. . 

Hon. Henry Wade 

District Attorney 

Dallas County 

Dallas, Texas 

Opinion No. V-1315 

Re: Constitutionality of 

Dallas County Road 

Law. 

Dear Sir: 

Your request for an opinion relates to 

the constitutionality of House Bill 961,4cts 47th 

Leg., R.S. 1941, ch. 458, p. 729, as amended. The 

following questions are presented for determination: 

"1. Is the entire Act (H.B. 961, Ch. 

458, 47th Leg., Reg? Sess. as amended June 

3, 1949 and June 2, 1951) unconstitutional 

as being in contravention of Article III, 

Sec. 56, Texas Constitution, which prohibits 

the enacting of local and special laws to 

regulate the affairs of a county, to regulate labor or elections, or where already 

existing general laws can be made applicable?, 

"2. Are the following Sections, if 

taken individually, valid and constitutional: 1, 4 (auto purchasing part), 6, 

3, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 

23, 24, 25, 26, and 27? 

“3. Are the following Sections, if 

taken individually invalid and unconstltutional: 2, 3, 4 f except for auto purchasing part), 5, 7, 9, 10, 11, and 12? 

"4. If any of the sections are found 

to be unconstitutional, is there sufficient 

basis for the remaining sections to stand 

and be considered in force and effect? 

‘5. Are the provisions applying to 

the naming and ptiescrlblng of the functions 

of the County Rngineer (Sec. 4) and the 

County Purchasing Agent (Sec. 11) constitutional? 
Hon. Henry Wade, Page 2 (V-1315) 

“5. May the Legislature constitutionally sin le out Dallas County in Sections 

22 and 2 & and make the provisions of this 

Act as constituted apply solely to that 

county to the exclusion of all others?" 

House Bill 961, commonly referred to as 

the "Dallas County Road Law,' is described in its 

caption as "An ?ct to create a more efficient road 

system for Dallas County, Texss, for the maintenance 

of the public roads and highways other than duly 

designated State highways of Dallas County." House 

Bill 951 was amended in 1949 by House Bill 862, 

Acts 51st Leg., R.S'. 1949, ch. 311, p. 579. The effect of this amendment was to delete the salary 

limitations of the county engineer in Section 4 and 

the salary limitations of the ~purchasing agent in 

Section 11 of the act. It was again amended by 

Senate Bill 383, Acts 52nd Deg., R.S. 1951, ch. 328, 

,proz6:;,by adding a new section to be known as Secwhich gave the commissioners' court the 

power to'create a county planning board and vested 

in the court the power to adopt a master plan for 

roads of the county. 

Since House Bill 951 applies only to 

Dallas County, it is apparent that the bill falls 

;rithin the classification of a local or special 

law. Fort Worth v. Bobbitt. 121 Tex. 14. 35 S.W. 

2d 470, 41 S.W.2d 228-j; Bexar County-v. Ty152 s.w.2'd 

?&d-as such. it must come 

within the'prohibition of Section 56 of Article 

III of the Constitution of Texas. 

Section 55, Article III, Constitution of 

Texas, provides in part: 

"The Legislature shall not, except 

as otherwise provided in this Constitution, pass any local or special law, . 

. . 

"Regulating the affairs of counties, 

e D . 

"Authorizing the laying out, opening, 

altering, or maintaining of roads, highways, streets or alleys; 
Hon. Henry Wade, Page 3 (V-1315) 

” 

. . . 

"And in all other cases where a general law can be made applicable, no local 

or special law shall be enacted: . . .* 

However, Section 9, Article VIII, Constitution of Texas , provides in part: 

"And 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." 

This provision, which was added to the Constitution 

by an amendment adopted in 1890, is an exception to 

Article III, Section 56. Henderson County v. Allred, 

I.20 Tex. 483, 40 S.W.2d 17 (1931). 

As stated in Quinn v. Johnson, 91 S.W.2d 

499, 501, (Tex. Civ.. App. 1936, error dism.), 

” It is no longer open to question t&a; any special or local road law 

which limits its scope to what may reasonably be considered matters pertaining to 

the 'maintenance' of the public roads and 

highways is valid. (Citations.)" 

The scope'of the term "maintenance of the 

oublic roads and highways" as used in Article VIII. 

Section 9, has been-discussed in several cases. In 

Smith v. Grayson County 44 S.W. 921, 923 (Tex. Civ. 

