Untitled Texas Attorney General Opinion

June 28, 1956 Honorable Marion M. Lewis Opinion No. S-203 County Attorney Goliad County Re: Whether the cost of Goliad, Texas public scales ln- stalled under Article 2372n, V.C.S., may be paid out of the County Permanent Improvement Dear Sir: Fund. You have requested an opinion on the following question: 'Can Goliad County, upon compliance with the necessary requirements, purchase and install public platform tonnage scales, as authorized by Art. 2372n, V.C.S., and pay for them out of the Public Improvement fund of said Goliad County?" Section 9 of Article VIII of the Constitution of Texas provides for a general purpose fund, a road and bridge fund, a jury fund and a permanent improvement fund. commis- sioners Court of Henderson County, et al v. Burke, et al, 262 S.W. 94 (Tex.Civ.App. 1924). The restriction upon the use of these funds Is described in Attorney General's Opln- ion V-808 (1949) where the cases of Ault v. Hill CountY 102 Tex. 335, 116 S.W. 359 and Carroll v. Willi.&s, 109 Tex. 155. 202 S.W. 504 'are correctls stated as authority for the following. . "The moneys accruing from taxes levied and collected for each of the enumerated pur- poses are Constitutional funds. The immediate purpose of the above quoted provision of the Constitution f3ec. 9, Art. ~~27 is to limit the amount of taxes that may be raised for the several purposes. It is also Intended to re- quire that any and all moneys raised by taxes Hon. Marion M. Lewis, page #2. (S-203) for a particular purpose shall be applied to~that purpose and to no other." TEmphasis added.) Thexefore, expenditure of money from the Permanent Improvement Fund of Goliad County for public platform scales, as authorized by Article 2372n, Vernon's Civil Statutes, is authorized if these scales can be properly classified as a permanent improvement. The only Texas case construing the words 'perman- ent improvements" Is Holman, County Judge, et al~v.,Broadway Improveme~ntCo., 300 S.W. 15 (Comm. App. 1927), Where sea- walls were held to be within this term. Thus, the interpre- tation of these words must be found in the decisions of the courts. In the leading case of Teaff v. Hewitt, 1 Oh. St. 511 (1853), Chief Justice Bartley laid down certain rules which were in essence an attempt to define the requisites of a "fixture" which would bring it within the common concepts of an improvement on land. In determining whether a fixture has become a part of the land, Chief Justice Bartley, spoke as follows: "The united application of the follow- ing requisites will be found the safest crite- rion of a fixture: "(1) Actual annexation to the realty or something appurtenant thereto. (2) Am-o- priation to the use or purpose of that part of the realty with which it is connected. (3) The intention of the party making the annexa- tion to make the article a permanent acces- sion to the freehold - this intention being inferred from the nature of the article affixed, the relation and situation of ~the party making the annexation, the structure and mode of an- nexation, and the purpose or use for which the annexation has been made." This rule was followed in Texas by our Supreme Court in Hutchins v. Masterson, 46 Tex. 551 (1.877) and ap- plied as the determinative rule for construing the permanent improvement section of the State Constitution by Attorney General's Opinion V-808. Because we do not have sufficient facts to give a Hon. Marion M. Lewis, page #3. categorical answer and because of the principal element of the rule, the intention of the county, we can only point out the elements which must exist before the purchase of the scales , can be made out of the permanent improvement fund. The following must exist to authorize the purchase: (1) The county must attach the scales to the land or an appurtenance thereto with the.intent and In such way as to affix them in a permanent manner; (2) the scales and the land or appurtenance to which they are attached must have a relative and corresponding use or purpose; (3)~the~county must have the Intention of making the scales a permanent accession to the land or appurtenance. STJMMARY The cost of public scales installed under Article 2372n, V.C.S., may be paid out of the County Permanent Improvement Fund if they are attached to appropriate land or an appurtenance thereto with the intent and in such a manner as to make them a permanent fixture. Yours very truly, APPROVED: JOHN BEN SHEPPERD Attorney General of Texas J. C. Davis, Jr. County Affairs Division W. V. Geppert Assistant Attorney General Reviewer J. Arthur Sandlin Reviewer L. W. Gray Special Reviewer Davis Grant First Assistant John Ben Shepperd Attorney General PS:zt