Untitled Texas Attorney General Opinion ( 2018 )


Menu:
  •                                              KEN PAXTON
    ATTORNEY GENERAL OF TEXAS
    February 15, 2018
    The Honorable J. Bryan Clayton                           Opinion No. KP-0182
    Concho County Attorney
    Post Office Box 236                                      Re: Whether a county·may transfer funds from
    Paint Rock, Texas 76866                                  the road and bridge account to a general account
    to pay all or a portion of a commissioner's
    salary when the commissioner spends a
    substantial portion of time performing road and
    bridge maintenance (RQ-0175-KP)
    Dear Mr. Clayton:
    You ask whether funds from a county's road and bridge account may be transferred to the
    general account· for payment of all or a portion of a county commissioner's salary "in a county
    where county commissioners spend a substantial portion of their worktime personally performing
    road and bridge rriaintenance." 1 As background, you explain that "Concho County's four
    commissioners are responsible for road maintenance in their precincts," and that "a significant
    portion of the work is performed by the commissioners personally." Request Letter at 1. You tell
    us the county pays the. commissioners' salary from the general revenue fund, and that because the
    county expects decreased revenue in the coming year, "it would be advantageous for the county to
    draw all or a portion of the commissioner's salary from the Road and Bridge Fund." 
    Id. A county
    commissioner's court possesses broad duties related to matters as wide-ranging
    as road maintenance, county finances, land use regulation, public safety, and water utilities, among
    many others. See, e.g., TEX. Loe. Gov'T CODE§§ 111.008 (requiring commissioners court to take
    action on county budget), 291.001 (requiring the commissioners court to maintain public
    buildings), 352.001 (authorizing the commissioners court to furnish fire protection to county
    residents); see also TEX. CONST. art. V, ·§ 18(b) (providing that the county commissioners court
    "shall exercise such powers and jurisdiction over all county business" as conferred by law). Thus,
    a commissioners court's primary responsibilities concern matters other than roads and bridges.
    "Money in the road and bridge fund of a county may be used only for working public roads
    or building bridges, except as otherwise provided by law." TEX. TRANSP. CODE § 256.001.
    Determining whether a county may use money deposited in the road and bridge fund for other
    purposes requires an understanding of the multiple sources of income for a county road and bridge
    fund and the limitations placed on each of those sources.
    'Letter from Honorable J. Bryan Clayton, Concho Cty. Att'y; to Honorable Ken Paxton, Tex. Att'y Gen. at
    I (Aug. 15, 2017), http://www.texasatton1eygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
    The Honorable J. Bryan Clayton - Page 2                   (KP-0182)
    Ad valorem taxes provide a significant source of income for a county road and bridge fund.
    Article VIII, section 9 of the Texas Constitution authorizes a commissioners court to levy an annual
    property tax rate for four separate constitutional purposes, including a county general fund and the
    "road and bridge fund." TEX. CONST. art. VIII, § 9(a). Pursuant to that section, Concho County
    levies an annual property tax for the general fund and a separate tax for the road and bridge fund. 2
    See 
    id. Section 9(
    d) authorizes a county to place all constitutionally dedicated property tax revenue
    into one general fund, without regard to the purpose or source of each tax. 
    Id. § 9(d).
    Courts and
    this office have construed this provision to authorize a commissioners court to transfer property
    tax revenue from one constitutional fund to another. Lewis v. Nacogdoches Cty., 
    461 S.W.2d 514
    ,
    518 (Tex. Civ. App.-Tyler 1970, no writ); Tex. Att'y Gen. Op. Nos. GA-0153 (2004) at 6, H-194
    ( 1974) at 3 (explaining that the constitutional amendment resulting in subsection (d) was intended
    ,                 .
    to "allow unrestricted comingling and transfer of these funds"). Thus, Concho County may
    transfer article VIII, section 9(a) property tax revenue from the county road and bridge fund to the
    general fund, and it may use that money to pay commissioners' salaries. 3
    In addition to levying a property tax, counties credit a portion of the motor vehicle
    registration fees to the county road and bridge fund. See TEX. TRANSP. CODE§ 502.198(b)-(c).
    Chapter 502 of the Transportation Code requires the annual registration of motor vehicles and
    imposes registration fees. See id §§ 502.040(a) (requiring registration), 502.190 (requiring the
    Department of Transportation to establish a schedule of registration fees). The county assessor-
    collector must credit a portion of those fees to the county road and bridge fund on a weekly basis.
    See id § 502.198(b)-(c). The Legislature expressly prohibited a county from using that fee
    revenue to fund a commissioner's salary:
    Money credited to the county road and bridge fund under Section
    502.198 may not be used to pay the compensation of the county
    judge or a county commissioner. The money may be used only for
    the construction and maintenance of lateral roads in the county,
    under the supervision of the county engineer.
    
