Untitled Texas Attorney General Opinion

Apll 12, 1949.
Hon. w!mlam A:~Hensley Oplnlon ro.~p-808.
Criiaiinal bistrist Atty.
Baar county -- Rsr T&i Ugallty OS UWxLng
San Antonio 5, Texae warrants to purchase
steel illrug squiplnent
for the vaults of the
. County Clepk.
Dear xr. Rensl~t
You have requested an opinion on the follow-
"The CoimalssIons~S~' Coilrt of Bexar coun-
ty, Texas, has requested that I submit to you
certain questloas regarding the purchase ore
steel filing squipment fbr'the vaults oi'the
County Clerk by the issuance o? warrants.
*It la the intent of the county comsls-
t3lonsrs o? Bexar Caujity'to Issize warrants fdr
the puvposs``oi purcflsslng‘612 all-steel roll-
er sheIves and 216 all-steel dooumsfit flles~
which are' tobs amhomtV'b6oumlY to-ths~ Court-
house Ftuur-:umction ana to be made a part
themof sofas to make-these uufts 8tatlonarJ
and unmovable and a part of the building,
"The Couaty Commi~alonershave requested
that I submit to pu the following questlonst
Il* Is the proposed expenaitve for a ~.
lpermansnt``lmprove~entl OS the type oontemplat-
ea b7 the authorlsatlbn of warmnts tar the
sole purposs of ~psrmsnent improvements to the
courthouss?' _.
-A"
2. Assuming the %ons+uotlon to be a
pemansnt isqmveimat, aa eonslae*ing the
proposed new law applicable to Bexar County
whloh restrfbts the Count Commissionos from
issuing warpants, (H.B.lO& Acts of the 51st
Lag., R.S. 1949, etfeotlve Xaroh IL, 1949),
.
eon. ~111inm 8. bnsley, page 2 (~-806)
hen the Co5uisaione~s legally issue previously
autho~ised wamsnta for the puPpose of puv-
chasing and erecting this pemsanent lmppove-
merit?” (PaPenthssla ours.)
..
Section 9 of-~ArtXole VIII of the Constltutlox
of Texas provides ln part as fO11OWS8
(I
.sitQ no oocmty, olty or town shall
levy m&i than twenty-firs (25) oents for
alty OP oounty proses, and not exoeedlng
fifteen (15) cents fop roads ana bridges, and
not.exoeedlng fifteen (15) oents to pay jap-
OPS, on the onb huntied dollvs valu&tlon, ex-
oept ioF the paynent of debts IncaPPed p~lor
to the-‘adoption of the Amendment September 25,
1883: and for the ereotlijn of aub1Io bulld-
lnga*i streets, sewers, watemo~ks and other
s not to exceed twenty-
one hundred dollsrs
valuation, in any one year, and except as 18
In this Constitution othemlae provldsdt pro-
vided, however, that the CixumlselonePs Court
in any county may Pe-allooate the foPegolng
oounty taxes by changing the Pates pPovlded
for any of the ropegoing purposes by either
lnopeaslng OP dsopeaalng the SW, but in no
event shall the total Of raid foregoing cotm-
ty tsxes excised eighty (SO) coats on,the’one
hundrl)d dollars valuation, ln,any one ye&P;
0 0 0
The lnoneys scorning from taxes levied and eel-
leoted SOP each of the enumeratedpurposes ale Constitu-
tional fuuds. The lmme&iate puppose of the above quoted
provi,slon of the Conat$tutlon la to limit the saounti;f
taxes that may be raised fop the i~ve~al ~uPpoee8.
IS also intended to requiae that any and all money8
ralseU by taxes ZOP a partioulsr purpose shall be applied
to that purpose and to no AuIt ve El11 CO=~&
102 Tex. 335, 116 S.W. 359 8 Cappoll v. Will1 -1
log TSX, 155, 202 S.Y. 504
It was helil iii ths case of Brown v. Graham; 58
Tex. 254 (1883), i%a case lhvolvlng %lIWor
apeala tax for pepairs and additions to a CouFthou%er
"Should the ~omisleslonsrsD court come to
the conoluslon ths~t a larger court house is
Eon.~ Xllllam M..kensley, page 3 (V-808)
needed to meet the demands of the public busl-
neB8 bf th8lP county,'and they agree upon its
plan end dlmenslons, and find that they can
secure a building conforming to them in every
respect, either by erecting a new structure,
OP altering; repalplng and enlarging the old
one, and that the 1atteP mode will be less-ex-
pensive by half than-the former, la there any
Peason In holding that they o&n levy the t&x
for the more expensive mode of attaining their
object, when they oould not for the other,
though the structure whioh is the result Is
ppeolsely the same in every particular?
