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OFFICE oF ' ‘

THE ATToRNEY GENERAL

AUST!N. TEXA¢

 

R IC E DANIEL
"ronmaw GENERAL

July 2, 1947

Hon. D: C. Greer Opinion No. V~291

State Highway'Engineer

Texas H way Department Re: Authority of the

Austin 2 , Texas Texas Highway Com-
mission to enter
into an agreement
with Galveston
County for the con-
struction, mainte-
nance, and operation
of a toll tunnel.

Dear Sir:

There are submitted for our opinion four ques-
tions relating to a proposed agreement between the Texas
Highway Commission and Galveston County for the construc-
tion, maintenance, and operation of a toll tunnel in Gal-
weston County. The tunnel is to link State Highway 87
between Galveston leland and Bolivar Point, and will re-
place the State-operated ferry services now existing
between said points. _

In the negotiations between the Highway Commis-
sion and Galveston County, the Commission by Minute No.
22947, has tendered to the County three different propo-
sals, the third of which has been accepted-by the County,
as follows:

'THIRD, if Galveston County desires to pro-
ceed with the construction of a toll tunnel, it
should proceed with said construction, in which
case the State Highway Gommission agrees to re-
move-that portion of Highway No. 87 from the
highway system in order that Galvesten Gounty
might proceed with the construction and opera-
tion of such tunnel. If upon completion of such
toll tunnel Galveston County can show its legal
ability to enter into a binding contract with
the State relative to the tunnel, and if Galves-
ton County will agree by binding contract that
the bonded indebtedness on the tunnel will never
be the responsibility of the State, and if such.

lS{N)

follows:

Hon. D. C. Greer, Page 2, V-291

should ever be the case and the Btate High-
way Department is deprived of revenues,then
the County will indemnify the Highway Depart_
ment for such deprivation of revenues, pres_
ent and future, payable in Travis County,and
the County will give the Department the right
to approve the toll charges and examine the
books under the operation of the tunnel,then
the Highway Commission will agree in so far
as its present membership is concerned, to
cease the operation of the Department's fer-
ries_ and 't_o invest the annual net operating

_ loss of said ferries, estimated to be approx~

imately $2005000.00, in the tunnel each year
during a current biennium, it being under-
stood that.such annual payment will be effec-

.tive only during the period of office of a

current Commissioner and would not be con-
strued in any way as obligating a State High-
way Commission to make authorization for pay~
ments beyond the current biennium.

, FIT,IS FURTHER ORDERED THAT.Galveston
Connty be advised that, due to the need for
expedition of transportation facilities at

.1:,this point, it is necessary that complete ac-
;ceptance of one of these proposals be made

within .thirty days from the date of this order,
after which date this order becomes null and
void and the State Highway Engineer is directed
to proceed to the best of his judgment in im-
\proving_the transportation facilities on State

}-Highway Noi 87 at Boiivar Point."

.The_four-questions above referred to are as

"1. In harmony with the provisions of
Article_6795b, and Commission Minute No. 22947,
is the Texas Highway Commission legally author-
.ized~to.enter into an agreement with the Com»
missionsrs* Court of-Galveston County, which
agreement will provide that the Texas Highway
Commissinn will maintain the tunnel with its

rown forces out of the State Highway Fund,while

the County operates the tunnel and collects
tolls foryits use?

"2. if the above question is answered in

Hon. D. C. Greer, Page 3, v-291

the

affirmative, can the Tezas Highway Com§

mission legally contribute Highway Funds to
Galveston County for the County's use in
maintaining the tunnel, in lieu of the per~
formance of the maintenance of the tunnel
by the State with State forces?

