Hon. Ted Butler Opinion No. M- 1291 District Attorney Bexar County Courthouse Interpretationof subsection San Antonio, Texas 78204 Re: (c) of Section 52 of 1$M.;i.f,111,Constitution , and related Dear Mr. Butler: questions. In your recent request for'an opinion you have asked the following questionswhich we will answer in the order presented. 1. "Pnrsusnt to the provisions of and for the purposes stated in subsection (c) of Article 3, Section-52,Constitutionof the State of Texas, (adoptedat sn election held.on November 3,.1970),. the CommissionersCourt of Bexar County desires to call a county-wideelection for the issuance of approximatelytwenty million dollars of road bonds, accordingly,is the CommissionersCourt authorized to call such election on its own motion, or must it first have submitted to it vi-meeting the requirementsof Article 752b, as amended?" 2. "Inordering and,.givingnotice of the road bond election mentioned in Question No. 1, which statutes control - Does Article '704apply, or do Articles 752f and 752f-2 apply?" 3. "There being four existing Road Districts in the County having outstandingbonded indebtedness, does Article ?67a absolutely reauire the Commissioners' Court to include in the road bond proposition to be submitted,an additional amount to fully and fairly compensate the existing Rmstricts~ for the amount of each District's outstanding road bonds, or may the Commissioners'Court call and hold the election on the question of the issuance of the new road bonds and if successfullyvoted, issue the bonds without com- pensating the existing Road Districts in the amount of such outstandingbonded indebtedness?"
-6328- Hon. Ted Butler, page 2, (M-1291)
In answering your question concerning the authority of a Commissioner'sCourt, on its own motion, to call a county- wide election for the issuance of road bonds we must first examine the state of the law as It existed Immediatelyprior to November 3, 1.970,':hedate Article III, Section 52 of the Texas Constitutionwas last amended. Article III, Section 52, Subsection (b as It now exists, is a complete re-enact- ment; Its relevan part reads:
property taxpayers voting thereon, . .ln addition to sll other debts, may issue bonds or otherwise lend Its credit In any amount not to exceed one- fourth of the assessed valuation of the real pro- perty of such (county). . .and levy and collect taxes to pay the interest thereon and provide a sinking fund for the redemption thereof, -m as the ;;gis&a;;:;o~eaut~o~z an& Jtiezh,ch:;r as filirposes to wit: -
2' ::: 3 I) The construction,maintenance and operation of macadamlzed, graveled or Reved roads and tu$n- pikes, or in aid thereof. (Emphasisadded.) The legislation implementingand giving effect to this quoted constitutionalprovision was already contained within Chapter 3, Title 22, Vernon's Civil Statutes, as manifested in Article 752a of that Chapter which reads: ,I .Such bonds shall be Issued In the manner'h&elna?ter provided,'and as contemplated and authorized by Sectfon 52 oi Article 3, of the Constitution of this State. . ." As indicated in your first question, the provisions of Article 752b, as amended in 1969, contains certain procedural requirementswhich must be met prior to a county road bond election being called, among which are: "Upon the petition of the resident property taxpaying voters of any county. . .the commissioners
-6329- Hon. Ted Butler, page 3, (M-1291)
court of such county. . .shall order an election to be held. . ." It is important to note the status of the law prior to any Constitutionalamendment for It is a long and well established rule that a constitutionis adopted with reference to exist- ing laws and does not abrogate or change such laws unless they are inconsistentwith the constitutionalprovision or unless specificallyso changed. Co'llinsv. Tracy, 36 Texas 546 (1872); 12 Tex. Jur. 2d 359, Const. Law, Sec. 9. It is also a rule of constitutionalconstruction that a constitu- tional amendment is to be considered from its four corners and in the light of the history out:of which lt.grew, as well as the purpose sougt# to.be accomplished; Houchlns v. Plainos, 130\. Tex. 413,, 110,SW2d 549, 554 (1937). The'provisionsof Article.III, Section 52, Subsection (cl, as added by the 1970 amendment, must then be read in pari materia with the other provisions of Article.111, Section,52 as well as with those legislative enactments dealing with the same subject matter. Article III, Section 52, Subsectlon (c) as amended in 1970 reads as follows: "Notwithstandingthe. rovisions of Subsection 0 b of thi S ti bXshs=d b coun~,~n,~~ou~~'not tomexceed one-four&a%the assessed,:valuationof the real property in the