JIM MATTOX Attorney General

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# The Attorney General of Texas

December 10, 1985

HonorablePatrick 8. Simmons District-CountyAttorney LimestoneCounty Courthouse 200West State Street Groesbeck,Texas 76642 OpinionNo. JM-390

He: Constitutionality of Senate BillNo. 270, Acts 1947,50th Leg., ch. 53, at 72, creating a special road district for LimestoneCounty

DearMr. Simmons:

You have ask,edour opinion regarding the constitutionality of certain parts of ,Ilocal law affecting Limestone County. Acts 1947, 59th Leg., ch. 53, at 72. You have asked about the constitutionality of the followingprovisions: (1)theprohibition in section 17 on the creation of any indebtednessagainst the county road and bridge fund; (2) the establishment in section 17 of civil and criminal penalties for members of thsn Limestone County commissioners court who vote for the creationof any such debt; and (3) the creation of the "office" of county engineer of Limestone County in sections 3 through 17. The provisionsyou ask about are "local laws" since they apply exclusively to Limestone County. City of Fort Worth v. Bobbitt, 36 S.W.2d 470 (Tex.Comm.App. 1931,opinion adopted).

The Texas Ccnstitution provides that the legislature may not enact any local l;nrregulating the affairs of counties. Tex. Cast. art. III, $56. Article III, section 56, also provides that the legislature may net pass any local law "[aluthorizingthe laying out, opening, altering or maintaining of roads, highways, streets or alleys." The lat,:er prohibition, however, was nullified by an 1890 amendment to the Texas Constitution providing that "the Legislature may pass local laws for the maintenance of the public roads and highways, without the local notice required for special or local laws." Tex. Const:.art. VIII, 59. See Austin Bras; v. Patton, 288 S.W. 182, 187 (Tex., Corn.. App. 1926,Tdamt adouted) (refers to the nullifying effect of article-VIII, sf%ion 9, on‘articlr III, section 56). See also Dallas County v. Plowman, 91 S.W. 221 (Tex. 1906) (holding that "zxntenauce" in article VIII, section~9, includes laying out and constructionof roads). Your question is whether the cited provisions of the Limestone County law represent unconstitutional attempts to regulate county affairs or whether they
come within the scope of article VIII, section 9, and are therefore constitutional.

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,d.mestoneCounty law states that the act

;&?~~a:9.:h: '::oadlaw

a more efficient road system for Limestone County." Simply ,"however, is not enough to insure its constitutionalitv. Thr courtshave foundunconstitutionalcertain local laws that purport 'TObe road laws. See, e.g., Altgelt v. Gutseit, 201 S.W. 400 (Ter:.1918); Austin Bras. v. Patton, 288 S.W. 182 (Tex.Comm.App. 1926, judgmt adopted).

The decision in Austin Bros. provides the answer to your first

-- two questions. In that case the court considered the constitutionality of a local law for Houston County regarding the appropriation and expenditureof fundspaid into the road andbridge fund. The court rejected arguments that the provisionswere within the scope of articleVIII, section 9. and held that theywere thereforeunconstitutional regulations of county affairs. In explaining the scope of articleVIII, section 9, the courtwrote:

The authority to enact specialroad laws generally and without limi,tationwould carry with it the right to regulate the affairs of the c'ountyin all such matters as might be necessarily and appropriately connected with or subsidiary to the object of such general power to pass local or special road lawr;. But, as pointed out above, no authority to enact local or special road laws generally and wi1zLoutlimitation is authorizedby the Constitution It authorizes the Legislature to pass local road laws for a restrictedpurpose

-- the maintenance of the public roads and highways. As shown ilbove,our Supreme Court has held that thewords, 'themaintenance of public roads,' include the laying out, opening, and construction of new roads. Therefore the authority conferred by the constitutional amendment carries with it the right to regilate the affairs of the county only in such rG;pacts as are necessarily and appropriately coznected with or incidental and subsidiaryto the-object of such limitedpower -- themaintenance, Including the layingout, opening and construction-of public roads. It does not authorize the &traction, by local or special laws, of powers :Iromcounty commissionersand the commissioners' c'lurtconferred by general laws. It does not autta'rizea change in the financial system of counties fixedby general laws. It does not authorize tli&creation of offices and the clothing of those officerswith functions already performed by existing officers as provided for by general laws. Kane of these are incidental or

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necessary to theaaintenance, layingout, opening, and construction of roads. It merely authorizes the application of the financial system and the povernmental machinery already existing to the action authorizei:thereby. (Emphasisadded).

