          Tmm         7rromv~~        GENERAL
                        OFTEXAS



                            June 16, 1959

Hon. William J. Gillespie         Opinion NO. ~~-641
County Attorney
Lubbock County                    Re: Use of funds derived
Lubbock, Texas                        from the levy of an
                                      additional ad~valorem
                                      tax for the maintenance
                                      of county roads, as
                                      authorized by Art.,VIII,
               -a_.                   Sec.
                                       .   9 -of
                                               - the Constitu-
Dear Mr. Gillespie:                   tion or Texas.
          Your recent request for an opinion from this office
reads in part as follows:
      "The Lubbock County Commlssloner~s Court desires
    to reise funds for the purpose of re-locating,
    laying out, widening and repairing County roads.
    To do so, it will be necessary for the County to
    Impose a tax burden which is not authorized at
    this time. In furtherance of this desire to raise
    additional funds for general road purposes, such
    as purchasing new right-of-way for,relocating of
    some existing roads, purchase of additional right-
    of-way for widening of existing roads and generally
    improving the County road system, the Court has
    decided to call for an election under the provl-
    slons of Article 6790, Revised Texas Statutes, and
    if approved by the election, impose a tax under the
    provisions of Section 9, Article 8 of the Texas
    Constitution. This provision reading as follows,
    'and the Legislature may also authorize an addi-
    tional annual ad Valorem tax to be levied and col-
    lected for the further maintenance of the public
    roads;provided, that a majority of the qualified
    property tax paying voters of the County voting at
    an election to be held for that purpose shall vote
    such tax, not to exceed fifteen cents (15+!)on the
    One Hundred Dollars ($100.60) valuation of the
    property subject to taxation in such County.'
      "The Court desires your opinion on the question;
    if properly authorized by election held under the
    above provisions, could taxes imposed for the
Hon. William J. Gillespie, page 2     (Opinion No. ~~-641)


    approved purpose of 'for the further maintenance of
    public roads;' be expended for the desired purposes
    as set out above, or, would such tax funds have to
    be expended for the maintenance of existing roads?"
          For clarity we quote more   fully from Article VIII,
Section 9 of the Constitution:
           .and the Legislature may also authorize an
    additional annual ad valorem tax to be levied and
    collected for the further maintenance of the public
    roads; provided, that a majority of the qualified
    property tax paying voters of the county voting at
    an election to be held for that pur ose shall vote
    such tax, not to exceed fifteen (15P cents on the
    one hundred dollars valuation of the property sub-
    ject to taxation In such county. And the Legisla-
    ture may pass local laws for the maintenance of the
    public roads and highways, without the local notice
    required for special or local laws. This section
    shall not be construed as a limitation of powers
    delegated to counties, cities or towns by any other
    section or sections of this Constitution. . . .'
          The Legislature has authorized the levy and collec-
tion of the additional tax thus provided for, and made provi-
sion for the required election. See Articles 7048 and 6790,
V.C.S.
          In an 1897 case, Smith v. Grayson County, 44 S.W.
921 (Tex.Civ.App., error ref.), the Court of Civil:Appeals
has before it the-question of.the constitutionality of a
local road law passed by the Legislature. It was there con-
tended that the word "maintenance," as used In that part of
the above section authorizing the Legislature to "pass local
laws for the maintenance of the public roads and highways,
without the local notice required for special or local laws,"
meant that such laws could only be passed for maintenance of
roads already constructed, and would not authorize the pas-
sage of a statute creating a road'system. In rejecting this      D
contention the Court said (p. 923):
       I, . .We do not think the word ‘maintenance’ as
     used in this section of the constitution was intend-
     ed to be used in this restricted sense. Ey the use
     of the words 'maintenance of public roads and high-
     ways,' the framers of the constitution had reference
     to maintaining a system of public roads and highways,
     which would include all the necessary powers to pro-
     vide and keep up a system of highways. . . .'
    .     .




