. . -
HE
Q,P TEXAS
March 16, 1965
Hon. Jules Damlanl, Jr. Opinion No. C-405
Criminal District Attorney
Galveston County Re: Whether the Commissioner's
Galveston,Texas Court of Galveston County
is authorized to expend Sea-
wall Funds (PermanentIm-
provement Funds) for the
maintenance of the boulevard
constructedon top of the
Seawall in that area where
the wall no longer serves as
a protectivework from the
Dear Mr. Damiani: sea.
Your letter requesting an opinion of this office reads
in part as follows:
"In 1902 Galveston County acquired the
necessary rights of way for the construction
of a seawall commencing at what is commonly
known as the South Jetty extending in a gen-
erally Southerly direction parallel with 6th
Street to a point intersectingwhai.is now
commonly known and referred to as Galveston
Seawall Boulevard, then continuing in a gen-
erally Westerly direction along the Beach to
39th Street being commonly known as the Sea-
wall Boulevard, this area also faces and bor-
ders along the Gulf of Mexico. Since the
original construction,additionalfilling and
additional protectiveworks have taken place
in front of the area lying between the beginning
point to the old Seawall and where 6th Street
intersectsthe Boulevard; and this area is no
longer exposed to wave action of the water,
nor does it afford any protection from wave
action since the filling In front of the area
in question (beginningpoint to 6th Street and
-1916-
Hon. Jules Lamianl, Page 2 (C-405)
Boulevard) is now filled to the same elevation
as the top of the old wall.
"It Is well settled that the Commissioner's
Court has authority to expend funds from the
Permanent ImprovementPund for the maintenance
and beautificationof a boulevard built in con-
nection with a seawall so long as said seawall
affords protection from the sea; however, after
such seawall no longer affords any protection
from the sea, can the county continue to expend
the funds for the improvementor maintenance of
the boulevard which was constructedin connection
with such seawall?. . .'
Article XI, Section 7 of the Texas Constitution,pro-
vides in part:
"All counties and cities bordering on the
coast of the Gulf of Mexico are hereby authorized
upon a vote of two-thirdsmajority of the resident
property taxpayers voting thereon at an election
called for such purpose to levy and collect such
tax for constructionof seawalls, breakwaters,or
sanitary purposes, as may now or may hereafter be
authorizedby law, and may create a debt for such
works and issue bonds in evidence thereof. . . .'I
Article XI, Section 8 of the Texas Constitution,pro-
vides:
'The counties and cities on the Gulf Coast
being subject to calamitous overflows, and a
very large proportion of the general revenue
being derived from those otherwise prosperous
localities,the Legislatureis especially au-
thorized to aid by donation of such portion
of the public domain as may be deemed proper,
and In such mode as may be provided by law,
the constructionof wea walls, or breakwaters,
such aid to be proportionedto the extent and
value of the works constqcted, or to be con-
structed in any locality.
Article XI, Section 7 and Article XI, Section 8, allow
gulf coast communitiesto build seawalls In the Interest of the
DUbliC and clearly establish as their purposes the protection
against floodwaters,Increasing state kohomic wealth, and keeping
ports open for the flow of commerce. White v. City of Port Arthur,
201 S.W.2d 65 (Tex.Civ.App.1947).
-1917-
Hon. Jules Damiani, page 3 (C- 405)
Originally,the Galveston seawall or breakwater was
constructedas authorized by Article XI , Section 7, and Article
XI, Section 8, and Articles 6830 and 6831 of Vernon's Civil
Statutes. However, Galveston County now has Seawall funds within
the ConstitutionalPermanent ImprovementPund. These permanent
improvementfunds are now the funds sought to be used for the
boulevard in question.
Article VIII, Section 9 of the Texas Constitution,
provides In part:
.providedfurther that at the time
the CommissionersCourt meets to levy the an-
nual tax rate for each county it shall levy
whatever tax rate may be needed for the four
(4) constitutionalpurposes; namely, general
fund, permanent improvementfund, Toad and
bridge fund, and jury fund. . . .
Article 683gg, Vernon's Civil Statutes, provides in
part:
'Section 1. The CommissionersCourt of
any county bordering on the coast of the Gulf
of Mexico, except Nueces, Kleberg, Kenedy,
Jefferson, Orange and Willacy Counties, is
hereby authorized to construct breakwaters.
Payment for the same shall be made from th$
ConstitutionalPermanent ImprovementFund.
Money derived from the sale of bonds or levied taxes
allocated to the county's ConstitutionalPermanent Improvement
Fund must be held in trust exclusivelyfor permanent Improvements,
as the CommissionersCourt has no power to levy a tax for one
purpose and use the money for another. Ault v. Hill County, 102
Tex. 335, 116 S.W. 359 (1909); Sanders v. Looney, 225 S W 280,
(Tex.Clv.App.1920); Carroll v. Williams, 109 Tex. 155,'202 S.W.
504 (1918).
The maintenance of the boulevard in question will con-
stitute the constructionof roads rather than permanent lmprove-
ments under the facts submitted. We, therefore, are in accord
with your conclusionthat the CommissionersCourt of Galveston
County is not authorized to expend permanent improvementfunds
of the County on any constructionsuch as the maintenance of a
boulevard erected in connectionwith a seawall which is no longer
an Integral part of the seawall project of Galveston County.
-1418;
Hon. Jules Damlanl, page 4 (C- 405)
SUMMARY
The CommissionersCourt of Galveston County
is not authorized to expend constitutionalper-
manent Improvementfunds upon a boulevard erected
In connectionwith a seawall which Is no longer
an Integral part of the seawall project of Gal-
veston County.
Very truly yours,
WAGGONER CARR
Attorney General
BY:
%a/,,,
Gordon Houser
Assistant
GH:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
James Strock
Harold Kennedy
Gordon Cass
APPROVED FOR THE ATTORNEP GENERAL
BY: Stanton Stone
-1919-