Tmm 7rromv~~ GENERAL 

Hon. William J. 

County Attorney 

Lubbock County 

Lubbock, Texas 

Gillespie 

-a _. Dear Mr. Gillespie: 

Opinion NO. ~~-641 

Re: Use of funds derived 

from the levy of an 

additional ad~valorem 

tax for the maintenance 

of county roads, as 

authorized by Art., VIII, 

Sec. 9 of the Constitu- . - - tion or Texas. 

OFTEXAS 

June 16, 1959 

Your recent request for an opinion from this office 

reads in part as follows: 

"The Lubbock County Commlssloner~s Court desires 

to reise funds for the purpose of re-locating, 

laying out, widening and repairing County roads. 

To do so, it will be necessary for the County to 

Impose a tax burden which is not authorized at 

this time. In furtherance of this desire to raise 

additional funds for general road purposes, such 

as purchasing new right-of-way for,relocating of 

some existing roads, purchase of additional rightof-way for widening of existing roads and generally 

improving the County road system, the Court has 

decided to call for an election under the provlslons of Article 6790, Revised Texas Statutes, and 

if approved by the election, impose a tax under the 

provisions of Section 9, Article 8 of the Texas 

Constitution. This provision reading as follows, 

'and the Legislature may also authorize an additional annual ad Valorem tax to be levied and collected for the further maintenance of the public 

roads;provided, that a majority of the qualified 

property tax paying voters of the County voting at 

an election to be held for that purpose shall vote 

such tax, not to exceed fifteen cents (15+!) on the 

One Hundred Dollars ($100.60) valuation of the 

property subject to taxation in such County.' 

"The Court desires your opinion on the question; 

if properly authorized by election held under the 

above provisions, could taxes imposed for the 
Hon. William J. Gillespie, page 2 (Opinion No. ~~-641) 

approved purpose of 'for the further maintenance of 

public roads;' be expended for the desired purposes 

as set out above, or, would such tax funds have to 

be expended for the maintenance of existing roads?" 

For clarity we quote more fully from Article VIII, 

Section 9 of the Constitution: 

.and the Legislature may also authorize an 

additional annual ad valorem tax to be levied and 

collected for the further maintenance of the public 

roads; provided, that a majority of the qualified 

property tax paying voters of the county voting at 

an election to be held for that pur ose shall vote 

such tax, not to exceed fifteen (15 P cents on the 

one hundred dollars valuation of the property subject to taxation In such county. 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 section 

shall not be construed as a limitation of powers 

delegated to counties, cities or towns by any other 

section or sections of this Constitution. . . .' 

The Legislature has authorized the levy and collection of the additional tax thus provided for, and made provision for the required election. See Articles 7048 and 6790, 

V.C.S. 

In an 1897 case, Smith v. Grayson County, 44 S.W. 

921 (Tex.Civ.App., error ref.), the Court of Civil: Appeals 

has before it the-question of.the constitutionality of a 

local road law passed by the Legislature. It was there contended that the word "maintenance," as used In that part of 

the above section authorizing the Legislature to "pass local 

laws for the maintenance of the public roads and highways, 

without the local notice required for special or local laws," 

meant that such laws could only be passed for maintenance of 

roads already constructed, and would not authorize the passage of a statute creating a road'system. 

contention the Court said (p. 923): 

In rejecting this D 

I, . .We do not think the word ‘maintenance’ as 

used in this section of the constitution was intended to be used in this restricted sense. Ey 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 and keep up a system of highways. . . .' 
. . 

Hon. William J. Gillespie, page 3 (Opinion No. ~-641) 

. 

The Supreme Court of Texas referred to this result 

in the Smith case, supra, In Dallas County v. Plowman, 99 

Tex. 5097JT S.W. 221. In that case also the question was 

the constitutionality of a local road law passed by the Legislature. After quoting that part of Article VIII, Sec. 9 

of the Constitution, set out above the Court proceeded as 

follows: 

.The validity of the local law for Dallas 

County, depends upon the meaning of the phrase 'maintenance of public roads,' as used in the paragraph 

of the Constitution last quoted. The literal meaning of the word 'maintenance' would not Include the 

laying out or construction of a road, but would relate to the repair and improvement of roads already 

laid out and constructed. In article 3, c) 56, subd. 

