Ronorable David H. Cain             opinion No. ~~568
Chairman
Conrmitteeon Transportation         Re: Construction of subsection (c)
Texas House of Representatilxs      of article III. section 52, of the
P. 0. Box 2910                      Texas Constitution relating to
Austin. Texas   78769               county road bonds

Dear Representative Cain:

     As chairman of the Cmmittee on Transportation for the Texas
House of Representatives you have requested the opinion of this office
on two questions:

            1. Does the existence of outstanding road
         bonds of a county issued under article III.
         section 52(c), of .theTexas Constitution limit or
         otherwise affect 1:h.e
                              amount of bonds that a county
         road district located in that county may issue
         under article II::, section 52(b), of the Texas
         Constitution?

             2. Does the existence of outstanding bonds of
          a county road dit,trict issued under article III,
          section 52(b), of .theTexas Constitution limit or
          otherwise affect the amount of road bonds that the
          county in which such road district is located may
          issue under article III. section 52(c). of the
          Texas Constitution?

     Section 52 of article III of the Texas Constitution has been
amended three times since :.tsadoption in 1876: in 1904, 1970, and
1978. Acts 1903, 28th Leg., R.S., 52, at 247; Acts 1969. 61st Leg.,
R.S.. 51, at 3236; Acts 19;'7,65th Leg., R.S., 51, at 3374. It now
reads:

             Sec. 52. (a) Except as otherwise provided by
          this section, the 'Legislature shall have no power
          to authorize any county, city. town or other
          political corpora,:ionor subdivision of the State
          to lend its credit or to grant public money or
          thing of value iu aid of, or to any individual,
          association or corporation whatsoever, or to




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Honorable David H. Cain - Prrg;e
                               2   (JM-568)




         become a stockho1i.m in such corporation, associa-
         tion or company.

            (b) Under Legislative provision, any county,
         any political subdivision of a county, any number
         of adjoining counties, or any political subdivi-
         sion of the Stateror any defined district now or
         hereafter to be described and defined within the
         State of Texas, and which may or may not include,
         towns, villages 0::municipal corporations, upon a
         vote of two-thirdrimajoritp of the resident prop-
         erty taxpayers vcting thereon who are qualified
         electors of such district or territory to be
         affected thereby, $I addition to all other debts,
         may issue bonds or otherwise lend its credit in
         any amount not to exceed one-fourth of the
         assessed valuatioli of the real property of such
         district or terrxw,       except that the total
         bonded indebtedne& of any city or town shall
         never exceed the limits &posed-by other provi-
         sions of the Con~~titution,and levy and collect
         taxes to pay the interest thereon and provide a
         sinking fund for the redemption thereof, as the
         Legislature may aut:horize,and in such manner as
         it may authorize the same, for the following
         purposes to wit:

               (1) The imrrovenent of rivers, creeks, and
            streams to prex'entoverflows, and to permit of
            navigation thereof. or irrigation thereof, or
            in aid of such purposes.

               (2) The construction and maintenance of
            pools, lakes, reservoirs, dams, canals and
            waterways for   the purposes of irrigation,
            drainage or navigation, or in aid thereof.

               (3) The construction, maintenance and oper-
            ation of macad;&zed. graveled or paved roads
            and turnpikes, or in aid thereof.

            (c) Notwithstanding the provisions of Subsec-
         tion (b) of this &tion.    bonds may be issued by
         any county in an amount not to exceed one-fourth
         of the assessed valuation of the real property in
         the county, for the construction, maintenance, and
         operation of macadnnized, graveled, or paved roads
         and turnpikes, or Ln aid thereof, upon a vote of a
         majority of the res:Ldentproperty taxpayers voting
         thereon who are qcalified electors of the county,




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Honorable David H. Cain - P;lge3   (JM-568)




          and without the necessity of further or amendatory
          legislation. The &nty   may levy and collect taxes
          to pay the interest:on the bonds as it becomes due
          and to provide a sinkinn fund for redemption of
          the bonds.

             (d) Any defined district created under this
          section that is authorized to issue bonds or
          otherwise lend its credit for the purposes stated
          in Subdivisions (1) and (2) of Subsection (b) of
          this section may engage in fire-fighting activi-
          ties and may issue bonds or otherwise lend its
          credit for fire-fighting purposes as provided by
          law and this constitution. (Emphasis added).

Tex. Const. art. III, $52.

     Originally, section 52 contained only the unemphasized language
set out in subsection (a) iitlove.Later, the substance of subsection
(b) was added as a proviso :in1904. In 1970. the existing section was
subdivided and the language,of subsection (c) was added. Subsection
(d) was added in 1978. [See Historical Note, IA Vernon's Annotated
                          -I-
Constitution of the State oj:
                           --Texas 636 (1984).]
     The 1904 subsection cb) urovision that counties or districts
could, upon a proper vote of ;he people, "in addition to all other
e'      issue bonds "in an]' amount not to exceed one-fourth of the
assessed valuation of the r(!alproperty of such district or territorv"
was an early source of contFoversy. In 1912, it was construed by the
Texas Supreme Court in --
                       Simmons v.-Lightfoot, 146 S.W. 871 (Tex. 1312),
to mean that the joint and separate authority of the governmental
units named by article III, section 52 to create debts against taxable
property they embrace jointly "is limited by the Constitution to
the a re ate amount of one-fourth of the assessed value of such
prop*46         S.W. at 873. (Emphasis added).

     Thus, according to the Simmons case, if either the county or a
road district, for example: has issued bonds in an amount equalling
one-fourth of the assessed value of the taxable property in the road
district, neither the county or the road district (nor any other
debt-creating district) can issue bonds under article III, section 52
encumbering that property until a portion of the bonding capacity of
the property has been re:,tored by the retirement of outstanding
obligations.

