GENE-I. 

QF EXAS 

June 25, 1962 

Honorable Mack Wallace 

County Attorney 

Opinion No. w-1361 

Henderson County Courthouse Re: Whether,members of the 

Athens, Texas National Guard are exempt 

from the payment of road 

tax under Articles 5840- 

Dear Mr. Wallace: 5844, V.C.S., inclusive. 

You have asked whether or not members of the National 

Guard are exempt from road tax under the provisions of Articles 

5840 to 5844, V.C.S., inclusive. 

Article 5840, V.C.S., reads as follows: 

"All officers and enlisted men of the 

active militia of this State, who comply with 

their military duties as prescribed by this 

chapter, shall be entitled to exemption from 

the payment of all poll taxes, except the poll 

tax prescribed by the Constitution for the 

support of public schools; exemption from the 

payment of any road or street tax, and from 

any road duty-whatsoever under 

this State, and exemptfon from 

or duty of every character and 

Acts 1905, p. 167. 

the laws of 

jury service 

description." 

Articles 5841 to 5844, V.C.S., Inclusive, provide the 

method for the various categories of the militia to claim and 

receive their exemption. Art. 5842, V.C.S., reads as follows: 

"To entitle any troop, battery, 

company, signal corps or band of the active militia of this State to exemption 

from the payment of road or street taxes, 

jury service or duty, and road duty as 

specified In Article 5840 of this chapter, 

the commanding officer of such organizations 

shall, between the first and thirty-first days 

of January of each year, file lists similar to 

that set forth in the preceding article, certified to him, one copy with the clerk of the 

district court of his county and one copy with 

the clerk of the county court of his county; 

and the names appearing on such lists shali. 

thereafter be exempt from jury service or 
Honorable Mack Wallace, page 2 

duty of every character 

(WW-1361) 

and description, 

SrOm tne perrormance of' any road duty and 

from the payment of any road or street tab 

in such county for the'current year. County 

merks shall furnish information of those 

so exempt to the proper road overseers and to 

all others concerned." flmphasis addedJ 

The reason Art. 5840, V.C.S., made it plain that there 

~could be no exemption from $1.00 of the poll tax, which goes to 

support the publip school system, is because that much of the 

poll tax is prescribed by Sec. 3, Art. VII, Texas Constitution. 

What is this road tax mentioned in Articles 5840 to 5844, V.C.S., 

inclusive? These articles were enacted in 1905. You will note 

that each time there is a mention of exemption from road tax, it 

is coupled with exemption from road duty. Also, Art. 5842, V.C.S., 

directs the County Clerk to furnish information of those so exempt 

to the proper road overseers. 

At the time Arts. 5E40 to 5844, V.C.S., inclusive, were 

enacted in 1905, every able-bodied male citizen was required, 

upon being summoned by the road overseer of his precinct, to 

work not more than five days per year on the county road. Failure to corn@ when so summoned was made a misdemeanor offense. Art. 

6723, v.c,s. Certain persons were exempt, such as ministers, lnvalids, and members of volunteer fire companies. A person could 

be exempt by providing an able-bodied substitute, or by payment 

of a road tax of $3.00. The coun,ty treasurer was required to 

furnish every road commissi.oner a list of all persons in their 

precinct who had paid the $3.00 road tax, so that the Commissioner 

would know who was exempt from the call for road hands. Articles 

6768 to 6770a-a, V.C.S. It is provided in Art. 6755, V.C.S., 

that in any county where a special tax for the maintenance of 

the public roads is levied and collected under Section 9, Art. 

VIII, Texas Constitution, the Commissioners are not required to 

compel citizens in their precincts to perform road duty, but 

that the roads would be maintained wholly by taxation. 

All counties, so far as we know, now maintain their roads 

by taxation, which taxes are ad valorem, and are levied against 

property. The $3.00 road tax which was levied under the old 

obsolete road laws was a voluntary tax which a male citizen could 

pay In order to be exempt from having to be a road hand and perform road duty at no compensation on the county roads ,for 5 days 

a year. These articles (5840-5844) are not giving any exemption 

from the ad valorem taxes levied against property for the benefit 

of the county Road and Bridge Fund, or the Special Road Tsxss. 

There would be no way to exempt from ad valorem taxes any property solely on the ground that it was owned by a National 
Honorable Mack Wallace, page 3 (~~-1361) 

Guardsman, unless such exemption was named in Section 2, Art. 

VIII, Texas Constitution. 

Sec. 2, Art. VIII, Texas Constitution, names the property 

which may be exempt from taxation, and then concludes with the 

following phrase: 

and all laws exempting property 

from taxation other than the~property above 

mentioned shall be null and void." 

duty" 

That these statutes pertaining to "road tax" and "road 

are now obsolete was recognized as early as 1930 by the 

Court of Criminal Ap eals 

1084 (Tex.Crim. 

of Texas in Johnson v. State, 31 S.W.2d, 

1930 P , even though the statutes are still found 

in the books. This was a case of driving while intoxicated, in 

which it was alleged that the defendant drove an automobile on 

a public highway while intoxicated. As one of his defenses, the 

defendant contended that the so-called highway upon which he 

drove his automobile was not a public road. The State proved 

that while the county had never formally dedicated such road as 

a public road, nevertheless, the county had recognized it as such, 

since the county had maintained it in years past under the old 

"road hand" method, and in more recent years the county had graded 

and worked the road. The Court left the inferer,ce that such laws 

calling for "road duty" by "road hands" are now obsolete by referring to such laws as 'old," when it said at page 1086: 

11 

. . . The evidence shows conclusively that the road in question had been 

used by the general public as a public 

road for more than thirty years. Road 

hands under the old road laws had worked 

it under the supervision of road overseers; 

and In recent years the commissioners' 

court or road supervisors, had graded and 

worked~the road. . . ." 

Therefore, as early as 1930 it was recognized that county 

roads are no longer maintained by the male citizen, road-hand 

method, but are worked and maintained by county employees who 

are paid a salary from out of the Road and Bridge Fund. We hold, 

therefore, that the road tax from which the militia is exempt 

under Articles 5840-5844, V.C.S., inclusive, is the $3.00 tax 

which male citizens formerly paid In order to become exempt from 

having to perform without compensation five days road duty per 

year on the county roads. Those articles are still valid to the 

extent that they exempt the militia from having to perform 5 days 

road duty on the county roads, or pay the $3.00 road tax in lieu 

therof, as to those counties, if any, which still maintain their 
Honorable Mack Wallace, page 4 (WW-1361) 

roads by the "road duty" method. 

SUMMARY 

The 'road tax" from which the militia 

is exempt under Arts. 5840-5844, V.C.S., inclusive, Is the $3.00 road tax,which a male 

citizen may pay under the provisions of Arts. 

6768-6770a-2, V.C.S., inclusive, in lieu of 

performing 5 days "road duty" per year on the 

county roads, as provided in Art. 6723, V.C.S. 

The exemption from "road tax" in Arts. 

5840-5844, V.C.S., inclusive, does not exempt 

property belonging to National Guardsmen from 

ad valorem taxes levied for the maintenance of 

roads. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

By @? &+bk 

Riley Eugene Fletecher 

Assistant 

REF:jp:ms 

APPROVED: 

OPINION COMMITTF'E' 

W. V. Geppert, Chairman 

Robert C. Patterson 

Coleman Gay 

Pat Bailey 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Leonard Passmore