Untitled Texas Attorney General Opinion ( 1947 )

E ATTORNEY GENERAL Q,F TEXAS PRICE DANIEL ATT’ORNEYGENERAL Mey 28, 1947 Hon. S. 86. Pliler Opinion MO. V-223 County Auditor Taylor County Re: Authority to create a road Abilene, Texas district embracine! a de- fined portion of a Commis- sioner’s Precinct, and use Proceeds of. bonds of such district to purchase rlght- or-way. Dear Sir: We refer to your Inquiry of May 6, 1947, rhiah is as follows: “Please advise me If a Specie1 Road District, for the purpose of issuing bonds to purchase rights-of-way for Few to Mar- ket Roads, may be formed out of a defined portion of a Commissioners Precinct by either the Commissioners’ Court or the Leg- islature .” We ere eseumlng that no “defined” road district has been created and carved out of the commissioner’s pre- cinct to which you refer, and that the commissloner(s pre- cinct has no outstanding bonds issued under the authority of the constitutional provision mentioned below. Section 52 of Article III of the Texas Constll- tution provides that under legislative provision, any de- fined district, e 0 5 0 “upon a vote of e two-thirds major- ity of the resident property taxpayers vot- ing thereon who are qualified electors of such district or territory to be affected , , .- thereby, in addition tc all other Qebta, may issue bonds or otherwise lend its ored- it in any amount not to exoeed one-fourth of the assessed valuation of the real prop- erty of such distriot or territory. 0 Do for the f’ollewing ,purposea, to-wit, e .z* “(a) The oenstwation, maintenance and operation of maoadamized, graveled or paved reads and t'usgapikss, or in aid there- of.” The Ida@felature has the power to create and define road dietriots and may delegate that power to com- miesioners’ co,urts) a8 was done by the enaatment of Arti- cle 752~ of Vernon’s Civil Statutes, That law authorizes aomm1saioners I courts to crdate road districts “by eater- iu am order declaring such road district established and defining the boundaries thereof an Article 7526 prescribes procedure for elections to authorize issuance of bonds, In the case of Louisiana RyO and Nav. Co, v. State, 298 S, Wr. 462, the court quoted the constitutional ;gv;;;n which authorizea the creation of roa.8 districts : “The language eunder legislative prc- vision, t found in the section just quoted, committed to the Legfslabufe all queatfons relating to the oreation, the size, bound- aries, eta*, of defined districts I The Legislature oould, have oreated districts outright, defined their baundaries, end pro- vided for their organization and operation, or it could have authoriaed their creaMon by order of the commissfonersD court, wfth- out petition or vote of qualified eleotors.” The language of the Constitution and statutes concerning the purpose for which road district bonda may be issued is broad enough to include the purchase of right-of-way wbfoh is not anly in aid of, but is eaten- tial to the ocnstruotioa of a road, In 8titem ~4~ 8uttsa Ootmtltp(error rsfrrerd) 272 5. W, 506, it is hehd that eemey arUin& f$Wa then sale ef shah bonds may be w’ed to pp fer righI;-sf-way ror madr. The Court 8aBd: Hon. S. Md. Pillar i Page~3 (V'223) ‘Without the power to acquire and pay for gland neoeaaargfor then construction of roads, the power to construct such roads would amount to nothing, and the object of the constitutional and statutory pro- vlalona be defeated.” In the Mae Of~Arenaaa County v. Coleman-Fulton Pasture Company, 1CS T%xas 223, 191 S. W0’~553, the Supreme Court said: *The term lroada,e in our opinion was not uaed~ ln any such narrow sense in this con- nection aa would prevent in the conatruc- tion of necessary roads the necessary bridges for such roads. The broad scope of the constitutional provlalon when con- sidered in the light of Its purpose com- pels the view that the term waa used in the amendment in such a sense as would make possible completed and continuous roada in fulfillment of the liberal pol- icy to which the provlalon la due.” We are of the opinion that a defined road dla- trlct may be created within a Commlaaionerla Precinct by legislative Act or by the Commiaaloners~ Court by an order entered in its minutes, and that money arlalng from the sale of bonds issued by such district, “for the purpose of the construction, maintenance and operation of macadamlzed., graveled and paved roads and turnpikes, or in aid thereof” may be used to purchase right-or-way for roads in such dla- trlot. However, your attention la lnvlted,to that part oi Article 752~ which provldea: “e 0 .except aa herein speclflcally per- mltted, no fractional part of a prevloua- ly created road district shall be included within the limits of the road district areated under the provision of this Aot 0 0 .n This language imposes a limitation on the pou- eraof t& Commlssloneras Court, and the limitation has been aahutrued to apply to commlsaloneral preclncta aa well aa ,road d~atrlc.taO See Opinions Boa. O-7099 and O-11375, copies of which are enclosed hersurlth. . --- Honorable S. & Plfler - Page 4 SUMMARY A defined road district may be created within a CommlaalonerPa Precinct by legisla- tive Act or by an other entered by the Com- mlaslonersP ,Court, for the purpose of construa- tfon and maintenance and operatfon of macadam- lzed, graveled and paved roaaa and turnpikes, and in aid thereof. Const:Art. III, Sec. 52, sub-section (o);'Art. 752`` V. C. S., Anderson County Road Dfstrfct No, 8 vs. State, 298 S,. W. 462, affirmed 7 S. W. Zd, Money arfsfng from the,sale of bonds is- sued for the purpose of construction and maln- tenance and operation or macadamfzed, graveled and paved roads and turnpikes, and in aid there- of, may be used to pay for right-of-way for such roads, Stites v. Sutton County (error re- fused), 272 S. W, 506; Aransas County vs. Cole- man-Fulton Pasture Co,, 191 9. W. 553, Yours very txuly, ATTORNEYGENERAL OF TEXAS gczfs BY W. T. Wlllfama Assistant APPROVED 2iiLkLJ ATTORNEP GENERAL