rounty, for the construction,maintenance..and operation of macadamized,graveled, or paved roads and turnpikes, or in aid thereof, upon a vote of a majority of the resident property taxpayers. . . and without the necesslt '03 further or-amendator '~~g;brat$on.3~~.levy andToks e interest on.the bonds.as it becomes due ,and-tbprovide s'sinking fund for redemption of the bonds. (Emphasisadded.), 1 Our opinion la this provision was intended to eliminate the requirement of a two-thirds majorl.tyvote in county road bond elections.which was reql+red by Subsection (b) of this Section 52. That portion of.Subsection (c) wherein it states it is'to be Considered "Notwithstandingthe provisions of Subsection (b). ~. .y 'wasmade a part of the amendment so as
-6330- Hon. Ted Butler, page 4, (M-1291)
to avoid any conflict which would exist between these two subsectionswith regard to the vote requirement. It was not l&ended as a complete disclaimer of Subsection (b) because the two subsectionsmust.be considered together in order to arrive at a proper constructionof either. "Generally,rules of constructionapplicable to statutes apply in the constructionof contitltu- Mona1 provisions." 12 Tex. Jur. 2d 362, Const. Law Sec. 14. "In order to arrive at a proper constructionof a statute, and determine the exact legislativeintent, all -et9 nnd,parts of acts In pari materia will, therefore, be taken, read, and construed,together, eacrenactment In reference to the other, as though they were parts of one and the same law. Any conflict between their provisions will be harmonized, if possible, and effect will be given to all the provisions of each act if they can'be made to stand together and have concurrent efficacy. The purpose of the in pari mater-larule of construction is to carry out.the full legislative intent, by giving effect to all laws and provisions bearing on the same subject. The rule proceeds on the supposition that several statutes relating to one subject are governed by onesspirit and policy, and are intended to bf!consistent and.h$rmonlousin their several arts and provisions. . . (53 Tex. Jur. 2d 281, 2E4, Statutes, Sec. 186). It is also Important to note that the amendment to Article III, Section 52, as proposed by the legislature (H.J.R., No. 28, 61st Leg; R.S.,,1969,:page~3236) was done so with the knowledge of those procedural requirementscontained In Article 752b as well'ss Article 752f and Article 752?-2 as referred to in your second question. The legislature ln drafting the proposed amendment which was to become sub- section (c) and which would allow counties to issue road bonds upon a majority vote, also provided that it was to be accom- plished "without the necessity of further or amendatory leglslatlon." This was a restatement on the part of the legislature that new legislation was not necessary for the implementationof the amendment nor was it necessary to amend any existing leglslatlon'deallngwith the subject.
-6331- Hon. Ted Butler, page 5, (M-1291)
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Hon. Ted Butler Opinion No. M- 1291 District Attorney Bexar County Courthouse Interpretationof subsection San Antonio, Texas 78204 Re: (c) of Section 52 of 1$M.;i.f,111,Constitution , and related Dear Mr. Butler: questions. In your recent request for'an opinion you have asked the following questionswhich we will answer in the order presented. 1. "Pnrsusnt to the provisions of and for the purposes stated in subsection (c) of Article 3, Section-52,Constitutionof the State of Texas, (adoptedat sn election held.on November 3,.1970),. the CommissionersCourt of Bexar County desires to call a county-wideelection for the issuance of approximatelytwenty million dollars of road bonds, accordingly,is the CommissionersCourt authorized to call such election on its own motion, or must it first have submitted to it vi-meeting the requirementsof Article 752b, as amended?" 2. "Inordering and,.givingnotice of the road bond election mentioned in Question No. 1, which statutes control - Does Article '704apply, or do Articles 752f and 752f-2 apply?" 3. "There being four existing Road Districts in the County having outstandingbonded indebtedness, does Article ?67a absolutely reauire the Commissioners' Court to include in the road bond proposition to be submitted,an additional amount to fully and fairly compensate the existing Rmstricts~ for the amount of each District's outstanding road bonds, or may the Commissioners'Court call and hold the election on the question of the issuance of the new road bonds and if successfullyvoted, issue the bonds without com- pensating the existing Road Districts in the amount of such outstandingbonded indebtedness?"
