xoaorahle&. 7. Preemaa
ffiuat$ Atiinay
6asa.s couaty
8ealinol0,
lNxa6
Dear 6frc
WIJhaw.roaeir*da raquert fbr in 6pinion oa the aIma oapttied
matterfromthe Honorable A. J~Borrah,-ti Jud6~;but~%u&Artiolo
46QB of *he Ewiaod Cltil6tatatiQ9,,?rQpohibitodfrcmrQplyin6to
hla nquem$ henoethla opinionfr dimetod to you.
T%e faotrrtatadin Judge&aoh*r letterare ar f~llac
9~ fractional part of a p~iourly onatod
rpad di&ri& rhrllbo iaoludedwithlathe
llmitrof i road dirtriotoreatodundertb
&XWiEiOliP, of thir&t~++*Q"
T-Ion.
4. T. Fretansn,Page 2
This statute, seesingly denying authority to the Conmissioners~
Court to create a road district in Gaines dun* consisting of all of
the territory in Ccmnissioners' Precinct Bumbsr One, exoept a aortain
strip of land, which under the present plan is to be excluded from the
road district sought to bs established, must be interpreted as a pro-
hibition against suoh proposal unless an analysis of the balanoe ofthe
hot should rereal otherwise. Basically, the question subsitbed is as
followsI
eRhether or not the inhibition contained in
Article 75200 against the oreation of a road district,
the territory of whioh would overlap a previously ore-
ated road district, would apply to a political subdi-
vision of the county that had bonds outstanding?"
Article 3, Section 52 of the Constitution, provides that the
Legislature may authorize the issuanoe of road bonds by arqfof the
Pollowing entitiesr
1. County.
2. Politioal subdivision of a county.
3. &y number of adjoining counties.
4. &Y political subdivision of the State.
5. Any defined distriot.
It will be noted that this oonstitutional provision states that the
Legislature may authorize the issuance of road bonds by any of the above
named entities. The Legislature has passed certain laws designed to ao-
oomplish the purposes contemplated by the above cited oonstitutional pro-
vision, and the law now in effect thereunder is Chapter 16, Aots of the
First Called Session of the Thirty-ninth Legislature, carried forward in
Vernon's Revised Civil Statutes as 4rtiole 752a, et seq. This law was
amended by the Fortieth Legislature, First Called 8eseion, 1927, Chapter
75and 92. T&s think, in order to properly construe the law, the entire
hat governing theissusnae of road bonds should be read together. The
first section of the law enacted in 1926 has been carried forward in
Vernon's Revised Civil Statutes as 4rticle 752a, and reads,in pax-b,as
follows:
a& oounty or any political subdivision of a county,
or any road district that has been or may hereafter be created
w s general or special law, is hereby authorised to issue
'6t;nds
f~piiiposeoonstruction, maintenanae and opera-
tion of maoadanclsed,graveled, or paved roads and turnpikes,
or in aid thereof *a++"
Hon. A. T. Freeman, Page 3
We wish to call your attention to the language used as
quoted above. It will be noted that the bat authorizes any county
or any political subdivision of a county to issue bonds for the pur-
pose stated, and likewise any road district that has been or may
hereafter bs created by general or special law is authorized to issue
bonds for that purpose. This article then further provides:
'Such bonds shall be issued in the manner
hereinafter provided, and as contemplated and
authorized by Seotion 52 of 4rtiale 3 of the
Constitution of this State."
Hs think the meaning'of this sentenae is that suoh bonds
may be issued cmly as provided in this Act. The article then defines
the term "political subdivision," as used in the 4ot, and it is our
opinion that the definition was not intended for the purpose of dis-
tinguishing a political subdivision from a road district; rather do
us think that inasmuch as there are other types of political subditi-
sions located within counties, that it was the intention of the Leg-
islature to limit the types of political subdivisions that should be
authorized to issue bonds for road building purposes.
