                                         The Attorney        General of Texas

JIM MATTOX
                                                          December 10, 1985
Attorney General



Supreme       Court Building            Honorable Patrick 8. Simmons          Opinion No. JM-390
P. 0. Box 12546
Austin,    TX. 76711. 2546
                                        District-County Attorney
5121476-2501                            Limestone County Courthouse           He: Constitutionality of Senate
Telex    910/674-1367                   200 West State Street                 Bill No. 270, Acts 1947, 50th Leg.,
Telecopier      512/4750266             Groesbeck, Texas   76642              ch. 53, at 72, creating a special
                                                                              road district for Limestone County
714 Jackson,    Suite 700
Dallas,   TX. 752024506                 Dear Mr. Simmons:
214l742.6944
                                             You have ask,ed our opinion regarding the constitutionality of
                                        certain parts of ,I local law affecting Limestone County. Acts 1947,
4624 Alberta       Ave., Suite    160
El Paso, TX.       79905.2793
                                        59th Leg., ch. 53, at 72. You have asked about the constitutionality
9151533.3464                            of the following provisions: (1) the prohibition in section 17 on the
                                        creation of any indebtedness against the county road and bridge fund;
                                        (2) the establishment in section 17 of civil and criminal penalties
1001 Texas,     Suite 700               for members of thsnLimestone County commissioners court who vote for
Houston.     TX. 77002~3111
                                        the creation of any such debt; and (3) the creation of the "office" of
7131223-5866
                                        county engineer of Limestone County in sections 3 through 17. The
                                        provisions you ask about are "local laws" since they apply exclusively
806 Broadway,        Suite 312          to Limestone County. City of Fort Worth v. Bobbitt, 36 S.W.2d 470
Lubbock.     TX.    79401.3479          (Tex. Comm. App. 1931, opinion adopted).
608/747-5236

                                                The Texas Ccnstitution provides that the legislature may not
4309 N. Tenth, Suite B                  enact any local l;nrregulating the affairs of counties. Tex. Cast.
McAllen,     TX. 78501-1665             art. III, $56. Article III, section 56, also provides that the
5121662-4547
                                        legislature     may net pass any local law "[aluthorizing the laying out,
                                        opening, altering or maintaining of roads, highways, streets or
200 Main Plaza, Suite 400               alleys." The lat,:er      prohibition, however, was nullified by an 1890
San Antonio.  TX. 762052797             amendment to the Texas Constitution providing that "the Legislature
512/225-4191                            may pass local laws for the maintenance of the public roads and
                                        highways, without the local notice required for special or local
An Equal       Opportunity/
                                        laws." Tex. Const:. art. VIII, 59. See Austin Bras; v. Patton, 288
Affirmative      Action     Employer    S.W. 182, 187 (Tex.,Corn.. App. 1926,Tdamt        adouted) (refers to the
                                        nullifying effect of article-VIII, sf%ion 9, on‘articlr III, section
                                        56). See also Dallas County v. Plowman, 91 S.W. 221 (Tex. 1906)
                                        (holding that "zxntenauce" in article VIII, section ~9, includes
                                        laying out and construction of roads).       Your question is whether the
                                        cited       provisions   of    the   Limestone   County   law   represent
                                        unconstitutional attempts to regulate county affairs or whether they
                                        come within the scope of article VIII, section 9, and are therefore
                                        constitutional.




                                                                   p. 1785
Honorable Patrick H. S1mmor.s- Page 2   (JM-390)




                          ,d.mestone County law states that the act
         a more efficient road system for Limestone County." Simply
;&?~~a:9.:h:              '::oadlaw ," however, is not enough to insure
its constitutionalitv. Thr courts have found unconstitutional certain
local laws that purport 'TO be road laws. See, e.g., Altgelt v.
Gutseit, 201 S.W. 400 (Ter:.1918); Austin Bras. v. Patton, 288 S.W.
182 (Tex. Comm. App. 1926, judgmt adopted).

     The decision in --
                      Austin Bros. provides the answer to your first
two questions. In that case the court considered the constitu-
tionality of a local law for Houston County regarding the appropria-
tion and expenditure of funds paid into the road and bridge fund. The
court rejected arguments that the provisions were within the scope of
article VIII, section 9. and held that they were therefore unconstitu-
tional regulations of county affairs. In explaining the scope of
article VIII, section 9, the court wrote:

         The authority to enact special road laws generally
         and without limi,tationwould carry with it the
         right to regulate the affairs of the c'ountyin all
         such matters as might be necessarily and appro-
         priately connected with or subsidiary to the
         object of such general power to pass local or
         special road lawr;. But, as pointed out above, no
         authority to enact local or special road laws
         generally and wi1zLout limitation is authorized by
         the Constitution    It authorizes the Legislature
         to pass local road laws for a restricted purpose
         -- the maintenance of the public roads and high-
         ways. As shown ilbove,our Supreme Court has held
         that the words, 'the maintenance of public roads,'
         include the laying out, opening, and construction
         of new roads. Therefore the authority conferred
         by the constitutional amendment carries with it
         the right to regilate the affairs of the county
         only in such rG;pacts as are necessarily and
         appropriately coznected with or incidental and
         subsidiary to the-object of such limited power --
         the maintenance, Including the laying out, opening
         and construction-of public roads. It does not
         authorize the &traction,     by local or special
         laws, of powers :Iromcounty commissioners and the
         commissioners' c'lurt conferred by general laws.
         It does not autta'rize a change in the financial
         system of counties fixed by general laws. It does
         not authorize tli& creation of offices and the
         clothing of those officers with functions already
         performed by existing officers as provided for by
         general laws. Kane of these are incidental or




                              p. 1786
Honorable Patrick H. Simmor.s- Page 3 (m-390)




         necessary to the aaintenance, laying out, opening,
         and construction of roads. It merely authorizes
         the application of the financial system and the
         povernmental machinery already existing to the
         action authorizei:thereby. (Emphasis added).

