Untitled Texas Attorney General Opinion

A-OBZTWEY CENEWAL August 29, 1962 Honorable Dean Martin Opinion No. W-1428 County Attorney Grayson County Re: Whether Article 1lOgk of Courthouse Vernon's Civil Statutes is Sherman, Texas constitutional, and whether disbursements may be made from the Permanent Improve- ment Fund for the construc- tion of water control and soil conservation structures, Dear Mr. Martin: and related questions. We are in receipt of your letter of August 9, 1962, requesting a re-consideration of our Opinion No. ~~-1382. The holding of that opinion was as follows: "Since Grayson County has not complied with the provisions of Article 7048a of Vernon's Civil Statutes, there are no exist- ing funds that may be expended for the purchase of land or maintenance of water control and soil conservation structures constructed by the U. S. Department of Agriculture Soil Conser- vation Service. "If the County Auditor approves illegal and unauthorized disbursements drawn on exist- ing county funds, he and the sureties on his bond are liable for the amounts illegally ex- pended." In the course of our opinion we stated the following: "Subsequent to the release of the above cited opinions flW-595 and WW-596-7the Legls- lature passed Article 1109kj and'in Section 3 of said statute specifically authorized the dis- bursement of Permanent Improvement Funds for carrying out the purposes of the Act. However, an inspection of that statute leads us to the conclusion that its provisions were to apply when a soil conservation district, water control and improvement district, or drainage district -: . Hon. Dean Martin, page 2 (W-1428) had been created. No such district having been created In Grayson County, it follows that the provisions of Article 1109k do not apply. For the above stated reasons Article 1581e is likewise inapplicable." This statement was premised on the assumption that no soil conservation district, water control and improvement district or drainage district was involved in your contract. Your last letter presents to us additional information stated by you as follows: "The contract in question was entered into between the Upper Elm Red Soil Conservation Dis- trict; the Collin County,Soil Conservation Dis- trict; the Choctaw Watershed Water Improvement District, which is a water control and improvement district, created by'H.B. 156, 56th Leg., (as amended, H.B. 999) approved March 24, 1959; and the Grayson County Commissioners Court. A COPY of this contract is attached hereto for your in- formation. "In view of the statements made in paragraph 1, page 4 of your opinion, it was felt that you did not know these facts." You then ask the following additional questions: "1. Is Article 1109k of the Revised Civil Statutes of the State of Texas Constitutional and valid? "2. If your answer to Question No.,1 is 'yes,' can Grayson County legally expend money under Arti- cle 1109k in fulfillment of its contract with the other parties Involved out of Its Permanent Improve- ment Funds? “3. If your answer to Question No. 2 is Ino' then in what particular have the parties involved failed to comply with Article llOgk?" Section 9 of Article VIII of the Constitution of Texas states as follows: "The State tax on property, exclusive of the tax necessary to pay the public debt, and of . - Hon. Dean Martin, page 3 (W-1428) the taxes provided for the benefit of the public free schools, shall never exceed thirty-five (35) cents on the one hundred dollars valuation; and no county, city or town shall~levv more than twentv-five (25) cents for city"or county exceeding fifteen 715) ce 'Hi ;ii ;~~o~~~e~~'~~ef~~~e~~n~~~~ dol- lars valuation, except for the payment of debts incurred prior to the adoption of the Amendment September 25, 1883; and for the erec- tion of public buildings, streets, sewers, water- works and other permanent improvements, not to exceed twenty-five (25) cents on the one hundred dollars valuation, in-any one year, and except as is,,inthis Constitution otherwise provided; . . . (Emphasis added). Article 1109k of Vernonss Civil Statutes states as fol- lows: "Section 1. All counties, cities, water control and improvement districts, drainage dis- tricts and other political subdivisions in the :rlc.t.s fnr the Agreements shall contain such terms, provisions and details as the governing bodies of the respective political sub- divisions determine to be necessary under all facts and circumstances. "Sec. 2. All counties, cities, water control and imorovements districts, drainage districts and other political subdivisions in the State of Texas may contribute funds to soil conservation districts for construction or maintenance of canals, dams, flood detention structures, drains, levees and