ORNEY GENERAL 

OFTEXAS 

March 1, 1962 

Honorable Mack Wallace 

County Attorney Opinion No. 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 Special Road and 

Dear Mr. Wallace: Bridge Fund. 

In your letter requesting an opinion from this 

office you submit certain facts as follows: 

"The City 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 county will of necessity have 

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 buildings by spending 

money out of the Special Road and Bridge 

Fund." (timphasis added) 

Also, during a telephone conversation with 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 addition you stated that the voters of Henderson 

County have authorized a 15 cent tax, as is provided for by 

Section 9, Article VIII of the Texas Constitution, thereby 

creating a Special Road and Bridge Fund. 

With regard to the foregoing circumstances you 

ask a question which Is substantially as 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 Special Road and 
Honorable Mack Wallace, page 2 (~-1267) 

Bridge Fund. 

Our discussion herein will be limited to the legality 

of the proposed expenditure of money out of the Special Road 

and Bridge Fund for the purposes mentioned above. 

Article 2351, Vernon's Civil Statutes, lists 

certain powers and duties of a Commissioners' Court with 

regard to establishing and maintaining public roads and 

bridges. Those provisions most pertinent to our discussion 

are as follows: 

"Each commissioners' court shall: 

8, 

. . . 

"3. Lay out and establish, change and 

discontinue public roads and highways. 

"4. Build bridges and keep them In repair. 

"5. Appoint road overseers and apportion 

hands, 

"6. Exercise general control over all 

roads, highways, ferries and bridges 

in their counties. 

,I 

. . . 

"15. Said Court shall have all such other 

powers and jurisdiction and shall 

perform all such other duties, as are 

now or may hereafter be prescribed 

by law." 

The voters of the County have enabled the Commlssioners' Court to better perform the duties specified above. 

by authorizing the 15 cent tax as is provided for by Section 

9 of Article VIII of the Texas Constitution. This created 

a Special Road and Bridge,Fund, as provided by the Constitution, thus making it a Constitutional Fund. 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 Mack Wallace, 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 levy whatever tax rate may be needed 

for the four (4) constitutional purpose?; 

namely general fund, permanent improvement 

fund, road and bridge fund and jury fund so 

long as the Court does not impair any outstanding bonds or other obligations and 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 ~same shall remain 

in force and effect during that taxable year; 

and the Legislature may also authorize an 

additional annual ad valorem tax to be levied 

and collected for the further maintenance of 

the maintenance of the"p;blic roads and highways, without the local notice required for 

special or local laws. This Section shall 

not be construed as a limitation of powers 

delegated to counties, cities or towns by 

any other Section or Sections of this Constitution." (Emphasis added) 

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 8 
Honorable 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 therein defined, of tax money raised 

ostensibly for another such purpose. The 

Immediate purpose 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 taxes which 

may be raised from the people, by taxation, 

declaredly for those several purposes or 

classes of purposes, respectively. But that 

Is not all. The ultimate and practical and 

obvious design and purpose and legal effect 

is to inhibit excessive expenditure for any 

such purpose or class of purposes. BJ 

necessary implication said provisions of 

section 9 of article tl were designed, not 

merely to limit the tax rate for certain 

therein designed purposes, but to require 

ht y and all money raised by taxation 

fo: a:! such purpose shall be applied, 

faithfully, to that particular purpose, 

as needed therefor, and not to any other 

purpose or use whatsoever. Those constitutional 

nrovisXons control not‘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 construed and 

applied, (Emphasis added) 

(Article 2242, above cited by 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 Opinion No. O-298 (1939), 

this office held that the Commissloners~ Court of McLennan 

County had the authority to construct and pay for a county 

garage for housing, maintaining, repairing and servicing 

county road equipment, out of the County Road Bond Fund. 

The authorities relied on In said opinion hold in effect 

that the phrase "maintenance of the public roads" as used 

in Section 9, Article 8 of the Constitution has a broad 

enough meaning to Include the doing of everything 

necessarily and appropriately connected with and Incidental 

to the laying out, opening and construction of 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 maintenance and repair of public roads, it necessarily 

follows that the Commissionersl Court is authorized to 

properly house, service and repair such equipment, and 

pay for same out of the County Road Bond Fund. 

The same principles are equally applicable here. 

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 facilities necessam to 

house and/or service such equipment out of the same fund. 

By the same token, if the garage facilities become obsolete 

or unsuitable for the purposes intended, it would be 

illogical to prohibit expenditure of that same fund for 

renovation, relocation or construction of additional 

facilities if circumstances require it. 

If in the discretion of the Commissioners' Court, 

the existing location of garage or storage facilities are 

unsuitable, and in the judgment 01' the Commissioners' Court 

the proposed relocation will permit more efficient utilization 

and operation of the maintenance equipment, then the expense 

in relocating the existing structures or building additional 

structures to house the county road trucks and equipment 

on the new location, is directly related to the function of 

establishing and maintaining roads and bridges in the County, 

On the basis of the authorities discussed, it is our opinion 

that the Commissionerat Court Is authorized to use the Special 

Road and Bridge Fund for such a necessary attribute of the 

public road system as adequate and suitable storage or 

service facilities for the county road trucks and maintenance 

equipment. 

SUMMARY 

The Commissioners* Court of Henderson County 

is authorized to pay out of the Special Road 

and Bridge Fund for the removal and relocation 

of county "barns" and other buildings, which 

structures are utilized to house and service 

county road trucks and maintenance equipment, 

if the court finds that the present location 

is unsuitable. 

Very truly yours, 

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 

Grundy Williams 

Coleman Gay 

REY'IEWED FOR THE ATTORNEY GENERAL 

BY: Houghton Brownlee, Jr,