Honorable Frank Coffey Cpinion No. M-207
Criminal District Attorney
Tarrant County Re: Whether a County Commis-
Port Worth, Texas sioners Court, having levied
taxes for each fund at a
separate rate, may consolidate
its jury fund, permanent im-
provement fund and general
fund while maintaining separate
and apart its road and bridge
Dear Mr. Coffey: fund.
By recent letter, accompanied by brief, you have
requested an opinion from this office regarding the above
stated question. We quote from your letter as follows:
"The County Connnissioners of Tarrant
County have consolidated the general fund,
the jury fund, and the building or permanent
improvement fund into a single fund pursuant
to Article VIII, Section 9 of the Constitution
as amended, but have failed to include the
road and building fund in that consolidation.
From this action has arisen the question of
the constitutionality of combining less than
all funds into a single fund as construed as
mandatory by Article VIII, Section 9."
\ Section 9 of Article VIII, Texas Constitution, as
amended by the people of Texas on November 11, 1967, is quoted
in part as follows:
”
. and no county, city or town shall
. .
levy a tax rate in excess of Eighty Cents (8Oc)
on the One Hundred Dollars ($100) valuation in
any one (1) year for general fund, permanent
improvement fund, road and bridge fund and jury
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Hon. Frank Coffey, page 2 (~-207)
fund purposes: provided further that at the time
the ConvnissionersCourt meets to levy the annual
tax rate for each county it shall levy whatever
tax rate may be needed for the four (4) consti-
tutional purposes: namely, general fund, permanent
improvement fund, road and bridge fund and Jury
fund so long as the Court does not impair any (;
outstanding bonds or other obligations and so
long as the total of the foregoing tax levies
does not exceed Eighty Cents (8OC) on the Gne
Hundred Dollars ($100) valuation in any one (1)
year. Gnee the Court has levied the annual tax
rate, the same shall remain in force and effect
'during that taxable year; . . . Any county may
put all tax money collected by the county into
one general fund, without regard to the purpose
or source of each tax. . . ,*
~Section 9 of Article VIII, Texas Constitution, was
previously amended in 1956, at which time substantial changes
were made by the people of Texas. Among other things, the
1956 amendment remwed the specific tax limitation on the fundr
in question here. The 1967 amendment to Section 9 made only
one change by adding the following quoted language: "Any
county may put all tax money collected by the county into one -'~-
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general fund, without regard to the purpose or source of each
tax."
The leading case on Section 9 of Article.VIII of
the Texas Constitution, is Carroll v. Williams, 109 Tex. 155,
202 S.W. 504 (1918),in which the Court held that the specific
tax limitations in Section 9 on the various funds controlled
not only the raising but also the application of all such funds
and so prevents the expenditure of money raised for one purpose
being used for another purpose. The Court stated at page 506:
"Going to the real gist of the main issue
before us, section 9 of article 8 of our state
Constitution, supra, inhibits any and all
transfers of tax money from one to another of
the several classes of funds therein authorized,
and, as a sequence, the expenditure, for one
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Hon. Frank Coffey, page 3 (~-207)
purpose therein defined, of tax money raised
ostensibly for another such purpose. The im-
mediate DurDose in so Drescribins a sewrate
maximum tax rate for each of the classes of
purDoses there enumerated is. no doubt. to
limit accordinqlv, the amount of taxes which
may be raised from the woDle bv taxation;
decidedly for those several purposes or classes
of purposes, respectively. But that is not all,
The ultimate and oractical and obvious desian
and DurDose and lesal effect is to inhibit
excessive exDenditures for anv such DurDose or
class of DurDoses. Bv necessarv imDlication
said Drovisions of section 9 of article 8 were
desisned. not merelv to limit the tax rate for
certain therein desiqnated Durooses. but to
require that anv and all monev raised bv
taxation for anv such DurDose shall be aDDlied.
faithfully to that particular DurDose, as needed
therefor. and not to anv other DurDose or use
whatsoever. Those constitutional provisions
control, not only the raising, but also the
application of all such funds: and such is
the legal effect of articles 2242 and 7357,
supra, when properly construed and applied.
"True, the Constitution does not say,
in so many words, that money raised by a county,
city, or town, by taxation for one such pur-
pose shall never be expended for any other
purpose--not even for another of the five
general classes of purposes defined and ap-
proved in said section g--but that, we think,
is its plain and certain meaning and legal
effect. The very definitions of those several
classes of purposes, and the declaration of
authority to tax the people therefor, respective-
ly, coupled as they are, in each instance, with
a limitation of the tax rate for that class, must
have been predicated upon the expectation and in-
tent that, as a matter of common honesty and fair
dealing, tax money taken from the people ostensibly
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Hon. Frank Coffey, page 4 (M-207)
for one such specified purpose shall be expended, as
needed, for that purpose alone, as well as that the
tax rate for that particular class, in any one year.
shall not exceed the prescribed maximbm.
