### THE ATTORNEY GENERAL OFTEXAS Gerald C. Harm Awmrx~. - -0-

Hr.~0,A. Eight Chief A.ocountant Board of Countyand Dfrtrlct RoadIndebtedness Austin,Texas

Dear Sir: Open 

### lumberO-1293 : Constrnotlon ef cortaln protirions 

### of Howe Bill j&M, ssed bythe Fortr-sixth r Le i rlaturo, 

### Bogulargerrion,~~l 

### Fi 

### 39 Uokare your letter of Augupt 16, 1939, in rrhlshyou ask our oplnlon of soteral questions vdxlch have arisen oat of the above captioned bill which outlines the proordure of 

### thebard inthe administration of that Act.

Underdatoef.Juue

### 9,~1939, in our 0 we deterrlned the constitutionalit E Inionlo. O-908 I efthlr bi 1. It uas our opinion that.the purpose d this b 11 as not violative 

### of Art&lo 8, Section 

### 7,orArticle 

### 3,Section 51 of our Cod- .titution, but 

### insofar a. thd bill before u8at that time attempted, rlor to the hill ready eligi le for

g E" paymentof all obligations alrticipat on, to devote the swplus accumulated in the ounty and RoadDistrict Highwaytund to the aymqnt ticipet 9 of Obligation. madeell

en 

### forthe fir8t tim by' such % lblrfor such par ill and to other 

### purposes,

was unconstitutlonel andwould constitute a dirersion of a 8 ecial fund in violation of the Constitution. House Bill #b8 as finally pasrod by the Legislature and signed by the dovernor in our opinion has satisfactorily removed the provision &owhich we sxce~ted.

Weshall take u they are presented, your P your question8 in the order in tiich lrst question being --Mr. G. AL. Hight, page #2

wSection 5 of the bill, after allocating one-fourth of the occupation or exaire tax on gasoll8r to the oredit of the available free school fund, provides that one-fourth shall go to and be placed to 

### the credit of the fund to be known as *County and goad Mstrlct HighwayFund’ 8ubject to the $” visions 8nd llmltations of Section 

### 3of t is Act. Will you please advise u8 whatthe limitations referred to are andwhateffect such limitations 'if any, would be uponthe use to be made08 the County and goad Distriat Hi operations 

### ofthe Boardof hway E Fundand the ounty andDlstriat RoadIndek&ednessPm Byreference to Section 3 wefind that 

### It expres$ly 

### deals with the duties df the HighwayDepartment and directs developent of highways and the maintenance thereof “from. funds available to the State HighwayDepartment.” Section 5 divides the proaeeds of the occupation tax on the business of selling gasoline as follows: One-fourth to the Available School F’und, one-fourth to the County andRoadDistrict kilghwayFund subject to the tion 

### 3 08 this Act, and revisions and limitations of Seeg t Department. e remainder to the State Highway

A careful reading of Section 

### 3 of the Act rereals no limitations, whatever uponthe one-fourth alloaated to the County8nd RoadDkriot HighwayFund. Under the rules of etatutory constrB?tlon it has been decided. that a statute or a provision::thereof should not be given a construction rendering it meaningless, if the langtmge aan otherwise be construed. See City of Hopston Y.’ Allred S. W. (261 2510 Galveston H&Ii. Bi 00; t.Anderson, 249 

### 71' S. W. 998; Stoipe v. Karren, 191 S. W. 600; Texas k Pacific Ry. Co. v. Taplo+, 118 S. W



### .1097. It is. obvious from the reading of Section 

### 3that there are no limitations at all relative to the one-fourth of the oocupation or excise tax that is ‘allocated to the Board of County andDistrict goad Indebtedness under Section 5 of the Act, and it is there

### foreour conclusion that the llmitatlon imposed in Section 5 u n the funds allocated to the County end Road Metrict Hig rwayFundIs meaningless. To 8o hold does not in anywise Impair the provision of the Act.Mr. G. 

### A. Right, page #3

Tour second question is as follows:

“Should this Board nowinclude In the credit allowed to each oouuty the total amount aid by such county for the years 1933 to 1937 !&clualve on their debt service, or should this bard limit the oredit to amounts paid by each county on issuer nowoutstanding and pay such creditsto the counties over the life period of the outstanding bonds? In this oonnection you arc re- .ferredto Conference Opinion No. 3021 rendered by Honorable William IcCraw,AttorneyGeneral, on Au@& 11, 1938.” In re tention to the xly to your second question wedirect your atl claration of policy contained in HouseBill 6&3, Section 1, wherein It providear

“By reason of the foregoing, a heavy and undue burden vmsplaced and still re8te uponthe aounties and defined road district and their inhabitants, and both a legal and