5, of the Constitution, the different stages in the 

preparation and construction of a road are enumerated, and by the use of the words 'opening, laying 

out, altering' the word 'maintaining is restricted 

to its literal meaning; it could not have been intended to embrace in it that which was otherwise 

expressed. But the paragraph of section 9, art. 8, 

above copied, was not a part of the ori inal section; 

it was added by amendment in the year 1 8 90, for the 

evident purpose of conferring upon counties the power 

to lay out, construct, and maintain better systems of 

public highways than they were able to do under the 

restricted taxation before provided for,. . . .The 

meaning of the word 'maintenance,' in the clause of 

the Constitution whereby authority is given to pass 

local road laws for a particular county, and the same 

word as used in the preceding part of that paragraph, 

must be the same, because they~ concern the same subject matter and express the same purpose. If we give 

to the word 'maintenance' its literal meaning in this 

part of the paragraph, 'The Legislature may also 

authorize an additional annual ad valorem tax to be 

levied and collected for the further maintenance of 

public roads,' then the money derived from the tax so 

levied would constitute a special fund for the repair 

of public roads, and in keeping them in order after 

they were constructed, and could not be used for the 

purpose of laying out and constructing such highways. 

It would be a narrower interpretation to hold that 

the people adopting this amendment to the Constitution had in view to provide a fund to be used only in 

repairing roads already laid out, instead of the evident and broader policy to create a better and more 

extensive system of public highways. It could not 
Hon. W-i ,ll ,iam J. Gillespie, page 4 (Opinion No. ~~-641) 

have been the intention thus to restrict the use of 

the fund and to create such confusion and embarassment in the handling and disbursement of the funds 

of the county as would arise from such construction. 

The purpose of the Legislature In making the amendment was to Increase the capacity of the county to 

maintain a system of public roads, and the word 

'maintenance' must be held to include all of the 

things necessary to be done to accomplish that purpose. , .'I 

The rule so stated has been consistently followed. 

See, e.g., Henderson County v. Allred, 120 Tex. 483, 40 S.W. 

2d 17 (1931);nner v. C row, 

(1935); Tarrantty v. Sfi 

124 Tex. 368, 78 S.W.2d 588 

annon, 129 Tex. 264, 104 S.W.2d 

4 (1937). 

While the Plowman case, supra, cannot be said to 

decide the precise question involved here, since it was concerned with the interpretation of the word "maintenance" in 

the last clause of Constitution, Article 8, Sec. 9, still we 

believe the language of Chief Justice Brown in that opinion 

makes it clear that this same construction should be given 

the same word as used In the preceding clause; i.e., authorizing an additional tax assessment for "maintenance of the 

public roads." 

You are accordingly advised that funds raised 

through this constitutional authorization, assuming due compliance with the legislative provisions governing such levy, 

may be used for the purpose of improving the county road 

system in general, including purchase of additional right-. 

of-way, and the re-location and widening of existing roads. 

SUMMARY -- 

The funds collected under the authorization contained in Article VIII, Section 

9, Constitution of Texas, providing for the 

levy of an additional ad valorem tax "for the 

further maintenance of the public roads" may 

be used for the general improvement of the 

county road system. It is not required that 

such funds be used only for the repair and 

upkeep of existing roads. 
. - 

Hon. William J. Gillespie, page 5 (Opinion No. w-641) 

Very truly yours, 

WILLWILSON 

Attorney General of Texas 

JRI:bct 

APPROVED: 

OPINION COMMITTEE? 

George P. Blackburn, Chairman 

Howard Maya 

John B. WeDster 

James H. Rogers 

REVIEWED FOR THE ATTORNEY GENERAL: 

By: W. V. Geppert