             THEATTORNEY                      GENERAL
                             OF    TEXAS

                            AUClTlN 11. TEXAS
PRICE DANIEL
ATTORNEY
       GENERAL
                       May ZB, 1949




                                           Opinion No. ,V-831

                                           Re: Authority to psy~for~~&
                                           construction of fanc,ea ‘$n’
                                           rights-of-way   for ,ni$xe
                                                                    ‘Qmnty.
                                           roads&om     the pertiansnt
                                           impravsmsnt ‘fund.‘.



       ,,
        Your r&&at    for ‘an op&$on ‘is substantially   as totlows:

              ‘,‘The !&mmissione,rs” Court and .County Treasu’rc:
              er hav+&ecn, us.iagfunds from what is commonly
             ,known kn the ‘pcrrrknent tmprooement fund’, as :
            ,dercribed in Articls 8, $ec.tion 9!,:of the Consti-
             ,tution of the gtate dt Tsxao, and~~~Aa$klc2352, Re*
              vised Civil STatutea ofTa~a$; for the purpose of
             purchasing matarialti and supplies, used in the
             construction of fences, fencing right-0Pway to
             netk county ‘roads and State highwayA within the
              county. . . ,

             “Querti.on, l., Can the Commis’sionars’ Court pay
             for such dxpenditur’cs above stated out of the fund
             c,rcated by the’levy of a tax of twenty-five cents
             ~{&!S$)on the one hundred dollar ($lOQ.OG) valua-
             ~kik’fer the ;srection of puJ& b&in$&:,     street*,
            ~~~ib~~&~,;wa& &orkd and dther p&mai!on~~
             ~rb~qbcnfs’ ? .If so, &an the C&$&&a~foners’
             hrt,‘~ay    out bf $uch f&d the.cont if Bcquliiti&’
            ‘:ntiw rightydf.&ay for new county roads or high:
            ~v+ya,.or the.iost of building such new roada. or
             2iiglpiayq 7”
Hon. Arnold W. Franklin, Page 2 (V-831)




          Section 9, Article VIII of the Constitution of Texas
reads in part:

             . * . and no county, city or town shall levy
     5. -.-more   than twenty-dve      cents for city or county
          purposes, and not exceeding fifteen cents for
          roads and bridges, and not exceeding fifteen
          cenle to pay jurors, on the one hundred dol-
          lar8 valuation q . . and for the erection of pub-
          lic buildings, streets. sewers, water works,
          and other permanent improvements, not to ex-
          ceed twenty-five cents on the one hundred dol-
          lam valuation, in any one year. and except as
          is in this Constftut~on otherwise provided; in@
          the Legislature may also authoriee an additiok-
          al annual ad valorem tax to be levied and col-
          lected for the further maintenance of the pub*
          lit roads; provided. that n majority of the qu+
          fied:$roperty tax-paying vo,$ers of the county
          voting at an election to be held for that purposa
          shall vote such tax not to exceed fifteen cents
          on the one -red         dollara   valuation of the
          property subject to taxation in such county. , ,”

           It ie well settled that the Commleslonern’ Court can-.
not levy a tax for one purpose and use it for another purpose.
Carroll v. Willfamr, 109 Tax. 155, 202 S.W. 504 (1918); Adt v.
Hill Count, 102 Tax. 335.16 S. W. 359 (1909); Sanders*.nex,
225 S. W. 280 (Ter. Civ.’ App. 1920).

          In Carrollv, WUliams     #a   c,ourt statedr

          I.    , By necmmary     fmplfcation said provisions of
          S&m       9 of Article 8 ware designed, not merely to
          limit the tax rate for certain therein designated pur-
          poses. but to require &at any and all money raised
          by taxation for any rash purpose shall be applied,
          faithfully. Co that particular putptie, ao needed
          therefor, aad not to any other purpose or we what-
          moevar. * . .**
Hon. Atnoht W. Franklin,   Page 3 (V-831)




           It is assumed from your factual situation (and you have
since verbally informed us) that you contemplate caring for fences
necessarily purchased or taken or required to be erected by reason
of condemnation proceedings in obtaining rights-of-way   for county
road& and State Highways. In the case of Morris v. Coleman Coun-
&, 28 S. W. 380 (Tex.Civ.App., 1890, the court said:

          “The court below admitted testimony of the cost
          of the fences built, whether they were required
          to be built under the circumstances, whether the
          expense of building was reasonable, and the jury
          must have conridered the same in estimating the
          damages. We think, however, that the cost of
          building the fences that were actually built by the
          owner was n&the issue, but the reasonable cost
          of sufficient fences to enable the owner to enjoy
          his land in uses to,which it was adapted, and to
          which he lmd sipplied It,, was the issue.”

          In the c’ase of State v. Carpenter,   89 S. W. 2d 979 (Comm.
App. 1936) the court said:

           “The better general rule with reference to fences,
           which may also be applied to certain other impryc-
           me&s, is statqd in 2 Lewis on Eminent Domain, %
           498, in this language:    ‘Where, by taking a part of
           a tract, additional fencing will be rendered necessary
           in order to the reasonable use and enjoyment of the
           remainder, as, it probably will be used in the future,
           and the burden of constructing such additional fence
           ia cast upon the owner, of the land, then the burden
           of constructing and maintaining such fence, in SD far
           as it depreciates the value of the land, is a proper
           element to be considered in estimating the damages.
           * * + It is a question of damage to the land, as
           land. If in view of the probable future use of the
           land, additional fenging will be necessary of which
           the jury or commissioners are to judge, and the
           mr      must construct the fence if ht has it, then
           the ‘land is depreciated in proportion to the expense
           of constructing and maintaining such fencing. Noth-
           ing can be allowed for fence. as fence. The allow-
           ance should bt for the deprcoiation of the land in con-
           stquence    cd the’burdea @usa cast upon it.”
Hon. Arnold W. Franklin,   Page 4 (V-831)




            It will be 6eiIn from the foregoing that the county cannot
actually pay ,fer fencing rights-@f-way for adjoin%ng landowners ad-
jacent to 08w county road6 or highways ,regardfero of whether the
county tigsrired the same by ptirchase DF by cahdemnatioa proceed-
ings, This item cry be considered c&y in astim&ng the damages
to the Lud, ‘I&r~hai~elpror;f,ti ia not t&r a&&al c4st af f&e fbnca but
tht rearonbble coat ufthe      fence 4H,amble %e wmer to e,njq U
land for u8eo fo w&h tt wu adapted. It watr&a~rUy follows that
tht coat of foncfae w&l      be c.amp&td ~1san a&m 04 ds.mage by
ithe C~nwnh~~~nuf~’     CWP$ when i%ptwahnlrss     the land or when the
same kr t&~a by cwlemnaWa           and the pxap~sty owner muut be
c4mpeodwJ       wwa The fund ox ftW3dB ett wblr for *a acqiiPritlonof
rr#a 4*way,
Hon. Arnold W. Franklin,   Page 5 (V-831)




          purchasing materials and supplies in the con-
          struction of fences for adjacent landowners on
          rights-of-way   on new county roads and high-
          ways.

                                            Yours very truly,

                                    ATTORNEYGENERALOFTEXAS




BWmt
                                            Bum&     Waldreg




                                    APPROVED    ,/




                                   FIRST ASSISTANT
                                   ATTORNEY GENERAL
