Untitled Texas Attorney General Opinion ( 1980 )

The Attorney General of Texas
August 4, 1980
MARK WHITE
Attorney General Honorable Bill D. Jackson, CPA Opinion No. MW-217
County Auditor
County of Galveston Re: Whether a claim for dalin-
Galveston, Texas 77550 quent tax attorney commissions
may be paid out of Farm-to-Market
Lateral Tax Fund revenues
Dear Mr. Jackson:
You asked whether a County Auditor may approve a claim for
delinquent tax attorney commissions out of Farm-to-Market Lateral Tax
Fund revenue.
The Farm-to-Market and Lateral Road Fund exists by virtue of article
VIII, section l-a, of the Texas Constitution and article 7048a, V.T.C.S.
Article VIII, section l-a, provides that counties may:
. . . levy ad valorem taxes upon all property within
their respective boundaries... provided the revenue
derived therefrom shall be used for construction and
maintenance of Farm-to-Market Roads or for Flood
Control, except as herein otherwise provided.
(Emphasis added).
Article 7048a provides that:
Sec. 2... [Cl aunties... are hereby authorized to...
collect ad valorem taxes upon all property within
their respective boundaries... provided the revenue
therefrom shall be used... for the construction and
maintenance of Farm-to-Market and Lateral Roads or
for Flood Control and for these two (2) purposes only.
sec. Taxes... shall be credited... to separate
3.
funds known as the Farm-to-Market and Lateral Road
Fund, to be used solely for Farm-to-Market and
Lateral Roads within such county.. . . (Emphases
added1
The question is whether these provisions may be construed so as to
permit delinquent tax revenue earmarked for the Farm-to-Market and
Lateral Road Fund to be used to pay a delinquent tax attorney for his efforts
p. 693
Honorable Bill D. Jackson - Page Two (KW-217)
in collecting that revenue. In our opinion, they may not be su construed. Article VIII,
section l-a, and article ‘7048a clearly provide that revenue from ad valorem taxation
shall be used solely for the construction and maintenance of Farm-to-Market Roads or
for flood control, and we see no basis for reading into these provisions sn exemption
which the legislature apparently did not intend. The law is well-settled that an
unambiguous statute will ordinarily be interpreted literally and that courts may not,
under the auise of statutorv construction, read excentions or exemntions into a
statute, no matter how desirable they may seem. A. M: Servicirg Corp. Of Dallas v.
e, 380 S.W.2d 747 (Tex. Civ. App. - Dallas 1964, no writ). See also 53 Tex. Jur. 2d
Statutes SS119,et seq.
Commissioners’ Court v. Wallace, 15 S.W.2d 535 (Tex. 1929), does not compel a
different conclusion. In that case, the Texas Supreme Court upheld a contract
between a county and an abstract company which called for the company to furnish a
complete abstract on all county property on which ad valorem taxes had not been paid
in exchange for a portion of the delinquent taxes paid as a result of the company’s
efforts. However, despite language in the opinion to the effect that “a part of
uncollected taxes (may) be used in defraying the expense of the collection...,” the case
clearly turned on article 7335, V.T.C.S., which specifically authorized the com-
missioners’ court to “pay for an abstract of property assessed or unknown and
unrendered from the taxes, interest, and penalty to be collected on such lands,” such
payment being contingent upon collection of such taxes, interest, and penalty. 15 S.W.
2d 535, 536-37. Hence, while there was in Wallace specific statutory authority for the
contract and for the method of payment, neither article 7335, V.T.C.S., nor other
statutes authorize a delinquent tax attorney’s commission to be paid out of Farm-to-
Market Lateral Tax Fund revenue.
We also direct your attention to article VIII, section 9 of the Texas Constitution,
which establishes a general fund, a road and bridge fund, a permanent improvement
fund, and a jury fund. A 1967 amendment to section 9 provides that “any county may
put all tax money collected by the county into one general fund, without regard to the
purpose or source of each tax.” However, this amendment has been held to apply only
to these four tax levies and not to section l-a funds. Attorney General Opinion H-530
(1975). Thus, revenue in the Farm-to-Market Lateral Tax Fund could not be
transferred to the general fund and then be used to pay a delinquent tax attorney’s
commission for collecting delinquent Farm-to-Market and Lateral Road Fund revenue.
SUMMARY
A claim for delinquent tax attorney commissions may not be
paid out of Farm-to-Market Lateral Tax Fund revenue.
r MARK WHI’TE
Attorney General of Texas
P. 694
Honorable Bill D. Jackson - Page Three (NW-217)
JOHN W. FAINTER, JR.
First Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
C. Robert Heath, Chairman
Jim Allison
Jon Bible
Walter Davis
Susan Garrison
Rick Gilpin
P. 695