Aoo. 1897. error ref.),'the court held that the maintenance-of roads including the laying out of new 

roads, saying: 

n . . . By the use of the words ‘maintenance of public roads and highways,' the 

framers of the constitution had reference 

to maintaining a system of public roads 

and highways, which would include all the 

necessary powers to provide 

system of highways." 

and keep up a 

In Tarrant County v. Shannon, 129 Tex. 254, 

104 S.W.;?d 4, 5, 7 (19371, the court said: 
Hon. Henry Wade, Page 4 (V-1315) 

"The validity of H.B. No. 416, which 

conferred the alternative rights in condemnation upon certain counties falling 

within the provisions of this act, was 

not challenged or questioned In the principal opinion of the Court of Civil Appeals. However, in the concurring opinion the question was raised that H.B. No. 

416 violates article 8, section 9 and article 3, section 56, of the Constitution; 

and it further questioned the correctness 

of the construction of article 3, section 

55, of the Constitution by this court in 

the case of Dallas County v. Plowman, 99 

Tex. 509, 91 S.W. 221, in which case it 

was held that local or special road laws 

may be enacted without giving the local 

notices required for special or local 

laws. 

" . * . 

"Furthermore, in that case the court 

in substance held that the phrase 'maintenance of the public roads' in article 8, 

section 9, of the Constitution, amendment 

of 1890, authorizing the Legislature to 

pass local laws for such purpose, includes 

in its scope the laying out, opening, and 

construction of new roads as well as the 

repairing of those already laid out. And 

the act of the 24th Legislature, supra, 

enacting a local road law for Dallas county, which provided for condemnation of 

lands by the county upon the same proceedings as by a railroad company was not, in 

view of such amendment, rendered unconstltutional by article 3, section 56, and article 11, section 2, of the Constitution. 

It was also held, in effect, that the meaning of the word 'maintenance' in the amendment to article 8, section 9, of the Constitution is not restricted, as in article 

3, section 56, subdivision 5, by the context, to the keeping up of roads, as distinguished from laying out and opening 

them, nor is it confined to its narrow 

and literal construction; but it must be 

held to embrace all the things necessary 

to accomplish the obvious purpose of the 
. 

Hon. Henry Wade, Pege 5 (w-1315) 

amendment, including the opening as well 

as repair of roads. The local law passed 

for Dallas counwwas held valid." 

Al.so see Tinner v. Crow, 124 Tex. 368, 78 

s.W.2~ 588 (1935). 

The subject matter included within a special road law must be incidental or necessar!? to 

the maintenance of roads. In Austin Bros. v: Patton, 

288 S.W. 182 (Tex. Comm. App. 1926), the court stated 

at pages 187, 188: 

” 

. . . The authority conferred by 

section 9, art. 8, of the Constitution, 

supra, is not 'to enact special road 

laws' of all kinds, for all purposes indiscriminately, but is authority merely 

to pass local laws for the maintenance 

of the public roads and highways. . . . 

" 

. . . As shown above, our Supreme 

Court has held that the words, 'the 

maintenance of public roads,' include 

the laying out, opening, and construction of new roatts. Therefore the authority conferred by the constitutional 

amendment carries with it the right to 

regulate the affairs of the county only 

in such respects as are necessarily and 

appropriately connected with or incidental and subsidiary to the object of such 

limited power -- the maintenance, including the laying out, opening, an$ 

construction of public roads. . . . 

Since, as shown by the above cases, the 

Legislature may pass local or special laws pertaining to the "maintenance" of roads and highways, 

it becomes necessary to determine whether the various provisions of the Dallas County Road Law come 

within the meaning of that term as interpreted by 

the Texas courts, and therefore within the scope 

of the exception contained in Section 9 of Article 

VIII. 

It is well settled that in determining 

the constitutionality of a statute it is the duty 

of the courts to uphold the legislative enactment 
Hon. Henry Wade, Page 6 (V-1315) 

if at all possible and to adopt any reasonable construction which will place the statute in harmony 

with the Constitution rather thanone which will 

cause the statute to be in violation thereof. Pickle 

z-e91 Tex. 484, 44 S.W. 480 (1898). Also, is our duty to give effect to this rule of statutory construction in considering separate sections 

of an a~ct, especially where the Legislature has expressly provided for severability as it has done in 

Section 25 of the act under consideration. Att'y 

Gen. Op. V-1253 (1951). With these rules in mind, 

we will now discuss the separate sections of the 

act. 

