Untitled Texas Attorney General Opinion ( 1939 )

Hon. Fred T. Porter
CtiuntyAttorney
Kaufman County
Kaufman, Texas
Dear Sir: Opinion No. O-413
Re: 'Purchase of right-of-way out ~ofgetier-
al funds - raising money for one pUr-
pose and spending it on another.
Your request for an,opFnion as to whether your Com-
mlssioners' Court can raise money for purchase of right-of-
way without a bond issue has been receive&by this Department.
The answer to your question necessitates our cori-
sideration of the authority, if any, of your Conimlssioners'
Court to purchase right-of-way out of the general funds of
the county, since your road and bridge fund IS already pledged.
In passing on this question we can and will at the same time
consider the authority of the Commlssloners' Court to levy .&,
tax for permanent improvements and~pag for the right-of-way
out of that fund.
Section 9, Article 8of our Constitution reads, In
part, as follows:
....and no county, city or town shall levy
more than twenty-five cents for city or county pur-
poses, and not exceeding fifteen cents for'roads
and 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
adoption of the amendment September 25th, 1983; and
for the erection of public buildings, streets, sew-
ers, water works and other permanent improvements,
not to exceed twenty-five cents on the one hundred
dollars valuation, in any one year, and.except as
Is in this Constitution otherwise provided; and the
Legislature may also authorize an additional annual
ad valorem tax to,be levied and collected for the
further maintenance of the public roads: provided,
that a majorFtg of the qualified property taxpaying
voters of the countg,votlng at an election to be
held for that purpose shall vote such tax, not to
Hon. Fred,T. PoSter,,Marc,h.16,.,1939
.9 page 2 O-413
. .
.: i I,
exceed fifteen c,ents.pn:theone hundred dollars
valuation of the prop$rtg subject to taxation in
such county. .. .....
Thus, the Constitution makes a specific provision
for raising funds for roads and bridges in the county, streets
in the city and fixes a maximum rate of tax that may be levled
for those purposes. It provides also that upon a vote of t.he
people an addltional levy of fifteen cents per hundred dollars
may be made for maintenance of the public roads. We think
this excludes the use of county funds raised under a specific
constftutional levy for any other purpose. We do not believe
that a tax levIed for permanent improvements could.be applied
to the purchase of right-of-wag.
The authority of the Commissioners' Court to trans-
fer funds from one designated fund to another is limited by
the constitutional restriction. The Constitution contemplates
that as'a matter of common honesty and fair dealing, tax
money taken from the people ostensibly for one 'purposeshall
be expended for that purpose alone. The provisions of Section
9, Article 8 were designed not merely to limit the tax rate
for certain designated purposes, but to require any and all
money raised by taxation for any purpose to be applied, faith-
fully, to that purpose as needed therefor and not to any other
purpose or use whatsoever.
The people have fixed the maximum rate of taxation
for designated purposes and have limited the expenditure of
those funds to that purpose. Thus, the whole matter has been
placed beyond the power and authority of the Commissioners'
Court and even of the legislature itself. The court has no
more authority to purchase right-of-way out of the general
funds than it has to levy a tax for one purpose and spend the
money for some other purpose. The law seems well settled
that the Commissioners' Colurtcannot levy a tax for one pur-
pose and use the money for another and it has no power to
transfer monies on hand, raised~under constitutional levies
from one fund to another. For authorities see Carroll v.
Williams, 202 S.W. 504; Ault v. Hill County, 116 S.W. 359;
Sanders v. Looney, 225 S. W. 280.
Your letter recites that all of your road and
bridge fund has been pledged. We do not know if that means
your maximum constitutional levy of 159!for roads and bridges
has been levied and exhausted. If your commissioners have
not levied themaximum rate allowed by the Constitution and
spent all of those fund~s,they may issue non-negotiable war-
rants, payable over a period of years. For authority on this
proposition see Lasater v. Lopes, 217 S.W. 373.
Hon. Fred T. Porter, March 16, 1939, Page 3 O-413
It is the opinion of this department that your
Commisssoners' Court does not have authority to purchase
right-of-way out of the general funds of the county or levy
a public improvement tax, and use the money for that purpose.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Morris Hodges
Assistant
MH:AW:wc
APPROVED:
skGerald C. Mann
ATTORNEY GENERAL OF TEXAS