                   THE   A~ORNEY           GENERAL
                            0,~    TEXAS




Honorable Donald E. Short              Opinion NO. WW-6
County Attorney
Wichita County                         Re: Constltutionallty of the
Wichita Falls, Texas.                      Wichita County Road Law
Dear Mr. Short:
          You have requested an opinion on the constitutionality
of Senate Bill 145, Acts of the 36th Legislature, Second Called
Session, 1319, Local and Special Laws, Chap. 85, Page 261, as
amended by House Bill 637, Acts of the 38th Legislature, Second
Called Session, 1923, Special Laws, Chap. 100, page 372, entitled
"An Act. creating a more efficient road system for Wichita County,
Texas."
         Senate Bill No,.145 provides that the members of the
Commlsslonera Court shall be ex-officio Road Commissioners and
shall have the right to adopt rules and regulations for proper
maintenance of the roads; provides that the members of the
Commissioners Court when acting as road commissioners shall re-
ceive additional compensation; authorizes the Issuance oft
bonds for the construction of roads, but falls to provide for
the levying of taxes, provides for the employment of a road
superintertdent;and provides for the use of convict labor on
roads.
         Section 56 of Article III of the Constitution of Texas
provides in part:
         'The Legislature shall not, except a8 otherwise
         provided in this Constitution, pass any local or
         special law, authorizing:
           .   .    .

        "Regulating the affairs of counties, cities, towns,
         wards or school dis,trlcta;
           . . .
        "Authorizing the laying out, opening, altering or
        ,maintalning of roads, highways, streets or alleys;
           . * .
Hon. Donald E. Short, page 2   (WW-6)


        "And Ln all other cases where a Seneral law can be
         made aoplicablc, no local or special law shall be
         enacted; . . .'-
         Section 9 of Article VIII of the Constitution of Texas
provides Fn part:
         II
          . . . 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

         one hund;ed dollars valuation of the property sub-~.
         ject to taxation in such coutity. And the Le isla-
         ture may pass local laws for the maintenance
                                                *e    o
                                                 ocal notice


         The scope of the term "maintenance of the public robdv
and highways" adsused in Section 9 of Article VIII of the Constl-
tution of Texas has been discussed in several cases. Smith v.
Grayson County, 24 S.W., 921 (Tex. Civ. App., 1897, error refuded);.
Tarrant County v. Shannon 129 Tex. 264, 104 S.W.2d, 4, (1937);
Tinner V. Crow-     l'ex,$68, 78 S.W.2d, 588 (1935); Austin Brothers
               S.W. 182 (Com.App. 1926); Hi                252
gemex.            Civ.App., 1952, errbr'iefused)."
         In Hill v. Sterrett, the Court stated:
         "The authority conferred by Section 9, Art. 8,
         of the Constitution, supra, iv not 'to enact
         special road laws' of all kinds, for all purposes
         lndivcrimlnately. but Is authority merely to pass
         local ,lawsfor tiiemaintenance of-the public roads
         and highways..' Austin Bros. v. Patton, Tex. Comm.
         APP., 288 S.W. 182 187. A local road law, to come
         within the protection of'Art.-83 sec. 9, must be
         limited to the maintenance of public roads and hlgh-
         ways.   Jameson v. Smith, Tex. C;v.‘App., 161 S.W.
         26, 520; Tinner v. Crow, supra.
          In the case of Altp,eltv. Gutzeit, 109 Tex. 123, 201 S-W,
 400, the Supreme Court held invalid a aim ar road law in Bexar
 County as being in violation of Section 56 of Article,111 of the
 Constitution of Texas, stating:
.