*Conversely, and upon a like course of rea-
soning, it must have been intended that expendi-
tures for any such designated purpose shall never
include tax money in excess of the proceeds of the
maximum tax rate prescribed by the Constitution
for that purpose.
*Unless our above-stated conclusions are sound,
7ter w n
tional limitations upon the said five separate
designated tax rates specific: the limitatic)n upon
the taxing power might as well have been couched
ional provisions were designed to limit the
application or expenditure of each such tax fund
for the specific purpose or purposes for which,
declaredly, it is raised, as well as to limit
the tax rate therefor, the same result in the
way of protecting the people against exorbitant
taxes could have been attained more simply and
more conveniently by making, in~said section 9
of article 8, one general limitation upon the
taxing power with reference to all five such
classes of purposes, collectively, thereby
leaving the governing body free to apply any
and all such funds according to its own judg-
ment, provided only that no portion thereof
shall be applied to any extraneous purpose,
not included by the terms of that section."
(Emphasis added.)
The Court, in construing Section 9 of Article VIII
of the Texas Constitution, emphasizes the specific taxing limi,
tion on the funds in question and construes such limitation as
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Hon. Frank Coffey, page 5 (R-207)
‘i
having a double purpose. First the specific limitations limit
the amount of tax to be raised for each fund, and secondly such
limitations require that money raised for such a fund be applied
for that use and no other.
The 1956 and the 1967 amendments to Section 9 re-
move the specific taxing limitations upon the various funds, but
retain the overall taxing limitation (8Oc on $100 valuation) upon
the four funds; that is, the general fund, permanent improvement
fund, road and bridge fund, and jury fund. The Court discusses
this possibility (see quoted language underlined above, page 4)
by concluding that an overall taxing limitation or an aggregate
maximum tax rate applicable to all the funds would permit the
governing bodie.s (counties, etc.) to apply the funds according
to its own judgment as long as it used such funds for the speci-
fied purposes.
Clearly, the 1956 amendment and the 1967 amendment
to Section 9 have now placed one general limitation upon the
taxing power with reference to the funds in question. The 1967
amendment to Section 9 bestowing power upon any county to put
all its tax money into one fund does not require that this be
done, but instead confers the power subject to the good judgment
of the Commissioners Court, so long as it does not impair out-
standing bonds or obligations. Limited exercise of conferred
power, as under the facts here, is well recognized by our
Courts. cf. State v. Citv of Austin, 160 Tex. 348, 331 S.W.2d
737, 743 (1960).
The language authorizing any county to put all its
,tax money from the four funds above mentioned into one general
fund is discretionary since the word "may" conditions the au-
thority. "The word 'may' ordinarily connotes discretion or
permission." Ross v. Tide Water Oil Co., 136 Tex. 66, 145 S.W.Zd
1089 (1941); Mitchell v. Hancock, 196 S.W. 694 (Tex.Civ.App. 1917,
no writ): City of River Oaks v. Lake Worth Villaqe, 231 S.W.Zd
768 (Tex.Civ.App. 1950, error ref. n.r.e.). Such language being
discretionary, it seems clear that a county may use one general
fund for its taxes, subject to its outstanding debts, or a county
may use the four funds in question according to its own judgment,
as discussed in Carroll v. Williams, supra. Therefore, it is
our opinion that your County Commissioners may consolidate the
general revenue fund, jury fund, and permanent improvement fund
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Hon. Frank Coffey, page 6 w-207)
into one general fund and keep the road and bridge fund separate
therefrom, without violating the provisions of Section 9 of
Article VIII of the Texas Constitution.
SUMMARY
Section 9 of Article VIII of Vernon's Texas
Constitution, as amended, will permit a county
commissioners court, having levied taxes for
each of the four funds in question at a separate
rate, to consolidate its general fund, permanent
improvement fund and jury fund into one general
fund, while maintaining separate and apart its
road and bridge fund.
s very truly,
z-w-
C. MARTIN
General of Texas
Prepared by James Clayton McCoy
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
W. 0. Shultz
Bill Allen
Harold Kennedy
A. J. CARUBBI, JR.
Executive Assistant
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