### E ATTORNEY GENERAL

PRICE DANIEL ATT’ORNEY

GENERAL

Hon. S. 86.Pliler County Auditor Taylor County Abilene, Texas 

### Q,F TEXAS

Mey28, 1947 Opinion MO.V-223 Re: Authority to create a road district embracine! a defined portion of a Commissioner’s Precinct, and use Proceeds of. bonds of such district to purchase rlghtor-way. Dear Sir: Werefer to your Inquiry of May6, 1947, rhiah is as follows:

“Please advise meIf a Specie1 Road District, for the purpose of issuing bonds to purchase rights-of-way for Few to Market Roads, maybe formed out of a defined portion of a Commissioners Precinct by either the Commissioners’ Court or the Legislature

.” Weere eseumlng that no “defined” road district has been created and carved out of the commissioner’s precinct to which you refer, and that the commissloner(s precinct has no outstanding bonds issued under the authority of the constitutional provision mentioned below.

Section 52 of Article III of the Texas Constlltution provides that under legislative provision, any defined district,

e 0 5 0“upon a vote of e two-thirds majority of the resident property taxpayers voting thereon whoare qualified electors of such district or territory to be affected, , .-

thereby, in addition tc all other Qebta, mayissue bonds or otherwise lend its oredit in any amountnot to exoeed one-fourth of the assessed valuation of the real property of such distriot or territory. 0 Do for the f

’ollewing ,purposea, to-wit, e .z*

“(a) The oenstwation, maintenance and operation of maoadamized, graveled or paved reads and t'usgapikss,or in aid thereof.” The Ida@felature has the power to create and define road dietriots andmaydelegate that power to commiesioners’ co,urts) a8 was done by the enaatment of Article 752~ of Vernon’s Civil Statutes, That law authorizes aomm1saionersI courts to crdate road districts “by eateriu amorder declaring such road district established and defining the boundaries thereof an Article 7526prescribes procedure for elections to authorize issuance of bonds,

In the case of Louisiana RyOandNav. Co, v. State, 298S, Wr.462, the court quoted the constitutional ;gv;;;n which authorizea the creation of roa.8districts

:

“The language eunder legislative prcvision, t found in the section just quoted, committed to the Legfslabufe all queatfons relating to the oreation, the size, boundaries, eta*, of defined districts I The Legislature oould, have oreated districts outright, defined their baundaries, end provided for their organization and operation, or it could have authoriaed their creaMon by order of the commissfonersD court, wfthout petition or vote of qualified eleotors.” The language of the Constitution and statutes concerning the purpose for which road district bonda may be issued is broad enough to include the purchase of right-of-way wbfoh is not anly in aid of, but is eatential to the ocnstruotioa of a road,

In 8titem ~4~8uttsa Ootmtltp(error rsfrrerd) 272 5. W, 506, it is hehd that eemey arUin& f$Wathen sale ef shah bonds maybe w’ed to pp fer righI;-sf-way 

### ror madr. The Court 8aBd:Hon. S. Md.Pillar i Page~3 (V'223)

‘Without the power to acquire and pay for gland neoeaaarg for thenconstruction of roads, the power to construct such roads would amount to nothing, and the object of the constitutional and statutory provlalona be defeated.”
In the Mae Of~Arenaaa County v. Coleman-Fulton Pasture Company, 1CST%xas223, 191 S. W0 ’~553,the Supreme Court said: *The term lroada,e in our opinion was not uaed~ln any such narrow sense in this connection aa would prevent in the conatruction of necessary roads the necessary bridges for such roads. Thebroad scope of the constitutional provlalon whenconsidered in the light of Its purpose compels the view that the termwaaused in the amendmentin such a sense as would make possible completed and continuous roada in fulfillment of the liberal policy to which the provlalon la due.” Weare of the opinion that a defined road dlatrlct maybe created within a Commlaaionerla Precinct by legislative Act or by the Commiaaloners~ Court by an order entered in its minutes, and that moneyarlalng from the sale of bonds issued by such district, “for the purpose of the construction, maintenance and operation of macadamlzed., graveled and paved roads and turnpikes, or in aid thereof ” maybe used to purchase right-or-way for roads in such dlatrlot. However, your attention la lnvlted,to that part oi Article 752~which provldea:

“e 0 .except aa herein speclflcally permltted, no fractional part of a prevloualy created road district shall be included within the limits of the road district areated under the provision of this Aot n 00

.This language imposes a limitation on the poueraof t& Commlssloneras Court, and the limitation has been aahutrued to apply to commlsaloneral preclncta aawell aa,road d~atrlc.taO See Opinions Boa. O-7099 and O-11375, copies of which are enclosed hersurlth.. ---

Honorable S. & Plfler - Page 4

SUMMARY Adefined road district maybe created within a CommlaalonerPa Precinct by legislative Act or by an other entered by the CommlaslonersP ,Court, for the purpose of construatfon andmaintenance and operatfon of macadamlzed, graveled and paved roaaa andturnpikes, and in aid thereof. Const:Art. III, Sec. 52, sub-section (o);'Art. 752~~V. C. S., Anderson County Road Dfstrfct No, 8vs. State, 298S,.W. 462, affirmed 7S. W. Zd, Moneyarfsfng from the,sale of bonds issued for the purpose of construction and malntenance and operation or macadamfzed, graveled and paved roads and turnpikes, and in aid thereof, maybe used to pay for right-of-way for such roads, Stites v. Sutton County (error refused), 272 S. W, 506; Aransas County vs. Coleman-Fulton Pasture Co,, 191 9. W. 553, Yours very txuly, ATTORNEYGENERAL

OFTEXAS

BY gczfs W. T. Wlllfama Assistant

APPROVED
2iiLkLJ ATTORNEP

GENERAL