### moralobligation rest upon the State to compensate and reimburse such counties and defined road distrfcts, which, as aforesaid, shaveperformed functions resting uponthe State and have paid ex enses which were and are properly State expenses, alE for the use and benefft of the State, and to the extent provided herein that the State provide funds 

### forthe .further construction of roads ;;;.esignated as a part of the State HighwaySysThi. F ovision Is preceded by others which call attention to the act that the State recognires and declares that all highways nowor heretofore constitutlag a part of the system of State highways and that all roads not conatltuting a p”rt of such system which have been constructed in whole 

### or n part from the proceeds of bonds,,warrants or other evidence of indebtedness issued by counties and defined road district8 of the State 

### of Texas under the laauthorislng the same, have been and are anh will continue to be beneficial to the State 

### ofTexas at large and haveMr. 0. A. Eight, page #4

contributed to the general welfare, settlement and development of the entire State. hanifestly It was Intended that the counties or defined road dlstriatr should be cornensated for moneyexpended in the construction of roads whit%by the declaration of policy have oontrlbuted to the general welfare, settloment and development of the entire State. We, therefore, answer your question as follows:

In our opinion this Board should Include in the aredit allowed to each county the total 8mountpaid by such county for the years 1933 to 1937, Inclusive, on their debt service on issues nowoutstanding or issues which mayhave been outstanding at the time of the enactment of Chapter 13, Acts of the Third Called Session of the Forty-second Legislature of 

### 1932.Ye think that from the language of the bill ltsel! that Is, HouseBill 688, as found In paragraph 2, subsection (h)<Section 

### 6,which reads as follows:

WASsoon as practicable after 

### thepassage of 

### thisAct and before the Lateral Read Account is allocated to the counties, the Board 8hall determine the amounteach aount and each defined ~~~~~~r~v~:o~i~is~~he Third Called Session of the Forty-Second Legislature, as amended,toward its debt serviae u bonds which at the time of paymentwere 

### l ligi la go n to participate in the County and RoadMstrict gighway F’und.” it Is plain that the Intention of the Legislature is that the counties and defined road districts be full reimbursed for all aoney8expended on eligible issue8 for Jebt service durd ing the years 1933to 1937, irrespective of whether or not there are issues nowoutstanding. Wethink the declaration of policy is clear on this point.

Thethird question you have submitted reads as follow. : ?In connection with the deductions of advancements~madeby the State from the amountcredited to the counties as provided, is it intended byMr. G. A. Ught, page #S

the Act that such deduction be madewhere possible overthe life perled of the bonds of each county affected, as we are nowdoing under authority of the above quoted 

### l

pinlon?a It mast be borne in mindthat the express basic purof this law is to lift the burden of ad valorem taxes, the eit$9eps of the vprlous counties- and defined-read

_ - - districts which may have Oftenuaed for the con8truCtlon of State higl&ys or fer the retirement of obligations incurred in the construction of highways. In our opinion there Is uple authorit under this law for the Board of County and Dldrlct RoadL debtedna. to make.uch deduction over the life period of the bonds. Andinsofar as Opinion No. 3021, above mentioned, l

uthorises and directs the payment of sums. due the various counties * the form of increased percentages. of rtieipation, ue readopt sameandfurther state that any retga od thus designed to accomplish the ose for which this law was passed would in our opinion be pur witiiin the authority. ef the Board. Underthe Attorne aited, your Board undertook to aI General’s opinion above locate the .o-call~ed .ur lua by my of Increased percentage. of participation 

### on l ligi 1le issue. and this, wethink, was a proper a plicatloo and will effectively accomplish the pur fore, advised that in our opln on the Board should continue the E ose of the LW. Youare theremethodadopted 

### pursuant to the authorization canferred by law and as interpreted by Section 5 of 0 inion No. 3021, rendered by the Attorney General, August 11, E 938. The fourth question you submit is as follows:

“1s it the duty of the Boardto audit or otherwise verify the records of expenditures er obllgations of each county to determine the amountof bonds, warrants or other legal obligations issued prior to January 2, 1939, the proceeds of which were actually expended in acquiring rights-of-way for State designated highways?” To answerthis question werrfer to paragraph 2under subsection (h)
, Section 4 of the let, whiah reads, in part, as follow. :Mr. 0. A. Sight, page #6

‘The moneys allocated 

### to each county from the Lateral Road Account ebhell be used by aid county,

r paying the~ar~~atere8t and rinkapart sufficient money

### to pay 

### offanddlecharge 8aid outstandin of-way acqulsit f obligations incurred for righton.” In this wefind a doclaratlon of legislatlto Intent and to properly effectuate this Intention wearc of the opinion that It till be necessary for the Board to adopt the samemethod followed in the matter of recording itors of indebtedness incurred in the construatlon of highways which have been desi that zir, the r ght-ef-way obligation should be handlod In

k?ated as a part of the State HighwaySydea, like manneras the presently “eli lble obllgatlona~. Therefore,it is .our opinion that it w ‘I11 be the duty of tho Board to auditor otherwise verify the record of expenditures or obligations of each county to determine the amount of moneyaotually expended in acquiring rights-of-way ,fw State designated highway8 in order to carry out the mandate of 