"The object of the fopsgoing pPovlslona
of out constitution and statutes w&s to enable
th8 blffeP8nt countlss to provide suitable
public edifices, leaving it to the judgment of
the proper authorities whether this should be
done-~by bulldlng new houses OP by repalplng
and adding to old ones, when they oould thus
be rendeP8d suitable to the pUPpOSSB of the
county. The wopd sepect,g contained in all the
foregoing priWislons, was the most comprehen-
sive term that could be used to embrace all
such lmp~ov8menta.
"To hold that a~couhty whose couPt house,
with proper repairs and additions, could be
rendered commodious and useful in every ma-
pect, must pull it down and build an entirely
new one, would be to ohargs out law-givers
with an intent to encourage an unnecessary ex-
penditure of the public money. Such a consid-
eration would not, in Itself authorlse us to
infer a power. when not expressly given or neo-
essarlly Implied. Yet when the language-used
la capable of Including authority to do an act
not mentl6ned in terms, suah construction of
it la ,gPeatly aided by considerations of pub-
lic advantage which it would omtalnly pro-
duge."
In the case of Adams v. #oGl11, 146 S.W.2de’332
(Tea Clv. App- 1940, s~ror Pef.J~9 the court held that
Article 2372d, V8rnonts``Clvll Statutes (expPes%ly authar-
lslq the oonstruotlon and 1 Pavement of a livestock and
horticulture exhibit building '7 implledly authorized the
county to lseue time w&Prants payable over a period of
Hon. Ullll&m A. Hensley, page 4 (V-808)
years for ImpPovemmts on such bulldlng. We quote the
following from the opinion of the oonrt:
I)
. h County Subject te the SxpPiiSS
P8StPIc~ii;ns imPOS8d by the Constltutlon aad
g6aeFal lnws, h&s th8 power to issue time
warrants in payment fop lmpPovements it is
expressly authorlsed to construct, pPevlded
that the applicable Pegulatlons relating to
the issuance of such warmnte b8 ObsePved.'
Additional &UthOriti8S on the sasie oint:
L&eater v. Louez, 110 Tex. 179 217 S,U. 373 7 1919) and
Foremsn v. oooch 184 Saw.26 461 (Tsx. Clv. App. 1944,
emor ref. w.0.m:).
Following the holding lm the bboie mentioned
case this Off1a8 held in Attorney General Opinloh Ho.
v-779, "where tim1ESiOn8Ps t COUP--la exp~8ssly aitthos-
lxed to const``b a building, It has ~the ImpXled ~authm-
lty to lasue luterest bearing tltie warrants to pay id',
such oonstPuotlon." .. _
Article 2351 gPsntia the authority to eseh Com-
miSaiOu8Ps' CoUPt f.B this Stat8 t0 pPoVf& and keep in
repair coUPthoPs88 and jails. ThePefoPe,~.if the puPchase
and lnstallatlon of the filing equipment 8mounts to b
pWm&netit leovement of the opurthouse, than time w&r-
Pants may legally be issued thepefor, Unless the same hss
b8Com8 prohibited undeP"the tePms of House BllT KO. 106,
Acts 51st LegislatuM, a point iihlch we will later dls-
OUS8. If the purchbse and installation of auoh filing
equipment does not- amonnt to a permanent improvement,
then, of couPso, payment thePsfoP must be m&de from the
county general fund, for that fund la bhurgeable with
the payment of supplies and equipment as auah.
The test applicable to SOUP first question is
aaaounced in Hutbhlns v, Masterson, 46 Tex. 551 (1887)
wherein it 1% stated on page 534:
" -anthertrue oPlterlon far determin-
ing WheihiP'a chattel has become &n Immovable
flxttule, consists in the UEit8d application
..of the folloliing teStSt
"1st.~ E&a theP8 been a Peal or OOnStPUOt-
iV8 anhexatlon of the &PtfOl8 in question to
the realty?
HOP; William I. mneley, page 5 (v-808)
"24. Was there & fltaess or adnptatlon
of suoh article to the uses or purposes of the
realty with vhloh it Is connected?
“3d. Whether or not it iI&s the intention
of'the party making the annexation that the
chattel should become a p8rm&nent accession to
the freehold? - this lnteatloa~belng InTerable
fl'Om th8--lJatU'e Of tb8.~aZ'tiOl8, the Z'elatiOn
and Sltu&tlon of the parties interested, the
policy of the,liziw in rsspeot thereto, the mode
of aiinexatlon, and purpose or uae.for which
the annexation Is made.
