Untitled Texas Attorney General Opinion ( 1951 )

Hon. Waste L. Rartmn ODlnlon No. v-u00 AC-9
Count Attorney
&Do;;? comlnf;y Rer Whether aounty mrj i&sue
# bonds or time warrants ?a’
the purpose of ptwcharing
fire fighting equipment to
furnish grotectlon to cltl-
zens residing outside limits
of incorporatedcities and
Dear Slrr towns.
In,your letter o? May 14th you request the opinion
oi this oiiioe on the question of whether a aounty my is-
me bond6 m time warrants TOP the purpose of purchm?~ing
fire fighting equlpacnt to furnish IPotection to CltlGen?
nridl outside limits of Incorporatedcities and tofins.
As poln
“&ed out infyour letter, the only statute that an-
thorimr countles’under350,000 populationto furnish fire
protaotlon?or such purposes and purchase equimnt therefor
Is Artiole 235la-1, V.C.S. This statute authorizes the pur-
ehem of such equilxnent, however, only after an election far
4bnt pubpose is held, which election carries by a msjmity
*sk. In this comect$~, APtlele 235&x, which,appllesto
aountfes o? ffes,isted populationbra&eta, has bee held w
thle office in A&”
tomey Qeneml Opinion Ms. O-3417 %19&)
to be twvx?nst!-tutema1an the @OrnflB that it lo bi1oeal or
lpeaial law rattemptil,ng
to regulate the s??airs of asunties.
Art. III, Se@. 36, Tex. Con&. The valadit$ o? &t%ele
warnmetrai.neBby Attmney Gexm~a.2.0pinRot-i
No. O-4300
8nd the opkxdm fu.&+he~held that papnt for fire
fightlB@ eqnQ!msnt should be eP'Pgeat8uQcmr&ygenor81
Pm&.
As you mentla In your letter, th Ias-• of
baa&~ m tfr* warrants for the purobue of raoh eq6Ius.mt
is not expressly authorited In Artlele 235%8-l, Article
%33la-4 does eSpmssly provide for tb is8Uum eoftln
‘(1y*u3~ts
and bonds far the purchase of fire fighting equip
asnt 4e po4eet aornty-ownedproperty lee&ted within 4hs
ogzty bu4 without the limits of any lneaporated uit Ed
In vlaw of theme huts, it 18 yomr opinia tb t there
was io legldative inknt that time warmts or bonds could
Eon. myne L. Hartman, page 2 (V-1200)
be limed ander the parisions o? kticle 2351r-1. We
qree tith your oonalusion.
It ie mnlfeet tbt bonds amy not be lrrued for
8u#h pmpse, for there is iioeixpese authority there-
for msnted in Artlolc 235la-1. The Surname Court‘of
Text&iIn the oam of ii0 tb~. 179;
217 S.Y. 373, 376 (1
6 oollptoh6rged
burinerr rf-
fslrs of a oo\mty Is without the power to ire
me negotiable securities,degiving the aomtr
of true defense8 against the imiginal oredit-.
has been from an early time." (Empbasia&dad
tbmqhout.)
In the ease a? Ke
--tff&s&n::
Cor.~App. 19281, the aour :i,v;;
zEe6%~?=*
l8tabli8heddoctrine mnounoed In the
tht the power to Issue bonds is one wff!%% ::;id",,"
saopa of power of the governing body of a olty or oounty
rmlerr It.i8 epealall~granted.
Aa the statute does not expeosly authorize the
IrLlpMae of bonds, no suoh power exists. As to the i8-
mmnoe of time warrants, a more diffl'cultqtmmtiem l.8m-
Brkntsd
.
