Untitled Texas Attorney General Opinion ( 1960 )

. . . E YTORNEY GENERAL OF TEXAS FVIIiL WXEASON AlTORNRY ORNERAL June 27, 1960 Mr. Ramle H. Griffin Criminal District Attorney Beaumont, Texas Opinion No. WW-866 Re: Payment of auditing or accounting fees under a Dear Mr. Griffin: tax remission act. You have requested an opinion from this Department on the following question: “May the corpus of the fund set up under Acts 1929, blat Legislature, page 656, chapter 292, as amended by Acts 1941, 47th Legislature, page 1308, chapter 584 and Acts 1945, 49th Legislature, page 615, chapter 353 for the benefit of the City of Port Arthur be reached to pay expenses of an audit required to be made annually by said Act and for which no funds have been allocated?' Section 1 of the above mentioned Act, (which is codified in the historical note found under Article 6830, Vernon's Civil Statutes) provides in part: "Commencing with the fiscal year begin- ning September 1, 1929, and ending August 31, 1961, there be and hereby are donated and granted by the State of Texas to the City of Port Arthur, Texas, situated In Jefferson County, Texas, eight-ninths (8/g) of the net amounts of the state ad valorem taxes collect- ed on all property, both real and personal, in Commissioner's Precinct No. 2 of Jefferson County, Texas, as it existed on January 1, 1945, which shall be ascertained and apportioned as now provided by law; . . .' Section 2 provides that the Collector of Taxes of the County shall make a monthly report to the Comptroller . Mr. Ramle H. Griffin, page 2 (WW-866) showing each and every item of State ad valorem taxes collected by him upon the property in Precinct No. 2. He shall present such report together with the tax re- ccl t stubs to the County Clerk, who shall within ten (lo! day8 compare the report with the stubs, and If the same agrees as regards names, dates and accounts, the Clerk shall certify to Its correctness for which g shall be paid by the Commissioners Court, Twenty-five 7256) cents for each certificate and Twenty-five (25$) cents for each two hundred (200) taxpayers named In said report. Section 4 provides in part: "The municipal authorities of the City of Port Arthur, Texas, shall, on the 1st day of January of each year, cause to be made an itemized statement, under oath and in tripll- cate, showing the amount of money received by the City of Port Arthur, Texas, under this Act, and how, to whom, and for what purpose the same has been expended. One copy of such state- ment after having been audited shall be forward- ed to and filed by the County Clerk of Jefferson County, Texas, as hereinafter provided, and the other to the Comptroller of Public Accounts. The said statement shall be sworn to by the treasurer of said City, and the correctness there- of shall be certified by an auditor appointed by the Commissioners Court of Jefferson County, Texas, who shall, while auditing said statement, have before him all vouchers uoon which expen- ditures have been made from said fund. . 1 .'I (Emphasis added). Section 5 provides in part: "The moneys herein and hereby granted and donated _ - to the _. _ City of^ Port _ ^Arthur, . Texas, are aeclarea to be trust funas sor tne purpose of aiding said City in paying the Interest upon and principal of and providing a sinking fund for an issue or Issues of bonds heretofore or hereafter issued, the proceeds of which bonds have been or are to be used exclusively In con- structing and maintaining seawalls, breakwaters, . - Mr. Ramie H. Griffin, page 3 (WW-866) shore protections and primary drainage systems in order that said'city be protect- ed from calamitous overflows and storm waters; . . . The use and diversion of such moneys for any other-purpose whatsoever is hereby prohibited; . . .I'(Emphasis added). The Legislature declared that the moneys donated by this Tax Remittance Act shall be a trust to be used for a threefold purpose only; i.e., to provide a sink- ing fund for, pay Interest tiponand the principal of certain bonds Issued or to be issued. It expressly states that the use of such moneys or corpus for ane other purpose whatsoever Is prohibited. The payment from these funds for the expense of an audit could certainly not be classified under one of the above named categories. Therefore , your question is answer- ed in the negative. The State, while donating these funds to the City of Port Arthur, provides various "check-points" to ascertain whether or not the trust is being properly administered. It is the duty of certain county offic- ials to see that this "checking" Is accomplished. Section 4 of the above Act requires the Commissioners Court to appoint an auditor to audit an annual state- ment made by the municipal authorities of the City. The Act is silent as to just who should bear the ex- pense of the audit, thus your opinion request. Section 2, however, expressly states that the Commissioners Court shall pay the County Clerk for checking monthly reports made by the Collector of Taxes in regard to this fund. In view of this and the fact that it is the dele- gated duty of the Commissioners Court to appoint or employ the auditor, we are of the opinion it was the intent of the Legislature that the expense of such an audit should be paid by the Commissioners Court of Jefferson County. SUMMARY The corpus of the fund set up under Acts 1929, 41st Leg., p. 656, ch. 292, as - . Mr. Ramie Griffin, page 4 (WW-866) amended by Acts 1941, 47th Leg., p. 1308, ch. 584 and Acts 1945, 49th Leg., p. 615, ch. 353 for the benefit of the City of Port Arthur may not be used to pay the expense of an annual audit required by said Act. It Is an expense that should be paid by the Commissioners Court of Jefferson County. Very truly yours, WILL WILSON Attorney General of Texas James M. Farrls Assistant Attorney General JMF:hb APPROVED: OPINION COMMITTEE J. C. Davis, Chairman Byron Fullerton Charles D. Cabaniss C. Dean Davis Robert A. Rowland REVIEWED FOR THE ATTORNEY GENERAL BY Leonard Passmore