W3. Is the State Highway Commiesion

legally authorized to commit and bind the
State and future State Highway Commissions;
by agreement with the County, to pay or con-
tribute to the County a fixed sum of money
from the Highway Fund each year for the main~
tenance of the tunnel for a term of years be-
yond the period of office of current Highway
Commisaioners, or, is the authority of the
Highway Commission to bind the State in such
instances limited to one biennium?

weston County, in harmony with the above
quoted minutes, and particularly reserving
to the Highway commission:

session o
was law,
tained.
light of

(a) the right to audit the County's
records of cost of construction, main-
tenance and operation of the tunnel
and the disposition of tolls,

(b) the right to determine the rea-
sonableness and adequacy of the tolls
to be collected by the County, and
(c) the right to renew and resume
ferry service between Galveston Is-
land.and Point“Bolivar in the event
the tunnel is out of service or fails
to meet the needs of the traveling
public for such transportation facil-
ity.

All of the above questions, negotiations and

501

relate directly to the terms and provisions of
-b, V. C. S., which has been amended by the past
f the Legislature. During the time this Article
the constitutionality was never judicially ascer-
waever, this Department construed the not in the
this question and held the Act constitutional in

502

Hon. D. C. Greer, Page N, V-29l

Opinion No. 0-6032, a copy of which is enclosed,q¢hs
Fiftieth Legislature early in the session passed S;_fh
76, amending Art. 6795-b. 'rhe effect or campaign
ment was to amend Section 1 of the Article and'ohit
entirely the remaining sections, thereby destroyi§g

this bill for all practical purposesc The Legislatupgv
later in the session, passed H. B. 835, which not on-*‘
ly carried the amendment as was provided by 8. B. 76,
but made several changes in Az-ticle 6796»b. s. B. 835
is now the law governing such a proposal as you hava"'
outlined in your request. The difference between.nrtr
6795~b and H~ B. 835 is very slight. The two bills

are in essence the sameZ The new bill made these
changes: (l) eliminated from the last line of Sec. 1
"leading to any port” and adds ”with a maintained

depth of twenty (20) feet or more"; (2) eliminated

from Sec. 3 "the county shall be under no obligation

to accept and pay for any property condemned and shall
in no event pay for same except from the proceeds de-
rived from the sale of the revenue bonds, and”; (3)
eliminated Sec. 6; (L) added to Sec. 8 "operations"
wherever the word "maintenance" appeared ; (5) eliminated
Sec. 10 and added: "all laws in conflict herewith to the
extent of such conflict are hereby repealed." These
changes are apparently an effort to meet four grounds of
attack on the constitutionality of Art. 6795-b in a law-
suit which has arisen in Nueces Gounty.

The Nueces County suit is for injunction sought
in the District Court by Sam Wilson against Nueces Connty
to enjoin the County from proceeding further in the pro-
posed construction of a causeway within the County pur-
suant to Article 6795-b. The suit was predicated on-the
issue that Art. 6795-b was unconstitutional and four
grounds of attack were made;'

l. Preliminary expenses for the project
could not be made from the County's
general fund;

2. Inadequate consideration for the
owner of condemned land;

3. The negotiable feature of the bonds
made the bonds a debt of the county;
and

4. A board of trustees appointed by the
commissioners' court of the County

503
Hon. D. C. Greer, Page 5, V-291

was an unwarranted delegation
of power.

The District Court granted the injunction without fil-
ing conclusions of law and findings of fact, but, in

effect, the ruling was to hold that the act was uncon-
stitutional. The County duly perfected its appeal to

sam s. wilson, Jz-., et ai, Appellees, No. 11,726, in
the Fourth Court of Civil Appeals.

¢"that any county proceeding hereunder
* * * * may enter into any agreement or
agreements not prohibited by the constitu-
tion which may be necessary to obtain such
loans, grants or gifts." -

‘Again, in Sec. 8 of the new Act:

"The State Highway Commission shall
have authority without further legisla~
tive enactment to make such provision for
.contributions toward maintenance of the
project as it may see fit * * * *."