On September 28, 1935, this offiae rendered w&t
i8 IoMnm a6 the "SomervellCounty Opinion." It was a
letter opinion sddre8sed to Han, W. P. Dume, Dallas,
%bX&S. This opinion was given wide circulationamong the
mrlous counties of the State. Among other things, it
held th8t tlr warrants oould not be Issued against the
gem-1 fund of a county. The opinion held that the ollp-
rent operating expenses of a county must be paid out of
th+ general fund, and that present oument op8ratlng ex-
lllpln8 8hould be paid out of ourrent funUs. It WEB held
that ftfti\Fe
tax levies for the general fund aould not be
mbrskrrd to my current operattig erpen8es. The Some-
Oil C-t? Opinla ~6s mfflrmed In 1939 by Confermae
opinion lo. 3095.
In ttm owe of
bM, in effeat, tht 6
Hon. W6yne L. Hartman ,page3 (V-1200)
authmlty to establish pub110 roads, It had the l``pllod
r to Issue time warrants for the oonstruotlonthere-,
However, It is-emphasizedthat in speak&g o? the
le&6n~e of time wmrants, the court alw6ys referred to
the -king of public lnmroveme~ts~
In the o&se of ~146 S.W. 2d 3Wt;
(Tex. Clv. ~App.19&O, e ‘Court held th6t
under a statute expres ng counties to pwo-
vide for annual exhiblts~of hortloultursland agrioul-
tau-6~p~cdwts, such oountles have the -plied power to
iesue time warrants for the purpose of constructingperma-
nent Improvementsto the exhibition building. As in the
a&se, the implied power to issue time warrants Is
to lmurovemvnte. The oomt held the ?ollowlng:
u A cotmtj, subject to the exp~ees
restrich& imposed by the Constitutionand
general laws, has the power to issue time
(146 S.W. 26 at 336.)
There are'aases holding that the eonmissioners*
‘court of a county has the Implied power to Issue time
warmnate to eonstmmt the eoun%y oourthouse. Howevero
we wish to emphasllsethat %aaall %hese eases only w-
were InvsImd o We know of no ease
6 aounty h6a the implied power to
issue warrants against the Bounty general fund.
In the s &he amrt oonsldered
d6i3e
l?HiQler29!Ta, s%cr%u%eau%howPir?les
oountlmo
to purchase vo%ing eaohixaeaund p8y TOP %he mm by the
isspnsnceof bonds, wamah%s, aer%ZMsatea of ltiebtednoes,
OP sther obligatkms. The QQUP% upheld %he walldlty oi
the ststute~and8bl.dt % the hods in question crhou3.d be
paid out of &he generaP fund. The cotawt,in effect, held
that there W&B no oom~tf%u%foml fnlhfbltion whloh would
prevent the Legiekatme from pm8ing 6 statuts 6uthowlslg
the lssuanem of Oblig&%iQEM9 payable in f'utme years hsm
Ean. W6yhe L.Hsrtm, page 4 (V-X00)
the general fund. The court did mt hold that there was
en Implied power to issue warrants or,otkr obligrflons
pry8ble from the gemalfumd. 'Rm et&Me Itsell 6u-
%horlze8 the lake of w&rr&at8.
The original votl nmchine 6at (Son&e bill 34,
A@48 418t be., 4th C.S..%O, ah. 33, pe 601 povided:
I
. for the purpose of pJing for voting
r&h&es, such ConbslonerB~ Con& Is here-
by authorized to Issue bonds, aertlfloaGs of
Indebtednessor other obllg6tions . . ..*
This language w&s ohm ed by House Bill 121, A&r
8.,
2nd C.S. 1937, ch. !b p. 1953, to read 6s fol-
rSeotion 6 of Artiab 2998):
1, . ?Qr tlm puPpow of p&ylng Tollwotlng
m&es, suah Comlssloners Court is hereby
ruthorlzed to issue bonds, and o~rtlflaatesof
i&ebta$mse, yuT&ntg, or other Obllg&%i~8
. . ..
The Legislaturemu8t have Oonsldered that the orlg-
sot did not inolude tIm power to issue-warrants,~+
ottaerwlseit would not have added "warrants"by the 1937
amendment.
