Aprll9, 1969
Honorable Roy Pickett Opinion No. M-369
County Attorney
Martin Countv Re: Whether the Commissioners
P. 0. Box lli Court may consolidate cer-
Stanton, Texas 79782 tain constitutional funds
with the Officer's Salary
Dear Mr. Pickett: Fund, and related question.
Your request for an opinion from this office, accom-
panied by an opinion prepared by you on the matter, presents two
questions, the first being whether the Commissioners Court may
consolidate the funds authorized by Article VIII, Section 9 of
the Texas Constitution.
Prior to 1967, the law was well established thatthe
general fund, permanent improvement fund, jury fund and road
and bridge fund, being the four funds about which you inquire
and with which Article VIII, Section 9 of the Constitution is
concerned. could not be comminRled or used for DurDoses other
than that-for which each was raised. To this e?fect, see Carrol
v. .Williams, 155 202 S.W, 564 (1918) md Attorney
Eeneral's Opin:~&'~~: 0-661 (1939), No. O-869 (1939), No. O-931
No. O-4763 (1942), No. O-5422 (1943j and No, O-6948
In 1967, Section 9 of Article VIII, Texas Constitution,
was amended by the addition of a sentence reading: "Any county
may put all tax money collected by the county into one gene$al
fund, without regard to the purpose or source of each tax.
That such amendment overruled the prior law as to corn;Fi;;;g
the funds prescribed by Section 9 Is without doubt.
discussion of this amendment. appears in Attorney General's
Opinion No. M-207 (1968).
Therefore, the answer to your first question is that
Section 9, Article VIII, Texas Constitution, as amended In 1967,
clearly authorizes consolidation of the four funds about which
you have inquired.
Hon. ROY Plckett, dage 2 (M-369)
Your second question is predicated upon an assumption
that the Commissioners Court makes an election to consolidate
the aforementioned constitutional funds Into the general fund.
After so electing, you ask, may the Commissioners Court eliminate
the Officers’ Salary Fund, by consolidating It with the resultant
general fund of the county?
In 1935, Section 61 of Article XVI, Texas Constitution,
was adopted, providing for the compensation of county officers
on a salary basis. The Implementing legislation passed by the
Legislature, which became effective January 1, 1936, is Article
3912e, Vernon’s Civil Statutes, and provides, in part:
II
. . .
“Sec. 3. the assessor and collector of
taxes shall coit&e’to collect and retain for the
benefit of the Officers’ Salary Fund or funds
hereinafter provided for all fees and commissions
which he Is authorized vnler law to collect; and
It shall be his duty to ackount for and to pay
all such moneys received by him into the fund
created and provided for under the provisions of
this Act; . , .
“Sec. 4. In all counties of this State con-.
talnlng a population of less than one hundred and
ninety thousand (190,000) Inhabitants according to
the last preceding Federal Census wherein ,the county
or precinct officers are compensated on a salary
basis under the provisions of this Act, there shall
be created a fund to be known as the ‘Officers’
and shall be protected to the same extent~as other
c,ounty funds.
‘“sec. 5. It shall be the duty of all officers
to charge.and collect in the manner authorized by
law all fees and commissions which are permitted
by law to be assessed and collected for all official
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Hon. Roy Plckett, page 3 (M-369)
service performed by them. As and when such fees
are collected they shall be deposited in the Of-
ficers' Salary Fund, or funds provided In this Act.
. . .
"Sec. 6. (a) In counties wherein the county
officials are on a salary basis, in addition to the
monies deposited In said Officers' Salary Fund or
funds under the provisions of Sections 1; 3 and 5
of this Act there shall be deposited therein quarter-
ly on the first day of January, April, July and
October of each year, such sums as may be apportioned
to such county under the provisions of this Act, out
of the available appropriations made by the Legls-
lature for such purposes, . . . It shall be the
duty of the Comptroller of Public Accounts to an;
nually apportion to all counties in which the
county officers are to be compensated on the
basis of a salary any monies, appropriated for
said year for such apportionment; . . .
"(b) No officer receiving a salary shall
hereafter receive any ex officio compensation;
provided, however, the Commissioners' Court shall
transfer from the General Fund of the county to
the Officers' Salary Fund or funds of such county
such funds as may be necessary to pay the salaries
and other claims chargeable against the same when
the monies deposited therein are Insufficient to
meet the claims payable therefrom.
