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.‘. 

,, 

Your r&&at for ‘an op&$on ‘is substantially as totlows: 

‘,‘The !&mmissione,rs” Court and .County Treasu’rc: 

er hav+&ecn, us.iagfunds from what is commonly 

,known kn the ‘pcrrrknent tmprooement fund’, as : 

,dercribed in Articls 8, $ec.tion 9!,:of the Consti- 

,tution of the gtate dt Tsxao, and~~~Aa$klc 2352, Re* 

vised Civil STatutea ofTa~a$; for the purpose of 

purchasing matarialti and supplies, used in the 

construction of fences, fencing right-0Pway to 

netk county ‘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’ ? .If so, &an the C&$&&a~foners’ 

hrt,‘~ay out bf $uch f&d the.cont if Bcquliiti&’ 

‘:ntiw rightydf.&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: 

. * . 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 dollam valuation, in any one year. 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 n majority 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 of the 

property subject to taxation in such county. , ,” 

It ie well settled that the Commleslonern’ Court can-. 

not levy a tax for one purpose and use it for another purpose. 

Carroll v. Willfamr, 109 Tax. 155, 202 S.W. 504 (1918); Adt v. 

Hill Count, 102 Tax. 335.16 S. W. 359 (1909); Sanders*.nex, 

225 S. W. 280 (Ter. Civ.’ App. 1920). 

In Carroll v, WUliams #a c,ourt statedr 

I. 

, By necmmary fmplfcation said provisions of 

S&m 9 of Article 8 ware 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. Co that 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- 

&, 28 S. 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 of building was reasonable, and the jury 

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.” 

In the 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 SD far 

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 

the jury or commissioners are to judge, and the 

mr must construct the fence if ht has it, then 

the ‘land is 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 @usa cast upon it.” 
Hon. Arnold W. Franklin, Page 4 (V-831) 

It will be 6eiIn from the foregoing that the county cannot 

actually pay ,fer fencing rights-@f-way for adjoin%ng landowners adjacent to 08w county road6 or highways ,regardfero of whether the 

county tigsrired the same by ptirchase DF by 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 tt wu adapted. It watr&a~rUy follows that 

tht coat of foncfae w&l be c.amp&td ~1s an a&m 04 ds.mage by 

ithe C~nwnh~~~nuf~’ CWP$ when i% ptwahnlrss the land or when the 

same kr t&~a by cwlemnaWa and the pxap~sty owner muut be 

c4mpeodwJ wwa The fund 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 on new county roads and highways. 

Yours very truly, 

ATTORNEYGENERALOFTEXAS 

Bum& Waldreg 

APPROVED ,/ 

FIRST ASSISTANT 

ATTORNEY GENERAL