GENE-I. QF EXAS

June 25, 1962

Honorable MackWallace CountyAttorney OpinionNo. 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 notmembers 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 enlistedmen of the activemilitia of this State,who comply with theirmilitary duties as prescribedby this chapter, shallbe entitled to exemption from the payment of all poll taxes, except the poll tax prescribedby the Constitutionfor the support of public schools; exemption from the payment of any road or street tax, and from any road duty-whatsoeverunder 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 categoriesof 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 activemilitia of this State to exemption from the payment of road or street taxes, jury service or duty, and road duty as specified In Article 5840of this chapter, the commanding officer of such organizations shall,between the first and thirty-firstdays of January of each year, file lists similar to that set forth in the preceding article, certified to him, one copywith the clerk of the district court of his county and one copywith the clerk of the county court of his county; and the names appearing on such lists shali. thereafterbe exempt from jury service orHonorableMack 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'currentyear. County merks shall furnish information of those so exempt to the proper road overseersand to all others concerned."flmphasis addedJ

The reasonArt. 5840, V.C.S.,made it plain that there ~couldbe no exemption from $1.00 of the poll tax, which goes to support the publip school system, is because thatmuch of the poll tax is prescribedby Sec. 3, Art. VII, Texas Constitution. What is this road tax mentioned in Articles 5840 to 5844, V.C.S., inclusive? These articleswere enacted in 1905. You will note that each time there is a mention of exemption from road tax, it is coupledwith exemption from road duty. Also, Art. 5842, V.C.S., directs the County Clerk to furnish informationof 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-bodiedmale citizenwas required, upon being summonedby the road overseer of his precinct, to work not more than five days per year on the county road. Failure to corn@

when so summonedwas made a misdemeanor offense. Art. 6723, v.c,s. Certainpersonswere exempt, such as ministers, lnvalids, and members of volunteer fire companies. A person could be exemptby providing an able-bodied substitute,or by payment of a road tax of $3.00. The coun,ty treasurerwas 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 countywhere a special tax for themaintenance of the public roads is levied and collectedunder Section 9, Art. VIII, Texas Constitution,the Commissionersare 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, nowmaintain theirroads by taxation,which taxes are ad valorem, and are levied against property. The $3.00 road tax which was leviedunder the old obsolete road lawswas 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 ,for5 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 NationalHonorableMack Wallace, page 3 (~~-1361)

Guardsman,unless such exemptionwas 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 concludeswith the followingphrase:

and all laws exemptingproperty

from taxation other than the~propertyabove mentioned shallbe null and void."

duty" That these statutespertaining to "road tax" and "road
are now obsoletewas recognizedas early as 1930 by the Court of CriminalAp eals 1084 (Tex.Crim. of Texas in Johnson v. State, 31 S.W.2d,

1930 , P even though the statutesare still found in the books. This was a case of drivingwhile 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-calledhighway upon which he drovehis automobilewas not a public road. The State proved thatwhile the county had never formally dedicated such road as a public road, nevertheless,the countyhad recognized it as such, since the countyhad maintained it in years past under the old "roadhand" method, and inmore recent years the county had graded and worked the road. The Court left the inferer,ce that such laws calling for "roadduty" by "roadhands" are now obsoleteby referring to such laws as 'old,"when it said at page 1086:

11

. . .The evidence shows conclusively that the road in questionhad been used by the general public as a public road for more than thirty years. Road hands under the old road lawshad 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 longermaintained by the male citizen, road-hand method, but are worked and maintained by county employeeswho
are paid a salary from out of the Road and Bridge Fund. We hold, therefore, that the road tax from which themilitia is exempt under Articles 5840-5844,V.C.S., inclusive, is the $3.00 tax which male citizens formerlypaid In order to become exempt from having to perform without compensationfive days road duty per year on the county roads. Those articles are stillvalid to the extent that they exempt themilitia 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 stillmaintain theirHonorableMack Wallace, page 4 (WW-1361)

roadsby the "roadduty"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 citizenmay pay under the provisions of Arts. 6768-6770a-2,V.C.S., inclusive, in lieu of performing 5 days "roadduty" 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 propertybelonging to National Guardsmen from ad valorem taxes levied for themaintenance 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