    Id. § 502.1985(a)
    (emphasis added); see also TEX. CONST. art. VIII, § 7-a (providing for net
    revenues derived from motor vehicle registration fees to be used only for specific road purposes).
    2
    See http://www.co.concho. tx. us/default.aspx?Concho_ County/Tax.Rate.
    3
    Article VIII, subsection 9(c) permits the Legislature to authorize additional property taxes to be levied and
    collected for further maintenance of the public roads. TEX. CONST. art. VIII, § 9(c). Pursuant to this provision, the
    Legislature enacted section 256.052 of the Transportation Code authorizing a county to adopt an additional ad valorem
    tax "for the further maintenance of the county roads." TEX. TRAN SP. CODE § 256.052( a). Regardless of where the
    county places such funds, they rriay be used only for "the further maintenance of the public roads." TEX. CONST. art.
    VIII, § 9(c). A county may also levy an additional property tax under article VIII, section 1-a for the "construction
    and maintenance-of Farm to Market Roads or for Flood Control." 
    Id. art. VIII,
    § 1-a. A county may use revenue from
    this tax only for its constitutionally designated purpose. See Tex. Att'y Gen. Op. Nos. GA-0153 (2004) at 5, H-530
    (1975) at 2. If Concho County levies any of these taxes, it must use revenue therefrom for its constitutionally
    designated purposes.
    The Honorable J. Bryan Clayton - Page 3                  (KP-0182)
    Thus, Concho County may not use funds deposited in the road and bridge fund pursuant to section
    502.198 of the Transportation Code to pay all or a portion of a commissioner's salary. 4
    Alongside the vehicle registration fees applicable statewide, a commissioners court "may
    impose an additional fee, not to exceed $10, for registering a vehicle in the county," and such fees ·
    are "to be credited to the county road and bridge fund." TEX. TRANSP. CODE § 502.40l(a); (f).
    While the section authorizing the collection of the additional fee does not restrict the use of the
    funds collected, article 8, section 7-a of the Texas Constitution provides that any net revenues
    derived from motor vehicle registration fees "shall be used for the sole purpose of acquiring rights-
    of-way, constructing, maintaining, and policing such public roadways." TEX. CONST. art. VIII,
    § 7-a. Thus, a county may not divert these additional vehicle registration fees for other purposes.
    Finally, a county may also receive other income from fuel taxes, grants or donations, or
    fines that it chooses to deposit into the county road and bridge fund. See Tex. Att'y Gen. Op. No.
    GA-0153 (2004) at 5-6 (addressing whether a county may use its road and bridge funds received
    from these sources to pay private counsel retained by the commissioners court). Whether a county
    may use any of these specific monies from the county road and bridge fund to pay a
    commissioner's salary depends upon the constitutional, statutory, or contractual provisions
    governing their disposition. 
    Id. Thus, while
    a county may use funds not dedicated to a particular purpose to pay a
    commissioner's salary, funds dedicated specifically for mad and bridge work must be used only
    for that purpose. Your emphasis on the significant roadwork that Concho County commissioners
    personally perform suggests an argument that a commissioner's salary itself might be considered
    as funds used for public roads and bridge maintenance. Request Letter at 1. The Legislature
    expressly authorized certain commissioners to pay the salaries of their road and bridge work
    employees from the county road and bridge fund, but it did not do so with regard to commissioner
    salaries. TEX. TRANSP. CODE§ 252.006(c) (providing that "an ex officio road commissioner may
    'employ persons for positions in the commissioner's precinct to be paid from the county road and
    bridge fund"). Furthermore, the extent to which a commissioner spends time on road and bridge
    maintenance in contrast to other county responsibilities will vary significantly depending on the
    county and the individual commissioner. With respect to a given commissioner's salary, a county
    :would likely find it difficult to account for the specific amount of the salary allocated directly to
    co:unty road and bridge maintenance versus other county business. We therefore advise against
    transferring funds dedicated to only road and bridge work to the general fund to pay for
    commissioner salaries.
    4
    "The commissioners court of a county that does rtot impose a tax for the construction and maintenance of
    roads and bridges may transfer surplus money derived from the motor vehicle registration fees to any county fund that
    the court designates and may. spend that money for any purpose authorized by Section 7-a, Article VIII, Texas              1
    Constitution." TEX. TRANSP. CODE§ 256.007. However, because Concho County imposes such a tax, this provision
    does not allow Concho County to use motor vehicle registration fees for other purposes. Furthermore, even in counties
    where this provision applies, such funds still may be used only for the purposes authorized by article VIII, section 7-a
    of the Texas Constitution. Tex. Att'y Gen. Op. No. JC-0250 (2000) at 5.
    The Honorable J. Bryan Clayton - Page 4      (KP-0182)
    SUMMARY
    A county road and bridge fund may derive income from
    multiple sources. Whether a county may transfer money from the
    road and bridge fund to the general fund to pay a commissioner's
    salary depends on the constitutional, statutory, or contractual
    provisions governing the disposition of the specific money at issue.
    Concho County may transfer article VIII, section 9(a)
    property tax revenue from the county road and bridge fund to the
    general fund, and it may use that money to pay a commissioner's
    salary. However, it may not use funds deposited in the road and
    bridge fund pursuant to section 502.198 of the Transportation Code
    to pay all or a portion of a commissioner's salary.
    Very truly yours,
    KEN PAXTON
    Attorney General of Texas
    JEFFREY C. MATEER
    First Assistant Attorney General
    BRANTLEY STARR
    Deputy First Assistant Attorney General
    VIRGINIA K. HOELSCHER
    Chair, Opinion Committee
    

Document Info

Docket Number: KP-0182

Judges: Ken Paxton

Filed Date: 7/2/2018

Precedential Status: Precedential

Modified Date: 2/15/2018