Can a special state law strip one county of its power to borrow against its road fund and punish commissioners who vote for debt?

Texas AG Opinion JM-390: Limestone County Road Law Limits

Plain-English summary

Back in 1947 the Texas Legislature passed a special law just for Limestone County, Senate Bill No. 270, meant to set up "a more efficient road system." Decades later the county's district-county attorney asked the Attorney General whether three pieces of that law were constitutional: a ban on creating any debt against the county road and bridge fund, civil and criminal penalties for commissioners who voted to create such debt, and the creation of the "office" of county engineer. Because the law applied only to Limestone County, it was a "local law," and the Texas Constitution sharply limits what local laws can do to county government. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0390.pdf

The starting rule is that the Legislature cannot pass a local law regulating county affairs (article III, section 56). There is a narrow exception: an 1890 amendment (article VIII, section 9) lets the Legislature pass local laws for the maintenance of public roads, and the courts read "maintenance" to include laying out and building new roads. But that exception is limited to roads. It does not let a special law reach into a county's finances or offices under the banner of a "road law." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0390.pdf

Applying that, the Attorney General concluded the debt ban and the penalties were unconstitutional. General law lets counties create indebtedness against their road and bridge funds, including issuing road bonds. A local law that strips one particular county of a financing power the general laws grant is an impermissible regulation of county affairs, and the road-maintenance exception does not save it. It follows that commissioners cannot be hit with civil or criminal penalties for voting to do something the general laws allow them to do. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0390.pdf

The county engineer provision came out differently. A local law cannot create a public "office," but the AG concluded the Limestone County Engineer was not really an officer. Following a 1952 Dallas case about a county road engineer, the AG reasoned that a position whose holder has no sovereign or discretionary powers and works under the control of the commissioners court is an employee, not an officer. So creating that position did not violate the ban on local laws creating offices, and that part of the law was constitutional. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0390.pdf

Currency note

This opinion was issued in 1985 and analyzed a 1947 local law under the Texas Constitution and county road-financing statutes as they then stood. County road administration has since been reorganized under the Transportation Code and related statutes, and the specific local act may have been amended or superseded. Treat this page as historical context, not current legal advice.

Common questions

Can the Legislature ban one county from borrowing against its road fund?

No, not by a local law that takes away a power the general laws give counties. The Attorney General concluded the debt ban in the Limestone County law was an unconstitutional local regulation of county affairs, because general law lets counties create indebtedness against their road and bridge funds and the road-maintenance exception does not authorize stripping that power. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0390.pdf

Could commissioners be fined or prosecuted for voting to create that debt?

No. The AG reasoned that commissioners cannot be subjected to civil and criminal penalties for voting to do something the general laws authorize, and that such penalties have only the most remote connection to building and maintaining roads. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0390.pdf

Why was the county engineer position allowed when creating offices by local law is banned?

Because the AG concluded the engineer was an employee, not an officer. A county engineer with no sovereign or discretionary powers, working under the control of the commissioners court, does not hold a public office, so creating that position did not run afoul of the ban on local laws creating offices. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0390.pdf

What is the difference between a local "road law" and an unconstitutional local law?

A valid local road law is limited to maintaining, laying out, opening, and constructing public roads. It cannot subtract powers from county commissioners that general law grants, change the county's financial system, or create offices duplicating existing ones. Calling a law a "road law" does not make those extra provisions constitutional. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0390.pdf

Background and statutory framework

The constitutional frame is article III, section 56, which bars local laws regulating county affairs, softened for roads by article VIII, section 9 (the 1890 amendment permitting local laws for the maintenance of public roads). The Texas courts had already read that exception narrowly. Austin Bros. v. Patton, 288 S.W. 182 (Tex. Comm. App. 1926, judgmt adopted) struck down a Houston County local law about the road and bridge fund, explaining that the road-maintenance power does not authorize subtracting powers from the commissioners court, changing a county's financial system, or creating duplicative offices. Dallas County v. Plowman, 91 S.W. 221 (Tex. 1906), had established that "maintenance" includes laying out and constructing roads, and City of Fort Worth v. Bobbitt, 36 S.W.2d 470 (Tex. Comm. App. 1931, opinion adopted), supplied the definition of a local law. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0390.pdf

On the debt question, general law lets counties issue bonds for roads (V.T.C.S. art. 6702-1, §4.411(b); Tex. Const. art. III, §52), and bonds create indebtedness (White v. Pickett, 355 S.W.2d 848 (Tex. Civ. App. - San Antonio 1962, writ ref'd n.r.e.)). Because article VIII, section 9 does not authorize local laws removing a county's power to issue road bonds, the Limestone County debt ban and its commissioner penalties were unconstitutional insofar as they nullified powers the general laws confer. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0390.pdf

