E ATTORNEY              GENERAL
                                Q,F TEXAS

PRICE   DANIEL
ATT’ORNEYGENERAL
                                     Mey 28,   1947

     Hon. S. 86. Pliler                  Opinion MO. V-223
     County Auditor
     Taylor County                       Re:   Authority to create a road
     Abilene, Texas                            district  embracine! a de-
                                               fined portion of a Commis-
                                               sioner’s  Precinct,  and use
                                               Proceeds of. bonds of such
                                               district  to purchase rlght-
                                               or-way.
     Dear Sir:
                We refer     to your Inquiry    of May 6, 1947, rhiah
     is as follows:
                     “Please advise me If a Specie1 Road
              District,    for the purpose of issuing bonds
              to purchase rights-of-way    for Few to Mar-
              ket Roads, may be formed out of a defined
              portion of a Commissioners Precinct by
              either the Commissioners’ Court or the Leg-
              islature .”
               We ere eseumlng that no “defined”   road district
     has been created and carved out of the commissioner’s     pre-
     cinct to which you refer,   and that the commissloner(s   pre-
     cinct has no outstanding bonds issued under the authority
     of the constitutional  provision mentioned below.
                    Section 52 of Article  III of the Texas Constll-
     tution     provides that under legislative   provision, any de-
     fined     district,
              e 0 5 0 “upon a vote of e two-thirds      major-
              ity of the resident property taxpayers vot-
              ing thereon who are qualified    electors   of
              such district  or territory   to be affected
                                                                , ,   .-




      thereby, in addition tc all other Qebta,
      may issue bonds or otherwise lend its ored-
      it in any amount not to exoeed one-fourth
      of the assessed valuation of the real prop-
      erty of such distriot   or territory. 0 Do
      for the f’ollewing ,purposea, to-wit, e .z*


               “(a)   The oenstwation,   maintenance
          and operation of maoadamized, graveled or
          paved reads and t'usgapikss, or in aid there-
          of.”
           The Ida@felature    has the power to create and
define road dietriots     and may delegate that power to com-
miesioners’ co,urts) a8 was done by the enaatment of Arti-
cle 752~ of Vernon’s Civil Statutes,         That law authorizes
aomm1saioners I courts to crdate road districts        “by eater-
iu am order declaring       such road district   established    and
defining the boundaries thereof an Article        7526 prescribes
procedure for elections      to authorize issuance of bonds,
               In the case of Louisiana RyO and Nav. Co, v.
State,      298 S, Wr. 462, the court quoted the constitutional
;gv;;;n        which authorizea the creation of roa.8 districts
             :
                 “The language eunder legislative       prc-
          vision, t found in the section      just quoted,
          committed to the Legfslabufe       all queatfons
          relating to the oreation,     the size, bound-
          aries,   eta*, of defined districts     I The
          Legislature    oould, have oreated districts
          outright,    defined their baundaries, end pro-
          vided for their organization       and operation,
          or it could have authoriaed their creaMon
          by order of the commissfonersD court, wfth-
          out petition     or vote of qualified    eleotors.”
             The language of the Constitution and statutes
concerning the purpose for which road district    bonda may
be issued is broad enough to include the purchase of
right-of-way    wbfoh is not anly in aid of, but is eaten-
tial to the ocnstruotioa    of a road,
          In 8titem ~4~ 8uttsa Ootmtltp(error rsfrrerd)
272 5. W, 506, it is hehd that eemey arUin& f$Wa then
sale ef shah bonds may be w’ed to pp fer righI;-sf-way
ror madr.   The Court 8aBd:
Hon. S. Md. Pillar       i Page~3   (V'223)


     ‘Without the power to acquire and pay for
     gland   neoeaaargfor then construction    of
     roads, the power to construct       such roads
     would amount to nothing, and the object
     of the constitutional   and statutory     pro-
     vlalona be defeated.”
            In the Mae Of~Arenaaa County v. Coleman-Fulton
Pasture Company, 1CS T%xas 223, 191 S. W0’~553, the Supreme
Court said:
     *The term lroada,e in our opinion was not
     uaed~ ln any such narrow sense in this con-
     nection   aa would prevent in the conatruc-
     tion   of necessary   roads the necessary
     bridges for such roads.       The broad scope
     of the constitutional      provlalon when con-
     sidered in the light of Its purpose com-
     pels the view that the term waa used in
     the amendment in such a sense as would
     make possible     completed and continuous
     roada in fulfillment      of the liberal  pol-
     icy to which the provlalon la due.”
             We are of the opinion that a defined road dla-
trlct may be created within a Commlaaionerla Precinct by
legislative    Act or by the Commiaaloners~ Court by an order
entered in its minutes, and that money arlalng from the
sale of bonds issued by such district,     “for the purpose of
the construction,    maintenance and operation of macadamlzed.,
graveled and paved roads and turnpikes,      or in aid thereof”
may be used to purchase right-or-way    for roads in such dla-
trlot.     However, your attention la lnvlted,to   that part oi
Article    752~ which provldea:
     “e 0 .except aa herein speclflcally     per-
     mltted, no fractional    part of a prevloua-
     ly created road district    shall be included
     within the limits of the road district
     areated under the provision    of this Aot
     0 0 .n
           This language imposes a limitation  on the pou-
eraof   t& Commlssloneras Court,  and the limitation  has
been aahutrued to apply to commlsaloneral preclncta   aa well
aa ,road d~atrlc.taO See Opinions Boa. O-7099 and O-11375,
copies of which are enclosed hersurlth.
                                                           .   ---




Honorable S. & Plfler    - Page 4


                        SUMMARY
           A defined road district    may be created
     within a CommlaalonerPa Precinct by legisla-
     tive Act or by an other entered by the Com-
     mlaslonersP ,Court, for the purpose of construa-
     tfon and maintenance and operatfon of macadam-
     lzed, graveled and paved roaaa and turnpikes,
     and in aid thereof.     Const:Art.   III, Sec. 52,
     sub-section   (o);'Art.  752~~ V. C. S., Anderson
     County Road Dfstrfct    No, 8 vs. State, 298 S,. W.
     462, affirmed 7 S. W. Zd,
          Money arfsfng from the,sale   of bonds is-
    sued for the purpose of construction    and maln-
    tenance and operation or macadamfzed, graveled
    and paved roads and turnpikes,    and in aid there-
    of, may be used to pay for right-of-way     for
    such roads,   Stites v. Sutton County (error re-
    fused),  272 S. W, 506; Aransas County vs. Cole-
    man-Fulton Pasture Co,, 191 9. W. 553,
                                    Yours very   txuly,
                               ATTORNEYGENERAL
                                            OF TEXAS


                                    gczfs
                              BY
                                     W.  T. Wlllfama
                                     Assistant


                              APPROVED

                               2iiLkLJ
                              ATTORNEP GENERAL