        Hon. William J. Gillespie, page 3   (Opinion No. ~-641)


                  The Supreme Court of Texas referred to this result
        in the Smith case, supra, In Dallas County v. Plowman, 99
        Tex. 5097JT S.W. 221. In that case also the question was
        the constitutionality of a local road law passed by the Leg-
        islature. After quoting that part of Article VIII, Sec. 9
        of the Constitution, set out above the Court proceeded as
        follows:
                     .The validity of the local law for Dallas
              County,depends upon the meaning of the phrase 'main-
              tenance of public roads,' as used in the paragraph
              of the Constitution last quoted. The literal mean-
              ing of the word 'maintenance' would not Include the
              laying out or construction of a road, but would re-
              late to the repair and improvement of roads already
              laid out and constructed. In article 3, c)56, subd.
              5, of the Constitution, the different stages in the
              preparation and construction of a road are enumera-
              ted, and by the use of the words 'opening, laying
              out, altering' the word 'maintaining is restricted
              to its literal meaning; it could not have been in-
              tended to embrace in it that which was otherwise
              expressed. But the paragraph of section 9, art. 8,
              above copied, was not a part of the ori inal section;
              it was added by amendment in the year 1890, for the
              evident purpose of conferring upon counties the power
              to lay out, construct, and maintain better systems of
              public highways than they were able to do under the
              restricted taxation before provided for,. . . .The
              meaning of the word 'maintenance,' in the clause of
              the Constitution whereby authority is given to pass
              local road laws for a particular county, and the same
              word as used in the preceding part of that paragraph,
              must be the same, because they~concern the same sub-
              ject matter and express the same purpose. If we give
              to the word 'maintenance' its literal meaning in this
              part of the paragraph, 'The Legislature may also
              authorize an additional annual ad valorem tax to be
              levied and collected for the further maintenance of
              public roads,' then the money derived from the tax so
              levied would constitute a special fund for the repair
              of public roads, and in keeping them in order after
              they were constructed, and could not be used for the
              purpose of laying out and constructing such highways.
              It would be a narrower interpretation to hold that
              the people adopting this amendment to the Constitu-
.             tion had in view to provide a fund to be used only in
              repairing roads already laid out, instead of the evi-
              dent and broader policy to create a better and more
              extensive system of public highways. It could not
Hon. W-i
       ,ll
         ,iam J. Gillespie, page 4   (Opinion No. ~~-641)


     have been the intention thus to restrict the use of
     the fund and to create such confusion and embarass-
     ment in the handling and disbursement of the funds
     of the county as would arise from such construction.
     The purpose of the Legislature In making the amend-
     ment was to Increase the capacity of the county to
     maintain a system of public roads, and the word
     'maintenance' must be held to include all of the
     things necessary to be done to accomplish that pur-
     pose. , .'I
          The rule so stated has been consistently followed.
See, e.g., Henderson County v. Allred, 120 Tex. 483, 40 S.W.
2d 17 (1931);nner    v. Crow, 124 Tex. 368, 78 S.W.2d 588
(1935); Tarrantty      v. Sfi
                            annon, 129 Tex. 264, 104 S.W.2d
4 (1937).
          While the Plowman case, supra, cannot be said to
decide the precise question involved here, since it was con-
cerned with the interpretation of the word "maintenance" in
the last clause of Constitution, Article 8, Sec. 9, still we
believe the language of Chief Justice Brown in that opinion
makes it clear that this same construction should be given
the same word as used In the preceding clause; i.e., author-
izing an additional tax assessment for "maintenance of the
public roads."
          You are accordingly advised that funds raised
through this constitutional authorization, assuming due com-
pliance with the legislative provisions governing such levy,
may be used for the purpose of improving the county road
system in general, including purchase of additional right-.
of-way, and the re-location and widening of existing roads.


                        SUMMARY
                        --
                  The funds collected under the auth-
        orization contained in Article VIII, Section
        9, Constitution of Texas, providing for the
        levy of an additional ad valorem tax "for the
        further maintenance of the public roads" may
        be used for the general improvement of the
        county road system. It is not required that
        such funds be used only for the repair and
        upkeep of existing roads.
.     -




    Hon. William J. Gillespie, page 5     (Opinion No. w-641)


                                    Very truly yours,

                                    WILLWILSON
                                    Attorney General of Texas




    JRI:bct
    APPROVED:
    OPINION COMMITTEE?
    George P. Blackburn, Chairman

    Howard Maya
    John B. WeDster
    James H. Rogers
    REVIEWED FOR THE ATTORNEY GENERAL:
    By:   W. V. Geppert