Austin Bros.v. Patton, 28E,S.W. at 188.

Austin Bros. makes clear that the legislature may not invoke articleVIII, section 9, tcwithdraw from a particular county amethod of financing county affairs that is conferred by general law. For example, countiesmay issue bonds for the construction,maintenance, and operation of roads. 1r.T.C.S.art. 6702-1, 54.411(b). See also TeX. Coast. art. III, !i52. Bonds issued by a county create indebtedness. &White v, Pickett, 355 S.W.2d 848 (Tex.Civ. App. - San Antonio 1962,writ refTd n.r.e.). Article VIII, section 9, does not authorize local laws that would remove a county's authority to issue road bonds. Thus, to the extent that the general laws permit counties to create indebtednessagainst their road andbridge funds,a local law taking thatpower away from a particular county is constitutionally impermissible. Tt,erefore, the prohibitionon the creationof indebtedness in the Limestone County law is unconstitutional insofar
as it would nullify any authority Limestone County has under the general laws to create indebtednessagainst the road andbridge found.

It follows, then, that county commissioners cannot be ~subjected to civil and criminal penalties for voting to do something that they
are authorized to do under the general laws. Moreover, we do not perceive how such penalties have any but the most remote connection with the constructionandnaintenance of roads.

Your third question is whether the creation of the "office" of county engineerof Limest0r.e County is coustitutional. In a 1922 case the C&ission of Appeals considered a local law enacted in 1919 to "create a more efficient road system for Limestone County." commissionersCourt of LimestoneCountyv. Garrett, 236 S.W. 970 (Tex.Comm. APP. 1922, judgmt adopted:: That act provided for the election of citizenmembers to theboard of road commissionersin Limestone County and conferred on those merlberscertain sovereign powers. The court held that the law violatsd the constitutional prohibition against local laws creating officezj.. 236 S.W. at 973, See Tex. Csnst. art. III, 556. The court reject:trd the argument that articleVIII, secticn 9, authorized the law as a local law concerning the maintenance of public roads. 236 S.W. at 975. See also Austin Bros.v. Patton, 288 S.W. at 188; Anderson v. l?,uts,240 S.W. 647 (Tex. Civ. App. - San Antonio 1922,no writ).

In a 1952 case, the Dallas Court of Civil Appeals considered the constitutionalityof a local law for Dallas County that created the

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"office" of county road engineer. Hill v. Sterrett, 252 S.W.2d 766 (Tex.Civ.App. - Dallas 195:2, writ ref'dn.r.e). The court concluded that although the law purported to create an office, the county road engineer was in fact only an employee who had no sovereign or discretionary powers and who was under the control of the county commissioners' court. Id. at 769-70. Therefore, the law did not violate the constitutioz' prohibition against local laws creating offices.

The Limestone County :iawin issue creates the position and sets out the duties of the Limestone County Engineer. Courts favor the validity of a statute and, if possible, construe a statute so that it is inharmonywith the constitution. CommissionersCourt of Limestone CountyV. Garrett, 236 S.W. at 975. Therefore,we think that a court would read this part of the 1950 Limestone County statute to be constitutioual. SeeAttorney GeneralOpinionV-1315 (1951) (regarding the severabilityofa local law).

SUMMARY

The provisions of Acts 1947, Fiftieth Legislature, chapter 53, at page 72, that prohibit the creating of indebtedness against the county road and bridge fund of Limestone County and create civil and criminsl penalties for members of the Limestone County Commissioners Court who vote to create such indebtedness are constitutionally impermissible local laws insofar as they subtract from powers grac.tedby the general laws. Acts 1947, 50th Leg., c~h.53, at 72.

The provisions of theLimestone County law that establish the position of Limestone County Engineerprovide for an employeewho is under the supervision and control of the county commissioners court. Therefore, those provisions are constitutional.

.

JIM RATTOX Attorney General of Texas

JACXHIGHTOWER FirstAssistantAttorneyGeneral

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MARY KELLER ExecutiveAssistantAttornq General

ROBERT GRAY SpecialAssistantAttorney General

RICK GILPIN Chairman,Opinion Committe~a
Preparedby SarahWoelk AssistantAttorneyGeneral

APPROVED: OPINION COMMITTEE

Rick Gilpin,Chairman Colin Carl Susan Garrison JimMoellinger JenniferRiggs SarahWoelk BruceYoungblood

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