    "The auest.Lcnis whether this a;n:?untsto a law
    ‘reguiating the affairs I of the county and hence
    w:Lthfnthe lnhibitlon of Section 56 of Article 3 of
    the Constitution, which declares thnt, except aa
    otherwise thcreia provided, the Legisinture-shall
    not pass any local or special lsw regulating the
    affairs of counties, cltics, towns, etc., and,
    further that no local or special law shall be en-
    acted where a general law can be made applicable,
    or is to be held as properly incident to a law for
    the malntennnce of the publtc roads, such as the
    Legislature, under amended Section 3 of Article 8,
    may adopt as a local law without the previous
    constitut:lonalnotice.
    'We regard the section as a pla1< attempt to fix
    the compensation of the commissioners f7r all ser-
    vices r&qu:Lredof them by law.      The amounts payable
    to County Commissioners ln return for the discharge
    of .thetrgeneral duttea are fjXC=! d by g fneral
      aws, as the-
                 J should be.     It Is provided by
    Article 3(~7!lthat they shall each receive three
    dollars for each day they are engnged in holding a
    term of the commissionerat court; but shall receive
    no pay for holding more than one special term of the
    court per month.    By Article   6901 as amended by
    the Acts of 1913 (Acts 33rd Leg. c. 123        ernon's
    Snyles' Ann. Civ. St. 1914, Art. 6901 ), iiey are
    constituted supervisors of the pub1r/  c roads of their
    counties, and their compcnsatlon for services     RS
    such .1.sfixed at three dollars per day for the time
    actually employed in those duties, limited to not
    more than ten days in one month.      By Sectlon 5 of
    this special act (Lot. & Sp. Acts 33rd Lrg. c. 77)
    these general laws are declared as suspended.        It
    says that the annual salary of $2,400.00 for each
    commissioner of Bexar County there provided shall be
     'In lieu of all other fees and per diem of all kinds
    now payable or that may hereafter be allowed by




    road system can properly have to the subject of the
    general compensation of county commissioners, it is
  1~1011,   Dor1sIcl     l3.   si-uwt;,   pazc   4   (W-6)


                       difficult’tt7perceive,. No doubt the Legislature,
                       :Ln the passage of local road laws, may, within
                       proper bounds, provide compensation for extra
                       services to be performed by’those officials where
                       uncontrolled by lIenera laws and required by=
                       local laws and directly connected with the mainten-
                       ance of the public roads. We are not called upon
                       to determinc that question here.
                       “As indicating the broad scope of this act and
                       throwing light upon the purpose of Section 5, though
                       essentially a local law and denominated as an act
                       mal:ingprovision for a road system for Bexar County,
                       it attempts, in another section, to fix the ex-officio
                                                  Judge at not less than

            In Attorney General’s Opinion No. V-337 (1947), this
 office construed as invalid a similar road law for McLennan County,
 and in Attorney General’s Opinion V 1315 (1951) this office also
 construed as Invalid similar provisions in the Dallas County Road
 ,I.aw. See HI                supra.
              Astudy of the Wichita County Road Law reveals that no
“’‘additional duty is placed on the Commissioners’ Court with refer-
  ,ence to the laying out, maintenance and control of county roads
   and bridges.    Since no additional duty is placed on the Commission-
 ,’ers 1 Court the purpose of the act is to allow additional compensa- :
   tion to the county commissioners for performing duties required of
   them under the general law.    Therefore, under the rule announced
   in Alt&elt              th.lkI
                                constitutes a local or special law
   regulating the affairs of counties in violation of Section 56 of
   Article III of the Constitution of Texas.
                                                      SU.MMARY
                       Senate Bill 145, Acts of the ,36thLegislature,
                       Second Called Session, 1919, Local and Special Laws,
                       b. a5, p. 261, does not impose any additional duties
                       on the Commissioners’ Court of Wichita County other
                       than those duties required under the General law;
                       therefore, the’wichita County Road Law constitutes a’
                       ,localor special law regulating the affairs .of
Hop. Donald E. Short, page 5 (w-6)


       counties in violation of Section 56 of Article
       III of the Constitution of Texas.
       Outzeit, 109 Tex. 123, 201 S.W. 4OOf@%?'


                                 Yours very   truly,

                                 WILL WILSON
                                 Attorney Gcilernl




                                     Assistant

APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chairman