Austin Bros. v. Patton, 28E,S.W. at 188.

     Austin Bros. makes clear that the legislature may not invoke
article VIII, section 9, tc withdraw from a particular county a method
of financing county affairs that is conferred by general law. For
example, counties may issue bonds for the construction, maintenance,
and operation of roads. 1r.T.C.S. art. 6702-1,   54.411(b). See also
TeX. Coast. art. III, !i52.      Bonds issued by a county create
indebtedness. &White     v, Pickett, 355 S.W.2d 848 (Tex. Civ. App. -
San Antonio 1962, writ refTd n.r.e.). Article VIII, section 9, does
not authorize local laws that would remove a county's authority to
issue road bonds. Thus, to the extent that the general laws permit
counties to create indebtedness against their road and bridge funds, a
local law taking that power away from a particular county is constitu-
tionally impermissible. Tt,erefore,the prohibition on the creation of
indebtedness in the Limestone County law is unconstitutional insofar
as it would nullify any authority Limestone County has under the
general laws to create indebtedness against the road and bridge found.

     It follows, then, that county commissioners cannot be ~subjected
to civil and criminal penalties for voting to do something that they
are authorized to do under the general laws. Moreover, we do not
perceive how such penalties have any but the most remote connection
with the construction and naintenance of roads.

     Your third question is whether the creation of the "office" of
county engineer of Limest0r.eCounty is coustitutional. In a 1922 case
the C&ission    of Appeals considered a local law enacted in 1919 to
"create a more efficient road system for Limestone County." commis-
sioners Court of Limestone County v. Garrett, 236 S.W. 970 (Tex. Comm.
APP. 1922, judgmt adopted:: That act provided for the election of
citizen members to the board of road commissioners in Limestone County
and conferred on those merlbers certain sovereign powers. The court
held that the law violatsd the constitutional prohibition against
local laws creating officezj..236 S.W. at 973, See Tex. Csnst. art.
III, 556. The court reject:trd the argument that article VIII, secticn
9, authorized the law as a local law concerning the maintenance of
public roads. 236 S.W. at 975.    See also Austin Bros. v. Patton, 288
S.W. at 188; Anderson v. l?,uts, 240 S.W. 647 (Tex. Civ. App. - San
Antonio 1922, no writ).

     In a 1952 case, the Dallas Court of Civil Appeals considered the
constitutionality of a local law for Dallas County that created the




                               p. 1787
Honorable Patrick II.Simmons - Page 4    (JM-390)




"office" of county road engineer. Hill v. Sterrett, 252 S.W.2d 766
(Tex. Civ. App. - Dallas 195:2,writ ref'd n.r.e). The court concluded
that although the law purported to create an office, the county road
engineer was in fact only an employee who had no sovereign or dis-
cretionary powers and who was under the control of the county
commissioners' court. Id. at 769-70. Therefore, the law did not
violate the constitutioz' prohibition against local laws creating
offices.

     The Limestone County :iawin issue creates the position and sets
out the duties of the Limestone County Engineer. Courts favor the
validity of a statute and, if possible, construe a statute so that it
is in harmony with the constitution. Commissioners Court of Limestone
County V. Garrett, 236 S.W. at 975. Therefore, we think that a court
would read this part of the 1950 Limestone County statute to be
constitutioual. See Attorney General Opinion V-1315 (1951) (regarding
the severability ofa local law).

                             SUMMARY

             The provisions of Acts 1947, Fiftieth Legis-
          lature, chapter 53, at page 72, that prohibit the
          creating of indebtedness against the county road
          and bridge fund of Limestone County and create
          civil and criminsl penalties for members of the
          Limestone County Commissioners Court who vote to
          create such indebtedness are constitutionally
          impermissible local laws insofar as they subtract
          from powers grac.ted by the general laws. Acts
          1947, 50th Leg., c~h.53, at 72.

             The provisions of the Limestone County law that
          establish the position of Limestone County
          Engineer provide for an employee who is under the
          supervision and control of the county commis-
          sioners court. Therefore, those provisions are
          constitutional.                   .




                                         JIM     RATTOX
                                         Attorney General of Texas

JACX HIGHTOWER
First Assistant Attorney General




                               p. 1788
FlonorablePatrick H. Simmons - Page 5     (JM-390)




MARY KELLER
Executive Assistant Attornq    General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committe~a

Prepared by Sarah Woelk
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Jennifer Riggs
Sarah Woelk
Bruce Youngblood




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