, 

THE ATTORNEY GENERAL 

OF TEXAS 

November 14. 1988 

Honorable John T. Montford. 

Chairman 

State Affairs 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 be used by a municipality 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 not be used for that purpose. 

Article 11182 permits certain incorporated cities and 

towns to establish a mass transit department. Id. 5 Z(a). 

If a local sales and use tax dedicated to providing a method 

of funding a mass transit system is approved 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 for mass transit 

purposes." Id. 9 8(f). 

The statute defines a mass transit vfSystem’v to mean 

all real and personal property owned or held 

by an incorporated city or town and operated 

iand; 

for mass 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 of or access to mass transit by persons 

or vehicles or for the protection or 

environmental enhancement of mass transit. 

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

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

the transportation of passengers and their 

hand-carried packages or baggage by means of 

surface, overhead, or underground transportation except aircraft or taxicab. 

Id. 5 l(5). 

The relevant powers of a municipal transit department 

operating a mass transit system include the power to: 

acquire, construct, own, operate, and maintain a system within a city 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, 5 6(c). 

Thus, nothing in the statute permits a municipality 

which has adopted a local sales and use tax to fund a 

municipal transit department to use those tax funds for the 

aeneral maintenance of its public streets. Additionally, 

the statute unequivocally states that a transit department 

"may use the streets, alleys, roads, highways, and other 

public ways within the city or town." V.T.C.S. art. 11182, 

§ 6(c). 

In our opinion, a transit system's right to Wse" city 

streets necessarily includes the right to subject such 

streets to normal wear and tear such as must have been 

contemplated by the legislature when it adopted article 

11182 with this provision. Nowhere does the statute tie the 

ordinary use of a public street to the payment 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 to undertake construction projects affecting city 

p. 5001 
. 

Honorable John T. Montford - Page 3 (JM-979) 

,- 

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

circumstances requiring the relocation raisinq, reroutinq, 

alteration, or chanainq of the streets used by the mass 

transit system. V.T.C.S. art. 11182, 8 6(c). The ordinary 

maintenance of a city street over which the vehicles of a 

mass transit system may pass is thus not with the enumerated 

powers of the transit department upon which tax funds may be 

spent. 

SUMMARY 

Taxes raised to pay for the acquisition 

and operation of mass transit system under 

the aegis of the mass transit department of a 

city or town, article 11182, V.T.C.S., may 

not be used to pay for the maintenance of 

city streets. 

Very truly yo , J-h . 

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 

P. 5002