Hon. Joe B. Fleming, Chairman 

Committee on Revenue and Taxation 

House of Representatives 

Fifty-first Legislature 

Austin, Texas Opinion No, V-822 

Re: Constitutionality of H. B. 

534 providing for payment of certain metor 

fuel taxes to cities. 

Dear Sir: 

In your letter of March 30, 1949, you state: 

“In accordance with a motion adopted at a meeting 

of the Committee on Revenue and Taxation, I hereby 

forward to you House Bill No. 534 and request an opinion as to its constitutionality.” 

House Bill 534 provides that each public transportation 

company and each taxicab, company operating under franchise or 

permit from and in an incorporated city shall report to the Comptroller each year the quantity of motor fuel upon which motor fuel 

taxes have been paid for whfhh taxes no refunds are claimed. The 

Comptroller is to calculate the amount of taxes paid by said companies and set up an account for each city for the taxes paid by the 

companies franchised, licensed, and operating therein. After allocation to the Available School Fund of one-fourth of the net revenues of the taxes and after deducting the one per cent allowed distributors upon the first sale, the Comptroller is then to pay over 

to each city the remaining portion of the taxes paid by the companies 

operating therein. 

By Section 5 of the Act the cities are required to use such 

funds “for the sole purpose of acquiring right of way, constructing. 

maintaining and policing public roadways and for the administration 

of such laws as may be prescribed by the LegLslrture pertaining to 

the supervision of traffic and safety on such reads, p (I QD 

Motor fuel taxes paid by motor bus companfas regulated 

by the Railroad Commission are exprecely excluded from the operation of House Bill 534< 
Hon. Joe B. Fleming, Page 2 (V-822) 

The Act further provides for penalties, contains a severability clause, and declares an emergency. 

The provisions of the Motor Fuel Tax Act are carried in 

Article 7065-b. Vernon’s Civil Statutes. The taxes are paid to the 

State Treasurer for the use and benefit of the State, and detailed 

provision is made for their allocation, Section 7-a of Article VIII 

of the Constitution of Texas, in so far as relevant herein, provides 

as followst 

*Subject to legislative appropriation, allocation 

and direction, all net revenues remaining after payment of all refunds . . . and expensea of collection derived from , , . taxes . . . on motor fuels and lubricants 

used to propel motor vehicles over public roadways, 

shall be used for the sole purpose of acquiring rightsof-way, constructing, maintaining, and policing such 

public roadways, and for the administration of such laws 

as may be prescribed by the Legislature pertaining to 

the supervision of traffic and safety on such roads , . . 

provided, however, that one-fourth (l/4) of such net 

revenues from the motor fuel tax shall be allocated to 

the Available School Fund . . .* 

We think it evident that the term “public roadways” as used 

in the above quoted section was intended to include “city streets.. 

This section deals with tha taxes *on motor fuels and lubricants 

used..to propel motor vehicles over public roadways . . ,” This undoubtedly includes the taxes paid on motor fuels used to propel motor vehicles over city streets. When provision is made for expending the tax revenues the reference is to “such public roadways”. 

Thus it is apparent that “public roadways” includes “city streets” 

or else the taxes collected on motor fuels consumed by motor vehicles operating excluaivoly on city streets are not included within 

this constitutional provision. We are therefore of the opinion that 

the provisions of House Bill 534 are in accord with the provisions 

of this section, and turn to a consideration of the other sections of 

the Constitution which are here applicable, 

Absent the existence of a *public calamity,” Section 51 of 

Article III prohibits gratuitous donations or grants of public moneys to municipal corporationsi but the State may grant funds to be 

used for governmental purposes. Road Dist, No. 4, Shelby County, 

V, Allred, 123 Tex. 77, 68 S.W.2d I64 (1934) Cities’do not own 

their streets and alleys in a proprietary ca;acity. City of Beaumont v, Gulf States Utilities Co., 163 S,W.Zd 426 (Ter. Civ. App. 

1942, error ret. w.o.m.1. “They are ‘the property of and for the 
Hon. Joe B. Fleming, Page 3 (V-822) 

use of the state, which, through its Legislature, has absolute control over same, which control it may or may not from time to time 

delegate to local authorities. ’ ’ West v. City of Waco, 116 Tex: 472, 

478, 294 S.W. 832, 834 (1927). The construction of public highways 

is a governmental function properly belonging to the State, and it 

therefore follows that the State may use the cities in the discharge 

of this function without violating this section. Jefferson County v. 

Board of County and District Road Indebtedness, 143 Tex. 189, 182 

. . 908 [ 1 Y44). 

