ORNEY 

### GENERAL

OFTEXAS

March 1, 1962

Honorable Mack Wallace County Attorney OpinionNo. WW-1267 Henderson County Athens, Texas Re: Whether the Commissioners' Court is authorized to pay for the removal and rebuilding of barns and other buildings out of the SpecialRoad and Dear Mr. Wallace: Bridge Fund.

In your letter requestingan opinion from this officeyou submit certain facts as follows:

"TheCity of Athens proposes to trade
a piece of land owned by them for a piece of land owned by the county. Incident to this trade the countywill of necessityhave to spend in the neighborhood of $14,000.00 rebuilding its barns which are located on the present county !.and.The Commissioners' Court proposes to pay for the removal of these barns and other buildingsby spending money out of the SpecialRoad and Bridge Fund." (timphasis added)
Also, during a telephone conversationwith this office on January 29, 1962,you stated that the barns and other buildings, presently located on county owned land, are utilized to provide housing for county road trucks, machinery and equipment.

In additionyou stated that the voters of Henderson County have authorized a 15 cent tax, as is provided for by Section 9, ArticleVIII of the Texas Constitution, thereby creating a SpecialRoad and Bridge Fund.

With regard to the foregoing circumstancesyou ask a questionwhich Is substantiallyas follows:

Whether the Commissioners*Court of Henderson County is authorized to pay for the removal and rebuilding of barns and other buildings out of the SpecialRoad andHonorable Mack Wallace, page 2 (~-1267)

Bridge Fund.

Our discussionherein will be limited to the legality of the proposed expenditureof money out of the Special Road and Bridge Fund for the purposes mentionedabove.

Article 2351,Vernon's Civil Statutes, lists certainpowers and duties of a Commissioners'Court with regard to establishingand maintainingpublic roads and bridges. Those provisionsmost pertinent to our discussion
are as follows:

"Each commissioners'court shall: 8,

. . . "3. Lay out and establish, change and discontinuepublic roads and highways.

"4. Build bridges and keep them In repair.

"5. Appoint road overseersand apportion hands,
"6. Exercise general control over all roads, highways, ferries and bridges in their counties. ,I

. . . "15. Said Court shallhave all such other powers and jurisdictionand shall perform all such other duties, as are now or may hereafterbe prescribed by law."
The voters of the Countyhave enabled the Commlssioners'Court to better perform the duties specifiedabove. by authorizing the 15 cent tax as is provided for by Section 9 of Article VIII of the Texas Constitution. This created
a SpecialRoad and Bridge,Fund, as provided by the Constitution, thus making it a ConstitutionalFund. Carrol v. Williams, 109 Tex. 155, 202 S.W. 504 (1918). First State Bank and Trust Compan of Rio Grande City v. Starr County, 306 s w 2d 24b (Civ.:pp.,19371. This Provision of the Const;t;tion &ads as follows:

"Sec. 9 The State tax on property, exluusive of the tax necessary to pay the public debt, and. .

Honorable MackWallace, page 3 (~~-1267)

of the taxes provided for the benefit of the public free schools, shall never exceed Thrityfive Cents (354) on the One Hundred Dollars ($100)valuation; and no county, city or town shall levy a tax rate in excess of Eighty Cents (80#) on the One Hundred Dollars ($100)valuation in any one (1)year for general fund, permanent improvement fund, road and bridge fund and jury fund purposes;provided further that at the time the Commissioners*Court meets to levy the annual tax rate for each county it shall levywhatever tax rate may be needed for the four (4) constitutionalpurpose?; namely general fund, permanent improvement fund, road and bridge fund and jury fund so long as the Court does not impair any outstandingbonds or other obligationsand so long as the total of the fore oin tax levies does not exceed Elght$ Cents $80$7 on the One Hundred Dollars ( 100) valuation in any one (1)year. Once the Court has levied the annual tax rate, the~sameshall remain in force and effectduring that taxableyear; and the Legislaturemay also authorize an additional annual ad valorem tax to be levied and collected for the further maintenance of

the maintenance of the"p;blicroads and highways, without the local notice required for special or local laws. This Section shall not be construedas a limitation of powers delegated to counties, cities or towns by any other Section or Sections of this Constitution." (Emphasisadded)
The Court in Carroll v.,Williams, supra, interpreted Section 9 of Article VIII as follows:

