Untitled Texas Attorney General Opinion ( 1963 )


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  •         THE~TTORNEY                 GENERAL
    OFTEXAS
    Mr. Harvey Davis
    Executive Director
    Texas State Soil Conservation Board
    1012 First National Bank Building
    Temple, Texas
    Opinion No. c-26
    Re:   Whether counties may legal-
    ly expend Permanent Improve-
    ment Funds under the pro-
    visions of Article llOgk,
    V.C.S., for the five named
    Dear Mr. Davis:                   purposes.
    You have requested the opinion of this office as
    to whether, under the provisions of Article llOgk, Vernon's
    Civil Statutes, counties may legally expend County Permanent
    Improvement Funds for the following purposes:
    “1. To enter into and carry out contracts
    wlth Soil Conservation Districts for
    the joint acquisition of rights-of-way
    or joint construction or maintenance of
    dams, flood detention structures, canals,
    drains, levees and other permanent lm-
    provements for flood control and draln-
    age as related to flood oontrol, and for
    making the necessary outlets and malntaln-
    lng them,
    "2.   If the answer to Item Number One Is In the
    afflrmatlve, Ia it necessaryfor a Soil
    Conservation Mstrlct to hold joint  title
    to the rights-of-way with the County In-
    volved.
    "3. To contribute funds to Soil Conservation
    Dlstrlcte for construction or maintenance
    of canals, dams, f.lood detention struc-
    tures, drains, leveea and other permanent
    improvements for flood control and draln-
    age as related to flood control and for
    I%. Harvey Davis, page 2 (c-26)
    making the necessary outlets and maln-
    taining them regardless of whether the
    title to Such properties Is vested In
    a county, or a Soil Conservation DIB-
    trlct so 10~4 as the work to be accom-
    pllshed Is for the mutual benefit of
    the County and the agency or political
    BubdfvlBiOn having title to such proper-
    ty on which the improvements are located.
    “4. To enlarge atruaturea~or dame to pro-
    vide conservation storage for munlalpal,
    Industrial, or recreational water sup-
    plies.
    “5* To pay legal and other costs of aontraat
    administration for works of improvement
    as listed above."
    Articles IlOgk, 7048a and 7048b, Vernon's Civil Stat-
    utes, provide the means whereby county governments may
    enter Into contracts with soil conservation dlBtriCtB for
    the accomplishment of various conservation and flood control
    measures. Article 7048a aUthOrizeB the eBtabllBhment of a
    special county fund known as the Flood Control Fund, BUCh
    fund to be supplied with monies from a voter-approved ad
    valorem tax. Artisle llO9k authorizes the use of County
    Permanent Improvement Fund monies In the furtherance of soil
    conservation and flood control projects. The occasion for
    the present opinion request la the apparent confusion that
    has arisen aonaerntng the utilization of Permanent Improve-
    ment Fund monies ln carrying out certain statutorily -
    authorized conservation and flood control measures.
    Attorney General's Opinion No. W-1428 (1962) held
    that Article 1109k, Vernon's Civil Statutes, was aonstltu-
    tional, That holding la concurred In.   The opinion further
    held, however, that the expenditures authorized by Article
    1lOgk must be strictly limited to "permanent Improvements"
    aB BUCh. It held that the County Permanent Improvement Fund
    could not be utilized, notwithstanding the authority grant-
    ed by Article llOgk, for such matters as obtaining rgght-of-
    ways9 payment,of the various legal expenses involved In
    major construction, mafntenanae of structures already erect-
    ed, or contract administration.                           ."<.
    Article 1lOgk was passed by the Legislature as an
    emergency measure in 1959. At that time the Legislature must
    be presumed to have had before It every court decision and
    -BO5-
    .    .
    Mr. Harvey Davis, page 3 (C-26)
    Attorney General's opinion relied 'upon In W-1428,   i.e.,
    Carroll v. Williams, 
    109 Tex. 155
    , 
    202 S.W. 504
       1918),
    tt      Ge    1'     lnlons NOB. O-37 (1939), 0-L29
    (19``~:yO-5~%a(1~43"p and w-596     (1959). The cited
    opinions of the AttorAey General Interpreted the uses
    that could be made of the County Permanent Improvement
    Fund, In the light of the Texas Constitution, and certain
    Bpeclflc statutes. The statutes there under consideration
    differed greatly from that at Issue here. Article 1lOgk
    had not been enacted at the time the cited opinions were
    iSSUed. The Carroll 
    case, supra
    , dealt with the specific
    problem of the transfer of~monles between the various aon-
    BtitUtiOnal funds. The case goes deeply Into the nature of
    the constitutional funds, and has been a landmark In pro-
    viding guidelines for their operation. To quote from
    Carroll, at page 506:
    11
    By necessary implication Said
    provia&    of section 9 of article 8    xas
    Constltutlo~were designed, not mereP y to
    limit the tax rate for,aertaln therein deBlg-