As previously stated, the tares which are covered by House 

Bill 534 will have been paid into the State Treasury. Having determined that these State funds may be properly granted for the purposes stated in House Bill 534, and assuming that the framers of the 

Bill desire to make these funds available to cities during the coming biennium, the next question is whether the bill satisfies the following requirements of Section 6 of Article VIII: 

“No money shall be drawn from the Treasury but 

in pursuance of specific appropriations made by law; 

nor shall any appropriation of money be made for a 

longer term than two years . . .” 

We have come to the conclusion that the bill as drawn does 

not satisfy these requirements. 

If the terms of House Bill 534 could be deemed an otherwise adequate appropriation of the funds therein allocated, in so far 

as such appropriation purports to be for an iadefinite period of time 

it is clearly at variance with the terms of the above quoted provision. However, a violation of this provision does not invalidate the 

entire Act. Friedman v. American Surety Co. of New York, 137 Tex. 

149, 166, 174, 151 S.W.Zd 570 580 584 (1941). The courts of this 

State have upheld attempted cbntinuing appropriations as valid for 

the constitutional two year period. In-Atkins v. State Highway Department, 201 S.W. 226 (Tex. Civ. App. 1918). an appropriating section. in manv resuects similar to certain nrovisions of House Bill 

534, was heid valid for the two year period. However, we think that 

the following language of the Supreme Court in County of Dallas v. 

McCombs, 135 Tex. 272, 276, 140 S.W.Zd 1109, nil (1940), precludes our so holding in the instant case. The court said: 

“Plaintiff in error contends that even if this appropriation running for five years is in violation of the two 

years’ provision of Section 6 of Article VIII of our Constitution as applied to the five year period taken as a 

whole, still it is not in violation of such constitutional 
. 

Hon. Joe B. Fleming, Page 4 (V-822) 

provision as applied to the first two yeara of the five 

year period, It seems to b,e the law that where the Legislature has made ‘an appropriation in unmistakable 

terms,’ which continues for a longer period th tw 

years, such appropriation may be upheld for tttfirit 

two years, and would be inoperative thereafter. Pickle 

v, Finley, 91 Tex. 484, 44 S.W. 480, 482. It will be 

noted that the rule of law announced in Pickle v. Finley, 

supra, contemplates that that appropriation shall be 

made ‘in unmistakable terms.’ We interpret this to 

mean that if an appropriation is made for more than 

two years, it can be enforced for the first two years if 

it appears that the Legislature undoubtedly intended 

such appropriation to operate for two years, regardless 

of whether or not it could de so thereafter. We think 

that this rule cannot aid this appropriation, because 

when all of the provisions of this Act are considered together, we cannot say that the Legislature would undoubtedly have passed it to operate for two years only, 

instead of five years as provided by the Act,” (Emphasis 

added by the court.) 

We are of the opinion that House Bill 534 has failed to make 

“an appropriation in unmistakable terms.” Tke caption of the Act 

provides that the taxes “shall be paid over by the State Comptroller 

each year to each such city”: the body of the bill simply repeats this 

mandate, adding the details summariaed at the outset of this opinion. Nor do we think,, should this bill become a law and its interpretatio,n the subject of litigation, that the courts would say that in view 

of all, its provisions the Legislature would have undoubtedly passed 

it to operate for two years only instead of for the indefinite period 

of time for which it presently provides. We are further motivated 

in our holding-by the fact that House Bill 534 may be very easily 

changed to show an appropriation in unmistakable terms, limited to 

the constitutional two year period, in which case the caption should, 

of course, reflect sach Change. In reaching the conclusion that House 

Bill 534 does not make any valid appropriation, we have taken the 

direction that “the Comptroller shall pay over” to the cities to mean 

that he shall draw a warrant on the State Treasury for the proper 

amount due each city under the Act. House Bill 534 nowhere attempts 

to prevent deposit in the State Treasury of the motor fuel taxes covered by the Act. In any event, the character of these public funds 

would not thereby be changed, and Article VIII, Section 6 would still 

be controlling, 
. 

Hon. Joe B. Fleming, Page 5 (V-822) 

None of the provisions of House Bill 534 are uncenstitutional; but said Bill fails to make a present appropriation of the tax funds for the purposes therein’stated 

since the requirements of Section 6 of Article VIII of 

the Term Constitution have not been met. County of Dallas v, McCombs, 1.35 Tex. 272, 140 S.W.2d 1109. 

Very truly yours 

A,TTORNEY GENERAL OF TEXAS 

By /?izLzzm 

Mrs. Marietta McGrcgo 

Assistant 

MMC/mwb 

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ATTORNEYGENERAL