### thisprovision of the Act.

follows: Ye quote here your fifth question, which readsas

mt are the Board’s dutloa as tho refunding egent of each county.as provided in the second paragraph of subsection (I) of Section 6 and*hat are the limitations on refunding 

# l hgible and ineligible Indebtedness under this subeectiont~
meaning Wethink that in order to properly interpret the

of this provlaion of the bw wherein the object orMr. G.A. Hi&t, page#7

1urpoae of the provision of the statute is not lain, it ecomes necessary to read the entire section. tnder 

### thd rule of &atutory conetruction, all of the language used rrhouldbe taken Into consideration whenl ndoavoring to. ascertain the object or it must be noted that urpose, and in this connection su1

### section(i)of Section 6begins as follows: *The county ~ommi88ioner8~ court ef any county mayexercise the authority now.conferred by law to issue refunding obligations for the purpose of' any defi.nea-%~~~~i~~% refunding an l

li ible debt of the count ligation. when.validly issued shall be eligible obligations within the meaningof this Act, if mid Board

### of County and District I&adIndebtedness shall approvethe maturities of said refunding obligations and the rate of interest borne by them.,’ Thenpas&g over to the last sentence of the secondsparae graph of the samesection, wefind:

'All actual expenses inourred in the refunding 

### ofan elinible indebtedness including the cost of proceedings, printing fegal approval and interest adjustment, shali be chargeable against the moneystheretofore or thereafter collected from ad valoremtaxes, or at the op tion of the commisslonerr~ conrt conduating such refunding, may be paid 

### from \anyother wnez under its control and available for the purpose. Wehave underscored the term neligible lndebtednossw for the purpose of strengthening our aonclueion,that this section refersto pnd contemplates only that mch items of Indebtedness shallbe submitted to the Board for ap roval rior to a refunding thereof. R Werefer you toSect on 2 of E ouse Bill 688, which contains the definition of term8 and expressions

used throughout the Act, and find there -- "the expression teligible obligation' as used in this Act shall meanobligations the proceeds of which were actually exE ended on State highways." Wethink the expression "eli ile indebtedness" synonymouswith the expression f "ellgib eHr. 0. A. Eight, page #8

obligationw and therefore comeswithin this definition. Weare of the opinion that the Board’s dutioa’asto the refunding assignment subsection (I) of Soa Ion 

### 6 are limltod to the refunding erovided in the.second paragraph of of eligible obligations as defined .b such duties do not extend to and lnc1 this Act, and that ude any 8o-called ineligible indebtedness .whiohmayor maynot rticipate in the excess funds provided herein to be are% ited to the account to be knownas the Lateral Road’Account.

Yhelast ragnph of subsection (L) makesthe Board of County and Mstr rct Road Indebtedness the refunding agent ,of each count md as such agent is directed to cooperate with the comersloners’

1 court of each county in effecting the neaossary refunding of.each issue of bonds, andthat the Board shall prepare the necessary refunding order for the commlrsion~rs~ court, prepare the proceedings and act In an advisory and su pense of refund rvisory capacit

f& i to the sadthat the u-, anylssuo of ends maybe reduced 

### toa iinirun. gaving determined in the preaedin the duties of 

### theBoard in the matter of mf f paragra h that unding o bonds extend only to weligible i88uesw, it necessarily follows that the duties 8Ileaated In this paragra h of 8ubsection (I) oxtend to only the 

### l liglble issues. E t Is our conclusion that the language of this seation Is merely directory and. that the Boardshall bo required to act in that capacity only as a meansof reducing the expense of refunding any Issue 

### of such bonds 

### to a mlnimum. Inasmuchas this sameparagraph requires that any item af expense incurred in connection with a refunding must havethe affirmative approval of the Board before being Incurred, wethink that in their advieory and- supervisory capacity, they could under this law, if deemed expedient, prepare the necessary refunding orders, roceedlngs andperform other duties incident to the campetion of P a reiundiag of 

### anyissue of such bonds.

Youare therefore, advised that in our opinion your duties as euch re!unding agent with respect to the pre tion of proceeding8 and refunding order,‘would 

### restwit%““- in the discretion of the Board and would not becomemandatory except in the event the prospective aosts of such proceedings by other agencies appear excessive.Ur. 8, A. Hight, page #9

Your sixth question reads as foollowe:

