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### THE ATTORNEY GENERAL OF TEXAS November 14. 1988

Honorable John T.Montford. Chairman StateAffairs Committee Texas State Senate P. 0. Box 12068 Austin, Texas 78711 Opinion No. JM-979 Re: Whether mass transit taxes collected under article 11182, V.T.C.S., may beused by amunicipality to maintain its streets (RQ-1535)

Dear Senator Montford: you ask whether taxes dedicated to mass transit and collected pursuant to article 11182,V.T.C.S., may be used by a municipality to maintain its public streets. We conclude that such taxes may notbe used for that purpose. Article 11182 permits certain incorporated cities and towns to establish amass transit department. Id. 5 Z(a). Ifa local sales anduse taxdedicated toproviding a method of funding amass transit system isapproved by the voters, then the city transit department may build or acquire and operate such a system. Id. S§ 3, 4, 5, 7. Taxes collected pursuant to article 11182 “may be used only formass transit purposes." Id. 9 8(f). The statute defines amass transit vfSystem’v tomean all real andpersonal property owned or held by an incorporated city or town and operated iand; formass transit purposes, including

easements, rights-of-way, other interests in land, franchises, rail and bus lines, stations, platforms, terminals, garages, shops, control houses, other buildings and structures, rolling stock, signals, other equipment, supplies, and other facilities necessary or convenient for the use ofor access to mass transit by persons or vehicles or for the protection or environmental enhancement of mass transit.

p. 5000Honorable John T.Montford -Page 2 (JM-979)

V.T.C.S. art. 11182, 5 l(6). "Mass transit" is

the transportation ofpassengers and their hand-carried packages or baggage bymeans of surface, overhead, orunderground transportation except aircraft or taxicab. Id. 5 l(5). The relevant powers of amunicipal transit department operating amass transit system include thepower to:

acquire, construct, own, operate, and maintain a system within acity or town. A department may use the streets, alleys, roads, highways, and other public ways within the city or town. In the construction, reconstruction, repair, maintenance, or operation of a system, a department may relocate, raise, reroute, change the grade of, or otherwise alter the construction of any: (1)street, alley, highway, road,

or railroad . . . . V.T.C.S. art. 11182, 56(c). Thus, nothing inthe statute permits a municipality which has adopted a local sales and use tax to fund a municipal transit department touse those tax funds for the aeneral maintenance of its public streets. Additionally, the statute unequivocally states that atransit department "mayuse the streets, alleys, roads, highways, and other public ways within the city or town." V.T.C.S. art. 11182, § 6(c).Inour opinion, atransit system's right to Wse" city streets necessarily includes the right to subject such streets to normal wear and tear such asmust have been contemplated by the legislature when it adopted article 11182with this provision. Nowhere does the statute tie the ordinary use of apublic street to thepayment of a fee by the transit department from tax funds raised solely for the purpose of funding the department's operation of a mass transit system. Although the statute contemplates that the construction and operation of a mass transit system may require the department toundertake construction projects affecting city

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,- streets, it limits the department's powers to only those

circumstances requiring therelocation raisinq, reroutinq, alteration, or chanainq of the streets used by the mass transit system. V.T.C.S. art. 11182, 86(c). The ordinary maintenance ofacity street overwhich thevehicles of a mass transit systemmay pass isthus notwith the enumerated powers of the transit department upon which tax fundsmay be spent. SUMMARY

Taxes raised topay for the acquisition and operation ofmass transit system under the aegis of themass transit department of a city or town, article 11182,V.T.C.S., may notbe used to pay for themaintenance of city streets. Very truly yo , 

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JIM MATTOX Attorney General of Texas MARY KELLER First Assistant Attorney General MU MCCREARY Executive Assistant Attorney General JUDGE ZOLLIE STEAELEY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by D.R. Bustion, II Assistant Attorney General

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