Section 1 of the statute prescribes the 

powerand authority of the Commissioners' Court of 

Da~llas County to adopt a system for the construction and maintenance of the public roads of the 

county. The provisions of this section are clearly 

within the scope of the exception authorized in 

Section 9 of Article VIII, and, in our opinion, the 

section is constitutional. 

Likewise, Section 6 relates directly to 

the construction and maintenance of roads. This 

section confers on the Commissioners' Court the 

right to purchase or condemn property necessary for 

the construction and maintenance of roads and prescribes the procedure for condemnation proceedings. 

A provision giving similar authority to the Commissioners' Court of Tarrant County was held valid in 

Tarrant County v. Shannon, supra. It is our opinion that Section 5 is constitutional. 

Section 8 authorizes the Commissioners' 

Court of Dallas County to require the draining of 

ditches or borrow pits which impede the proper 

drainage of water a~ccumulating on or along roads 

and highways. We think the powers conferred in 

this section clearly pertain to the maintenance 

of roads and that the section is valid. 

Section o abolishes road overseers and 

payment of road taxes by labor and requires all 

moneys received from direct taxation for the construction and.maintenance of roads be placed to 

the credit of the County Road and Bridge Fund. We 

think these are valid provisions. 
Hon. Henry Wade, Page 7 (v-1315) 

Sections 13 through 17 relate to the issuance of bonds for road and bridge purposes and 

the moneys received from the sale of such bonds. 

In Henderson County v. Allred, 1.20 Tex. 483, 40 S.W. 

2d 17, 19 (1931], the Supreme Court held: 

" . . . If the Legislature possessed 

the power to control by local or special 

laws the laying out, construction, and 

maintenance of public roads in Henderson 

county, which cannot be doubted under the 

foregoing decisions, then it must necessarily follow that it has the power to 

control and regulate by such a law the 

expenditure of all funds used for such 

purposes. , . . Indisputably the Legislature had the power to authorize Henderson county by local or special law to 

issue warrants or bonds as a means of obtaining funds to be used in the buildigg 

and operation of its road system . . . 

Since the enactment of these provisions 

is not inhibited by Section 56 of Article III, we 

have only to consider whether any of the provisions 

of these sections violate other constitutional requirements. 

Section 13 provides in part% 

"Whenever the Commissioners Court 

shall deem it necessary or expedient to 

build, construct, improve, reoair, or 

maintain roads of a permanent nature in 

said County with the proceeds of the sale 

of bonds issued for road and bridge purposes under the terms of this Act, said 

Court shall at any regular meeting pass 

and record in its minutes a resolution 

setting forth that it is the sense of 

said Court that public roads and bridges 

ofa permanent nature shall be built, 

constructed, improved, repaired, or maintained in said County and that the County 

or any Road District thereof should issue 

its bonds to raise money for that purpose 

in an amount to be named in such resolution, and said resolution shall be submitted to the vote of the property-owning, 
Hon. Henry Wade, Page 8 (V-1315) 

qualified voters of said County at any 

regular or special election which the 

Court may order for that purpose, and 

if at such election a two-thirds majority of the votes cast shall be for such 

resolution . . .” 

It is clear that the "road and bridge* 

purposes refer to the fifteen cent road and bridge 

tax authorized by Section 9 of Article VIII (countywide road and bridge tax) * This is made clearer by 

Section 15, which provides that "nothing in this 

language or in the terms of this Act shall be held 

to impair the right of the County or any Road District thereof to issue bonds under the provisions 

of Article 3, Section 52 of the State Constitution 

and the Statutes enacted pursuant thereof." In 

other words, unlimited tax road bonds issued by 

counties and road districts are excepted from the 

provisions of the Act. 

Section 13 provides for the issuance of 

bonds by the County “or any Road District thereof.” 

A road district can issue bonds only under Section 

52 of Article III.' The 15d road and bridge tax 

under Section 9 of Article VIII is a county-wide 

tax, and may be levied only over the entire county. 

Any attempt to authorize a road district to levy a 

tax under Section 9 of Article VIII would be unconstitutional. Clearly, therefore, Section 13 is 

unconstitutional in attempting to authorize road 

districts to issue bonds under Section 9 of Article 

VIII. Section 13 is valid, however, insofar as it 

pertains to the issuance of bonds by the county for 

road and bridge purposes. Sections 14, 15, 16, and 

17 likewise are valid to the extent that they apply 

tc such county bonds and the moneys received from 

the sale thereof. 