    nated purposes, but to require that any and
    all money raised by taxation for any such
    purpose shall be applied faithfully, to that
    particular ptirpose,as needed therefor, and
    not tf:any other purpose or uae,whatsoever.
    . D .
    It Is this quotation that was relied upon In W-1428  for    ,:
    the proposition that the County Permanent Improvement Fund*
    could be used for no purpose other than the permanent lm-
    provements themselves. In order to support this view, one
    would have to believe that a permanent Improvement could be
    constructed in a vacuum. Before a Shovel of earth can be
    turned for a building, a road or a dam, there are expenses
    of obtaining right-of-ways, legal fees, permits, eta. A
    contract must be let for the construction, and there are
    costs attendant upon the proper admlnlstratlon of that
    contract. Once the building or facility Is constructed,
    there are recurring malntenanae COBtB that must be met, or
    decay will cause the 10~s of all that has been aCCOmpliBh-
    ed. If W-1428   Is correct, and none of these costs can be
    met from the Permanent Improvement Fund, then we are at a
    loss In determining how to meet them.
    We are not aonvlnced that the Carroll case forbids the
    expenditure of money from the Permaneniirovement    Fund for
    the classes of costs dlsauaaed above, for the reason that
    theBe,costs are directly occasioned by the permanent lmprove-
    ment being erected, It Is the view of this office that these
    -106-
    .
    Mr. Harvey Davis, page 4 (c-26)
    coats are In fact a part of the permanent improvement Itself,
    and cannot be effectively eeparated therefrom. If further
    support were needed for this conclusion, It can be found
    In the fact that, with 811 the ~prlor court deCiBiOnB and
    Attorney General opinions before It, the TeXaB Legislature
    enacted Article LlOgk, giving to~the county governments the
    authority to enter Into contracts which bind them to spend
    Permanent Improvement Fund monies Upon conservation and
    flood control projects, Including therein the power to do
    all things neceBB&ry to the ,ereCtfOnof such prOjectB. Where
    the Legislature has determined that such eXpenditUrea are a
    proper use of the Permanent Improvement,.FUnd,strong author-
    ity would be necessary to overturn that determination. Such
    authority Is not present, and the determination must stand.
    With regard to the specific questions asked, the
    answers are as follows:
    1. Counties may legally expend County Permanent Im-
    provement Fund monies for these purposes.
    2.  !Theterms of i&z statute, Article llOgk, require
    the'county and the'Sbil Conseavatlon Dlstrlct to hold joint
    title to rlght-of-ways, If Such right-of-ways are aaqulred as
    part of the contract Involved.
    3.  This question Is phrased In the terms of the stat-
    ute, and the statute has already been held valid.
    4. This queetlon departa from the statute, In that
    there la no authorlty granted In Article 1lOgk for the pur-
    poses envisioned In this question. A county has only those
    vowera OP dutfe$ that are clearly aet forth in the Constitu-
    tion and statutes, and the power& granted to counties are
    BtPiCtly construed. Canales v. Laughlin, 
    147 Tex. 169
    , 
    214 S.W.2d 451
    (1948).  There la no statutory authorization for
    a aounty to legally expend Permanent Improvement Funds to
    enlarge~struatures~or dams to provide aonaervatlon storage
    for munfelpa;l,lndustrlal, or.reareatlonal water supplies.
    The answer to this question must be In'the negative.
    5.  Inasmuch as legal fees and costs of contract ad-
    mlnlBtration for works of improvement are considered to be
    part and parcel of the work itself, thiBe costs are payable
    from County Permanent Improvement FUndB.
    The two previously 1BBUed opinions which have dealt
    general1 wfth the problem here Involved, w-1382    (1962)
    and W-l 628 (1962) are hereby overruled to the extent of
    Mr. Harvey Davis, page 5 (c-26)
    their conflict with the o$lnlona expreased herein.
    SUMMARY
    The expenditure of County Permanent Im-
    provement Funds authorized by Article IlOgk,
    V.C.S., 1s constitutional. Further, there la
    no constitutional prohibition against the pay-
    ment-.ofexpenses Incidental to the constn\atlon
    and maintenance of permanent improvements, such
    payment to be made from the County Permanent
    Improvement Fund pursuant to the authority of
    Article 1lOgk.
    Attorney General'a Opinions NOB. ~-1382
    (1962) and w-1428  (1962) are hereby overruled
    insofar aa they conflict with the oplnlons ex-
    pressed herein.
    YOllPSvery truly,
    WAGGONER CARR
    Attorney General of Texas
    Malcolm L. Quick
    ASsistant
    MI/&ma
    APPROVED:
    OPINION COMMITTEE
    W. V. Geppert, Chairman
    V. F. Taylor
    Arthur Sandlin
    J. C. Davis
    Joseph Trlmble                              ...
    APPROVED FOR THE ATTORNEY GENERAL
    By: Stanton Stone
    

Document Info

Docket Number: C-26

Judges: Waggoner Carr

Filed Date: 7/2/1963

Precedential Status: Precedential

Modified Date: 2/18/2017