Ronorable David H. Cain opinion No. ~~568
Chairman
Conrmitteeon Transportation Re: Construction of subsection (c)
Texas House of Representatilxs of article III. section 52, of the
P. 0. Box 2910 Texas Constitution relating to
Austin. Texas 78769 county road bonds
Dear Representative Cain:
As chairman of the Cmmittee on Transportation for the Texas
House of Representatives you have requested the opinion of this office
on two questions:
1. Does the existence of outstanding road
bonds of a county issued under article III.
section 52(c), of .theTexas Constitution limit or
otherwise affect 1:h.e
amount of bonds that a county
road district located in that county may issue
under article II::, section 52(b), of the Texas
Constitution?
2. Does the existence of outstanding bonds of
a county road dit,trict issued under article III,
section 52(b), of .theTexas Constitution limit or
otherwise affect the amount of road bonds that the
county in which such road district is located may
issue under article III. section 52(c). of the
Texas Constitution?
Section 52 of article III of the Texas Constitution has been
amended three times since :.tsadoption in 1876: in 1904, 1970, and
1978. Acts 1903, 28th Leg., R.S., 52, at 247; Acts 1969. 61st Leg.,
R.S.. 51, at 3236; Acts 19;'7,65th Leg., R.S., 51, at 3374. It now
reads:
Sec. 52. (a) Except as otherwise provided by
this section, the 'Legislature shall have no power
to authorize any county, city. town or other
political corpora,:ionor subdivision of the State
to lend its credit or to grant public money or
thing of value iu aid of, or to any individual,
association or corporation whatsoever, or to
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Honorable David H. Cain - Prrg;e
2 (JM-568)
become a stockho1i.m in such corporation, associa-
tion or company.
(b) Under Legislative provision, any county,
any political subdivision of a county, any number
of adjoining counties, or any political subdivi-
sion of the Stateror any defined district now or
hereafter to be described and defined within the
State of Texas, and which may or may not include,
towns, villages 0::municipal corporations, upon a
vote of two-thirdrimajoritp of the resident prop-
erty taxpayers vcting thereon who are qualified
electors of such district or territory to be
affected thereby, $I addition to all other debts,
may issue bonds or otherwise lend its credit in
any amount not to exceed one-fourth of the
assessed valuatioli of the real property of such
district or terrxw, except that the total
bonded indebtedne& of any city or town shall
never exceed the limits &posed-by other provi-
sions of the Con~~titution,and levy and collect
taxes to pay the interest thereon and provide a
sinking fund for the redemption thereof, as the
Legislature may aut:horize,and in such manner as
it may authorize the same, for the following
purposes to wit:
(1) The imrrovenent of rivers, creeks, and
streams to prex'entoverflows, and to permit of
navigation thereof. or irrigation thereof, or
in aid of such purposes.
(2) The construction and maintenance of
pools, lakes, reservoirs, dams, canals and
waterways for the purposes of irrigation,
drainage or navigation, or in aid thereof.
(3) The construction, maintenance and oper-
ation of macad;&zed. graveled or paved roads
and turnpikes, or in aid thereof.
(c) Notwithstanding the provisions of Subsec-
tion (b) of this &tion. bonds may be issued by
any county in an amount not to exceed one-fourth
of the assessed valuation of the real property in
the county, for the construction, maintenance, and
operation of macadnnized, graveled, or paved roads
and turnpikes, or Ln aid thereof, upon a vote of a
majority of the res:Ldentproperty taxpayers voting
thereon who are qcalified electors of the county,
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Honorable David H. Cain - P;lge3 (JM-568)
and without the necessity of further or amendatory
legislation. The &nty may levy and collect taxes
to pay the interest:on the bonds as it becomes due
and to provide a sinkinn fund for redemption of
the bonds.
(d) Any defined district created under this
section that is authorized to issue bonds or
otherwise lend its credit for the purposes stated
in Subdivisions (1) and (2) of Subsection (b) of
this section may engage in fire-fighting activi-
ties and may issue bonds or otherwise lend its
credit for fire-fighting purposes as provided by
law and this constitution. (Emphasis added).
Tex. Const. art. III, $52.
Originally, section 52 contained only the unemphasized language
set out in subsection (a) iitlove.Later, the substance of subsection
(b) was added as a proviso :in1904. In 1970. the existing section was
subdivided and the language,of subsection (c) was added. Subsection
(d) was added in 1978. [See Historical Note, IA Vernon's Annotated
-I-
Constitution of the State oj:
--Texas 636 (1984).]
The 1904 subsection cb) urovision that counties or districts
could, upon a proper vote of ;he people, "in addition to all other
e' issue bonds "in an]' amount not to exceed one-fourth of the
assessed valuation of the r(!alproperty of such district or territorv"
was an early source of contFoversy. In 1912, it was construed by the
Texas Supreme Court in --
Simmons v.-Lightfoot, 146 S.W. 871 (Tex. 1312),
to mean that the joint and separate authority of the governmental
units named by article III, section 52 to create debts against taxable
property they embrace jointly "is limited by the Constitution to
the a re ate amount of one-fourth of the assessed value of such
prop*46 S.W. at 873. (Emphasis added).
Thus, according to the Simmons case, if either the county or a
road district, for example: has issued bonds in an amount equalling
one-fourth of the assessed value of the taxable property in the road
district, neither the county or the road district (nor any other
debt-creating district) can issue bonds under article III, section 52
encumbering that property until a portion of the bonding capacity of
the property has been re:,tored by the retirement of outstanding
obligations.