     Noting that the creation of different districts for five distinct
purposes was possible under article III, section 52, the Simmons court
said:




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Honorable David H. Cain - P,lge4        (JM-568)




             Under the construction contended for by re-
          lators, it would be possible for five districts
          embracing the same territory and formed for
          different purposes to create an indebtedness
          against the real property of such districts
          one-fourth great=::than the assessed value of such
          real property.

             .   .   .   .

         If it was the de:sign and purpose of those who
         framed the secion      of the Constitution to
         authorize the creation of a debt not to exceed
         one-fourth of the. assessed value of the real
         property situated in each of such districts for
         each of the said p~urposes,it should have been so
         written. Since it has not been so written, it is
         not within the power of this court to interpolate
         such a meaning.

146 S.W. at 873. See also
                        --  S'anAntonio h A. P. Railway Co. v. State,
95 S.W.2d 680 (Tex. IS136): Munson v. Looney. 172 S.W. 1102 (Tex;
1915); Attorney General Cpinion O-,486 (19391. Cf. Collinesworth
County v. Allred. 40 S.W,l.d 13 (Tex. 1931); Henderson County v.
Allred, 40 S.W.2d 17 (Tex. 11331). That is where the law stood at the
time subsection (c) was add& to article III, section 52 in 1970.

     Subsection (c) begins, "Notwithstanding the provisions of sub-
section (b) of this section, bonds may be issued. . . ." (Emphasis
added). A brief submitted with your request suggests this language
allows counties to dfsrega:rd the "one-fourth of the assessed value"
limitation of subsection (11)and to encumber property in the county
for an additional road bond debt in the amount of one-fourth of the
assessed value of the property. In other words, the brief argues that
property in a county can now be encumbered for article III. section 52
purposes in the aggregate amount of one-half of its assessed value
[one-fourth under subsection (b). and one-fourth under subsection
(c)l.

     We do not believe       the addition of subsection (c) was intended to
have that effect. In         our c~pinion.subsection (c) was added to the
constitution merely to       remove the requirement that county road bonds
secure the approval of       two-thirds of the electorate rather than of a
simple majority.

     The 1970 amendment was .proposedby House Joint Resolution No. 28
in the Sixty-first Legislature, which carried the following caption:

         Proposing an amendment to section 52. article III,
         Constitution of the State of Texas, to authorize




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Honorable David H. Cain - Page 5   (JM-568)




          any county, on tL! vote of a majority of qualified
          property taxpayin;selectors, to issue road bonds
          in an amount no': to exceed one-fourth of the
          assessed valuation of the real property in the
          county.

The resolution dictated that the proposition be presented on the
ballot as a vote for or aga:.nst:

          The constitutional amendment authorizing w
          county, on the vo1:p:
                              of a majority of its qualified
          property taxpaying electors, to issue road bonds
          in an amount not to exceed one-fourth of the
          assessed valuation of the real property in the
          county.

Acts 1969, 61st Leg., R.S.. at 3236.

     One commentator has professed uncertainty about the meaning of
subsection (c), as added in 1970. See 1 Braden, The Constitution of
the State of Texas: An Annotatedand       Comparative Analysis, 260
(1977). But others have expressed no doubt:

             Article III, section 52 of the constitution was
          last amended as the result of an election held in‘
          November 1970. Again we have an illustration of
          our propensity tcl attack problems on the fringe
          without going to !:hebasic problem. As the result
          of an election held in 1968, Dallas County had
          been given authority to issue bonds for road pur-
          poses upon a majority vote (rather than two-
          thirds vote) of the resident qualified property
          taxpaying electors, and this power was given to
          all counties by the 1970 amendment to article III,
          section 52. The mendment to article III, section
          52 provides no other change. . . .

Morrow, Financing of Capjtal Improvements by Texas Counties and
Cities, 25 SW.L.J. 373, 39i, 392 (1971). -
                                         Cf. Tex. Const. art. III,
552e.

     Texas courts have not :Tetconstrued subsection (c). The paramount
task is to ascertain the :intent of its framers and the people who
adopted it. See 12 Tex. Jur. 3d, Constitutional Law 524 (1981). Our
examination convinces us that no change was contemplated other than a
change in the relative size of the vote necessary to authorize the
issuance of county road bor.ds.and that the voters did not intend to
increase twofold the potent,Lalliability of their property for article
III, section 52 debt purpt,ses. To paraphrase the language of the
Texas'Supreme Court in --Sirmlons v. Lightfoot, w.      if it was the



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Honorable David H. Cain - Pzig;e
                               6     (JM-568)




design and purpose of those who framed subsection (c) to authorize the
creation of an aggregate deb,t not to exceed one-half of the assessed
value of the real property situated in the county, it should have been
so written.

     In answer to your questions, we advise that the existence of
outstanding county road bonds issued under article III, section 52(c),
of the Texas Constitution $r:Llllimit or affect the amount of bonds
that a county road district: located in that county may issue under
article III, section 52(b) thereof. We also advise that the existence
of bonds issued by a road district pursuant to section 52(b) will
limit or affect the amount of road bonds that a county may issue
pursuant to section 52(c).

                               SUMMARY

               The existence of.outstanding road bonds of a
          county issued under subsection (c) of article III,
          section 52, of the Texas Constitution will limit
          or affect the amount of bonds that a county road
          district may ISSUI? under subsection (b) thereof,
          and the existence of bonds issued by a road dis-
          trict pursuant to subsection (b) will limit or
          affect the amount of road bonds a county may issue
          pursuant to subsection (c).




                                         -~
                                              JIM     MATTOX
                                              Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Bruce Youngblood
Assistant Attorney General




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