Untitled Texas Attorney General Opinion ( 1939 )

. .
"Bler~A7t3roxru`` GENERAL
OF YI-EXAS
Hon. C. J. Wilde
County Auditor; Nueces County
Corpus Christi, Texas
Dear Mr. Wilde: Opinion No. O-440
Re: Legality of spending county.funds
for dredging a channel, located
wLthin the city llmlts of an in-
corporated city, to be used by
fIshermen
This wi,llacknowledge receipt of your letter of
March 6, 1939,~requesting an opinion from this Department,
the pertinent parts of which are quoted as follows:
"At a Commissioners' Court meetlng of this
date, the City Commissioners approached the
County Commissioners for the sum of $l,OOO.OO
to partially pay for the dredging of e channels
et the north~end of town.'
"The dred,glngof e cha'nnelbecame necessary
on the account of the Bay-front Improvement 1-n
the City of Corpus Chrlsti and.said channel is to
be used.by fishermen and shrimpers who heretofore
made their headquarters on a Mu.niclpalPier owned
and operated by the City.
"The matter being placed before the writer
was answered with e statement that in the first
place the item was not 1n the Annual Budget and
in the second place that I did not feel it was
an expenditure that could be made from County
Funds. The reply to this was that if these fish-
ermen are not given this channel with which to
.a bring their boats into the land that they would
have no means of maklng a livelihood, and that
sooner or later they would be public charges and
would undoubtedly asked to be placed on the in-
digent roll.
"Please advise whether or not you believe
this expenditure is justified out of County Funds,
if so, from which fund do you believe the item
should be paid."
l .
Hon. C. J. Wilde, March 22, 1939, page 2 O-440
The County Commissioners' Court is provided for by
ArtLcle 5, Section 18 of the Constitution of Texas, and has
certain powers, express end Implied, given it by that docu-
ment and the Acts of the Legislature. It is A court of
limited jurisdiction and has no authority except such es 1s
expressly or implledly given it. Ex parte Thomas, 2 S.W.
(2d) 270. The Constitutional provision that the Commls-
sioners' Court shall exercise such powers end jurisdiction
over all "county business" as is conferred by the Constltu-
tlon end laws of the State, suggests the questlon whether
or not the expenditure proposed under the facts stated is
"county business" within the meaning of that term as used
in the Constitution, It Is the op,lnionof this Department
that dredging the c.hannelas proposed in this Instance Is
not "county business".
The counties borderingon the coast of the Gulf of
Mexico have special authority granted them in Article 11,
Section 6~ of,~theConstitution, which was enacted into law
by en Act of the Legislature passed at the First Called
Session, 27th Legislature,-'lgOlch. 12 p. 23, and amended
by Acts of the 39th,Leglslature, RegularSessIon, 1925, Ch.
96 p. 270, Article 6830, R. C. S. 1925,,as follows:
"The county commissioners' court,of all
counties, and the municipal authorittes of all
cities, bordering on the coast of the Gulf of
Mexico, shell have the power and are authorized
from time to time~to establish, locate; erect,
construct, extend, protect, strengthen, maintain,
and keep Fn repair end otherwise Improve any sea
wall or breakwater, levees, dikes, floodways and
drainways, and to improve, maintain and beautify
any boulevard erected In connection with such sea
well or breakwater, levees, dikes, floodways and
dralnways, and to Incur indebtedness therefor,
the payment of which may be provlded for either
with or without the issuance of bonds. And said
commissionersI courts end municipal authorities
shall also have power and are hereby authorized
to levy taxes not to exceed in any one year fifty
cents on the one hundred dollars of taxable values
.e of said county or city for the payment of said
indebtedness, provided that when the taxes are levied.
as herein provided for, will not pay off said ln-
debtedness within five years, then the paymentof
said indebtedness shell be provided for.by the is-
suance of bonds es hereinafter provided."
.*
It is conceivable that a channel located wlthin the
city limits of an Incorporated city might be e floodway or
Hon. C. J. Wilde, March 22, 1939, page 3 O-440
drainway within the contemplation of the foregoing article,
but in the Instant case, where the admitted and express pur-
pose of dredging the channel is to provide a place for fish-
ermen and shrimpers to operate, who formerly made their
headquarters on a municipal pier owned and operated by the
City of Corpus Christl, the channel is not such a floodway
or drainwey as contemplated In said article and county
moneys cannot legally be spent for Its dredging.
If the aforesaid-article is not authority for the
expenditure contemplated, the question arises whether or not
tax moneys raised under the provisions of Article 8, sectlon
9 of the Constitutfon can be spent for the purposes set out
In your statement of the facts. The pertinent provisions
of Article 8, section 9 of the Constitution are as follows:
"* * *No county, city or town shall levy more
then twenty-five cents for city or county purposes,
end not exceeding fifteen cents for roads end
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 edoptlon of the amendment September 2th; 1883;
and for the erection of public buildings, streets,
sewers, waterworks and other permanent Improvements,
not to exceed twenty-five cents on the one hundred
dollars valuation, In any one year, and except as
Ls In this Constitution otherwise provided; l * *'I
Although your letter does not state what fund it was
proposed tt& the bill for dredging be paid from, it could
not be paid from any of the three funds provided for Fn the
above article and section of the Constitution.
It Is elementary that money realized from taxes can-
not be spent except for the express or necessarily implied
purpose or purposes for which it was raised. Carroll v.
Willlams, 109 Tex. 155, 202 S.W. 504. Since the dredging
of a channel wlthin the city limits of en incorporated city
for the purposes stated by you does not come within the pur-
poses for which the taxes were levied, the expenditure for
same cannot be,legally made. It would be e grant of public
money in violation of Article 3, Section 51 of the Constltu-
.- tion of Texas.
A letter opinion, dated September 12, 1934, addressed
to 0. C. Fisher, County At.torneyof Tom Green County, covers
a somewhat similar question and the writer of that opinion
reached the same conclusion.
, -
Hon. C. J. Wilde, March 22, 1939, page 4 O-440
In view of the fact that It is the opinion of this
Department that county funds cannot be legally spent for
paying part of the costs of dredging a channel located wlth-
in the city limits of an incorporated city, which channel
la to be built for the use of fishermen and shrlmpers, we
do not deem it necessary to discuss the necessity of having
such an item Included in the annual budget of the county.
Yours very truly
ATTORNEYGENERAL OF TRXAS
By s/James Noel
James Noel
Assistant
JN:BT:wc.
APPROVED:
S/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS