Untitled Texas Attorney General Opinion ( 1947 )

.~ ,.
February 17, 1947
Hon. N;~ F. ~Foster ’ ..‘Opinion. No. V-23
oountv Auditor
Smith~county. ‘, ~. Re:. Whether the Commissioners1
Tyler, Texas Court of Smith County may
1,egally expend oo.unty tunas
to build a dwelling for the
.. ~, use and ooaupancy of the
aouaty engineer.
Dear Sir:’
Your letter or. January 20, 1947, in ‘whioh you re-
quested an’opinion of this Department is as follows:
*Smith County: employs a Co&y Engineer and
‘included.ih his m?ny ‘duties~ is the supervision or i
the County Garage and Warehouse, which serviaes
and maintains the Road Machinery and Equipment ror _
the County Road System.
“Please advise ii the Commi.ssioners Court of
Smith County may legally’ expend County Funds. to
’build a dwelling for the use, .and oacupancy of the
County Engineer. This dwelling is to be built on
a. portion of the County property upon which the
County Garage and Warehouse is located, or upon
property to be .purchased adjacent to said property.
“If your opinion shows this to be a legal ex-
penditure, from whioh fund should it be made, the
Permanent Improvement or the Road and Bridge??
On January 28,;.1947, this~ Department received
additional racts ‘relating tog the same matter from the Hon-
orable Arch T. Power, County Judge of Smith County, whioh
‘are as r0n0ws:
"AS you will recall from our conversation in
Austin a rew days ago, I promised to give you a full
statement or racts: concerning the request for an opin-
ion Submitted by’m. F.~ Foster,~ County Auditor of Smith
County, with referenae to the erection of’ a house for
a keeper or a watchman.
Hon. N. F. Foster - Page 2
vsniith County has purchased some three aores or
land and is in the process of erecting a county gar-
age and warehouse ~for general operations, oountywide.
The meohanical work upon all of the equipment of the
County will be done in this garage and all of the sup-
plies will be stored there.: As a matter of fact the
whole Road and Bridge Department of the County will
operate out of these headquarters. There will be
stored on the yard suppl~ies of various kinds and a
large part. of the maohinery and most ‘of .the truaks
.belongi.ng to the County will be stored there~each
night,
“The Commissioners Court had in mind from the
~,.
beginning ‘to ereot. on the premises or immediately ad- .
jacent to them on an, additional plot of ground, a
cottage to be occupied by some employee or the gener-
al headquarters, so that they would be available ror
contact at any time, as well as to watch and proteot
the p.roperties there situated.
%ow,~ owing to the terrific hous’ing situation
we had. decided, t&t we would permit the County R&n-
eer who is. in comp,Je.te ,charge of’ a 11 of these apera-
tions,T.to occupy such oot.tage until he made more
suitable arrangements, and then ,perhaps .the storekeep-
er or fiarehousemanwould occupy~ suah aottage.
such an arrangement pure-
.and conservation .of suoh.~prop-
the fact that, the oca.upant .of
oonstantly on the-..job or.:sub-
jeet to oall, would. ,be in linen with the. operation
of ,such set-up as pontemplated, and certainly should
.be a legal expenditures out of’ the Permanent Improve-
ment”Fund.”
tioe
``vThe.State ~taxou preperty; exclusive of the tax
necessary, tom.pay ~t.h.e.public debt ;, and of the taxes pro-
vided .qor .the. ,benefit; ,g. the. public ,fres schools.,shall
neve’r ‘e’xhe’ed’thirty-rive (35) cents on the one hundred
dollars valuation; and no county, aity or town shall .,
levy more~,,than.twenty.-rips, .(25): cents for .city or
tiounty,~purp’oses;, ,.and-.not. exoeeaing rirteen +15) oents .
for roads, .and.,.h:rid:ges ,‘,‘and not. exoeeaing rirteen. (15)
cents. to;~pay: jyr~rs,,``..on.~ the .one. hundred dollars ,valu-
( ..
? ‘22%
Hon. N. F. Foster - Page 3
ekibn, exoept tar‘ the ‘myment of debts inourrea
, ~prior to the. ~adoption of t~he,+mendment September
25; 1323i. and for the ereotitin or publie build-
in@, streets ,~.sewers, waterworks anb other per-
manent $mprov,ements, not to ,expeea twenty-five
: :(25) cents on’the:one hundred dollars valuation,
,ih any done year, and exoept as, is in this Consti-
tution, otherwise piovided$‘.p.rovided, however,that
.. the Com&isioners. Court in any oounty may re-allo-
o,ats the foregoing oounty taxes by changing the
rates providea for any or the roregoing purposes
by either increasing or deareasing the, same, but-
in no event shall the total of said roregoing
couqty taxes exceed eighty (80) oents..on the one
‘. hundred dollars valuation,, in any one year; .pro-
vided turther, that berore the said”Commlssioners
Court may make suoh~ re-allooations and ohanges in
said oounty taxes that the same shall be submitted
” Tao the qualiriedproperty tax paying voters of s,uah
#u&y at, a general or special election, and shall-
be approved by a majority, of the qualitied property
~’ .tax paying..voters, .voting in suoh’eleation; and,
~provlded rurther; that ‘if and when saoh ‘rerallooa;
tions and changes in the atoresaid county taxes
have been approved by the’ qualified pro@erty’. tax ‘.
paying votersof.any county,’ as herefn provided,
such re-aLlooatisns and ohangee shall remain In
,roroe and sire& tor a period or six (6) years
from the date of the eleotion at vrhioh the same
,’shsll be approved, ~unlees the same again shall: have
been-ahanged by a majority vote ~of the .quallfied
pro dig tax paying voters of suoh oounty, voting
on r her proposition, after eubmlssion by tho ~Comnia-
~loners Uourt at a general or speoial oleotlon for
that pur oso) and the Leglslaturo may also author&o
an. addit Ponal annual ad valorom tax to be levied and
.,oollootod ror the rurther maintonanoe of the pub116
roads; provided,~ that a majority ,of the qualified.
property tax paying voters OS the oounty voting at
an olootfon to be held for that ur 080 shall vote
suoh tax, not to oxoeed ritteen Plb P oenta on the
oue hundred.dollsrs valuation or the property eub-
jeot to .taxetion in such bounty, And the Leglsla-
ture may pass looal laws for the maiatenanoe or the
pub110 roads and highways,, Without the looe~ aotioe
require&for speoial or loos1 laws. This seotion
shall not be ao'nstbwd as a 1imitatlOn of powers del-
’ ogated to oountiea,. oitfeti or ~towna by any other seo-
tioror seotlons 6f this Conatitutioa. ‘(Sea. 9, Art.
Hon. N. F. Foster - Page 4 ,'
VIII, adopted election Nov. 7, 1944.)" :
Our State Constitution, Article 5, Section 18,
provides in part as r0u0w+7: ,:.
"The county~commissioners so chosen; with the
county judge, as presiding offioe.r,.sha'll compose
the County:Commissioners Court,, which shall exer-
cise such powers and.jurisdictiO,n over all county
business, as is conferred~ by this.,Constitution~iina
the lawsof the State; or as may be herearterpre- ~,
scr1bed.v
.Article 2351, V.A.C.S., sets forth the follow-
ini3powers and duties of the County, Commis,sioners~ Co~urt:
"Sec. 7. Provide and keep in. repair court-
houses,,jails and all necessary public buildings.*
Article 2352; V.A,.C.S., refers to the,$ax.ror
verection of public buildirigsv b:y the,Cotqty @$aission-
ers' .Court . .,. .~. v@,
nSa~id'court shall.have the p&i& to levy and
collect a tax for county purposes',.not to-exceed
twenty-rive cents on.the, one hundred d'oilars valua-
tion, and a tax not~to-.excaed,filteen'cents on the
one hundred dollars valuation to supplement the ju-
ry fund or the county;and notto exceed ,fifteen
cents forroads and bridges.o,n the one hundred~dol-
lars valuation; except fol'the payment .of d~ebts,.in-
curred prior to the adoption.of the amendment TV
the.Constitut~ion,~September 25, A.D. 1883, and,ror
the ereotion.oi public buildjngs,‘streets, .sewers,
water works and other permanent improvements, not
~. ,to exceed twenty-five cents.on the one'hundreddol-
lars valuation in any one year; ma, except as.in
lithe Constituti?o'n othsqvise proVid?d. They may levy
an additi&$%"t~ax ~ror road purposes not t.ooexoeed
rirteen oe'%'s'on the one hundred dollar v.aluation
of the property subj'eot to taxation, under the lim-
itations and in the~manner pro?ided for in Article
.8;~ Sec. 9;. or the Constitution Andyin purslianoe of
the laws‘ relating thereto."