-6328- Hon. Ted Butler, page 2, (M-1291)
In answering your question concerning the authority of a Commissioner'sCourt, on its own motion, to call a county- wide election for the issuance of road bonds we must first examine the state of the law as It existed Immediatelyprior to November 3, 1.970,':hedate Article III, Section 52 of the Texas Constitutionwas last amended. Article III, Section 52, Subsection (b as It now exists, is a complete re-enact- ment; Its relevan part reads:
property taxpayers voting thereon, . .ln addition to sll other debts, may issue bonds or otherwise lend Its credit In any amount not to exceed one- fourth of the assessed valuation of the real pro- perty of such (county). . .and levy and collect taxes to pay the interest thereon and provide a sinking fund for the redemption thereof, -m as the ;;gis&a;;:;o~eaut~o~z an& Jtiezh,ch:;r as filirposes to wit: -
2' ::: 3 I) The construction,maintenance and operation of macadamlzed, graveled or Reved roads and tu$n- pikes, or in aid thereof. (Emphasisadded.) The legislation implementingand giving effect to this quoted constitutionalprovision was already contained within Chapter 3, Title 22, Vernon's Civil Statutes, as manifested in Article 752a of that Chapter which reads: ,I .Such bonds shall be Issued In the manner'h&elna?ter provided,'and as contemplated and authorized by Sectfon 52 oi Article 3, of the Constitution of this State. . ." As indicated in your first question, the provisions of Article 752b, as amended in 1969, contains certain procedural requirementswhich must be met prior to a county road bond election being called, among which are: "Upon the petition of the resident property taxpaying voters of any county. . .the commissioners
-6329- Hon. Ted Butler, page 3, (M-1291)
court of such county. . .shall order an election to be held. . ." It is important to note the status of the law prior to any Constitutionalamendment for It is a long and well established rule that a constitutionis adopted with reference to exist- ing laws and does not abrogate or change such laws unless they are inconsistentwith the constitutionalprovision or unless specificallyso changed. Co'llinsv. Tracy, 36 Texas 546 (1872); 12 Tex. Jur. 2d 359, Const. Law, Sec. 9. It is also a rule of constitutionalconstruction that a constitu- tional amendment is to be considered from its four corners and in the light of the history out:of which lt.grew, as well as the purpose sougt# to.be accomplished; Houchlns v. Plainos, 130\. Tex. 413,, 110,SW2d 549, 554 (1937). The'provisionsof Article.III, Section 52, Subsection (cl, as added by the 1970 amendment, must then be read in pari materia with the other provisions of Article.111, Section,52 as well as with those legislative enactments dealing with the same subject matter. Article III, Section 52, Subsectlon (c) as amended in 1970 reads as follows: "Notwithstandingthe. rovisions of Subsection 0 b of thi S ti bXshs=d b coun~,~n,~~ou~~'not tomexceed one-four&a%the assessed,:valuationof the real property in the rounty, for the construction,maintenance..and operation of macadamized,graveled, or paved roads and turnpikes, or in aid thereof, upon a vote of a majority of the resident property taxpayers. . . and without the necesslt '03 further or-amendator '~~g;brat$on.3~~.levy andToks e interest on.the bonds.as it becomes due ,and-tbprovide s'sinking fund for redemption of the bonds. (Emphasisadded.), 1 Our opinion la this provision was intended to eliminate the requirement of a two-thirds majorl.tyvote in county road bond elections.which was reql+red by Subsection (b) of this Section 52. That portion of.Subsection (c) wherein it states it is'to be Considered "Notwithstandingthe provisions of Subsection (b). ~. .y 'wasmade a part of the amendment so as
-6330- Hon. Ted Butler, page 4, (M-1291)
to avoid any conflict which would exist between these two subsectionswith regard to the vote requirement. It was not l&ended as a complete disclaimer of Subsection (b) because the two subsectionsmust.be considered together in order to arrive at a proper constructionof either. "Generally,rules of constructionapplicable to statutes apply in the constructionof contitltu- Mona1 provisions." 12 Tex. Jur. 2d 362, Const. Law Sec. 14. "In order to arrive at a proper constructionof a statute, and determine the exact legislativeintent, all -et9 nnd,parts of acts In pari materia will, therefore, be taken, read, and construed,together, eacrenactment In reference to the other, as though they were parts of one and the same law. Any conflict between their provisions will be harmonized, if possible, and effect will be given to all the provisions of each act if they can'be made to stand together and have concurrent efficacy. The purpose of the in pari mater-larule of construction is to carry out.the full legislative intent, by giving effect to all laws and provisions bearing on the same subject. The rule proceeds on the supposition that several statutes relating to one subject are governed by onesspirit and policy, and are intended to bf!consistent and.h$rmonlousin their several arts and provisions. . . (53 Tex. Jur. 2d 281, 2E4, Statutes, Sec. 186). It is also Important to note that the amendment to Article III, Section 52, as proposed by the legislature (H.J.R., No. 28, 61st Leg; R.S.,,1969,:page~3236) was done so with the knowledge of those procedural requirementscontained In Article 752b as well'ss Article 752f and Article 752?-2 as referred to in your second question. The legislature ln drafting the proposed amendment which was to become sub- section (c) and which would allow counties to issue road bonds upon a majority vote, also provided that it was to be accom- plished "without the necessity of further or amendatory leglslatlon." This was a restatement on the part of the legislature that new legislation was not necessary for the implementationof the amendment nor was it necessary to amend any existing leglslatlon'deallngwith the subject.
