### Tmm 7rromv~~ GENERAL

Hon. William J. CountyAttorney Lubbock County Lubbock, Texas Gillespie

-a _. Dear Mr. Gillespie: OpinionNO. 

### ~~-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~sCourt desires to reise funds for the purpose of re-locating, laying out, widening and repairingCounty roads. To do so, it will be necessary for the County to Impose a tax burden which is not authorized at this time. In furtheranceof this desire to raise additional funds for general roadpurposes, such
as purchasingnew right-of-way for,relocatingof
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 electionunder 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, 'andthe Legislaturemay also authorize an additional annual ad Valorem tax to be levied and collected for the furthermaintenance of the public roads;provided,that a majority of the qualified property tax paying voters of the Countyvoting at
an election to be held for thatpurpose shallvote 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 desiresyour opinion on the question; if properly authorizedby electionheld under the above provisions, could taxes imposed for theHon. William J. Gillespie,page 2 (OpinionNo. 

### ~~-641)

approvedpurpose of 'forthe furthermaintenance of public roads;' be expended for the desiredpurposes as set out above, or, would such tax funds have to be expended for the maintenance of existingroads?"

For claritywe quote more fully fromArticleVIII, Section 9 of the Constitution:

.andthe Legislaturemay also authorize an additional annual ad valorem tax to be levied and collected for the furthermaintenance of thepublic roads;provided, that a majority of the qualified property tax paying voters of the countyvoting at
an election to be held for that pur ose shallvote such tax, not to exceed fifteen 

### (15 P cents on the
one hundred dollarsvaluation 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 localnotice required for special or local laws. This section shall not be construedas a limitation of powers delegated to counties, cities or towns by any other section or sections of this Constitution.

. . .'

The Legislaturehas authorized the levy and collection of the additional tax thus provided for, and made provision for the required election. SeeArticles 

### 7048and 

### 6790, V.C.S.

In an 

### 1897case, 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 constitutionalityof a local road lawpassed by the Legislature. It was there contended that the word "maintenance,"as used In that part of the above sectionauthorizing 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 formaintenance of roads already constructed,and would not authorize the passage of a statute creatinga road'system. contention the Court said (p. 923): In rejecting this D

I,

. .Wedo not think the word ‘maintenance’ as used in this section of the constitutionwas intended to be used in this restricted sense. Ey the use of the words 'maintenanceof public roads and highways,' the framers of the constitutionhad reference to maintaining a system of public roads and highways, which would include all the necessarypowers to provide and keep up a system of highways.

. . .'. .

Hon. William J. Gillespie,page 

### 3 (OpinionNo. 

### ~-641)

. The Supreme Court of Texas referred to this result

in the Smith case, supra, In Dallas Countyv. Plowman, 99 Tex. 

### 5097JT S.W. 221. In that case also the questionwas the constitutionalityof a local road law passed by the Legislature. After quoting that part of ArticleVIII, Sec. 9 of the Constitution, set out above the Courtproceeded as follows:

.Thevalidity of the local law for Dallas County,

dependsupon the meaning of the phrase 'maintenance of public roads,' as used in the paragraph of the Constitution last quoted. The literalmeaning of the word 'maintenance'would not Include the laying out or constructionof 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 constructionof a road are enumerated, and by the use of the words 'opening,laying out, altering' the word 'maintaining is restricted to its literalmeaning; 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 8 1 90, for the evidentpurpose of conferringupon counties the power to lay out, construct,and maintain better systems of public highways than they were able to do under the restricted taxation beforeprovided for,.

. . .The meaning of the word 'maintenance,'in the clause of the Constitutionwhereby authority is given to pass local road laws for a particular county, and the same word as used in the precedingpart of that paragraph, must be the same, because they~concern the same subjectmatter and express the samepurpose. If we give to the word 'maintenance'its literalmeaning in this part of the paragraph, 'TheLegislaturemay also authorize an additionalannual ad valorem tax to be levied and collected for the furthermaintenance of public roads,' then the money derived from the tax so levied would constitutea 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 suchhighways. It would be a narrower interpretationto 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 andmore extensive system of public highways. It could notHon. W-i ,ll ,iamJ. Gillespie,page 4 (OpinionNo. 

### ~~-641)

have been the intention thus to restrict the use of the fund and to create such confusionand embarassment in the handling and disbursementof the funds of the countyas 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 statedhas been consistently followed. See, e.g.,Henderson Countyv. Allred, 120 Tex. 

### 483,40 S.W. 2d 

### 17 (1931);nner v. Crow, (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 involvedhere, since it was concerned with the interpretationof the word "maintenance" in the last clause of Constitution,Article 

### 8, Sec. 9, stillwe believe the language of Chief Justice Brown in that opinion makes it clear that this same construction should be given the sameword as used In the preceding clause; i.e., authorizing an additional tax assessment for "maintenance of the public roads."

You are accordinglyadvised that funds raised through this constitutionalauthorization,assuming due compliance with the legislativeprovisions governing such levy, may be used for the purpose of improving the county road system in general, includingpurchase of additional right-. of-way, and the re-locationand widening of existing roads.

SUMMARY -- The funds collectedunder the authorization contained in ArticleVIII, Section 9, Constitutionof Texas, providing for the levy of an additional ad valorem tax "for the furthermaintenance 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 (OpinionNo. 

### 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