Section 18 prescribes the manner in which 

contracts for road improvements are to be awarded. 

The making of contracts for road improvements, in 

our opinion, comes within the scope of a valid local 

road law, 

Section 25a, which was added by the 1951 

amendment, authorizes the Commissioners' Court to 

create a County Planning Board “for the purpose of 

. 
Hon. Henry Wade, Page 9 (V-1315) 

regulating county planning, platting and subdivisions." The section also confers upon the Commissioners' Court the same powers within the area 

under its jurisdiction with reference to planning, 

platting, and approving of subdivision as cities 

are empowered to exercise under Article 974a, V.C. 

S. The Commissionersf Court is authorized to 

adopt rules and regulations governing the subdividing and platting of territory, "which said rules 

and regulations shall take into consideration the 

general layout of highways, roadways, their connection with either present or projected roads, 

and how these highways and roadways may connect 

with streets within the city, or projected streets, 

connecting therewith, so as to provide an orderly 

development in the interest of public health, 

safety, and general welfare of the county." Although the motive for the grant of authority is in 

broad language, we think the effect of the section 

is to enable the Commissioners' Court to provide 

for an orderiy development of the county road sys- 

~tem.~ The statute expressly provides that the 

Comissioners' Court or the planning board is not 

given authority to set up zoning regulations or 

building codes. In a letter.opinion to the Governor of Texas on Nay 31; 1951,,ws'held that this 

section was validly enacted under Section 9 of Article VIII. 

You have asked us specifically whether 

certain sections of the statute are unconstitutional, 

and we shall now refer to these particular sections. 

Section 2 provides that each county commissioner shall devote all of his time to the duties 

of his office and be in attendance at all sessions 

of the court. It also fixes the compensation of 

the county commissioners and provides that such compensation "shall be in full for all services rendered said county." We believe this section violates 

Article III, Section 56 of the Constitution, since it 

encompasses a regulation of county affairs other than 

the maintenance of roads. A1tRel.t v. Gutzeit, 109 

Tex. 123, 201 S.W,. 400 (1918). Kitchens v. Roberts, 

24 S.W.2d 464 (Tex. Civ. App.'1930, error ref.). 

Section 3 requires the County Judge to appoint standing committees composed of two or more 

county commissioners for supervising the various departments of the county's affairs. Like Section 2, 
Hon. Henry Wade, Page 10 (V-1315) 

this section embraces matters outside the scope 

of a road~law and is in violation of Section 56 of 

Article III. 

Section 4 authorizes the appointment of 

a county engineer and prescribes his duties and 

qualifications. He is given the custody and control of all machinery, equipment, tools, supplies, 

and all other property purchased out of the Road 

and Bridge Fund to be used in the maintenance of 

county roads. All maintenance, repair, drainage, 

and construction work on all county roads is placed 

under his control and supervision. However, he is 

at all times "under the supervision and control" 

of the commissioners' court. 

Although Article In, Section 56 of the 

Constitution prohibits the passage of any local 

or special law "creating offices, or prescribing 

the powers and duties of officers, in counties 

" Henderson County v. Allred, supra, states 

Ehat'Alocal or special road laws are expressly 

exempted from the operation of the provision of 

section 56, article 3." (40 S.W.2d at 18.) Also, 

in S~mith v. Grayson County, supra, it is said that 

'none of the prohibitions comed in section 56, 

article 3, are applicable" to a local road law. 

But see Austin Bros. v. Patton, supra; Commissioners' 

Court of Limestone County v. Garrett, 236 S.W. 970 

T L1 . D 22). Anderson v. Houts, 240 S.W. 

s4F(Te??CivpPApp. l&2]. It is possible, therefore, that the Legislature may validly enact a local 

road law creating an office, provided the duties of 

the office are such as are incidental or necessary 

to the "maintenance" of roads. However, it is unnecessary for us to express an opinion on this question here, since we think it is clear that the county engineer in question Is an employee and not an 

officer. 

