Untitled Texas Attorney General Opinion

Opinion

The Attorney General of Texas December 31. 1984 JIM MAlTOX , :torney General

Honorable Margaret Moore Opinion No. J&295 Travis County Attorney P. 0. Box 1748 Rc: Whether a commissioners Au6tin. ‘Iexae 707t 7 court may create a road district which has two or more noncon- tinuous segments

Dear Ms. Moore:

You have asked c:he following questions concerning road districts:

~24 Alberta Ave.. Suita 160 1. Carl the commissioners court, pursuant to El Paso. 7X. 7S9052793 the diecletion granted by section 4.413 of the “‘Y53534S4 County RowI and Bridge Act, create a road district which ha,s two or more noncontiguous segments 1001 TmlU, suite 700 providing the interests and purposes of the ‘D”.lO”. TX. 77002.3111 noncontigmus segments are the S-F; and lY2255SS6 2.’ If It is clearly stated in the bond election proposition submitted to the voters and WI Broadway. St&lie 312 ,,bbOCk. TX. 7940lL3479 Is c1earl.y for legitimate needs and purposes of Q&%-747-S238 the road district. may bond fund6 be spent on road6 neciled for ingress and egress to the area encomp66eed by the ro6d district? 309 N. Tenth. Suite S dcAtlan. 7x. 76m.te6s 512mS2-4Y7 We conclude tha.t the law doe6 not authorize the creation of road di6trlcts composed of noncontiguous tracts of land. It Is our opinion that proceed6 of Imad lasued by a road dl6trict may be used for dl0 Main Plaza. SuIIe UT3 egress 6nd lngreas road improvement6 outeide the boundaries of the sari Anlonlo. 7X. 7112052797 dletrlct if the commissioners court ha6 determined that such lt1225-llSl improvements will kneflt all taxable property of the district and the bood election proposition submitted to the voter6 clearly specifies An Equal Opportunltyl that the bond proweds will be used for such ro6d improvements. .Ifirmrtiva Action Employs Article III. section 52(b) of the Texas Constitution authorizeF the establishment of road districts. It provides, in pertinent part:

(b) !blder Legislative provision. any county, and poli::Lcal subdivision of a county, any number of adjo:Lning countlea, or any political sub- divlrion of the State, or any defined district now or hereafter. to be described and defined within the State of Texas, and which may or may not Honorable Margaret Moore - Page 2 (Jfi295)

include, town6, vil:lages or municipal corpora- tions. upon a vote of two-third6 majority of the resident property taxpayer6 voting thereon who are qualified elector6 of such dicltrict or territory to be affected thereby, in addition to all other debts, may issue bvnds or otherwise lend Its credit in any amount not to exceed one-fourth of the assessed valuat:lon of the real property of such district or territory, except that the total bonded indebtedness of any city or town shall never exceed the 1:lnit.s imposed by oth6r pro- visions of this Consl:?.tutlon. and levy and collect t6xes to pay the Interest thereon and provide a rinklng fund for the redemption thereof, as the Legislature may autt,crize, and In such manner as It may authorize I:he same, for the following purposes to wit:

. . . .

(3) The construction. maintenance and opera- tion of macadamlted, graveled or paved road6 and turnpikes. or In aid thereof. (gmpha616 added).

Th6 County Road and Brldite Act, ss recently re-enacted by Senate Bill Ro. 24, Sixty-eighth Le:g:Lslature, 2nd Called Session, contains the provisions enacted by the legislature for the establishment of road dietriCe and the issuance of road district bonds. Th6t act, codified a6 article 6702-l. V.T.C.S.. provides the following, in pertinent part:

Section 4.413. ElXABLISHMENT OF ROAD DISTRICTS. (a) The county comclssioners court6 may establish one or more road &strlcts in their respective counties and may c; may not include within the boundarlee and limits of the dl6triCt6, villagee, tOM6. pnd munlcipc~3. corporations or any portion of a village, town, and municipal corporation and may or may not include previously CrePted road district6 and poIll:icaI subdivisions or precincts that have voted anti issued road bonds pursuant to Article III. S~!ctlon 52. of the. Texas Constitution, -bye:leering an -order declaring the road district eri.ablished and defining the boundaries of it.

