,




                 THE    ATTORNEY           GENERAL
                             OF   TEXAS

                             November 14. 1988




    Honorable John T. Montford.    Opinion No.   JM-979
    Chairman
    State Affairs Committee        Re: Whether mass transit taxes
    Texas State Senate             collected under article    11182,
    P. 0. Box 12068                V.T.C.S., may be used by a mun-
    Austin, Texas 78711            icipality    to   maintain    its
                                   streets   (RQ-1535)


    Dear Senator Montford:

         you ask whether taxes dedicated to mass transit     and
    collected pursuant to article  11182, V.T.C.S., may be used
    by a municipality   to maintain   its public streets.      We
    conclude that such taxes may not be used for that purpose.

         Article 11182 permits certain incorporated cities and
    towns to establish a mass transit department.   Id. 5 Z(a).
    If a local sales and use tax dedicated to providing a method
    of funding a mass transit system is approved by the voters,
    then the city transit department may build or acquire    and
    operate such a system. Id. S§ 3, 4, 5, 7. Taxes collected
    pursuant to article 11182 “may be used only for mass transit
    purposes."  Id. 9 8(f).

         The statute defines a mass transit vfSystem’v to mean

            all real and personal property owned or held
            by an incorporated city or town and operated
                   for mass transit purposes,    including
            iand;    easements,   rights-of-way,     other
            interests in land, franchises, rail and bus
            lines,    stations,  platforms,     terminals,
            garages,    shops,  control   houses,    other
            buildings   and structures,  rolling    stock,
            signals, other equipment, supplies, and other
            facilities necessary or convenient    for the
            use of or access to mass transit by persons
            or vehicles     or for   the protection     or
            environmental enhancement of mass transit.




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Honorable John T. Montford - Page 2      (JM-979)




V.T.C.S. art. 11182, 5 l(6).    "Mass transit" is

        the transportation  of passengers  and their
        hand-carried packages or baggage by means of
        surface, overhead, or underground transporta-
        tion except aircraft or taxicab.

Id. 5 l(5).
     The relevant powers of a municipal transit department
operating a mass transit system include the power to:

        acquire, construct, own, operate, and main-
        tain a system within a city or town.         A
        department  may use the streets,       alleys,
        roads, highways, and other public ways within
        the city or town. In the        construction,
        reconstruction,   repair,   maintenance,    or
        operation  of a system, a department       may
        relocate, raise, reroute, change the grade
        of, or otherwise alter the construction     of
        any:

               (1) street, alley, highway, road,
                   or railroad . . . .

V.T.C.S. art. 11182, 5 6(c).

        Thus, nothing in the statute permits  a municipality
which has adopted a local sales and use tax to fund a
municipal transit department to use those tax funds for the
aeneral maintenance    of its public streets.   Additionally,
the statute unequivocally states that a transit    department
"may use the streets, alleys, roads, highways, and other
public ways within the city or town." V.T.C.S. art. 11182,
§ 6(c).
     In our opinion, a transit system's right to Wse"    city
streets necessarily   includes the right to subject      such
streets to normal wear and tear such as must have been
contemplated by the legislature when it adopted       article
11182 with this provision. Nowhere does the statute tie the
ordinary use of a public street to the payment of a fee by
the transit department from tax funds raised solely for the
purpose of funding the department's    operation of a mass
transit system.

     Although the statute contemplates that the construction
and operation  of a mass transit system may require      the
department to undertake construction projects affecting city




                               p. 5001
     .


         Honorable John T. Montford - Page 3     (JM-979)

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         streets, it limits the department's powers to only those
         circumstances requiring the relocation  raisinq,  reroutinq,
         alteration, or chanainq of the streets used by the mass
         transit system. V.T.C.S. art. 11182, 8 6(c). The ordinary
         maintenance of a city street over which the vehicles of a
         mass transit system may pass is thus not with the enumerated
         powers of the transit department upon which tax funds may be
         spent.

                                SUMMARY

                    Taxes raised to pay for the acquisition
                 and operation  of mass transit system under
                 the aegis of the mass transit department of a
                 city or town, article 11182, V.T.C.S.,    may
                 not be used to pay for the maintenance     of
                 city streets.



                                            J-h
                                            Very truly yo



                                            JIM
                                                   .


                                                    MATTOX
                                                            ,




                                            Attorney General of Texas

         MARY KELLER
         First Assistant Attorney General

         MU MCCREARY
         Executive Assistant Attorney General

         JUDGE ZOLLIE STEAELEY
         Special Assistant Attorney General

         RICK GILPIN
         Chairman, Opinion Committee

         Prepared by D. R. Bustion, II
         Assistant Attorney General




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