$$>~
tice Fly in the .oase df Edwards. County vs.
Jennings orted in 33..Es.W. 5S5,.had~ this to say:
*Counties are politi'oal, or 01011 diVisi0~ 0r
the State,, c.reated Pq:rthe purpose or..bringing gov-
ernment.'home toothe peoplei and supplying the neces-
,
Hon. N. F. Foster - Page 5
sary means for executing the wishes of the'people,
and bringing into exercise the machinery necessary.
to the enrorcement of local government. Counties,
being component parts of the State, have no powers
or duties except those clearly set rorth ati de-
fined in the Constitution and statutes.”
"The statutes have' clearly derined the powers?
prescribed the duties and, imposed the liabilities
of the Commissioners' Court, theemedium through
which the different counties a&, and from those
statutes must come all the authority vested in the
county." 11 Tex. Jur. 563.
The same ruling was held in Moore vs. McLennan
County, et al, 275 S.W. 478; El Paso County vs. Xlam,,l06
S.W. (2) 393, and in many other cases too numerous to cite.
From the constitutional provision and the stat-
utes quoted above, we ~find that the County Commissioners'
Courts have the power to provide and keep in repair all
necessary public buildings. We quote from Tex. Jur., Vol.
34, page 2, as. r0ii0ws:
*Public buildings Is a term ordinarily used to '
designate such structuPes as the capitol on the cap-
itol ground at Austin including the executive mansion, -
the various State asylums, all University buildings
erected by the State, oourthouses, jails and other
buildings held for public use by any department or
branch of government, State, county or municipal."
Construing Se&ion 9 of Article VIII or the Tex-
'as Constitution and Section 7 of Article 2351, supra, in
conjunction with all the other statutes relating to the
powersof the County Commissioners1 Court and in the light
of,the necessity of the Court acting within the sphere of
its powers and duties conferred upon it, it is the opin-
ion of this Department that the term *public buildings"
'means *necessary public buildings* and that %ecessary
public buildings" mean public buildings necessary for the
conduct or county business.
Bearing in mind the foregoing definitions, the
above quoted provision of the Constitution and statutes,
and the foregoing decisions of the Courts of this Sta+.e,
and, furthermore, since there is no statute in this State
expressly authorizing a county to'construct a
in your request, it is t %=F e op nion
tha~tthe Commissioners' Court of Smith
Bon. N. F. Foster- Page 6 .,y
,
County cannot legally build a
tage for the~COunty.EngPneer;
houseman or any other county employee.
,SUhQdARY'
The Commissioners* Court of Smith County
cannot legally.expend any of the Permanent Im-
provement Funds of ~the county for building a
private dwelling or cottage for the' County En-
gineer, the Storekeeper or Warehouseman;or
any other co'unty employee. Article 2351, V;A.
C.S.; Edwards County'vs. Jennings, 33 S.W.;5135;.
11 Tex. Jur. 563; Moore vs. McLennanCounty;et
al, 275 S.W. 478; El Paso County vs,. &am 106
S.W. (2) 393.
Yours'very truly
ATTORNEY
GENEBALOF TEEAS
Bruce Allen.
Assistant ; ,_ .~
:
APPBOVEBFEB. 17, '1947 '
ATTOliWEYGENFBAL .~'
BA:djm:jrb
”
Approved Op~nion.Commlttee
ByBWB,Chairman