-6331- Hon. Ted Butler, page 5, (M-1291)
The requirementsof a petition prior to calling a road bond election in counties as required by Article 752b has long been a le lslatlve requirement and It is Important to note that the f1st Legislature, In addition to uroposing the amendment to Section 52 also In the same Regular Session (Acts 1969, 61st Leg. R.S., page 1654, Ch. 518) amended Article 752b so as to increase the petition requirements from "fifty resident property taxpaying voters' to "one per- cent or more of the total votes cast In said county in the lest preceding general election for Governor. . .", being an obvious act on their part to strengthen this requirement. It was.certalnlynot the,intentionof the legislatureto do away with the requirement for a petition and this intent must be weighed in any constitutionalconstruction. Kaufman
In answer to your second question, in ordering any such road bond election and its necessary notice.,the provisions of Article 752f and'752f-2 should be followed, as well as those nrovisions o?~Article 752b dealing with the necessary contents of'any such election order and notice. Article 704 is not applicable.
In your third~.questionyou have asked if it is mandatory that the CommissionersCourt include in the road bond pro- position an additional amount sufficient to compensate,the various road districts in Bexar County in an amount equal in value to the amount of bonds outstanding against their road districts at the time the new county bonds are issued. The matter of compensating road districts In accordance with the provisions of Article 767a is permissive and one which must be inlt.iatedby a petition of the property tax- paying voters of the county.. Article 767a, in its relevant portion readsa "Whenever in any political subdivision or road district in any county bonds have been issued under the authority of any general or special law enacted pursuant to Section 52, of Article 3, of the Constitution,and thereafter bonds are voted by the entire county for the purposes hereinafter authorized, such political subdivisionsor.road
-6332- Hon. Ted Butler, page 6, (M-1291)
districts first issuing bonds fairly compensatedby the equal In value to the amount of district bonds Issued by such districts, and which shall be done in the form and manner hereinafterprescribed: (1) It shall be the duty of the Commissioners' C$U;I-~,um;r;~a~;t;~;5.;~n; p;;ii:;n si;;ed Ez voters o?-i%e'co;n:y, . . .!o zrde: c 0-r-e prov 6 ons of this Act to deter- mine whether or not the bond6 of such county shall be ISSUed for road constructionpurposes a6 auth- orized by SUbdiViSiOnS3 and 4 of this section." (Emphasis added.) S U M M'A R Y SUbSeCtiOn (c) of Article III, Section 52 of the Texas Constitutionmust be read in pari materia with the other provisions of Section 52 of Article III as well as those statutes comprisingChapter 3 Title 22, Vernon's Civil Statutes (Art. 752a- 784bj. The provisions of Article6 752b, 752f and 752f-2 must be looked to for the procedural requlre- ments in the conduct of county road bond elections held pursuant to Article 11x, Section 52, Subsection (c) of the Texas COn6titUtlOn. Article 767a Is a permissive statute the pro- visions of which can be invoked only upon petition.
Prepared by Robert B. Davis Assistant Attorney General APPROVED: OPI,NIONCOMMITTEE
-6333- Hon. Ted Butler, page 7, (M- 1291)
W. E. Allen, Chairman Max Hamilton Robert L. Lemens Marvin F. Sentell James Hackney SAMlTELD. MCDANIEL Staff Legal ASSiStant ALFRED WALKER Executive Assistant NOLA WHITE First ASSiStant
-6334-