                          ORNEY          GENERAL
                         OFTEXAS



                         March 1, 1962

Honorable Mack Wallace
County Attorney                    Opinion No. WW-1267
Henderson County
Athens, Texas                      Re:    Whether the Commissioners'
                                          Court is authorized to pay
                                          for the removal and re-
                                          building of barns and
                                          other buildings out of
                                          the Special Road and
Dear Mr. Wallace:                         Bridge Fund.
          In your letter requesting an opinion from this
office you submit certain facts as follows:
          "The City of Athens proposes to trade
     a piece of land owned by them for a piece
     of land owned by the county. Incident to
     this trade the county will of necessity have
     to spend in the neighborhood of $14,000.00
     rebuilding its barns which are located on
     the present county !.and. The Commissioners'
     Court proposes to pay for the removal of
     these barns and other buildings by spending
     money out of the Special Road and Bridge
     Fund." (timphasisadded)
          Also, during a telephone conversation with this
office on January 29, 1962, you stated that the barns and
other buildings, presently located on county owned land,
are utilized to provide housing for county road trucks,
machinery and equipment.
          In addition you stated that the voters of Henderson
County have authorized a 15 cent tax, as is provided for by
Section 9, Article VIII of the Texas Constitution, thereby
creating a Special Road and Bridge Fund.
          With regard to the foregoing circumstances you
ask a question which Is substantially as follows:
          Whether the Commissioners* Court of Henderson
County is authorized to pay for the removal and rebuilding
of barns and other buildings out of the Special Road and
Honorable Mack Wallace, page 2 (~-1267)


Bridge Fund.
          Our discussion herein will be limited to the legality
of the proposed expenditure of money out of the Special Road
and Bridge Fund for the purposes mentioned above.
          Article 2351, Vernon's Civil Statutes, lists
certain powers and duties of a Commissioners' Court with
regard to establishing and maintaining public roads and
bridges. Those provisions most pertinent to our discussion
are as follows:
          "Each commissioners' court shall:
          8,
           . . .
          "3.    Lay out and establish, change and
                 discontinue public roads and highways.
          "4. Build bridges and keep them In repair.

          "5.    Appoint road overseers and apportion
                 hands,

          "6.    Exercise general control over all
                 roads, highways, ferries and bridges
                 in their counties.
          ,I
           . . .
          "15.    Said Court shall have all such other
                  powers and jurisdiction and shall
                  perform all such other duties, as are
                  now or may hereafter be prescribed
                  by law."
          The voters of the County have enabled the Commls-
sioners' Court to better perform the duties specified above.
by authorizing the 15 cent tax as is provided for by Section
9 of Article VIII of the Texas Constitution. This created
a Special Road and Bridge,Fund, as provided by the Cons-
titution, thus making it a Constitutional Fund. Carrol v.
Williams, 109 Tex. 155, 202 S.W. 504 (1918).  First State
Bank and Trust Compan of Rio Grande City v. Starr County,
306 s w 2d 24b (Civ.:pp., 19371. This Provision of the
Const;t;tion &ads as follows:
          "Sec. 9 The State tax on property, exluusive
     of the tax necessary to pay the public debt, and
.    .



Honorable Mack Wallace, page 3 (~~-1267)


     of the taxes provided for the benefit of the
     public free schools, shall never exceed Thrity-
     five Cents (354) on the One Hundred Dollars
     ($100) valuation; and no county, city or town
     shall levy a tax rate in excess of Eighty Cents
     (80#) on the One Hundred Dollars ($100) val-
     uation in any one (1) year for general fund,
     permanent improvement fund, road and bridge
     fund and jury fund purposes; provided further
     that at the time the Commissioners* Court meets
     to levy the annual tax rate for each county
     it shall levy whatever tax rate may be needed
     for the four (4) constitutional purpose?;
     namely general fund, permanent improvement
     fund, road and bridge fund and jury fund so
     long as the Court does not impair any out-
     standing bonds or other obligations and so
     long as the total of the fore oin tax levies
     does not exceed Elght$ Cents $80$7 on the
     One Hundred Dollars ( 100) valuation in
     any one (1) year. Once the Court has levied
     the annual tax rate, the ~same shall remain
     in force and effect during that taxable year;
     and the Legislature may also authorize an
     additional annual ad valorem tax to be levied
     and collected for the further maintenance of




