JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin, TX. 76711. 2546 

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An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

December 10, 1985 

Honorable Patrick 8. Simmons 

District-County Attorney 

Limestone County Courthouse 

200 West State Street 

Groesbeck, Texas 76642 

Opinion No. JM-390 

He: Constitutionality of Senate 

Bill No. 270, Acts 1947, 50th Leg., 

ch. 53, at 72, creating a special 

road district for Limestone County 

Dear Mr. Simmons: 

You have ask,ed our opinion regarding the constitutionality of 

certain parts of ,I local law affecting Limestone County. Acts 1947, 

59th Leg., ch. 53, at 72. You have asked about the constitutionality 

of the following provisions: (1) the prohibition in section 17 on the 

creation of any indebtedness against 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 creation of any such debt; and (3) the creation of the "office" of 

county engineer of Limestone County in sections 3 through 17. The 

provisions you 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;nr regulating the affairs of counties. Tex. Cast. 

art. III, $56. Article III, section 56, also provides that the 

legislature may net pass any local law "[aluthorizing the 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 construction of 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. 

p. 1785 
Honorable Patrick H. S1mmor.s - Page 2 (JM-390) 

,d.mestone County law states that the act 

;&?~~a:9.:h: '::oad law 

a more efficient road system for Limestone County." Simply 

," however, is not enough to insure 

its constitutionalitv. Thr courts have found unconstitutional certain 

local laws that purport 'TO be 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 expenditure of funds paid into the road and bridge fund. The 

court rejected arguments that the provisions were within the scope of 

article VIII, section 9. and held that they were therefore unconstitutional regulations of county affairs. In explaining the scope of 

article VIII, section 9, the court wrote: 

The authority to enact special road laws generally 

and without limi,tation would carry with it the 

right to regulate the affairs of the c'ounty in 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 wi1zLout limitation is authorized by 

the Constitution It authorizes the Legislature 

to pass local road laws for a restricted purpose 

-- the maintenance of the public roads and highways. As shown ilbove, our Supreme Court has held 

that the words, 'the maintenance 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 

subsidiary to the-object of such limited power -- 

the maintenance, Including the laying out, opening 

and construction-of public roads. It does not 

authorize the &traction, by local or special 

laws, of powers :Irom county commissioners and the 

commissioners' c'lurt conferred by general laws. 

It does not autta'rize a change in the financial 

system of counties fixed by general laws. It does 

not authorize tli& creation of offices and the 

clothing of those officers with functions already 

performed by existing officers as provided for by 

general laws. Kane of these are incidental or 

p. 1786 
Honorable Patrick H. Simmor.s - Page 3 (m-390) 

necessary to the aaintenance, laying out, 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. (Emphasis added). 

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

Austin Bros. makes clear that the legislature may not invoke 

article VIII, section 9, tc withdraw from a particular county a method 

of financing county affairs that is conferred by general law. For 

example, counties may 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 indebtedness against their road and bridge funds, a 

local law taking that power away from a particular county is constitutionally impermissible. Tt,erefore, the prohibition on the creation of 

indebtedness in the Limestone County law is unconstitutional insofar 

as it would nullify any authority Limestone County has under the 

general laws to create indebtedness against the road and bridge 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 construction and naintenance of roads. 

Your third question is whether the creation of the "office" of 

county engineer of 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." commissioners Court of Limestone County v. Garrett, 236 S.W. 970 (Tex. Comm. 

APP. 1922, judgmt adopted:: That act provided for the election of 

citizen members to the board of road commissioners in Limestone County 

and conferred on those merlbers certain 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 article VIII, 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 

constitutionality of a local law for Dallas County that created the 

p. 1787 
Honorable Patrick II. Simmons - Page 4 (JM-390) 

"office" of county road engineer. Hill v. Sterrett, 252 S.W.2d 766 

(Tex. Civ. App. - Dallas 195:2, writ ref'd n.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 :iaw in 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 in harmony with the constitution. Commissioners Court of Limestone 

County V. 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. See Attorney General Opinion V-1315 (1951) (regarding 

the severability ofa 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.ted by the general laws. Acts 

1947, 50th Leg., c~h. 53, at 72. 

The provisions of the Limestone County law that 

establish the position of Limestone County 

Engineer provide for an employee who is under the 

supervision and control of the county commissioners court. Therefore, those provisions are 

constitutional. . 

JIM RATTOX 

Attorney General of Texas 

JACX HIGHTOWER 

First Assistant Attorney General 

p. 1788 
Flonorable Patrick H. Simmons - Page 5 (JM-390) 

MARY KELLER 

Executive Assistant Attornq General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committe~a 

Prepared by Sarah Woelk 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Jennifer Riggs 

Sarah Woelk 

Bruce Youngblood 

p. 1789