On the office question, the AG contrasted two lines of authority. In Commissioners Court of Limestone County v. Garrett, 236 S.W. 970 (Tex. Comm. App. 1922, judgmt adopted), a 1919 local law that created a board of road commissioners with sovereign powers was held unconstitutional as a local law creating offices (see also Anderson v. Houts, 240 S.W. 647 (Tex. Civ. App. - San Antonio 1922, no writ)). But in Hill v. Sterrett, 252 S.W.2d 766 (Tex. Civ. App. - Dallas 1952, writ ref'd n.r.e.), a county road engineer with no sovereign or discretionary power, controlled by the commissioners court, was held to be an employee, not an officer. Because courts construe statutes to harmonize with the constitution where possible (Garrett, 236 S.W. at 975; Altgelt v. Gutzeit, 201 S.W. 400 (Tex. 1918)), the AG read the Limestone County Engineer provision as creating an employee position and therefore constitutional. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0390.pdf

Citations and references

• Tex. Const. art. III, §56; art. VIII, §9; art. III, §52
• V.T.C.S. art. 6702-1, §4.411(b)
• Acts 1947, 50th Leg., ch. 53, at 72 (Senate Bill No. 270)
• City of Fort Worth v. Bobbitt, 36 S.W.2d 470 (Tex. Comm. App. 1931, opinion adopted)
• Austin Bros. v. Patton, 288 S.W. 182 (Tex. Comm. App. 1926, judgmt adopted)
• Dallas County v. Plowman, 91 S.W. 221 (Tex. 1906)
• Altgelt v. Gutzeit, 201 S.W. 400 (Tex. 1918)
• White v. Pickett, 355 S.W.2d 848 (Tex. Civ. App. - San Antonio 1962, writ ref'd n.r.e.)
• Commissioners Court of Limestone County v. Garrett, 236 S.W. 970 (Tex. Comm. App. 1922, judgmt adopted)
• Anderson v. Houts, 240 S.W. 647 (Tex. Civ. App. - San Antonio 1922, no writ)
• Hill v. Sterrett, 252 S.W.2d 766 (Tex. Civ. App. - Dallas 1952, writ ref'd n.r.e.)
• Attorney General Opinion V-1315 (1951)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0390.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0390
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0390.pdf

Original opinion text

Transcribed from the scanned PDF by OCR. Character-level scanning errors have been cleaned; the wording, citations, and substance are reproduced as issued.

The Attorney General of Texas

December 10, 1985

Honorable Patrick H. Simmons
District-County Attorney
Limestone County Courthouse
200 West State Street
Groesbeck, Texas 76642

Opinion No. JM-390

Re: Constitutionality of Senate Bill No. 270, Acts 1947, 50th Leg., ch. 53, at 72, creating a special road district for Limestone County

Dear Mr. Simmons:

You have asked our opinion regarding the constitutionality of certain parts of a local law affecting Limestone County. Acts 1947, 50th Leg., ch. 53, at 72. You have asked about the constitutionality of the following provisions: (1) the prohibition in section 17 on the creation of any indebtedness against the county road and bridge fund; (2) the establishment in section 17 of civil and criminal penalties for members of the Limestone County commissioners court who vote for the creation of any such debt; and (3) the creation of the "office" of county engineer of Limestone County in sections 3 through 17. The provisions you ask about are "local laws" since they apply exclusively to Limestone County. City of Fort Worth v. Bobbitt, 36 S.W.2d 470 (Tex. Comm. App. 1931, opinion adopted).

The Texas Constitution provides that the legislature may not enact any local law regulating the affairs of counties. Tex. Const. art. III, §56. Article III, section 56, also provides that the legislature may not pass any local law "[a]uthorizing the laying out, opening, altering or maintaining of roads, highways, streets or alleys." The latter prohibition, however, was nullified by an 1890 amendment to the Texas Constitution providing that "the Legislature may pass local laws for the maintenance of the public roads and highways, without the local notice required for special or local laws." Tex. Const. art. VIII, §9. See Austin Bros. v. Patton, 288 S.W. 182, 187 (Tex. Comm. App. 1926, judgmt adopted) (refers to the nullifying effect of article VIII, section 9, on article III, section 56). See also Dallas County v. Plowman, 91 S.W. 221 (Tex. 1906) (holding that "maintenance" in article VIII, section 9, includes laying out and construction of roads). Your question is whether the cited provisions of the Limestone County law represent unconstitutional attempts to regulate county affairs or whether they come within the scope of article VIII, section 9, and are therefore constitutional.

The caption to the Limestone County law states that the act creates "a more efficient road system for Limestone County." Simply designating a local law a "road law," however, is not enough to insure its constitutionality. The courts have found unconstitutional certain local laws that purport to be road laws. See, e.g., Altgelt v. Gutzeit, 201 S.W. 400 (Tex. 1918); Austin Bros. v. Patton, 288 S.W. 182 (Tex. Comm. App. 1926, judgmt adopted).