"And bf tiese three tests, pre-emlnenoe
IS to ba given to--the qU8stloii of intention to
make the article n permanent socession to the
ire&hold, whlle“the others sxe chiefly of val-
ue as evidence as to this lntentlon.A
Filing ogblnets tid shelves would ordlnsrlly
be olaseifl8d ns equipment and payable out of the gen-'-
era1 fund of the obunty. fan 'drtlole would not become a
flXtur8 simply becaiise it 1%.~anohored d6wn'to the bulld-
lhg. For example, a chnlr, a desk, or ail adding m&chine
m&y be neoessstry in oounty offloes, but auohorlng on8 of
them to the building for convenience would not mske it a
fiXtIll'8. The seoond and third tests would not be met.
Yet, ii bulldliig @ouId b8 oonstruoted withPill-
lhg space 8nd Oabin8tS be a p&~t thereof. Slloh bulldlngs
have-been built; The walls of th8 bulldlng~ are the walls
of the flllmg oabliiet, eta. In such n situation thbre
o&a be no doubt that the filing cabinets &re a persaenent
part of the building.
We a0 not h&v0 eufflole~t facts to answer your
ijuestlon odtegorlcally, for such &n &nswe~ woMd~lnvolv8
a determlnatibn o? faotd ,Pel&tive ~to'the installation
whloh la yet to t&k8 place. We can snswer yoUr question
only by Sayl~.lf the filing equipment is Lnstalled ln
suoh a mannoF whloh would sbtlsfy the tests laid dowr.by
the 6ouPt Iii the Rut&la% case and thereupon beoomes a
perm&nent part of the oourthouae structure, the same
could be paid out of the county permanent lmprovemi$nt
fund, and time w~iant.8 could be issued therefor, asaum-
lag, of course, that they are issued in accordsme with
law.
Eon. William 1. Bensley, psge 6 (V-606)
The 51et Legislature h&s llmltdd the power of
the fhImissionera~ Court in certain inetsnaes to iSSU8
time w&r.rants by the provisions of House Bill lo. 106,
Ch. 36, which provides, in p&H, ns follows;
'Section 1, In all oountles having a
ptipulatlon In excess of @~i#e hundred thou-
sdnd (300,000) inhabitants acoordldg to the
last preceding OP any TutWe Federal l%nsus,
the Commlesloners Court shalI hisve no anthop-
Ity or power to lssue~tlms warpants until
Snd unless the same have been authorlsed by
a majopitjl i?ots of the quallfled eleotoi%
who ovll taxable property-in the obuhty and
have duly Wind8psd the s&m8 for taxation
voting at an eleotlon theMfor, such elbc-
tloil to be held under the authority of Wd
in accordance with the provlslo~ of Chapter
1 of Titlo 22 of the Revised Civil Statutes
of Texas~ oi 1925,`` Provided, that in case of
public Cal&silty o&used by itie, flood, sotrm,
or to protect tbs-'public health, OF in cash
of unforeaeea d&mage to public property, ma-
chinery; or equipment, the ComMlsalonere
Court %iay Issue such time wamants la the
aggregnte``amount of not exoeedlng Fifty-~Thou-
sand DOllSrs ($50,000) during any on6 calen-
d&r year as &Fe neoess&ry to provide for the
fSSIWdicit8repair, preservation OP protection
of public property, and the lives and health
of th8 oltisens of the county without the sew
oesslty of such electlen. .
Aa “sec. 2. Thla Aizt shall not be construed
to apply-Y0 time warrants of such.oountlee ls-
sued or authorized to be Issued prior to the
efreotlve date of this A0t 0" IEmphasis oqs.)
-
In answer tij oiir request SoF addltlonbl lnfor-
matloa,'your office has savieed us that in J&nuary of
this yeap, the warrants PefePred to in your request were
a.uthorized to be i88t88de-~ As Rouse Bill Ro. 106 did not
bei5ome effective until March 11, 1949, then under the
plain prov~s``ndmrs of Section 2 tM:~Abt wrll not apply to
the tlr wlirrantaiiudtir consideration, saWming, of
oourBe, that the wsrrants were issued in acoordano~ with
law and the 6xpenditures prop8Ny come within the,authd-
lred purpose thereof.
Ron. tilllfsm 11. Rensley, page 7 (v-m)
The purchase and installation of oertaln
flllng equipment in'-thd a?urthWse can be ao-
oompllShed ln such a~m@ria+r that the same be-
oom8s e fixture and’s &irt of the courthoue8
building. If ths itame bgtomes a fixture, then
payment therefor may be &&de by Bexar Countj
by the lssuanoe of tlms warrants payable,out
of the couiity permansiit laprovem8at fund, said
warrants having been authorlsed prior to the
effective date i3f~Roue8 Bill go. 106, Acts of
the 51et Lsglslat~e.
Very truly yours,
ATTObEY @HERAL OF TEXAS
JRzbh -,. Assistant
FIRST ASSISTART
ATTORIiEY OELWUL