Case Information
*1 Hon. Ted Butler Opinion No. M- 1291 District Attorney Bexar County Courthouse
Interpretation of subsection San Antonio, Texas 78204 Re: (c) of Section 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 questions which 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, Constitution of the State of Texas, (adopted at sn election held. on November 3,.1970),.
the Commissioners Court of Bexar County desires to call a county-wide election for the issuance of approximately twenty million dollars of road bonds, accordingly, is the Commissioners Court authorized to call such election on its own motion, or must it first have submitted to it vi-meeting the requirements of Article 752b, as amended?"
2. "Inordering and,.giving notice of the road bond election mentioned in Question No. 1, which statutes control - Does Article '704 apply, or do Articles 752f and 752f-2 apply?"
3. "There being four existing Road Districts in the County having outstanding bonded 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~ of each District's outstanding road bonds, or may the for the amount Commissioners' Court call and hold the election on the question of the issuance of the new road bonds and if successfully voted, issue the bonds without com- pensating the existing Road Districts in the amount of such outstanding bonded indebtedness?"
In answering your question concerning the authority of a Commissioner's Court, 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 Immediately prior to November 3, 1.970, ':he date Article III, Section 52 of the Texas Constitution was 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, as the -m ;;gis&a;;:;o~eaut~o~z an& Jtiezh,ch:;r as filirposes to wit: -
2' ::: The construction, maintenance and operation of I) macadamlzed, graveled or Reved roads and tu$n-
pikes, or in aid thereof. (Emphasis added.) The legislation implementing and giving effect to this quoted constitutional provision 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 contains certain procedural requirements which 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 *3 court of such county. . . shall order an election to be held. . ."
It is important to note the status of the law prior to any Constitutional amendment for It is a long and well established rule that a constitution is adopted with reference to exist- ing laws and does not abrogate or change such laws unless they are inconsistent with the constitutional provision or unless specifically so changed. Co'llins v. Tracy, Texas 546 (1872); 12 Tex. Jur. 2d 359, Const. Law, Sec. 9. It is also a rule of constitutional construction 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'provisions of 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:
"Notwithstanding the. rovisions of Subsection 0 b of thi S ti bXshs=d b coun~,~n,~~ou~~'not tom exceed one-four&a%the assessed,:valuation of 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$on.3~~.levy andToks
e interest on.the bonds.as it becomes due
,and-tb provide s'sinking fund for redemption of the bonds. (Emphasis added.), 1
Our opinion la this provision was intended to eliminate the requirement of a two-thirds majorl.ty vote in county road bond elections. which was reql+red by Subsection (b) of this Section 52. That portion of. Subsection (c) wherein it states it is'to be Considered "Notwithstanding the provisions of Subsection (b). ~. .y 'was made a part of the amendment so as
to avoid any conflict which would exist between these two subsections with regard to the vote requirement. It was not l&ended as a complete disclaimer of Subsection (b) because the two subsections must. be considered together in order to arrive at a proper construction of either.
"Generally, rules of construction applicable to statutes apply in the construction of contitltu- Mona1 provisions." 12 Tex. Jur. 2d Const.
Law Sec. 14.
"In order to arrive at a proper construction of a statute, and determine the exact legislative intent, all -et9 nnd,parts of acts In pari materia will, therefore, be taken, read, and construed,together, eacrenactment In reference to the other, as though they were parts of one and the same law. Any conflict between their provisions will be harmonized, if possible, and effect will be given to all the provisions of each act if they can'be made to stand together and have concurrent efficacy.
The purpose of the in pari mater-la rule of construction is to carry out.the full legislative intent, by giving effect to all laws and provisions bearing on the same subject. The rule proceeds on the supposition that several statutes relating to one subject are governed by ones spirit and policy, and are intended to bf! consistent and.h$rmonlous in their several arts and provisions. . . (53 Tex. Jur. 2d 281, 2 4, E 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 requirements contained 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 implementation of the amendment nor was it necessary to amend any existing leglslatlon'deallng with the subject.
The requirements of a petition prior to calling a road bond election in counties as required by Article 752b has long been a le note that the 1st Legislature, In addition to uroposing the lslatlve requirement and It is Important to
f amendment to Section 52 also In the same Regular Session (Acts 1969, 61st Leg. R.S., page 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.certalnly not the,intention of the legislature to do away with the requirement for a petition and this intent must be weighed in any constitutional construction. 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 is not applicable.
In your third~.question you have asked if it is mandatory that the Commissioners Court 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.iated by 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 subdivisions or.road *6 districts first issuing bonds
fairly compensated by the
equal In value to the amount of district bonds Issued by such districts, and which shall be done in the form and manner hereinafter prescribed: (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 construction purposes a6 auth- orized by SUbdiViSiOnS 3 and 4 of this section." (Emphasis added.)
S U M M'A R Y SUbSeCtiOn (c) of Article III, Section 52 of the Texas Constitution must be read in pari materia with the other provisions of Section 52 of Article III as well as those statutes comprising Chapter 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,NION COMMITTEE
Hon. Ted Butler, page (M- 1291)
W. E. Allen, Chairman
Max Hamilton
Robert L. Lemens
Marvin F. Sentell James Hackney
SAMlTEL D. MCDANIEL
Staff Legal ASSiStant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First ASSiStant