By the same provision, the Highway Commission may'
contribute highway funds to Galveston County for the County's
use in maintaining-the tunnel, in lieu of the maintenance of
the tunnel by the State with State forces. The County would
she performing a governmental function as an agent of the
"State. A similar performance was upheld in Jefferson County

vs. County'Bo§rd of District Road Indebtedness (Sup. Ct.) 192
90 » ' '

waever,:we do not wish to be understood to be

_ Hon. D. C. Greer, Page 6, V-291

passing upon the validity or constitutionality of then
Act. Since that issue is in the above mentioned inj”":
tion suit, we will refrain from passing further upon;'
validity of the Act until final judgment in the pa "*'
case. We will advise you as soon as this issue has bee§
finally settled by the Courts. ""

   
 

‘ If the Act is held to be valid, in order ton
make such contributions as are proposed by the State- `”
way Commission to Galveston County for the maintenance§o"
the tunnel, the State Highway Commission should designa";
and constitute the tunnel as a part of the State Highwayi
System. Otherwise, the tunnel would be strictly a county
project, an exclusive undertaking, independent of performp
ing a governmental function for the State. This would "
fall within the prohibition of Section 51 of Article III
of the State Constitution which provides in effect that
the Legislature shall have no power to grant or authorize
the granting of public moneys to any "individual, asso-
ciation of individuals, municipal or other corporations
whatsoever." This view was specifically upheld in the"
case of Road District No. ll-, Shelby County vs. Allred,123
Tex. 77, 68 S. W. (2d) 164 (Commission of Appeals, opinion
adopted by the Supreme Court) where it was held that money
granted to the road district and not used for highway pur-
poses was unconstitutional.

   

From an examination of H. B. 835, it seems appar-
ent that the Legislature has intended that such a project
should be a part of the State Highway System, and that both
County and State may join in the construction, maintenance _
and operation thereof. In Section 8, there is specific prob
vision for the Highway Commission to declare the project to
be a part of the State Highway System, provided that the
property and contract rights in such project and in the bonds
are not unfavorably affected thereby. In any event, in Sec-`
tion 8, the Legislature has declared that the project shall
become a part of the State Highway System when the bonds
and interest have been paid or sufficient amount set aside
in a trust fund for the payment of the indebtedness. This
view is in harmony with other statutes relati to the
State Highway System, 6674q-l; 6674q-#; 6674q- , V. G. S.
These statutes make plain the policy of the State in the im»
provement, construction, and operation of the State Highway
System; that is, to-reimburse counties for aid rendered by
the counties to the State and for the State Highway Commis-
sion to control the State Highway System. It seems that
H. B. 835 is consistent with this policy.

Hon. D. C. Greer, Page 7, V-291

In answer to your third question, you are ad-
vised that the prohibition contained in Article.VIII,

tion 6 of Article VIII limits every appropriation by
the legislature to a term of two years. Inasmuch as

two years; the contract for payment of money will not
be binding beyond a period of two years. This is pro-
vided for in your proposed draft of contract.

- In answer to your fourth question, we have
examined the proposed agreement between the Highway
Commission and Galveston County, which has .been fur-
nished to us by Mr. J'ohn Green, and approve said agree-
ment, subject to the following suggestions: ,

,_ (1)' In the third paragraph on page 1,
inmnediately after the word "Island", add ,
"pursuant to authority granted under House
B;}lln835, Acts of the Fiftieth'l¢egislature,
l 7.. ' . _

(2) ; `_The' second paragraph on-page 2_ n
should-be re-w;ritten in order to. conform to
the new nct. - _ . o .

. (3). On page 3, in paragraph.b, in the
fourth line, immediately after the word '-
"Island@, add "on state nighway No. 87". In
the same paragraph, in line 6, after the
word "be" add the word "possible",‘ ,

- ~- _ ‘(4) _ .On page 4, paragraph.$,\ in.the_. 7
eighth_line_thereof, substitute\the.-word j 7
"be'-' -~for _-'the word "become".\ .-In the next t
.the last line of said paragraph 3 , eliminate
the word "-if." and in the place of.the ._word
"become?' add7 f'be at all times.". At the end of.
the next -t_o the last line .o.f-_ said paragraph....