"(c) Any monies remaining In the Officers'
Salary Fund or funds of any county at the end of
any fiscal year after all salaries and authorized
expenses Incurred against said fund for said year
shall have been paid may be, by order of the Com-
missioners' Court, transferred to the credit of
the General Fund of the county." (Emphasls added.)
Quoting from Attorney General's Opinion No. C-772
(1966):
"Section 18 of Article V of the Constitution
of Texas authorizes the commissioners court of a
county to 'exercise such powers and jurisdiction
over all county business, as Is conferred by this
Constitution and the laws of the State I . -'
-.1821-
Hon. Roy Pickett, page 4 (M-369)
Our courts have held that this provision does not
confer on commissioners courts general authority
over county business, but, on the contrary, limits
their authoritv to that conferred, exoressly or by
necessary implication, by the statutes or cbnstl--
tution. Mills County v. Lampasas County, 90 Tex.
603, 40 S.W. 403 (1897); Childress County v. State,
127 Tex. 343, 92 S.W.2d loll (193b ; Canales v. .
Laughlin, 147 Tex.169, 214 S.W.2d 51m)
Anderson v. Wood, 137 Tex. 201, 152 S.W.2d 1084
11941) . '.
Ncwhere In Article 3912e, Vernon's Civil Statutes,
does any authority appear which would allow the Officers' Salary
Fund to be consolidated with the general fund authorized by Sec-
tlon 9 of Article VIII of the Texas Const;tution. Indeed, it
Is stated in Section 4 of Article 3912e, "Such fund shall be kept
separate and apart from all other county funds, and shall be
held and disbursed for the purpose of paying the salaries of
officers and the salaries of deputies, assistants and clerks
of officers who are drawing a salary from said fund under the
provisions of this Act, and to pa the authorized expenses of
their off1ces.I' (Emphasis added. 4 The use of ."shall" In the
foregoing makes the provision mandatory, and directs for what
purposes the fund Is to be used. The necessary result of such
mandatory provision is that the fund may not be used for pur-
poses other than those directed.
Moneys may be transferred to the Officers' Sa,lary
Fund from the general fund, when the Officers' Salary Fund is
depleted, so that the salaries payable therefrom can no longer
be paid. Section 6(b) of Article 3912e, V.C.S. For discussion
of this practice, see Attorney General's Opinions No. O-1431
(1939), No. O-1494 (1939) and No. O-4844 (1942). Moneys may
also be transferred under Section 6(c) of Article 3p12e, where-
in It is provided that, in the event a surplus in the Officers'
Salary Fund exists at the end of the year, the Commissioners
Court may transfer such surplus to the general fund.
In light of the express prohibition a ainst commingling
the Officers' Salary Fund with any other funds 7 Section 4, Article
3912e) as well as the two well defined circumstances under which
there may be an interplay between the Officers'~ Salary Fund and
the general fund, as set out in Section 6(bj and 6(c) of Article
3912e, It seems evident that the two funds can not be consolidated.
Further, the 1967 amendment of Section 9 of Article
VIII, Texas Constitution, allows consolidation of the general
-1822 -
Hon. Roy Pickett, page 5 (M-369)
fund, permanent Improvement fund, jury fund and road and bridge
fund, but In no way Indicates an intention that such provision
shall apply to any funds other than those composed solely of
revenues from county taxes. As the Officers' Salary Fund in-
cludes funds derived from sources other than county taxation
(see Sections 1, 3, 5 and 6, Article 3912e), It necessarily
follows that the Officers ' Salary Fund may not be consolidated
with the general fund of the county.
For the reasons stated above, it Is the opinion of
this office that the Commissioners Court of a county may con-
solidate the general fund, permanent Improvement fund, road and
bridge fund and jury fund Into the general fund of the county,
as provided for by the 1967 amendment of Section 9 of Article
VIII, Texas Constitution. However, where such an election has
been made, and such consolidation achieved, the Commissioners
Court may not consolidate the Officers' Salary Fund with the
resultant general fund.
SUMMARY
The Commissioners Court of a county may con-
solidate the general fund, permanent Improvement
fund, road and bridge fund and jury fund Into a
county general fund, as provided'for by the 1967.
amendment of Section 9 of Article VIII, Texas
Constitution. However, where such an election
has been made, and such consolidation achieved,
the Commissioners Court may not consolidate the
Officers' Salary Fund with the resultant general
fund of the county.
Prepared by Bill Corbusier
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
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Hon. Roy Plckett, page 6 (M-369)
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
David Longorla
Ralph Rash
W. 0. Shultz
Jay Floyd
W. V. GEPPERT
Staff Legal Assistant
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