The am&, in the '"yc~un~"
6pporrl the c6se of Hidalfzo 0
that case the v&lldlts of certain time wrrrants Issued
z&%;%&the general ?&I for tick eradioatlon purposes was
The court held the warrants to be valid. Eow-
ever, th;,qtmstlon whether tin@ W&rmtits Omld be Issued
agrlnat the gemera fund without express le lslatlve au-
thmlty ma ntitinvolved, for Se&ion 5 of irtlole 1525e,
v.r.a., ezqmzssly authorlml the issurnoe a? such wmrm4s
in tha ?OlbBWing hll@l&@!:
. and it is hereby mado their duty to
&&pi&e Bonqw e&o? the meral ?kmds of
their oow%les, to incur indebcan es8 by the (
issu6noe of warm&s, and te lewy tama to par
thm IMerest thereon, rap9to moolde 6 sinking
fund fcm the pyment thvreo? . . *."
The other 06se involvi
Hon. W6yne L. Iiartmm, page 5 (V-1200)
_-
with sonroval in the Bex@Y&an%z c&se. However, as in the
BsxaP cowl ,sesaa stetute exm8ly
atithorlzsd Fi$estlon. The ihatu%o &u-
thorlzed funding ae&ain indebtednessesInto bonds.
We have not found any o&se which has held t&t 6,
COMty IMY iSSUe tillil!Wl'l'ZUltS 8@ll8k8t the @liCT6l rpRd
without express authority. Conversely, in the cases which
held that there Is an implied power to Issue time W&rP&nt8,
only permanent-typeimprovementswere involved.
As we mentioned earlier In this opinion, Ar%iele
25518-4 ex~essly suthorlzes the issuance of time warr8nte
and bonds to purchase fire fighting equiment to be,wed
for the pro%ectf.ono? county-ownedproperty located in the
oounty but without tbe,llmi%sof an incorporatedcity or
town. This statute was enscted In 1949 b the 51st Legis-
l8ture (SenateBill 401, ch. 575, p. 1121T . Section 2 of
the rot provides, in part, as follovs:
This Is clear legl,sPatlve
reoognitlon that expreee
legislativeauthi5M.t.y 4s mandatopy'beforetime warrentaa-
galnst the general fund may be isljued. Of course, the Leg-
islature must be presumea to know that Rrtlele 2351a-l;vur
slready effective.
Two opfnions written dwf ,previousadminis
tfonm OS this offfoe, Nos. 0-4475~1942) and o-7054 P1%6),
held that the power to issue time warrants aglnst the gen-
eral fund was Implied ?rom the power to make expendit-
therefrem. These opinions construed the Be
c&ses as upholding this prlnoiple.--s 8 own in this
n we disagree with such a construotlon,and Opinion8
NOB, O-4475 and O-7054 are hereby overruled. It Is inter-
est- to note that llrtlcle23516-4 was et+so%ed,a?ter4&
rendition of those opinions. The language quoted above
shows clearly that the Legislaturedid not so lnterpre*
the statutes,and did not agree with those opltions.
bhere is 1 lc In the holding that, without Iem-
latlvedireotfon, t
not be encumbered for
ye-'. &rrent expmwes must be paid from %W general ipLd,.,
.arldfaitst
I(hegenera!I?
o ? ‘ex p enmub euU$b e p a idl,8
l,t
io o r ues.
year e&o&i be wailr?``?.~.
fund in a fq~tt.zpa,
to gay the current expeiasesal such future year, RIU:
ehoul# not be eaddled rith the payment.of the current
ex$hnaes of a year ten, twenty, or thirty fears in the
pst.
Without exgPess authtitg from the Legle-
latwe, a county has no power to iseue time
warrants payable from its general fund. !$hare-
Pore, a cmty 28 without authority to lseue
~tirsewezmtnte undeb &tlole 23ga-1 In ljayment
foe rire fighting eqtipeent.
APBRorn~ Yewe very truly,
Jesse ?,~Luton, Jr. PRICE DANIEL
Reviewing Assistant Attorney General
Charles D. Mathews
First Aesistent BP
Assistant,
w-s