Untitled Texas Attorney General Opinion

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