In Dunbar v. Brazorla County, 224 S.W.2d 

738 (Tex. Civ. App. 1949, error ref.), the court 

held that a county road engineer was not a public 

officer buta member of the administrative personnel of the county road department. We think the 

same is true of the county engineer provided for 

Dallas County, even though Section 4 refers to 

the position as an "office*, provides for a term 

of two years, and requires him to take an oath and 

execute a bond. 
Ron. Henry Wade, Page 11 (V-1315) 

Various tests have been used by the 

courts in determining whether a particular person is an officer or an employee, some of these 

tests being tenure of office, requirement of a 

bond, duty to take an oath of office, and the 

manner in which the compensation of the position 

is fixed. See Rates, 53 A.L.R. 595 and 140 A.L.R. 

1076. However, all of these tests are merely circumstantial and not conclusive. The most important test; and the only one which appears to be 

conclusive, is whether the creation of the position involves a delegation to the person filling 

the position of some part of the sovereign power 

or functions of government to be exercised by him 

for the benefit of the public. This test is set 

out in 53 A.L.R. 595 as follows: 

“It may be stated, as a general 

rule, deducible from the cases discussing 

the question, that a position is a public 

office when it is created by law, with duties cast on the incumbent yhich involve 

an exercise of some portion of the sovereign power and in the performance of 

which the public is concerned,,and which 

also are continuing in their nature an% 

not occasional or intermittent; while a 

public employment, on the other hand, is 

a position which lacks one or more of 

the foregoing elements .n 

A similar statement of the rule is found 

in Mechem, Public Offices and Officers (1889) 5, 

Sec. 4: 

‘The most important characteristic 

which distinguishes an office from an 

employment contract is that the creation 

and conferring of an office involves a 

delegation to the individual of some of 

the sovereign functions of government, 

to be exercised by him for the beneflt 

of the public; that some portion of the 

sovereignty of the country, either legislatlve, executive or judicial, attaches, 

for the time being, to be exercised for 

the public benefit. Unless the powers 

conferred are of this nature, the individual is not a public officer .’ 
Ron, Henry Wade, Page 12 (V-1315) 

The rule as above stated has been quoted 

with approval in the following Texas cases: Kimbrou h 

Barnett, 93'Tex. 301, 55 S.W. 120 (1902);d 

iihnson, 141 S.W.2d 698 (Tex. Civ. App. 1940, error 

zp"be;z;on v. Ellis County, 84 S.W. 1097 (Tex. 

. . 

Under the above test, we think it is clear 

that the county engineer authorized by Section 4 of 

this azt is an employee and not an officer, since he 

has not been delegated any of the sovereign power or 

functions of government to be exercised by him for 

the benefit of the public, but is under the complete 

supervision and control of the Commissioners' Court. 

Section 4 also authorizes the Commissioners' 

Court to purchase necessary automobiles for the use of 

the county cormnissioners 

ing of public roads," 

"in the building and constructto be paid for out of the Road 

and Bridge Fund. A like wrovision in the road law for 

Jefferson County was upheid in Quinn v. Johnson, 91 

S.W.2d 499 (Tex. Civ. App. 1936, error dism.). 

The last paragraph of Section 4 provides 

that the county judge, county auditor, and county commisioners may be allowed necessary traveling expenses 

when traveling in connection with county business, to 

be paid out of either the General Fund or the Road and 

Bridge Fund. The provision does not limit the expenses to those incurred in connection with the maintenance of roads. In Att'y Gen. Op. O-4827 (194'2), 

this provision of the Dallas County Road Law was held 

unconstitutional in the following language: 

n D s . If the provision of said road 

law with reference to the traveling expenses of the commissioners' court quoted 

in your letter had been limited to traveling expenses of the conmissioners court 

with reference to the maintenance of the 

public roads of the county and payment 

limited to the Road and Bridge Fund of the 

county such provision would have been valid. 

But the provision under consideration here 

is clearly not so limited. Under the unequivocal assertions of the court in the 

caseof Jameson v. Smith, supra E61 S.W.2d 

520 (Tex. Civ. App. 1942, error ref. w.0. 

m.17, and authorities therein cited, it is 
Hon. Henry Wade, Page 13 (v-1315) 

our opinion that said provision of the 

Dallas County Road Law, quoted in your 

letter, allowing traveling expenses to 

the County Judge, County Auditor and 

County Commissioners for traveling 

expenses on official business generally, 

is not a road law, and is unconstitutional as a special or local law attempting to regulate the affairs of a 

county where a general law could be made 

applicable." (Emphasis added throughout.) 