Section 4.416. I’E:TITLON FOR ELECTIONS. (a) If any political subdlvlsion or any road district desire6 to issue tmsnds, there shell be presented

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to the co~ls6looers court of the county In which th6 6Ubdivl6lon or district ia 6itUatCd, a petf- tlon rlgned by 50 or 6 majority of the qualified voter6 of the 6ubdbrirlon or ro6d di6trict praying the court to order an election to determine whether or not the, bond6 of the 6ubdivislon or di6trlCt 6haII be l66ued t0 an JIIOOUnt 6t6ted for the purpoee of rho constructIon, meintcnance, and operation of mac(ldunlzed, graveled, or p6ved road6 and turnpike6 or Ln aid of the6e pUrpO666 and whethsr taxes 6hrt:lI be levied on alI tar6bIe property within 1,k.e subdivision or district In pqment of th6 boodr.

(b) On presentation of the petition, the court to which it is preeented 6haII fix a time and place at which the petition shall be heard . . . .

Section 4.417. HEARING AND DETRRMINATION. At the time and pla:e 6et for the hearing of the petition or 6 6Ub6eqU6nt date as may then be f lxed , the court ehall proceed to hear the petition and 611. matter6 in reepect of the proposed bond election . . . . If on the hearing of the petltlon the court finds that the petition. 16 signed by 50 or a majority of the qualified voter6 of the subdivl6ion or road di6trict. that due notice ha6 been Riven, and that the proposed lmprovement6 would be for the benefit of 611 taxable property iituated in the 6ubdlvl6ion or road dletrlct. the-court may 166ue and c6u6e to be lnter6d of 'recorri in it6 minute6 an order directing that an election be held within and for the 6ubdivi6io6 oc road district 6t 6 d6te to be fixed In the orde:: for the purpose of d6termining the pue6tlone mentionad In the petitions . . . . The propo6ltlon to be submitted-at the election shall specify the+pocre for which the bond6 are to be 16sued, the amount of the bonde. the rate of intereet. and the f6ct that ad valorem taxes are to be Ievled annually on all taxable property vithln the dirtrlct or subdivi6ion 6ufficlent to pay the annual InWrest and provide a sinking fund to pay the bond6 111:maturity. (Emphasis added).

The creation of a rorltl district and the determination of its boundarie6 are matter6 wil:hin the discretion of the commissioners court. 1g31, nSe;rri::ng.v. Falls County, 42 S.W.Zd 481 (Tex. CIV.W;~~;~;,W;;~ ; Attorney Gcueral Opinion V-440 (1947). con6titution and the statute6 do not expressly specify whether the

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defined boundaries of a road d.istrlct may encompass an area that is territorially noncontiguous.

We believe that the usual concept of a district contemplates an area with a single set of boundaries rather than a collection of geographically isolated tracts. See Jones V. Palcq, 222 A.2d 101. 106 (N.J. Sup. Ct. 1966). The: Wis~sin Supreme Court held that

[ tlhere is much force -in the general and almost Invariable usage. 1x1 this country at least, In the organization of towns and counties, as in pre- cincts, districts, cities. and villages, in forming them of adjilcent and contiguous territory.

C. h N.W. Railway Co. V. Town of Oconto. 6 N.W. 607, 609 (Wia. 1880). Black’s Law Dictionary definerra district as

one of the territorial areas Into which an entire state or country, county, municipality. or other political subdivis:.on is divided for judicial, political, elcctora,l, or administrative purposes.

Black’s Law Dictionary 427 (5th cd. 1979).

“Defined districts.” as that term is used in article III. section 52(b) of the constitution,. “means a defined area in a county, less than the county, other than a political aubdivisfon of such county.” (Emphasis added). Bell Councp v. Binea. 219 S.W. 556 (Tex. Civ. App. - Austin 1920. writ ref’d). ‘tie believe that the court’s definition. which refers to “a defined area” and not to “defined areas,” does not include tracts that are not contiguous to each other. Another court of civil appeals. in Gumfory v. Aaaaford County Commissioners Court, 561 S.W.2d 28. (Tex. Civ. App. - Amarillo 1977. vrit ref’d n.r.e.). held that the phrase “cormn:Laaionera precincts.” as used in the constitutional provision that a county is to be divided iato four commissioners precincts, rned1ns that such precincts must be terrl- torially COntigU0U.S.

