex. Civ. App., 1897, error refuded);.
Tarrant County v. Shannon 129 Tex. 264, 104 S.W.2d, 4, (1937);
Tinner V. Crow- l'ex,$68, 78 S.W.2d, 588 (1935); Austin Brothers
S.W. 182 (Com.App. 1926); Hi 252
gemex. Civ.App., 1952, errbr'iefused)."
In Hill v. Sterrett, the Court stated:
"The authority conferred by Section 9, Art. 8,
of the Constitution, supra, iv not 'to enact
special road laws' of all kinds, for all purposes
lndivcrimlnately. but Is authority merely to pass
local ,lawsfor tiiemaintenance of-the public roads
and highways..' Austin Bros. v. Patton, Tex. Comm.
APP., 288 S.W. 182 187. A local road law, to come
within the protection of'Art.-83 sec. 9, must be
limited to the maintenance of public roads and hlgh-
ways. Jameson v. Smith, Tex. C;v.‘App., 161 S.W.
26, 520; Tinner v. Crow, supra.
In the case of Altp,eltv. Gutzeit, 109 Tex. 123, 201 S-W,
400, the Supreme Court held invalid a aim ar road law in Bexar
County as being in violation of Section 56 of Article,111 of the
Constitution of Texas, stating:
.
"The auest.Lcnis whether this a;n:?untsto a law
‘reguiating the affairs I of the county and hence
w:Lthfnthe lnhibitlon of Section 56 of Article 3 of
the Constitution, which declares thnt, except aa
otherwise thcreia provided, the Legisinture-shall
not pass any local or special lsw regulating the
affairs of counties, cltics, towns, etc., and,
further that no local or special law shall be en-
acted where a general law can be made applicable,
or is to be held as properly incident to a law for
the malntennnce of the publtc roads, such as the
Legislature, under amended Section 3 of Article 8,
may adopt as a local law without the previous
constitut:lonalnotice.
'We regard the section as a pla1< attempt to fix
the compensation of the commissioners f7r all ser-
vices r&qu:Lredof them by law. The amounts payable
to County Commissioners ln return for the discharge
of .thetrgeneral duttea are fjXC=! d by g fneral
aws, as the-
J should be. It Is provided by
Article 3(~7!lthat they shall each receive three
dollars for each day they are engnged in holding a
term of the commissionerat court; but shall receive
no pay for holding more than one special term of the
court per month. By Article 6901 as amended by
the Acts of 1913 (Acts 33rd Leg. c. 123 ernon's
Snyles' Ann. Civ. St. 1914, Art. 6901 ), iiey are
constituted supervisors of the pub1r/ c roads of their
counties, and their compcnsatlon for services RS
such .1.sfixed at three dollars per day for the time
actually employed in those duties, limited to not
more than ten days in one month. By Sectlon 5 of
this special act (Lot. & Sp. Acts 33rd Lrg. c. 77)
these general laws are declared as suspended. It
says that the annual salary of $2,400.00 for each
commissioner of Bexar County there provided shall be
'In lieu of all other fees and per diem of all kinds
now payable or that may hereafter be allowed by
road system can properly have to the subject of the
general compensation of county commissioners, it is
1~1011, Dor1sIcl l3. si-uwt;, pazc 4 (W-6)
difficult’tt7perceive,. No doubt the Legislature,
:Ln the passage of local road laws, may, within
proper bounds, provide compensation for extra
services to be performed by’those officials where
uncontrolled by lIenera laws and required by=
local laws and directly connected with the mainten-
ance of the public roads. We are not called upon
to determinc that question here.
“As indicating the broad scope of this act and
throwing light upon the purpose of Section 5, though
essentially a local law and denominated as an act
mal:ingprovision for a road system for Bexar County,
it attempts, in another section, to fix the ex-officio
Judge at not less than
In Attorney General’s Opinion No. V-337 (1947), this
office construed as invalid a similar road law for McLennan County,
and in Attorney General’s Opinion V 1315 (1951) this office also
construed as Invalid similar provisions in the Dallas County Road
,I.aw. See HI supra.
Astudy of the Wichita County Road Law reveals that no
“’‘additional duty is placed on the Commissioners’ Court with refer-
,ence to the laying out, maintenance and control of county roads
and bridges. Since no additional duty is placed on the Commission-
,’ers 1 Court the purpose of the act is to allow additional compensa- :
tion to the county commissioners for performing duties required of
them under the general law. Therefore, under the rule announced
in Alt&elt th.lkI
constitutes a local or special law
regulating the affairs of counties in violation of Section 56 of
Article III of the Constitution of Texas.
SU.MMARY
Senate Bill 145, Acts of the ,36thLegislature,
Second Called Session, 1919, Local and Special Laws,
b. a5, p. 261, does not impose any additional duties
on the Commissioners’ Court of Wichita County other
than those duties required under the General law;
therefore, the’wichita County Road Law constitutes a’
,localor special law regulating the affairs .of
Hop. Donald E. Short, page 5 (w-6)
counties in violation of Section 56 of Article
III of the Constitution of Texas.
Outzeit, 109 Tex. 123, 201 S.W. 4OOf@%?'
Yours very truly,
WILL WILSON
Attorney Gcilernl
Assistant
APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chairman