Therefore, we are of the opinion that Section 4 is valid and constitutional with the exception 

of that portion declared unconstitutional in the above mentioned opinion. 

Section 5 authorizes the Commissioners' 

Court to employ special counsel "to advise the Court 

or the Commissioners thereof in special matters wherein the services of said counsel may be required and 

also in special cases to conduct the litigation of 

the County in which the interests of said County may 

be involved." The employment of counsel is not limited to matters pertaining to the construction and 

maintenance of roads. We are of the opinion that 

this section violates Section 56 of Article III and 

is therefore unconstitutional. 

Section 7 makes it the duty of the County 

Auditor of Dallas County to audit expenditures from 

the County Road and Bridge Fund, road district funds, 

or "any~other funds, special, general, or bond funds 

now on hand or hereafter held by said County." It 

is possible that this section, or at least the quoted 

phrase, is invalid for the same reason that Section 

5 is invalid. However, we see no need for determining this question at this time in view of the fact 

that it appears to be in harmony rather than in conflict with the powers of the County Auditor under 

general laws relating to his office. 

Section 11 authorizes the appointment of 

a "Purchasing Agent V for the county and provides 

that all county purchases 'of every kind and character" shall be made by the purchasing agent. This 

section also prescribes the manner in which contracts for the purchase of supplies and equipment 

eof any kind or character" are to be made. Inasmuch 
Hon. Henry Wade; Page 14 (V-1315) 

as its provisions are not limited to purchases 

incidental to the maintenance of roads, we are 

of the opinion that this section violates Article III, Section 56 of the Constitution. Miller 

v. El Paso Count 

S.W.2d 919 (T 

,x.yEi~~p~apb.O~~~~~.v. Kent, 781 

Section 12 relates to the use of convict labor in Dallas County. It is not limited to 

labor upon the public roads. Since convict labor 

may be utilized for other purposes (Art. 794, V. 

C.C,P.), the provisions of Section 12 attempt to 

regulate matters in addition to the maintenance of 

roads. We think this section violates Section 56 

of Article III of the Constitution. 

Section 19 makes it unlawful for a member of the Commissioners' Court or any county official to become financially interested in any 

contract for Dallas County road work or for the 

purchase or sale of materials or supplies for the 

county in connection with roads. The penalty prescribed isa fine of not less than $500 nor more 

than $1000, or imprisonment in the county jail for 

not more than one year, ore both fine and imprisonment. Article 363, V.P.C., defines an identical 

offense with respect to such contracts and prescribes a penalty of not less than $50 nor more 

than $500. 

In Ex parte Sizemore, 8 S.W.2d 134 (Tex. 

Crim. 1928);the court held that a provision in a 

local road law-whitiallowed a credit of fifty cents 

a day for convict labor on the public roads was unconstitutional, since it was at variance with the 

general statute allowing a credit of $3.00 a day. 

The court there laid down this general rule: 

"A law which makes different punishments follow the same identical criminal 

acts in the different political subdivisions of Texas violates both our state 

and Federal Constitutions. It fails to 

accord equal rights and equal protection 

of the law, and a conviction under it is 

not in due course of the 'law of the land.'" 

Also see Exps&B Carson, 159 S.W.2d 126, 129 (Tex. 

Grim. 1942). The Sizemore case arose out of a conviction for an offense aenounced by the Penal Code 
Hon. Henry Wade, Page 15 (V-1315) 

rather than by a local road law, but we think the 

same principle is applicable here. Therefore, 

that portion of Section 19 which conflicts with 

the general law on the same offense is unconstitutional. 

Section 20 prohibits the dumping or depositing of garbage or refuse upon the public roads 

and highways of Dalla,s County and pre~scrlbes a fine 

of not more than $200 as the penalty. We think 

this provision is likewise unconstitutional insofar 

as it conflicts with the general law, Article @%a, 

V.P.C., which prescribes a penalty of a fine not 

less than $10 nor more than $200 for the same offense. In Ex parte Sisemore and Ex parte Carson, 

F 

the local law prescribed a more onerous pena ty than the general law, whereas the penalty here 

is the less onerous since it does not prescribe a 

minimum fine. However, in State v. Fowler, 193 N.C. 