,»
-JT

U`I

506

Hon. D. G. Greer, Page 8, V-'291

"The tunnel shall be a part of the State
Highway System and shall be turned over by '
the County to the State H.ighway Commission in'
good repair and operating condition. ?revided,
however,'that said tunnel shall be at all
times a part of the State Highway Sys‘tem, the
same as any other part of said System and shall
be‘ considered as such." '

(5) On page 5, in paragraph 2,` in the
second line thereof, add immediately after the
word ”tunnel" these words: "and in lieu of
such maintenance". '

(6) Eliminate all of the provisions of
paragraph 6 on page 6.

(T) la addition to the terms of paragraph
7, add the following after the last word in said
paragraph: £'It is understood and agreed that the
State Highws.y Gommission reserves the right to
determine the reasonableness and adequacy of the
tolls to be collected by the county for the oper-
ation and maintenance of the tunnel.”

(8) On page 8, eliminate the terms and
provisions under paragraph ll. We do not believe
that a person selected by the parties to the
agreement should make a binding decision on a con-
troversial matter which would be binding upon the
State.

(9) Eliminate all of the provisions in
paragraph 15 and substitute therefor the follow-

ing:

"That nothing in this contract is, nor is
intended to be , a direct or binding commitment
or obligation on the part cf the State of Texas
or the Highway Commission to pay any amount be-
yond the end of the current bienniu.m, and this
contract shall always be subject to the regular
biennium appropriation bill or other act of the
legislature of Texas. It is understood and
agreed that this contract met be renewed and
extended every two years thereafter by official
action cf the State Highway Ccoosis`sion at the
First Regular Monthly Meeting of the State fligh-
way Commission following the appointment and

Hon. D. C. Greer, Page 9, V-291

qualifying of each new State Highway Commis-
sioner throughout the life of the contract;
and if the State Highway Commission in its
discretion, at any such meeting of the State
Highway Commission, fails or refuses to renew
and extend this contract; then in that event,
this contract shall thereafter be null and
void; and no further payments may be made
thereunder to Galveston Connty by the State
Highway Gommission. If in the event any pro-
vision of this contract conflicts with the
provisions of this section (l§th), then it

is stipulated by the parties hereto that the
provisions of this section (l§th) of the ccn-
tract shall prevail."

SUMMARY

(l) The;Texas Highway Commission and
Galveston County, through its Commissioners'
Court,-are_authorized under the provisions of

--H. B. ~835,~F1rts_e1:h Legislature, to enter in-
to an agreement providing that the Texas High-
way Commission will maintain a proposed tunnel
to_beaconstructed between Galveston leland and
Boliver Point in Galveston County with its own
forces out of the-State Highway Fund, while
the County operates the tunnel and collects

= tolls_for its use; subject, however,-to the va-_
lidity of the Act being upheld in the case of
George A. Prowse, et al, vs. Sam.E. Wilson; et
al, now pending in the Court_of¢Givil Appeals
at San Antonio.

(2) The Texas Highway Commission may
legally contribute highway funds to Galveston
;County for the County's use in maintaining the
proposed tunnel,mentioned above, in lieu of the
.performance of the maintenance of such tunnel
.by the State forces; provided, that such tunnel
shall be designated and constitute a part of the
State Highway System, and subject_to the validity
of H. B. 835, Fiftieth Legislature, as above men-
tioned. ' -

' (3) The State nghway Gommission is not
legally authorized to commit and bind the-State
and future State Highway-Commissions by agreement

507

503 son. D§ o'. creer, Page 10, v-291

with Galveston'County to pay the County

$200,000.00 each year for the maintenance of
the proposed tunnel referred to'for a term

of more than two years. Article vIII, Sec-
tion 6, Constitution of Texas. ~

fours very truly

ATToRnsY onmnm. or ms-_

By @_C-e'-/é-@M

' Charles E. Crenshaw
CEC/JMc/RT _ Assistant

A PROVED'

f
hour/w

ATTORNEY GENERAL

