## THEATTORNEY 

## GENERAL OF TEXAS
PRICE DANIEL ATTORNEY

GENERAL 

### AUClTlN 11.TEXAS

May **ZB, 1949** 

Opinion No. **,V-831** Re: Authority to psy~for~~& construction of fanc,ea‘$n’ rights-of-way for ,ni$xe ‘Qmnty. roads&om the pertiansnt impravsmsnt ‘fund.‘

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# ,, Your r&&at for ‘anop&$on ‘is substantially as totlows:

‘,‘The !&mmissione,rs” Court and.CountyTreasu’rc: er hav+&ecn, us.iagfunds from what is commonly ,knownkn the ‘pcrrrknent tmprooement fund’,as : ,dercribed in Articls 8, $ec.tion9!,:of

### the Consti- ,tutionof the gtate dt Tsxao, and~~~Aa$klc 2352, Re* vised Civil STatuteaofTa~a$; for the purpose of purchasing matarialti and supplies, used in the construction of fences, fencing right-0Pway to netkcounty ‘roads and State highwayA within the county.
. . , “Querti.on,l., Can the Commis’sionars’ Court pay for such dxpenditur’cs above stated out of the fund c,rcated by the’levy of a tax of twenty-five cents ~{&!S$) on the one hundred dollar ($lOQ.OG) valua- ~kik’fer the ;srection of puJ& b&in$&:, street*, ~~~ib~~&~,;

wa& &orkd and dther p&mai!on~~ 

### ~rb~qbcnfs’ ? .Ifso, &an the C&$&&a~foners’ hrt,‘~ay outbf $uch f&d the.cont if Bcquliiti&’

‘:ntiwrightydf.&ay for new county roads or high: ~v+ya,.or the.iost of building such new roada. or 2iiglpiayq 7”Hon. Arnold W. Franklin, Page 2 (V-831)

Section 9, Article VIII of the Constitution of Texas reads in part:

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. and no county, city or town shall levy 5. -.-more than twenty-dve cents for city or county purposes, and not exceeding fifteen cents for roads and bridges, and not exceeding fifteen cenle to pay jurors, on the one hundred dollar8 valuation q . . and for the erection of public buildings, streets. sewers, water works, and other permanent improvements, not to exceed twenty-five cents on the one hundred dol**lam** valuation, in any oneyear. and except as is in this Constftut~on otherwise provided; in@ the Legislature may also authoriee an additiokal annual ad valorem 

### tax to be levied and collected for the further maintenance of the pub* lit roads; provided. that nmajority of the qu+ fied:$roperty tax-paying vo,$ers of the county voting at an election to be held for that purposa shall vote such tax not to exceed fifteen cents on the one -red dollara valuation ofthe 

### propertysubject to taxation in such county. , ,” It ie well settled that the Commleslonern’ Court can-. not levy a tax for one purpose anduse it for another purpose. 

### Carrollv. Willfamr, 109 Tax. 155,202S.W. 504 (1918);

### Adt v. Hill Count, 102Tax. 335.16 S. W. 359 (1909); Sanders*.nex, 225 S. W. 280 (Ter. Civ.’ App. 1920).

In 

### Carroll

v, WUliams #a c,ourtstatedr I.
, By necmmary fmplfcation said provisions of S&m 9 of Article 8ware designed, not merely to limit 

### the tax rate for 

### certain therein designated purposes. but to 

### require &at any and all money raised by taxation for any rash purpose shall be applied, faithfully. Cothat particular putptie, ao needed therefor, aad not to any other 

### purpose or 

### we whatmoevar. *

. .**Hon. Atnoht W. Franklin, Page 3 (V-831)

It is assumed from your factual situation (and you have since verbally informed us) that you contemplate caring for fences necessarily purchased or taken or required to be erected by reason of condemnation proceedings in obtaining rights-of-way for county road& and State Highways. In the case of Morris v. Coleman Coun- &, 28S. W. 380 (Tex.Civ.App., 1890, the court said:

“The court below admitted testimony of the cost of the fences built, whether they were required to be built under the circumstances, whether the expense ofbuilding was reasonable, and thejury must have conridered the same in estimating the damages. **We** think, however, that the cost of building the fences that were actually built by the 

### owner was n&the issue, but the reasonable cost of sufficient fences to enable the owner to enjoy his land in uses to,which it was adapted, and to which he lmd sipplied It,,was the issue.” Inthe c’ase of State v. Carpenter, 89 S. W. 2d 979 (Comm. App. 1936)the court said:

“The better general rule with reference to fences, which may also be applied to certain other imprycme&s, is **statqd** in 2 Lewis on Eminent Domain, % 498, in this language: ‘Where, by taking a part of a 

### tract, additional fencing will be rendered necessary in order to the reasonable use and enjoyment of the remainder, as,it probably will be used in the future, and the burden of constructing such additional fence ia cast upon the owner, of the land, then the burden of constructing and maintaining such fence, in 

### SDfar as it depreciates the value of the land, is a proper element to be considered in estimating the damages. * * + It is a question **of**damage to the land, as land. If in view of the probable future use of the land, additional fenging will **be** necessary of which thejury or commissioners are tojudge, and the mr must construct the fence if ht has it, then the ‘landis depreciated in proportion to the expense of constructing and maintaining such fencing. Nothing can be allowed for fence. as fence. The allowance should 

### bt for the deprcoiation of the land in constquence cd the’

burdea @usacast upon it.”**Hon.** Arnold W. Franklin, Page 4 (V-831)

Itwill be 6eiInfrom the foregoing that the county cannot actually pay ,fer fencing rights-@f-way **for** adjoin%nglandowners adjacent to 08w county road6 or highways ,regardfero ofwhether the county tigsrired the same by

### ptirchase DFby cahdemnatioa 

### proceedings, This item cry be considered c&y in astim&ng the damages to the Lud, ‘I&r

~hai~elpror;f,

ti ia not t&r a&&al **c4st** af f&e **fbnca** but tht rearonbble coat ufthe fence 4H, amble %e 

### wmer to e,njq U land for u8eo fo w&h ttwu adapted. It 

### watr&a~rUy follows that **tht** coat of foncfae w&l be **c.amp&td** ~1san a&m 04**ds.mage** by ithe**C~nwnh~~~nuf~ ’**  CWP$ when i% **ptwahnlrss** the land or whenthe **same kr**  **t&~a by**  **cwlemnaWa and**  **the** pxap~sty owner muut be c4mpeodwJ wwa Thefund ox **ftW3dB** ett wblr for *a acqiiPritlonof rr#a 4*way,Hon. Arnold W. Franklin, Page 5 (V-831)

**BWmt** purchasing materials and supplies in the construction of fences for adjacent landowners on rights-of-way onnew county roads and highways. Yours **very** truly, ATTORNEYGENERALOFTEXAS

Bum& Waldreg

APPROVED ,/

FIRST ASSISTANT ATTORNEY GENERAL