Noting that the creation of different districts for five distinct
purposes was possible under article III, section 52, the Simmons court
said:
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Honorable David H. Cain - P,lge4 (JM-568)
Under the construction contended for by re-
lators, it would be possible for five districts
embracing the same territory and formed for
different purposes to create an indebtedness
against the real property of such districts
one-fourth great=::than the assessed value of such
real property.
. . . .
If it was the de:sign and purpose of those who
framed the secion of the Constitution to
authorize the creation of a debt not to exceed
one-fourth of the. assessed value of the real
property situated in each of such districts for
each of the said p~urposes,it should have been so
written. Since it has not been so written, it is
not within the power of this court to interpolate
such a meaning.
146 S.W. at 873. See also
-- S'anAntonio h A. P. Railway Co. v. State,
95 S.W.2d 680 (Tex. IS136): Munson v. Looney. 172 S.W. 1102 (Tex;
1915); Attorney General Cpinion O-,486 (19391. Cf. Collinesworth
County v. Allred. 40 S.W,l.d 13 (Tex. 1931); Henderson County v.
Allred, 40 S.W.2d 17 (Tex. 11331). That is where the law stood at the
time subsection (c) was add& to article III, section 52 in 1970.
Subsection (c) begins, "Notwithstanding the provisions of sub-
section (b) of this section, bonds may be issued. . . ." (Emphasis
added). A brief submitted with your request suggests this language
allows counties to dfsrega:rd the "one-fourth of the assessed value"
limitation of subsection (11)and to encumber property in the county
for an additional road bond debt in the amount of one-fourth of the
assessed value of the property. In other words, the brief argues that
property in a county can now be encumbered for article III. section 52
purposes in the aggregate amount of one-half of its assessed value
[one-fourth under subsection (b). and one-fourth under subsection
(c)l.
We do not believe the addition of subsection (c) was intended to
have that effect. In our c~pinion.subsection (c) was added to the
constitution merely to remove the requirement that county road bonds
secure the approval of two-thirds of the electorate rather than of a
simple majority.
The 1970 amendment was .proposedby House Joint Resolution No. 28
in the Sixty-first Legislature, which carried the following caption:
Proposing an amendment to section 52. article III,
Constitution of the State of Texas, to authorize
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Honorable David H. Cain - Page 5 (JM-568)
any county, on tL! vote of a majority of qualified
property taxpayin;selectors, to issue road bonds
in an amount no': to exceed one-fourth of the
assessed valuation of the real property in the
county.
The resolution dictated that the proposition be presented on the
ballot as a vote for or aga:.nst:
The constitutional amendment authorizing w
county, on the vo1:p:
of a majority of its qualified
property taxpaying electors, to issue road bonds
in an amount not to exceed one-fourth of the
assessed valuation of the real property in the
county.
Acts 1969, 61st Leg., R.S.. at 3236.
One commentator has professed uncertainty about the meaning of
subsection (c), as added in 1970. See 1 Braden, The Constitution of
the State of Texas: An Annotatedand Comparative Analysis, 260
(1977). But others have expressed no doubt:
Article III, section 52 of the constitution was
last amended as the result of an election held in‘
November 1970. Again we have an illustration of
our propensity tcl attack problems on the fringe
without going to !:hebasic problem. As the result
of an election held in 1968, Dallas County had
been given authority to issue bonds for road pur-
poses upon a majority vote (rather than two-
thirds vote) of the resident qualified property
taxpaying electors, and this power was given to
all counties by the 1970 amendment to article III,
section 52. The mendment to article III, section
52 provides no other change. . . .
Morrow, Financing of Capjtal Improvements by Texas Counties and
Cities, 25 SW.L.J. 373, 39i, 392 (1971). -
Cf. Tex. Const. art. III,
552e.
Texas courts have not :Tetconstrued subsection (c). The paramount
task is to ascertain the :intent of its framers and the people who
adopted it. See 12 Tex. Jur. 3d, Constitutional Law 524 (1981). Our
examination convinces us that no change was contemplated other than a
change in the relative size of the vote necessary to authorize the
issuance of county road bor.ds.and that the voters did not intend to
increase twofold the potent,Lalliability of their property for article
III, section 52 debt purpt,ses. To paraphrase the language of the
Texas'Supreme Court in --Sirmlons v. Lightfoot, w. if it was the
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Honorable David H. Cain - Pzig;e
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design and purpose of those who framed subsection (c) to authorize the
creation of an aggregate deb,t not to exceed one-half of the assessed
value of the real property situated in the county, it should have been
so written.
In answer to your questions, we advise that the existence of
outstanding county road bonds issued under article III, section 52(c),
of the Texas Constitution $r:Llllimit or affect the amount of bonds
that a county road district: located in that county may issue under
article III, section 52(b) thereof. We also advise that the existence
of bonds issued by a road district pursuant to section 52(b) will
limit or affect the amount of road bonds that a county may issue
pursuant to section 52(c).
SUMMARY
The existence of.outstanding road bonds of a
county issued under subsection (c) of article III,
section 52, of the Texas Constitution will limit
or affect the amount of bonds that a county road
district may ISSUI? under subsection (b) thereof,
and the existence of bonds issued by a road dis-
trict pursuant to subsection (b) will limit or
affect the amount of road bonds a county may issue
pursuant to subsection (c).
-~
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Bruce Youngblood
Assistant Attorney General
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