         THEATTOECNEY                GENERAL
                        OFTE~AS                                  --
                                                  I       This Opinion    I


                                         1964I                        I   i
Honorable Dean Martin             Opinion No. C-322
County Attorney
Gragrj
     on County                    Re:   Can the Commissioners
Sherman, Texas                          Court expend money
                                        derived   from   taxes
                                        levied under Article
                                        6790,V.C,S., for the
                                        purchase of right-of-
                                        way for federal, state
                                        and county highways and
Dear Mr. Martin:                        lateral roads.
           You have requested the opinion of this office as to
whether the special road funds derived from taxes levied under
Article 6790,Vernon's'CivllStatutes, may be expended for ttie
purchase of right-of-wayfor federal, state and county highways
and lateral roads.
           Article 6790,Vernon's Civll'Statutes,Is the
enabling statute passed pursuant to an amendment to the Texas
Constitut?.onin 1890,Article VIII, Section 9, Texas Consti-
tution. This Constitutionalprovision was further amended in
1956wit'hno substantlal'changeas regards the special road
fund. This constitutionalamendment is quoted as follows:
          "Set. 9'. The State tax on property, exclu-
    sive of the tax necessary to pay the public debt,
    and of the taxes provided for the benefit of the
    public free schools, shall never exceed Thirt -
    five'cents (35k)on the One Hundred Dollars ($100)
    valuation; and no county, city or town shall levy
    a tax rate in excess of Eighty Cents (804) on the
    One Hundred Dollars ($100) valuation in any one
    (1) year for general fund, permanent improvement
    fund, road and bridge fund and jury fund purposes;
    provided further that at'the time the Cormnlssloners
    Court meets to levy the annual tax rate for each
    county It shall levy whatever tax rate may be
    needed for the four (4) constitutionalpurposes;
    namely, general fund, permanent Improvementfund,
    road and bridge fund and jury fund so long as the
    Court does not impair any outstandingbonds or
    other obligatLonsand so long as the total of the
    foregoing tax levies does not exceed Eighty Cents
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HonorableDean Martin, page 2 (C-322)


    (SO#) on the One Hundred Dollars ($100) valuation
    in any one (1) gear. Once'the Court has levied
    the annual tax rate, the same Shall remain Yn
    force and effect dur'Fngt'hattaxableyear; and'
    the Legislaturemay also authorize an additional
    annual ad valoremtax to be levied and collected
    for the furthermaintenance of the public roads;
    provided, theta majority of the qualified
    ProPerty tax paging voters of the county voting
    at an'election to be held for that purpose shall
    vote such tax, not to exceed Fifteen Cento (15#)
    on the One Hundred Dollars ($100) valuation of
    the property subject to tbxatlon'insuch county.
    And the Legislaturemay pass'local laws for the
    maintenance of the public roads and highways,
    without the local notice requlrad for special
    or local laws; ThisSection shall not be-~
    constru'edas a llmltatlon of powers delegated to
    counties, cities or towns by any other Section
    or Sections of this Constitution."

           Attorney General's Opinion O-2094 (1940), written
during the administrationof Gerald C. Mann, contained the
following language:
          "The paragraph In the above quoted section
    of the Constitutionproviding for the levying of
    a tax not to exceed fifteen cents on the'one
    hundred dollar valuation of property relating to
    the maintenance of public roads was not a part
    of the orlglnal section; it was added by amendment
    in the year 1890 for the evident purpose of
    conferringupon counties the power to lay out,
    construct and maintain better systems of public
    highways than they were able to do under the
    restricted taxatlon before provided for. It
    would be a narrow Fnterpratatlonto hold that
    the people adopting this amendment to the
    Constitutionhad In view to provide a fund to
    be used only in repairing roads already laid
    out, lnstead of the evident and broader poltcy
    to create a better and more extensive system of
    public highways. The purpose of the Legislature
    in making the amendmentuas to increase the
    capacity of the county t'6maintaina system of
    public roads andthe word 'maintenance'must be
    held to Include all the things necessary to be
    done to accomplish the purpose. Dallas County:
    vs. Plowman, 99 Tex. 509, 91 S.W. 222 (1906).

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EonorableDean Martin, Page 3 (c-322)


             In view of the foregoing comments In Attorney
Generel's Oplnlon O-2094, which opinion is hereby reaff-lrmecl
by this office; it is our opinion that the purchase of right-
of-way is necessarily included among the purposes for which the
funds derived under Article 6790, Vernon's Civil Statutes, may
be expended. We are further of the opinion that the right-of-
way purchased hereunder may be used for county roads and, by
virtue of Article 6674n, Vernon's Civil Statutes, said r ht-
of-way may be purchased for any purpose enumerated in 667'f;
                                                           n.
Said Article   6674n provldes'forthe purchase of right-of-way
by the county and states that the funds therefor-shall'be'
derived from the County Road snd Bridge Fund or any available
county funds. This would necessarily Fnclude funds derived
from Article 6790.
                          SUMMARY
          Funds derived from the tax levied under
    Article 6790, Vernon's Civil Statutes, may be
    expended for the purchase of right-of-way for
    federal, state and county highways and lateral
    roads.
                                Yours very truly,
                                    WAGGONER CARR
                                    Attorney General



                                       MalcolmL. Quick
                                       Assistant
KLQ:ms:bk
APPRm:
OPINION coMK!XTEE
W. V. Geppert, Chairman
Edward Moffett
Gordon Cass
Ralph Rash
Dean Arrington
APPROVE33FOR TEE ATTORNEY GENERAL
By: Roger Tyler



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