     the maintenance of the"p;blic roads and high-
     ways, 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 Con-
     stitution." (Emphasis added)
          The Court in Carroll v.,Williams, supra, inter-
preted Section 9 of Article VIII as follows:
              "Going to the real gist of the main
         issue before us, section 9 of article 8
Honorable Mack Wallace, page 4 (w-1267)


    of our Constitution, supra, inhibits any and all
    transfers of tax money from one to another
    of the several classes of funds therein authorized,
    and, as a sequence, the expenditure, for one
    purpose therein defined, of tax money raised
    ostensibly for another such purpose. The
    Immediate purpose In so prescribing a separate
    maximum tax rate for each of the classes of
    purposes there enumerated is, no doubt, to
    limit, accordingly, the amount of taxes which
    may be raised from the people, by taxation,
    declaredly for those several purposes or
    classes of purposes, respectively. But that
    Is not all. The ultimate and practical and
    obvious design and purpose and legal effect
    is to inhibit excessive expenditure for any
    such purpose or class of purposes. BJ
    necessary implication said provisions of
    section 9 of article tlwere designed, not
    merely to limit the tax rate for certain
    therein designed purposes, but to require
     ht    y and all money raised by taxation
    fo: a:! such purpose shall be applied,
    faithfully, to that particular purpose,
    as needed therefor, and not to any other
    purpose or use whatsoever. Those constitutional
    nrovisXons control not‘onls the raising. but
    also the application, of ail such funds: and
    such is the legal effect of articles 2242
    and 7357{, supra, when properly construed and
    applied,    (Emphasis added)
          (Article 2242, above cited by the court, Is now
Article 2352, Vernon's Civil Statutes, and Article 7357
is now Article 7048, Vernon's Civil Statutes),
          In Attorney General's Opinion No. O-298 (1939),
this office held that the Commissloners~ Court of McLennan
County had the authority to construct and pay for a county
garage for housing, maintaining, repairing and servicing
county road equipment, out of the County Road Bond Fund.
The authorities relied on In said opinion hold in effect
that the phrase "maintenance of the public roads" as used
in Section 9, Article 8 of the Constitution has a broad
enough meaning to Include the doing of everything
necessarily and appropriately connected with and Incidental
to the laying out, opening and construction of public roads
and the maintenance of an efficient road system. The
opinion accordingly reasons that since the Commissioners'
.   .




Honorable Mack Wallace, page 5 (WW-1267)


Court is authorized to acquire machinery and equipment for
the maintenance and repair of public roads, it necessarily
follows that the Commissionersl Court is authorized to
properly house, service and repair such equipment, and
pay for same out of the County Road Bond Fund.
          The same principles are equally applicable here.
It would be illogical to authorize or permit the purchase
of maintenance equipment out of a road maintenance fund
and not authorize the purchase of facilities necessam to
house and/or service such equipment out of the same fund.
By the same token, if the garage facilities become obsolete
or unsuitable for the purposes intended, it would be
illogical to prohibit expenditure of that same fund for
renovation, relocation or construction of additional
facilities if circumstances require it.
          If in the discretion of the Commissioners' Court,
the existing location of garage or storage facilities are
unsuitable, and in the judgment 01' the Commissioners' Court
the proposed relocation will permit more efficient utilization
and operation of the maintenance equipment, then the expense
in relocating the existing structures or building additional
structures to house the county road trucks and equipment
on the new location, is directly related to the function of
establishing and maintaining roads and bridges in the County,
On the basis of the authorities discussed, it is our opinion
that the Commissionerat Court Is authorized to use the Special
Road and Bridge Fund for such a necessary attribute of the
public road system as adequate and suitable storage or
service facilities for the county road trucks and maintenance
equipment.

                       SUMMARY
          The Commissioners* Court of Henderson County
          is authorized to pay out of the Special Road
          and Bridge Fund for the removal and relocation
          of county "barns" and other buildings, which
          structures are utilized to house and service
          county road trucks and maintenance equipment,
          if the court finds that the present location
          is unsuitable.
                                 Very truly yours,
                                 WILL WILSON
                                 Attorney General of Texas
                                           .   ,.




Honorable Mack Wallace, page 6 (~~-1267)




1RW:mkh
APPROVED:
OPINION COMMITTEE
W, V. Geppert, Chairman
Arthur Sandlin
Morgan Nesbltt
Grundy Williams
Coleman Gay
REY'IEWEDFOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr,
