Untitled Texas Attorney General Opinion

. . "Bler~A7t3roxru~~ GENERAL OF YI-EXAS Hon. C. J. Wilde County Auditor; Nueces County Corpus Christi, Texas Dear Mr. Wilde: Opinion No. O-440 Re: Legality of spending county.funds for dredging a channel, located wLthin the city llmlts of an in- corporated city, to be used by fIshermen This wi,llacknowledge receipt of your letter of March 6, 1939,~requesting an opinion from this Department, the pertinent parts of which are quoted as follows: "At a Commissioners' Court meetlng of this date, the City Commissioners approached the County Commissioners for the sum of $l,OOO.OO to partially pay for the dredging of e channels et the north~end of town.' "The dred,glngof e cha'nnelbecame necessary on the account of the Bay-front Improvement 1-n the City of Corpus Chrlsti and.said channel is to be used.by fishermen and shrimpers who heretofore made their headquarters on a Mu.niclpalPier owned and operated by the City. "The matter being placed before the writer was answered with e statement that in the first place the item was not 1n the Annual Budget and in the second place that I did not feel it was an expenditure that could be made from County Funds. The reply to this was that if these fish- ermen are not given this channel with which to .a bring their boats into the land that they would have no means of maklng a livelihood, and that sooner or later they would be public charges and would undoubtedly asked to be placed on the in- digent roll. "Please advise whether or not you believe this expenditure is justified out of County Funds, if so, from which fund do you believe the item should be paid." l . Hon. C. J. Wilde, March 22, 1939, page 2 O-440 The County Commissioners' Court is provided for by ArtLcle 5, Section 18 of the Constitution of Texas, and has certain powers, express end Implied, given it by that docu- ment and the Acts of the Legislature. It is A court of limited jurisdiction and has no authority except such es 1s expressly or implledly given it. Ex parte Thomas, 2 S.W. (2d) 270. The Constitutional provision that the Commls- sioners' Court shall exercise such powers end jurisdiction over all "county business" as is conferred by the Constltu- tlon end laws of the State, suggests the questlon whether or not the expenditure proposed under the facts stated is "county business" within the meaning of that term as used in the Constitution, It Is the op,lnionof this Department that dredging the c.hannelas proposed in this Instance Is not "county business". The counties borderingon the coast of the Gulf of Mexico have special authority granted them in Article 11, Section 6~ of,~theConstitution, which was enacted into law by en Act of the Legislature passed at the First Called Session, 27th Legislature,-'lgOlch. 12 p. 23, and amended by Acts of the 39th,Leglslature, RegularSessIon, 1925, Ch. 96 p. 270, Article 6830, R. C. S. 1925,,as follows: "The county commissioners' court,of all counties, and the municipal authorittes of all cities, bordering on the coast of the Gulf of Mexico, shell have the power and are authorized from time to time~to establish, locate; erect, construct, extend, protect, strengthen, maintain, and keep Fn repair end otherwise Improve any sea wall or breakwater, levees, dikes, floodways and drainways, and to improve, maintain and beautify any boulevard erected In connection with such sea well or breakwater, levees, dikes, floodways and dralnways, and to Incur indebtedness therefor, the payment of which may be provlded for either with or without the issuance of bonds. And said commissionersI courts end municipal authorities shall also have power and are hereby authorized to levy taxes not to exceed in any one year fifty cents on the one hundred dollars of taxable values .e of said county or city for the payment of said indebtedness, provided that when the taxes are levied. as herein provided for, will not pay off said ln- debtedness within five years, then the paymentof said indebtedness shell be provided for.by the is- suance of bonds es hereinafter provided." .* It is conceivable that a channel located wlthin the city limits of an Incorporated city might be e floodway or Hon. C. J. Wilde, March 22, 1939, page 3 O-440 drainway within the contemplation of the foregoing article, but in the Instant case, where the admitted and express pur- pose of dredging the channel is to provide a place for fish- ermen and shrimpers to operate, who formerly made their headquarters on a municipal pier owned and operated by the City of Corpus Christl, the channel is not such a floodway or drainwey as contemplated In said article and county moneys cannot legally be spent for Its dredging. If the aforesaid-article is not authority for the expenditure contemplated, the question arises whether or not tax moneys raised under the provisions of Article 8, sectlon 9 of the Constitutfon can be spent for the purposes set out In your statement of the facts. The pertinent provisions of Article 8, section 9 of the Constitution are as follows: "* * *No county, city or town shall levy more then twenty-five cents for city or county purposes, end not exceeding fifteen cents for roads end bridges, and not exceeding fifteen cents to pay jurors, on the one hundred dollars valuation, .ex- cept for the payment of debts Incurred prior to the edoptlon of the amendment September 2th; 1883; and for the erection of public buildings, streets, sewers, waterworks and other permanent Improvements, not to exceed twenty-five cents on the one hundred dollars valuation, In any one year, and except as Ls In this Constitution otherwise provided; l * *'I Although your letter does not state what fund it was proposed tt& the bill for dredging be paid from, it could not be paid from any of the three funds provided for Fn the above article and section of the Constitution. It Is elementary that money realized from taxes can- not be spent except for the express or necessarily implied purpose or purposes for which it was raised. Carroll v. Willlams, 109 Tex. 155, 202 S.W. 504. Since the dredging of a channel wlthin the city limits of en incorporated city for the purposes stated by you does not come within the pur- poses for which the taxes were levied, the expenditure for same cannot be,legally made. It would be e grant of public money in violation of Article 3, Section 51 of the Constltu- .- tion of Texas. A letter opinion, dated September 12, 1934, addressed to 0. C. Fisher, County At.torneyof Tom Green County, covers a somewhat similar question and the writer of that opinion reached the same conclusion. , - Hon. C. J. Wilde, March 22, 1939, page 4 O-440 In view of the fact that It is the opinion of this Department that county funds cannot be legally spent for paying part of the costs of dredging a channel located wlth- in the city limits of an incorporated city, which channel la to be built for the use of fishermen and shrlmpers, we do not deem it necessary to discuss the necessity of having such an item Included in the annual budget of the county. Yours very truly ATTORNEYGENERAL OF TRXAS By s/James Noel James Noel Assistant JN:BT:wc. APPROVED: S/Gerald C. Mann ATTORNEY GENERAL OF TEXAS