Honorable Ben Atwell, Chairman        Opinion No. C-424
Revenue and Taxation Committee
House of Representatives             Re:   Constitutionality of
Austin, Texas                              House Bill 8, 59th
                                           Legislature, Regular
Dear Representative Atwell:                Session.

     You have requested our opinion on the validity of House Bill
8 of the 59th Legislature.  House Bill 8 amends Articles 9.14
and 10.03, Section (2) of Title 122A, Taxation-General, Revised
Civil Statutes of Texas, 1925, as amended. The provisions of
Article 9.14, as amended by House Bill 8, which are pertinent to
your inquiry, read as follows:
                 '!Whenmotor fuel is used or consumed,
             or is to be used or consumed, for the pro-
             pulsion of transit vehicles either owned
             or operated, or both, by a transit company,
             which meets the following requirements,
             the transit company shall be entitled to a
             refund of the taxes levied herein; except
             that the one fourth of the taxes levied,
             which is allocated to the Available School
             Fund by the Constitution of the State of
             Texas, shall not be refunded. . . 011
     Similar provisions are contained in the amendment to Section
(2) of Article 10.03. Under the above quoted amendments, none of
the net revenues remaining after payment of all refunds allowed
by law and expenses of collection, derived from the tax levied on
a transit company meeting the requirements contained in the
amendment, are to be used for the purpose of acquiring rights-of-
way, constructing, maintaining, and policing such public roadways,
and the administration of such laws, and for the payment of
certain bonds or warrants. On the contrary, all the net revenues
remaining after payment of the refunds allowed by law and expenses
of collection, derived from the tax levied on transit companies
meeting the requirements of the amendment, are to be allocated to
the Available School Fund.
     It is well settled that tax monies raised ostensibly for one
purpose cannot be expended for another pur ose. Carroll v.
Williams, 109 Tex. 155, 202 S.W. 504 (19187.  Thus, where tax
Honorable Ben Atwell, Page 2                 Opinion No. C-424


revenues are constitutionally directed to be spent for certain
purposes, the Legislature cannot authorize expenditures for other
purposes. Carroll v. Williams, supra; First State Sank & Trust
Company v. Starr County, 306 S.W.2d 246 (Tex.Civ.App., 19571.
     Section 7-a of Article VIII of the Constitution of Texas
provides as follows:
                 "Subject to legislative appropriation,
             allocation and direction, all net revenues
             remaining after payment of all refunds
             allowed by law and expenses of collection
             derived from motor vehicle registration
             fees, and all taxes, except gross pro-
             duction and ad valorem taxes, on motor
             fuels and lubricants used to propel motor
             vehicles over public roadways, shall be
             used for the sole purpose of acquiring
             rights-of-way, constructing, maintaining,
             and policing such public roadways, and
             for the administration of such laws as
             may be prescribed by the Legislature
             pertaining to the supervision of traffic
             and safety on such roads; and for the
             payment of the principal and interest
             on county and road district bonds or
             warrants voted or issued prior to January
             2, 1939, and declared eligible prior to
             January 2, 1945, for payment out of the
             County and Road District Highway Fund
             under existing law; rovided, however,
             that one-fourth (l/4P of such net revenue
             from the motor fuel tax shall be allocated
             to the Available School Fund; and, provlded,
             however, that the net revenue derived by
             counties from motor vehicle registration
             fees shall never be less than the maximum
             amounts allowed to be retained by each
             County and the percentage allowed to be
             retained by each County under the laws in
             effect on January 1, 1945. Nothing contain-
             ed herein shall be construed as authorizing
             the pledging of the State's credit for any
             purpose.
     It is noted that the above quoted constitutional provision
requires that all net revenues remaining after the payment of all
refunds allowed by law and expenses of collection, derived from
taxes on motor fuels and lubricants used to propel motor vehicles

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                                    ', s
Honorable Hen Atwell, Page 3                    Opinion No. C-424


over public roadways, shall be used for the sole purpose of
acquiring rights-of-way, constructing, maintaining, and policing
such public roadways, and the administration of such laws, and
for the payment of certain bonds or warrants. Following this
constitutional direction, an exception to such provision Is made
in the following language:
                   . . . provided, however, that one-
              fourth (l/4 of such net revenue from
              the motor fuel tax shall be allocated
              to the Available School Fund; . . .'
     In State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737
(1960), the Court stated:
                  t1
                   . . . Under the provisions of Arti-
              cle VIII, Section 7-a, of the Constitution,
              revenues received from these sources w
              be used only for constructing Dublic
              roadways and for other designated Furposes
              which are not material here. . . .
              (Emphasis added).
     It is our opinion that House Bill 8 authorizes net revenues
from motor fuel tax to be spent for purposes contrary to the
provisions of Section 7-a of Article VIII of the Constitution of
Texas and is thus lnvalld.
     The other controlling provisions of the Bill are so dependent
upon and so Inseparable from the allocation provision of the Bill
that the entire Bill in our opinion must be declared unconstitutional.
School Trustees of Orange County v, District Trustees of Prairie
View Common School Dist. No. 8 137 Tex. 125, 153 S.W.2d 434 (
Empire Gas & Fuel Co. v. State: 121 Tex. 138, 47 S.W.2d 265 (li$;!'

                       SUMMARY
                       -------

                 House Bill 8 of the 59th Legis-
                 lature authorizes an allocation
                 of net revenues derived from
                 motor fuel tax, contrary to the
                 provisions of Section 7-a of
                 Article VIII of the Constitution
                 of Texas and is, therefore,
                 ipvalid. Carroll v. Williams,


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.I.




      Honorable Ban Atwell, Page 4                       Opinion No. C-424


                          109 Tex. 155, 202 S.W. 504
                          (1918); First State Bank & Trust
                          Company v. Starr Counte, 306 S.W.
                          2d 246 (Tex.Clv.App., 1957).


                                          Yours very truly,
                                          WAGGONER CARR
                                          Attorney General




                                             Assistant

      WEA:dl
      APPROVED:
      OPINION COMMITTEE
      W. V. Geppert, Chairman
      John Reeves
      Roy Johnson
      Pat Bailey
      Paul Phy
      APPROVED FOR THE ATTORNEY GENERAL
      BY:      Stanton Stone




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