The decision in Austin Bros. provides the answer to your first two questions. In that case the court considered the constitutionality of a local law for Houston County regarding the appropriation and expenditure of funds paid into the road and bridge fund. The court rejected arguments that the provisions were within the scope of article VIII, section 9, and held that they were therefore unconstitutional regulations of county affairs. In explaining the scope of article VIII, section 9, the court wrote:

The authority to enact special road laws generally and without limitation would carry with it the right to regulate the affairs of the county in all such matters as might be necessarily and appropriately connected with or subsidiary to the object of such general power to pass local or special road laws. But, as pointed out above, no authority to enact local or special road laws generally and without limitation is authorized by the Constitution. It authorizes the Legislature to pass local road laws for a restricted purpose -- the maintenance of the public roads and highways. As shown above, our Supreme Court has held that the words, 'the maintenance of public roads,' include the laying out, opening, and construction of new roads. Therefore the authority conferred by the constitutional amendment carries with it the right to regulate the affairs of the county only in such respects as are necessarily and appropriately connected with or incidental and subsidiary to the object of such limited power -- the maintenance, including the laying out, opening and construction of public roads. It does not authorize the subtraction, by local or special laws, of powers from county commissioners and the commissioners' court conferred by general laws. It does not authorize a change in the financial system of counties fixed by general laws. It does not authorize the creation of offices and the clothing of those officers with functions already performed by existing officers as provided for by general laws. None of these are incidental or necessary to the maintenance, laying out, opening, and construction of roads. It merely authorizes the application of the financial system and the governmental machinery already existing to the action authorized thereby. (Emphasis added).

Austin Bros. v. Patton, 288 S.W. at 188.

Austin Bros. makes clear that the legislature may not invoke article VIII, section 9, to withdraw from a particular county a method of financing county affairs that is conferred by general law. For example, counties may issue bonds for the construction, maintenance, and operation of roads. V.T.C.S. art. 6702-1, §4.411(b). See also Tex. Const. art. III, §52. Bonds issued by a county create indebtedness. See White v. Pickett, 355 S.W.2d 848 (Tex. Civ. App. - San Antonio 1962, writ ref'd n.r.e.). Article VIII, section 9, does not authorize local laws that would remove a county's authority to issue road bonds. Thus, to the extent that the general laws permit counties to create indebtedness against their road and bridge funds, a local law taking that power away from a particular county is constitutionally impermissible. Therefore, the prohibition on the creation of indebtedness in the Limestone County law is unconstitutional insofar as it would nullify any authority Limestone County has under the general laws to create indebtedness against the road and bridge fund.

It follows, then, that county commissioners cannot be subjected to civil and criminal penalties for voting to do something that they are authorized to do under the general laws. Moreover, we do not perceive how such penalties have any but the most remote connection with the construction and maintenance of roads.

Your third question is whether the creation of the "office" of county engineer of Limestone County is constitutional. In a 1922 case the Commission of Appeals considered a local law enacted in 1919 to "create a more efficient road system for Limestone County." Commissioners Court of Limestone County v. Garrett, 236 S.W. 970 (Tex. Comm. App. 1922, judgmt adopted). That act provided for the election of citizen members to the board of road commissioners in Limestone County and conferred on those members certain sovereign powers. The court held that the law violated the constitutional prohibition against local laws creating offices. 236 S.W. at 973. See Tex. Const. art. III, §56. The court rejected the argument that article VIII, section 9, authorized the law as a local law concerning the maintenance of public roads. 236 S.W. at 975. See also Austin Bros. v. Patton, 288 S.W. at 188; Anderson v. Houts, 240 S.W. 647 (Tex. Civ. App. - San Antonio 1922, no writ).

In a 1952 case, the Dallas Court of Civil Appeals considered the constitutionality of a local law for Dallas County that created the "office" of county road engineer. Hill v. Sterrett, 252 S.W.2d 766 (Tex. Civ. App. - Dallas 1952, writ ref'd n.r.e.). The court concluded that although the law purported to create an office, the county road engineer was in fact only an employee who had no sovereign or discretionary powers and who was under the control of the county commissioners' court. Id. at 769-70. Therefore, the law did not violate the constitutional prohibition against local laws creating offices.

The Limestone County law in issue creates the position and sets out the duties of the Limestone County Engineer. Courts favor the validity of a statute and, if possible, construe a statute so that it is in harmony with the constitution. Commissioners Court of Limestone County v. Garrett, 236 S.W. at 975. Therefore, we think that a court would read this part of the 1950 Limestone County statute to be constitutional. See Attorney General Opinion V-1315 (1951) (regarding the severability of a local law).

SUMMARY

The provisions of Acts 1947, Fiftieth Legislature, chapter 53, at page 72, that prohibit the creating of indebtedness against the county road and bridge fund of Limestone County and create civil and criminal penalties for members of the Limestone County Commissioners Court who vote to create such indebtedness are constitutionally impermissible local laws insofar as they subtract from powers granted by the general laws. Acts 1947, 50th Leg., ch. 53, at 72.

The provisions of the Limestone County law that establish the position of Limestone County Engineer provide for an employee who is under the supervision and control of the county commissioners court. Therefore, those provisions are constitutional.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Jennifer Riggs
Sarah Woelk
Bruce Youngblood