290, 136 S.E. 709 (1927), a local law which imposed 

a fine only, while a statute applicable to the whole 

State imposed a fine or imprisonment, was held to be 

unconstitutional under both the Federal. and State 

Constitutions, as a denial of equal protection of 

the laws. 

Section 2O$also makes it an offense for 

any person to permit'sewage from his premises to 

drain upon the public roads and highways. We have 

been unable to find a general statute defining a 

similar offense. While earlier ooinions of the 

Court of Criminal Appealscited inKEx parte Sizemore 

had suggested that a new offense applicable in one 

locali%y only could be created in a-local road law, 

we think the opinion in Ex parte Sizemore casts 

doubt upon the correctness of these former holdings. However, in the absence of an express decision on this question, we are inclined to hold this 

portion of Section 20 valid as being within the 

scope of Section 9 of Article VIII. 

The holding in the Sisemore case also 

raises a question of the validity of Section 10, 

which makes it an offense for any person to fail to 

pay tr the county treasurer within five days of its 

receipt money derived from the sale of property or 

the use of machinery and equipment of the county. 

However, we think Section 10 must be held invalid 
Hon. Henry Wade, Page 16 (V-1315) 

for another reason. This section extends to the 

“sale of property and material ordered sold by 

the Commissioners Court and from the use and 

rental of machinery and equipment owned by the 

County,n and provides that the money shall be 

placed to the credit of the Road and Bridge Fund. 

It includes all sales and all rentals, regardless of whether the propertywas purchased out of 

the Road and Bridge Fund or was used in connection 

with the maintenance of roads. It therefore transcends the bounds of a road law and is invalid 

under Section 56 of Article III as an attempt to 

regulate county affairs by local law. 

Section 21 provides that all fines for 

any violations of any of the provisions of the 

act and all moneys collected by virtue of any contract ~:xecuted under the. provisions of the act shall 

be applied to the Road and Bridge Fund. We think 

the general purpose of this section comes within 

the purview of a local road law and is constitutional. 

In your sixth question you ask whether 

the Legislature may single out Dallas County in 

Sections 22 and 24 and make the provisions of this 

act as constituted apply solely to that county to 

the exclusion of all others. We think the validity 

of these sections rests on the same basis as the 

validity of other sections pertaining to the maintenance of roads. Since the Legislature has the 

power to enact local legislation on this subject, 

it may include in the act a definition of the meaning to be given the terms used, so long as the definitions do not extend the provisions of other sections beyond the limits permitted by Article VIII, 

Section 9~ of the Constitution. We do not find any 

objectionable provision in Section 22 of the act. 

Likewise, since the Legislature could enact a local road law for Dallas Countg,it could also provide the extent to which the local road law should 

control over other statutes. We are of the opinion 

that Section 24 is valid. 

You ask whether there is sufficient basis 

for the remainder of the act to stand in the event 

certain sections of the act are unconstitutional. 

The answer to this question depends upon whether the 

unconstitutional portions can be severed from the 
Hon. Henry Wade, Page 17 (V-1315) 

valid portions without materially affecting the main 

purpose of the legislation. 

(3rd 

Section 25 of the Act provides: 

"If any section, subdivision, paragraph, sentence, clause, or word of this 

Act be held to be unconstitutional the 

remaining portions of same shall, nevertheless, be valid, and it is declared 

that such remaining portions would have 

been included in this Act though the unconstitutional portion had been omitted." 

In 2 Sutherland, Statutory Construction 

ed. 1943) 178-179, Sec. 2404, it is said: 

'In determining separability, legislative intent governs, but intent that 

the act be enforced in so far as valid is 

notthe the sole consideration. If the 

legislature so intended, the valid parts 

of the act will be upheld ‘unless all the 

provisions are connected in subject matter, dependent on each other, operating 

together for the same purpose, or otherwise so connected together in meaning 

that it cannot be presumed the legislature would have passed,the one without 

the other.' To be capable of separate 

enforcement, the valid portion of an 

enactment must be independent of the 

invalid portion and must form a complete 

act within itself. The law enforced 

after separation must be reasonable in 

the light of the act as originally 

d~rafte;?. The test is die tGv or not the 

le,gislature would have passed the statute had it been presented with the invalid features removed." 

Also see City of Taylor v. Taylor Bedding 

Mf . co., 215 S.W.?d 21.5 (Tex. Civ. Appr 3.948 

ev. A 

* Christopher v g8 s.w:2?;;; 

ence 131 Te?’ 

arber v. Flor- 

-irk, 119 S. 