other improvements for flood control and drain- = as related to flood control and for making - . Hon. Dean Martin, page 4 (WW-1428) the necessary outlets and maintaining them regardless of whether the title to such properties is vested in the State of Texas, or a soil conservation district, so long as the work to be accomplished is for the mutual bene- fit of the donor and the agency or political subdivision having title to such property on which the improvements are located. tricts, drainage districts and other political subdivisions may expend the appropriate funds of the various cities and political subdivisions for carrying out the purposes of this Act." (Emphasis added). In the case of Carroll v. Williams, 109 Tex. 155, 202 S.W. 504 (1918), the Supreme Court stated at page 506: (1 . . . 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, a3 a sequence, the expenditure, for one purpose therein defined, of tax money raised ostensibly for another such purpose. The Immediate purpose in so prescribing a separate maximum tax rate for each of the classes of purposes there enumerated Is, no doubt, to limit, accordingly, the amount of taxes which may be raised from the people, by taxation, declaredly for those several purpose3 or classes of purposes, respectively. But that Is not all. The ultimate and practical and ob- vious design and purpose and legal effect Is to inhibit excessive expenditures for any such pur- pose or classes of purposes. By necessary impll- cation said provisions of section 9 of article Hon. Dean Martin, page 5 (W-1428) 8 were designed, not merely to limit the tax rate for certain therein designated purposes, b t to require that any and all money raised by taxation for any such purpose shall be ap- plied, faithfully to that particular purpose, as needed therefoG, and not to any other pur- pose or use whatsoever. Those constitutional provisionscontrol; provisions control; not only the raising, but also the application of all such funds; and such is the legal effect of articles 2242 and ;5?';;tupra, when properly constructed and ap- (Emphasis added). From the language of the --- Carroll opinion, it can be seen that no disbursements may be made under any circumstances from the Permanent Improvement Fund except for permanent improve- ments themselves. We do not consider Article 1109k to be an inroad~on Section 9 of Article VIII of the Constitution, provided, of course, that the disbursements made under the authority of this statute go only for the erection of permanent improve- ments. We therefore hold that Article 1109k is constitution- al, and that the CommissionersI Court is authorized to make disbursements for permanent improvements. We respectfully call your attention to the fact that not all expenditures relating to water control or soil conser- vation structures Involve permanent improvements. Opinion No. O-37 (1939) held that expenditures for legal services af-lda;;l- ing fee expenses do not come within the term "erection, consequently were not expenses of "erection" of a permanent improvement. Opinion No. O-629 (1939) held that disbursements could not be made from the Permanent Improvement Fund for the construction and maintenance of drainage ditches. Opinion No. O-5422 (1943) held that funds collected as a permanent improve- ment tax could not be legally expended for the purpose of,buy- ing right-of-way for public roads. Cur Opinion No. kibi-596 (1959) held that disbursements could not be made for the main- tenance of projects constructed by the Soil Conservation %%? vice. These same principles apply to the contract entered in- to by your Commissioners' Court. Accordingly, in the light of our discussion above, Coin- ion No. w-1382 is hereby modified to the extent that amounts may be disbursed from the Permanent Improvement Fund if they are used "for the erection of public buildings, streets, Hon. Dean Martin, page 6 (WW-1428) sewers, waterworks and other permanent improvements." The County Auditor is only liable for amounts disbursed for pur- poses which do not constitute permanent improvements. SUMMARY Article 1109k of Vernon's Civil Stat- utes is constitutional insofar as it au- thorizes disbursements from'the Permanent Improvement Fund for the erection of perma- nent improvements. The Commissionerst Court of Grayson County may, by authority of Article 1109k, make disbursements from the Permanent Improvement Fund for perma- nent improvements in connection with the construction of water control and soil con- servation structures. Yours very truly, WILL WILSON r322q Fred D. Ward Assistant FDW:wb:ms APPROVED: OPINION COMMITTEE 1:'. V. Geppert, Chairman Scranton Jones Dudley McCalla Sam Stone Tom Hunter RFVIEWED FOR THE ATTORNEY GENERAL By: Leonard Passmore