                                     GENE-I.
                      QF      EXAS



                      June 25, 1962

Honorable Mack Wallace               Opinion No. w-1361
County Attorney
Henderson County Courthouse          Re:   Whether,members of the
Athens, Texas                              National Guard are exempt
                                           from the payment of road
                                           tax under Articles 5840-
Dear Mr. Wallace:                          5844, V.C.S., inclusive.
       You have asked whether or not members of the National
Guard are exempt from road tax under the provisions of Articles
5840 to 5844, V.C.S., inclusive.
       Article 5840, V.C.S., reads as follows:
           "All officers and enlisted men of the
      active militia of this State, who comply with
      their military duties as prescribed by this
      chapter, shall be entitled to exemption from
      the payment of all poll taxes, except the poll
      tax prescribed by the Constitution for the
      support of public schools; exemption from the
      payment of any road or street tax, and from
      any road duty-whatsoever under the laws of
      this State, and exemptfon from jury service
      or duty of every character and description."
      Acts 1905, p. 167.
       Articles 5841 to 5844, V.C.S., Inclusive, provide the
method for the various categories of the militia to claim and
receive their exemption. Art. 5842, V.C.S., reads as follows:
           "To entitle any troop, battery,
      company, signal corps or band of the ac-
      tive militia of this State to exemption
      from the payment of road or street taxes,
      jury service or duty, and road duty as
      specified In Article 5840 of this chapter,
      the commanding officer of such organizations
      shall, between the first and thirty-first days
      of January of each year, file lists similar to
      that set forth in the preceding article, certi-
      fied to him, one copy with the clerk of the
      district court of his county and one copy with
      the clerk of the county court of his county;
      and the names appearing on such lists shali.
      thereafter be exempt from jury service or
Honorable Mack Wallace, page 2 (WW-1361)


       duty of every character and description,
       SrOm tne perrormance of'any road duty and
       from the payment of any road or street tab
       in such county for the'current year. County
       merks shall furnish information of those
       so exempt to the proper road overseers and to
       all others concerned." flmphasis addedJ
        The reason Art. 5840, V.C.S., made it plain that there
~could be no exemption from $1.00 of the poll tax, which goes to
support the publip school system, is because that much of the
poll tax is prescribed by Sec. 3, Art. VII,  Texas Constitution.
What is this road tax mentioned in Articles 5840 to 5844, V.C.S.,
inclusive? These articles were enacted in 1905. You will note
that each time there is a mention of exemption from road tax, it
is coupled with exemption from road duty. Also, Art. 5842, V.C.S.,
directs the County Clerk to furnish information of those so exempt
to the proper road overseers.
       At the time Arts. 5E40 to 5844, V.C.S., inclusive, were
enacted in 1905, every able-bodied male citizen was required,
upon being summoned by the road overseer of his precinct, to
work not more than five days per year on the county road. Fail-
ure to corn@when so summoned was made a misdemeanor offense. Art.
6723, v.c,s. Certain persons were exempt, such as ministers, ln-
valids, and members of volunteer fire companies. A person could
be exempt by providing an able-bodied substitute, or by payment
of a road tax of $3.00. The coun,tytreasurer was required to
furnish every road commissi.onera list of all persons in their
precinct who had paid the $3.00 road tax, so that the Commissioner
would know who was exempt from the call for road hands. Articles
6768 to 6770a-a, V.C.S. It is provided in Art. 6755, V.C.S.,
that in any county where a special tax for the maintenance of
the public roads is levied and collected under Section 9, Art.
VIII, Texas Constitution, the Commissioners are not required to
compel citizens in their precincts to perform road duty, but
that the roads would be maintained wholly by taxation.
       All counties, so far as we know, now maintain their roads
by taxation, which taxes are ad valorem, and are levied against
property. The $3.00 road tax which was levied under the old
obsolete road laws was a voluntary tax which a male citizen could
pay In order to be exempt from having to be a road hand and per-
form road duty at no compensation on the county roads ,for5 days
a year. These articles (5840-5844) are not giving any exemption
from the ad valorem taxes levied against property for the benefit
of the county Road and Bridge Fund, or the Special Road Tsxss.
There would be no way to exempt from ad valorem taxes any pro-
perty solely on the ground that it was owned by a National
Honorable Mack Wallace, page 3 (~~-1361)


Guardsman, unless such exemption was named in Section 2, Art.
VIII, Texas Constitution.
       Sec. 2, Art. VIII, Texas Constitution, names the property
which may be exempt from taxation, and then concludes with the
following phrase:
                     and all laws exempting property
       from taxation   other than the~property above
       mentioned shall be null and void."
       That these statutes pertaining to "road tax" and "road
duty" are now obsolete was recognized as early as 1930 by the
Court of Criminal Ap eals of Texas in Johnson v. State, 31 S.W.2d,
1084 (Tex.Crim. 1930P , even though the statutes are still found
in the books. This was a case of driving while intoxicated, in
which it was alleged that the defendant drove an automobile on
a public highway while intoxicated. As one of his defenses, the
defendant contended that the so-called highway upon which he
drove his automobile was not a public road. The State proved
that while the county had never formally dedicated such road as
a public road, nevertheless, the county had recognized it as such,
since the county had maintained it in years past under the old
"road hand" method, and in more recent years the county had graded
and worked the road. The Court left the inferer,cethat such laws
calling for "road duty" by "road hands" are now obsolete by refer-
ring to such laws as 'old," when it said at page 1086:
            11
             . . . The evidence shows conclu-
       sively that the road in question had been
       used by the general public as a public
       road for more than thirty years. Road
       hands under the old road laws had worked
       it under the supervision of road overseers;
       and In recent years the commissioners'
       court or road supervisors, had graded and
       worked~the road. . . ."
       Therefore, as early as 1930 it was recognized that county
roads are no longer maintained by the male citizen, road-hand
method, but are worked and maintained by county employees who
are paid a salary from out of the Road and Bridge Fund. We hold,
therefore, that the road tax from which the militia is exempt
under Articles 5840-5844, V.C.S., inclusive, is the $3.00 tax
which male citizens formerly paid In order to become exempt from
having to perform without compensation five days road duty per
year on the county roads. Those articles are still valid to the
extent that they exempt the militia from having to perform 5 days
road duty on the county roads, or pay the $3.00 road tax in lieu
therof, as to those counties, if any, which still maintain their
Honorable Mack Wallace, page 4 (WW-1361)

roads by the "road duty" method.

                          SUMMARY
            The 'road tax" from which the militia
       is exempt under Arts. 5840-5844, V.C.S., in-
       clusive, Is the $3.00 road tax,which a male
       citizen may pay under the provisions of Arts.
       6768-6770a-2, V.C.S., inclusive, in lieu of
       performing 5 days "road duty" per year on the
       county roads, as provided in Art. 6723, V.C.S.
            The exemption from "road tax" in Arts.
       5840-5844, V.C.S., inclusive, does not exempt
       property belonging to National Guardsmen from
       ad valorem taxes levied for the maintenance of
       roads.
                             Yours very truly,
                             WILL WILSON
                             Attorney General of Texas


                             By     @?       &+bk
                                    Riley Eugene Fletecher
                                    Assistant
REF:jp:ms
APPROVED:
OPINION COMMITTF'E'
W. V. Geppert, Chairman
Robert C. Patterson
Coleman Gay
Pat Bailey
REVIEWED FOR THE ATTORNEY GENERAL
By: Leonard Passmore