36) Nichols 

p. ig?zqT--- 

Daniel v. Tyrrell &Garth Inv. Co., 127 Tex. 213, 93 

S.W.2d. 372 (1935). 
Hon. Henry Wade, Page 18 (V-1315) 

The Dallas County Road Law validly authorizes the Conrmissioners’ Court to adopt an 

over-all plan or system for the construction and 

maintenance of county roads and outlines the method for acquiring real property necessary thereto. 

It authorizes the employment of a county engineer 

who is to be in direct charge of road maintenance. 

It regulates the manner of making contracts for 

the construction and maintenance of the roads and 

for the purchase of necessary materials and supplies. While we have found the bond provisions to 

be unconstitutional to the extent that they purport to authorize road districts to issue bonds 

for road and bridge purposes under Section 9 of 

Article VIII, the county may issue road bonds 

under this law. Also, the county or any road district therein may issue bonds for road purposes 

under the general laws. Various other provisions 

of the act are also valid. We think the valid provisions, standing alone, form a complete and enforceable piece of legislation, and we believe that 

the general legislative purpose of providing “a 

more efficient road system for Dallas County” may 

be given effect after the unconstitutional provisions have been severed from the act. This is in 

accord with the legislative intent declared in 

Section 25. 

SUMMARY 

Those’provisions of the Dallas County Road Law (House Bill 961, Acts 47th Deg., 

R.S. 1941, ch. 458, p. 729, as amended) authorizing the Commissioners’ Court to adopt 

a system for the construction and maintenanceof county roads (Section 1) ; providing 

for the appointement of a county engineer 

and prescribing his duties, and authorizing 

the purchase of automobiles for use of the 

county commissioners in the construction 

of roads (Section 4); relating to acquisition of rights of way for roads by purchase 

or condemnation (Section 5); requiring the 

draining of certain ditches and borrow pits 

which affect roads (Section 8); abolishing 

road overseers and payment of road taxes by 

labor and requiring road tax money to be 

placed in the County Road and Bridge Fund 

(Section 9); authorizing the issuance of 
Hon. Henry Wade, Page lg (V-1315) 

bonds and regulating the handUnS of moneys 

received therefrom, insofar as they pertain 

to bonds issued by the county for road and 

bridge purposes (Sections 13-17) ; regulating the manner of awarding contracts for 

road improvements (Section 18) ; providing 

for the application of certain moneys to 

the Road and Bridge Fund (Section 21); and 

authorizing the creation of a county plannine board and conferrine upon the Commissioners’ Court certain authority over subdivision of territory outside the jurisd~iction of cities and towns (Section 25a) 

were valid1.y enacted under Section g, Article VIII, Constitution of Texas, authorizing 

the passage of local laws for the mainte - 

nanceof public roads and highways. 

Those provisions fixing the compensation~ of the county commissioners (Section 

2); requiring the, appointment of standing 

committees composed of members of the Commissioners’ Court to supervise the various 

departments of the county’s affairs (Section 3); authorizing travelin expenses 

for certain county officials 7 Section 4); 

authorizing the employment of special counsel by the Commissioners’ Court (Section 

5); requiring the deposit of moneys derived from the sale or rental of county 

property within five days after its receipt (Section 1.0); authorizing the appointment of a purchasing agent to handle 

a.l.1 county purchases end prescribing the 

msnner of making contracts for all. county 

supplies (Section 11); and regulating the 

use of convict labor (Section 1.2) are in 

violation of Section 55, Article III, Constitution of Texas, prohibiting the passege of certain local or special laws. 

Sections19 and. 20, prescribing certain 

offenses and the penalty therefor, are invalid insofar as they conflict with the 

general I.a~w. 

The valid portions of the Dallas 

County Road Law, standinS alone, form a 

complete and enforceable piece of legislation, and the general legislative 
_ 

Ron. Henry Wad+, Page 2& (v-1315) 

purpose of providing "a more efficient 

road'systeil~for Dallas County" may be effe~ct&afte? the unconstitutional provisions have,been severed PrOm the act. 

APPROVED: 

J. C. Davis, Jr. 

County Affairs Division 

Everett Hutchinsbn 

Executive Assistant 

Charles D. Mathews 

First Assistant 

Yours very truly, 

PRICE DANIEL 

Attorney General 

Mary K. Wall 

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