The legislature exprc aaly clarified thet certain special districts created pursuant I:CI article XVI, aectioa 59 of the Texas Constitution may be composed of noncontiguous tracts. For instance. section 78.013(a) of the l’exss AgriCUlture Code provides that a Noxious Weed Control District may include a body of land separated from the rest of the dist:::ict. Likewise, sections 51.012(b) and 54.013(b) of the Texas Water m:ode specify that land composing a water control and improvement district created under chapter 51 or a municipal utility district ‘created under chapter 54 need not be contiguous, but may consist of separate bodies of land separated by land vhich is not included III the district. Also. certain special law districts created pursuant t3 article XVI. section 59 by special acts of the legislature are composed of noncontiguous tracts. The

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legislature created Spring HLLl Utility District by chapter 750, acts of the Sixty-first Legialatu:re. as a district consisting of one large tract of land and two smallor tracts located approximately six miles from the main tract. See !ZJlty of Longviev v. Spring RI11 Utility District, 657 S.W.Zd 43OTer:. 1983).

We conclude that if the legislature had also intended that road districts may be composed of separate, noncontiguous tracts it would have expressly so provided 1x1 the County Road and Bridge Act.

In addition to the requirements that the coasnissionera court conduct a hearing of a petition to order a bond election and make a finding that the proposed improvements will benefit all taxable property in the district, the Road and Bridge Act requires that the proposition to be submitted mt the election shall specify the purpose for which the bonds will be issued. It is well settled that the proceeds of a bond issue mar be used only for those roads which the election proceedings specified would be built. See Fletcher v. Howard, 39 S.W.2d 32 (Tex. 1931): Aransaa County v.oleman-Pulton Pasture Co., 191 S.W. 553, 5,54 (Tex. 1917). Use of the proceeds from the sale of road district bonds for an unapproved purpose would constitute a frsud on the electorate. See Crowell v. Cammack. 40 S.W.Zd 259 (Tex. Civ. App. - Amarillo 1931,no writ).

The Road and Bridge Act expressly provider that the proceeds of a bond issue may be- used only for improvements that vi11 benefit all taxable property In the dia;:rict. It cootains no express provisions determining the location of the improvements or whether the areas in which boad proceeds may be expended shall be vithin or without the boundaries of the road district. Since the thrust of the statute is the requirement that the improvements benefit all taxable property in the district. we believe thal: the statute does not prohibit per se all expenditures of bond funds for improvements located outside the district when the improvements are beneficial to all taxable property in the district. -Cf. Attorncry General Opinion JH-158 (1984).

Attorney General Opinion O-3851 (1941) concluded that where a road was to be built oa the dividing lfne between two road districts. the proceeds from road distrzlct bonds of one district could be used to construct only the part of the road located within that road district. The opinion appears to baas! its conclusion on the fact that funds derived from the sale of bonds cannot be diverted from the purpose stated in the proposition submitted to the voters. We agree vith such a conclusion. However, sssnning that the bond election proceedings and proposition submitted to the voters specify that the bond funds will be used for roads needed for ingress and egress to the area encompassed by the road district , we conclude that proceeds from the issuance of bonds may be used for improvements outside the boundaries of the road district if the commissioners court has found that such improvements will benefit all .taxable property in the district.

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;iUMMARY

A commissioners court is not authorized to establish a road district composed of noncon- tiguous tracts of land. If the boad election proposition submittad to the voters clearly specifies that the bond funds will be used for roads needed for iqresa and egress to the area encompassed in the district, bond funds may be used for improvemerts outside the district which benefit all taxable property in the district.

Attorney General of Texas

TOM GREEN First Aaaiatant Attorney General

DAVID R. RICHARDS Lxecutive Assistant Attorney General

HICK GILPIN Chairman, Opinion Committee

Prepared by Nancy Sutton Assistant Attorney General

APPROVED: OPINION COMMITTEE

Rick Gilpin. Chairman Tony Guillory Nancy Sutton

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