4rticle 752b provides the manner inwhiah road bmds may be
issued pursuant to the authoriaation contained in 4rticle 752a. Arti-
cle 7520 grants to the Commissioners' Court of the several counties of
the State the authority to establish road districts and acmmensurate
with suah grant of authority the manner of so establishing road districts
is prescribed in this and subsequent articles. The point we are trying
to make here is that under 4rticle 752a the law refers to only such road
distriots as may have been or which may thereafter bs created by any
general or speoial law8 that is, the Legislature retained the right to
create road distriots by general or special law, and then In a subse-
quent article extended to the Commissioners' Court of the several coun-
ties the authority to establish road districts and prescribed the steps
to bs taken by said Commissioners' Court in the areation thereof* Art-
icle 75200, in plain words, states that the Connnissioners'Court is
without authority to incorporate a new road district which xould embrace
the fractional part of a previously oreated road distriot,.~exceptas is
speoifically permitted in the A&. It then becomes necessary to pursue
the other provisions in order to determine the meaning of the phrase
contained in Article 752~0, which reads -- "But except as herein speoif-
ioally permitted."
Artiole 767e, we think, provides the manner and the only manner
in whiah the Ccsmnissioners'Court may establish road districts, the area
of which would fractionally overlap that of another road distriot prerious-
ly created. 4rticle 767a and subsequent articles am commonly referred
to as the Compensation Bond Title.
Hon. A. T. Freeman, Page 4
At the First Calls Session of the Fortieth Legislature In
1927, House Bill 61 was introduoed snd passed, which now bears arti-
cle number 7520~. Section 1 of that Act reads as follows:
"That Seotion 3, Chapter 16, General Laws passed
by the Thirty-ninth Legislature at its First Called
Session, be amended k addin
Said Seation 3a to here~&*,~gg$$
This law was approved on June 7, 1927. effeotive the same day. Two days
later House Bill 119 was introduced and passed. Section 1 thereof reads
as follows:
"That Section 3 of Chapter 16 of the General
Laws of the Thirty-ninth Legislature of the State
of Texas, First Called Session, being Senate Bill
#X7, shall hereafter --
read as follows: + + es
This amended law reads exactly as Seotion 3 of the original
law, with the exception that the following provision was added:
"Provided that nothing in this bat shall be con-
strued so as to prevent the areation of defined road
distriots and the issuance of bonds of said distriat
in oounties having outstanding county-wide road bonds,
and said defined road districts may bs created in such
counties in the manner provided by statute for the
areation of defined road distriots and issuing the
bonds thereof."
It seems clear to us that as an afterthought the Legislature
realized that the inhibition contained in House Bill #61, above cited,
now Article 7521x, would extend to county-wide road bonds as well as
bonds of road districts and polIti& ,subdivisions of the county, and
it therefore endeavored to oorreq&e law to that extent -- that is,
4
to provide that road districts may.&&~~oreatedeven though there may be
outstanding at the time road bonds dz\the county, oommonly referred to
as county-wide road bonds.
We think that when road bonds have been issued by a politiusl
subdivision, to all intents and purposes, it becomes a defined area and
possesses the same aharacteristics as a defined road district. Therefore,
it is our conclusion that Artiale 7520~ would prohibit the Commissioners*
Court from oreat5ng road districts, portions of which would overlap a
politiaal subdivision or another road district previously created and
upon which bonds had been issued, except as Is apecifioally psnaitted
Hon. A. T. Freeman, Page 5
under this lot by the issuance of compensation bonds. Ue have been
unable to find any oases in point with the question submitted, but
find oonsiderable authority for statements hereinabove made in the
case of San Antonio and A. P. Railway Company vs. State, 95 S.H. (Zd)
680, to which you are referred.
Very truly yours
ATlWREYGERERALOFTEXM
By s/ Clarence E. Crowa
Clarence E. Crowe
Assistant
CEX-9: agw
4PPRCVED FEB 6, 1940
Gerald C. km
AlTORKEYGENERkLOFTEXAS
Approved Opinion Committee
By BW? - Chaiwan