"Going to the real gist of the main issue before us, section 9 of article 8Honorable Mack Wallace, page 4 (w-1267)

of our Constitution, supra, inhibits any and all transfers of tax money from one to another of the several classes of funds therein authorized, and, as a sequence, the expenditure,for one purpose thereindefined, of tax money raised ostensibly for another suchpurpose. The Immediatepurpose In so prescribing a separate maximum tax rate for each of the classes of purposes there enumerated is, no doubt, to limit, accordingly, the amount of taxeswhich may be raised from the people,by taxation, declaredly for those severalpurposes or classes of purposes, respectively. But that Is not all. The ultimateand practicaland obvious design and purpose and legal effect is to inhibit excessive expenditurefor any suchpurpose or class of purposes. BJ necessary implication saidprovisions of section 9 of article tl were designed, not merely to limit the tax rate for certain therein designedpurposes,but to require ht y and all money raisedby taxation fo: a:! suchpurpose shallbe applied, faithfully, to that particularpurpose, as needed therefor,and not to any other purpose or use whatsoever. Those constitutional nrovisXons controlnot‘onls the raising.but also the application,of ail such funds: such is the legal effect of articles 2242 and

and 7357{, supra,when properly construedand applied, (Emphasisadded) (Article2242, above citedby the court, Article 2352,Vernon's Civil Statutes,and Article is now Article 7048, Vernon's Civil Statutes), Is now 7357

In Attorney General's OpinionNo. O-298 (1939), this office held that the Commissloners~Court of McLennan County had the authority to constructand pay for a county garage for housing,maintaining, repairingand servicing county road equipment, out of the CountyRoad Bond Fund. The authorities relied on In said opinionhold in effect that the phrase "maintenanceof the public roads" as used in Section 9, Article 8 of the Constitutionhas a broad enough meaning to Include the doing of everything necessarilyand appropriately connectedwith and Incidental to the laying out, opening and constructionof public roads and the maintenance of an efficient road system. The opinion accordingly reasons that since the Commissioners'. .

Honorable Mack Wallace, page 5 (WW-1267)

Court is authorized to acquire machinery and equipment for the maintenanceand repair of public roads, it necessarily follows that the CommissionerslCourt is authorized to properly house, serviceand repair such equipment, and pay for same out of the County Road Bond Fund.

The sameprinciples are equally applicablehere. It would be illogical to authorize or permit the purchase of maintenance equipment out of a road maintenance fund and not authorize the purchase of facilitiesnecessam to house and/or service such equipmentout of the same fund. By the same token, if the garage facilitiesbecome obsolete or unsuitable for the purposes intended, it would be illogical to prohibit expenditureof that same fund for renovation,relocation or constructionof additional facilities if circumstancesrequire it.

If in the discretion of the Commissioners'Court, the existing location of garage or storage facilitiesare unsuitable,and in the judgment 01' the Commissioners'Court the proposed relocationwill permit more efficient utilization and operation of the maintenance equipment, then the expense in relocating the existing structuresor building additional structures to house the county road trucks and equipment
on the new location, is directly related to the function of establishingand maintaining roads and bridges in the County, On the basis of the authoritiesdiscussed, it is our opinion that the CommissioneratCourt Is authorized to use the Special Road and Bridge Fund for such a necessary attribute of the public road system as adequate and suitable storageor service facilities for the county road trucks and maintenance equipment.

SUMMARY

The Commissioners*Court of Henderson County is authorized to pay out of the SpecialRoad and Bridge Fund for the removal and relocation of county "barns"and other buildings,which structuresare utilized to house and service county road trucks and maintenance equipment, if the court finds that the present location is unsuitable.
Very trulyyours,

WILL WILSON Attorney General of Texas. ,.

Honorable Mack Wallace, page 6 (~~-1267)

1RW:mkh

APPROVED: OPINION COMMITTEE
W, V. Geppert,Chairman Arthur Sandlin Morgan Nesbltt GrundyWilliams Coleman Gay

REY'IEWED

FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr,