### GENERAL THEATTOECNEY

OFTE~AS -- I This Opinion I 

# 1964 I 

# i I

HonorableDean Martin OpinionNo. C-322 County Attorney Gragrj on County Re: Can the Commissioners Sherman, Texas Court expendmoney derived from taxes leviedunder Article 

### 6790, V.C,S., for the purchase of right-ofway for federal, state and county highwaysand Dear Mr. Martin: lateral roads.

You have requestedthe opinion of this office as to whether the special road funds derived from taxes leviedunder Article 

### 6790,

Vernon's'CivllStatutes,may be expended for ttie purchase of right-of-wayfor federal, state and county highways and lateral roads.

Article 

### 6790,

Vernon's Civll'Statutes,Is the enabling statute passed pursuant to an amendmentto the Texas Constitut?.on

in 

### 1890,

ArticleVIII, Section 9, Texas Constitution. This Constitutional provisionwas further amended in 

### 1956 wit'h no substantlal'change as regards the special road fund. This constitutional amendment is quoted as follows:

"Set

. 9'. The State tax on property, exclusive of the tax necessary to pay the publicdebt, and of the taxes provided for the benefit of the public free schools, shall never exceed Thirt - five'cents 

### (35k)

on the One Hundred Dollars ( $100) valuation;and no county, city or town shall levy

a tax rate in excess of Eighty Cents (804) 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 Cormnlssloners 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 purposes; namely, general fund, permanent Improvementfund, road and bridge fund and jury fund so long as the Court does not impair any outstandingbonds or other obligatLonsand so long as the total of the foregoingtax leviesdoes not exceed Eighty Cents

-1536-HonorableDean Martin, page 2 (C-322)

(SO#) on the One HundredDollars ($100)valuation in any one (1) gear. Once'theCourt has levied the annual tax rate, the same Shall remain Yn force and effectdur'Fng t'hattaxable

year; and' the Legislaturemay also authorizean additional annual ad valoremtax to be levied and collected for the furthermaintenance of the public roads; provided,theta majority of the qualified ProPerty tax paging voters of the county voting at an' electionto be held for that purpose shall vote such tax, not to exceed Fifteen Cento (15#)

on the One HundredDollars ($100)valuation of the property subject to tbxatlon'insuch county. And the Legislature may pass'locallaws for the maintenanceof the public roads and highways, without the local notice requlrad for special

or local laws; ThisSection shall not be-~ constru'ed

as a llmltatlonof powers delegated to counties,cities or towns by any other Section

or Sections of this Constitution."

AttorneyGeneral's Opinion O-2094 (1940),written during the administration of Gerald C. Mann, contained the following language:

"The paragraph In the above quoted section of the Constitution providingfor the levying of

a tax not to exceed fifteen cents on the'one hundreddollar valuation of propertyrelating to the maintenanceof public roads was not a part of the orlglnal section; it was added by amendment in the year 1890 for the evidentpurpose of conferring

upon counties the power to lay out, constructand maintain better systems of public highways than they were able to do under the restrictedtaxatlonbefore provided for. It would be a narrow Fnterpratatlon to hold that the people adopting this amendment to the Constitution

had In view to provide a fund to be used only in repairingroads already laid out, lnsteadof the evidentand broader poltcy to create a better and more extensivesystem of public highways. The purpose of the Legislature in making the amendmentuas to increasethe capacity of the county t'6 maintaina system of public roads andthe word 'maintenance' must be held to Includeall the things necessary to be done to accomplishthe purpose. Dallas County:
vs. Plowman, 99 Tex. 509, 91 S.W. 222 (1906).

-1537-EonorableDean Martin, Page 3 (c-322)

In view of the foregoingcomments In Attorney Generel'sOplnlon O-2094,which opinion is hereby reaff-lrmecl by this office; it is our opinion that the purchase of rightof-way is necessarily includedamong the purposes for which the funds derived under Article 6790, Vernon's Civil Statutes,may be expended. We are further of the opinion that the right-ofway purchasedhereundermay be used for county roads and, by virtue of Article 6674n, Vernon's Civil Statutes, said r 'f;htof-way may be purchasedfor any purpose enumerated in 667 n. Said Article 6674n provldes'forthe purchase of right-of-way by the county and states that the funds therefor-shall'be' derived from the County Road snd Bridge Fund or any available county funds. This would necessarily Fnclude funds derived from Article 6790.

SUMMARY

Funds derived from the tax leviedunder Article 6790, Vernon's Civil Statutes,may be expended for the purchase of right-of-wayfor federal, state and county highways and lateral roads.

Yours very truly,

WAGGONER CARR Attorney General

Malcolm L. Quick Assistant

KLQ:ms:bk

APPRm: OPINION coMK!XTEE

W. V. Geppert, Chairman Edward Moffett Gordon Cass Ralph Rash Dean Arrington

APPROVE33

FOR TEE ATTORNEYGENERAL By: Roger Tyler

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