‘1yill you lease further advise the Board to thornor to w!at agency the expense of the Board for performing the rrervices to the counties in the refundi of the county issues as directed b the rov sions of this subsration shall be egargod!w ’

In our o inion,

E any l ense lnuorrod in the refunding of any subh ob lgation Is pr arily an % &nse of the county, dofined road dirtriot or political su division roposing such refundi

The% 8ndshould, therefore, be charge 8 to such agencies.. et vides, in pa&., that : paragraph of sobsection, (i) pro-

“All actual ex enses incurred In the refunding of an eligible E ndebtedaess including the cost of proceedings, printing, Algal a proval and Interestadjuetment, shall be chargeab e E against the monoystheretofore or thereafter collected frem ad valorem taxes, or at the option of tho commlrsloners~ court conducting 8ueh refunding, maybe paid from 8ny other moneynnder its control and available for the purpose.” Wethink this alearly indicates the Legislature’s intention that the county, defined road dletrict or political subdivision 8hall bear the upenee of anysuch refunding, and !io ou muld properly char e ard in aonnectlon witt anysuch expense accruing to the .uch refunding to the county defined road district or political rubdivision instlga& such refunding progr8&

We quote hero your seventh question:

swan the several oounty commissloners~ courts employ on a salary or contract basis, subject to the oiflrmatlve approval of this Board, one or more persons to assist in the refunding of such indebtedness andpay for .uch service~~~,t$ mannerprovided in the Act for the re;st expenses of refunding eligib l indebted- r‘

.

Mr. 0. A. Bight, page #lO

all actual It mwt be borne in mindthat this law requires that

cobts of refunding eligible indebtedness be mbBitted to the Board for l p roval before such cost8 are incurred. It then follows tL t the Board must pa88 uponall suoh items of expense and if In its opinion certain items * of expense sought to 6e incurred are considered unnecessary, it should disapprove. thei. Thelaw states that only the actual l

xpense of refunding, which includes cost of proceedi 8hallY 8, printing, le al approval and Interest adjustnenta, e approved. Thfs itemiaation of expense is not a’ llmitatlon thereon but Is suggestive 

### of that which under ordinary conditions should constitute actual expenses. The Legislature, of aourse, contemplated that certain othor costs right arise in connection with a refunding and could, be reasonably classified as necessary or actual refunding 3 ense. Consequently, it delegated to the Board the duty power 

### ofdetermlniag the necessity for such costs by re uirlng that a11antlalpated expense of refunding ellglble ln%ebtednerr be submitted to the Board for approval in ad-’ vunce of incurringsame. ho appeal has been protided in the event the Board disapproves an item of expense; hence ~~~8t conclude that the Board’s ruling thereon *ould be

The Board is vested with the fnrther power to refund &h debt itself md charge the expense thereof to the oounty defined rpad dirtriot or political subdivl8lon instigatlng such refunding. ‘fhy+gg;~ :~d~~~~~~~Qefv to hold the cost of refunding midmum. Consistent with the foregoing conclusion the Board would be tequired to detsmine whether or not thenanployment of a person or persons to “asside in a refunding would be a necessary or actual expense Incident thereto, aspcontemplated by the Legislature. Theword uassi8tw, appearing in your questions, has a 

### verybroad and indeterminate meaning, but as llsecj here it must 8ean “in ald 

### of”,‘being of service” or “he1 ing”

. Suchterms are llkewise indefinites hence it must P ie with the Board to determine the necessity for such emloyment and whether or not it is indispensable in accomp ishing a refunding. The P fasts of each 8uch refunding must ultimately define the course the hoard is to follow in approving or disapproving

rnr. G. A. Uht, page Pl

the costs of employing a person or E"rsons to assist a county defined road distrlot or po itical subdivision in refunding Its eligible indebtedness.

Weare unabli to flnd in the Actl n.ymention of the employment.of r rsons on a salary or contract basis for the purpose of ass rtlng in the refUnding of such indebtedness as maybo sought to be refunded, andwethink that under the law a commissioners' court has the power and authority to contract for the servicer of export8 on questions of financlng and refinancing in the r8memanneras they nowhave authority to retain architects attorneys, auditor8 or enlnoers but wethink that the compensation for such serviceo:: & 

### this

'eonnoctlon must, under the law, be submitted to the Board for a proval the dimeret E

on of t e Board it Is detewined .that such cost rior to incurring came. If then, In is not a neaersary or actuai aoet as contemplated by this law, we think the Board should properly disapprove such Item of expense*

Very truly yours ATTORHEiYGW3RkLOF TEXAS

APFBOVED

OCT. 7, 1939 By/s Clarence B. Crowe C rence E. Crowe

Assistant

/sf V. ?. 'Moore FIBSTA&ISTAllT ATTOFNEY

GElsERAL

CRC-.