# ~%~ATTOMNEY GENE-I.

ov TEXAS

PRICE DANIEL ATTORNEY

GENERA,. AunTrN 11. TExas

December 19, 1951

Hon. JimW. Weatherby Opinion No. v-1381 District Attorney Kerrville, Texas Re: 

### Le,gality of using the proceeds of a county tax levied for airport maintenance when the county has relinquished to amunicipality its interest in the airport Dear 

### Sir: in question.

Your request for an opinion of this office reads inpart as follows:

"In 1941 the City of Kerrville and Kerr County, Texas acquired land and constructed an airport; thereafter, the operation of the airport was under the City ofKerrville.

"In 1943 Kerr County paid one-half of the expense of additional hangars on such airport.

"In September of1945, Kerr County relinquished to the City ofKerrville all right toparticipate in the upkeep, operation and control, with the understanding that the City ofKerrville would be responsible thereafter for all expenses lncurred in the operation, upkeep, management 

### and control thereof, without 

### any demand against Kerr County.

"In 1950 the tax was levied For alrport maintenance.

"All taxes were paid without protest and no claim, demand orprotest was made 

### as to thepayment of such five cent levy for airport maintenance.

"The City ofKerrvllle requested the County to contribute money for upkeep expenses. The tax collected is 1x2Han. JimW. Weatherbg, page 2 

### (v-1.381)

a spealal fun4 set aside for al??port 

### uaintenance

.
% view of &e rellnquismnt by 

### Kerr County of its Fights, and

### l acept; anee by the City ofKerrville, it 1s requested that you advise: 

### l l. Whetherbrnot thismoney 

### couldbeused 

### bySmr 

### Countyas a eontrrtbmtlontovard the upkeep maintenance el rath airport, 

### w2, If the above question Is answered in thenegative, then whether OFnet such money could be rxpendsd by SeFr county,

*3* 

### If srtehmoney canbe orpended grEe” County, what may itbe expended

.

“4. It suchmoney can

### be eXpended by Sum WWg, may itbe used In fts (iawml Fund.

3% pel?tUunt part of Seetie 

### 9, Article VT11 of theTexar Constltutisn la

### a8followsr

a andno c@untT, city or town shall &~*EOCO than twenty-five (25) 

### cente itw city ‘or-county not exceeding fiSteon 

### (15p” po808, and oentr ir 

### roads and bridges, and not exceeding fifteen (15) cents to par urora, On 

### the onehxmdraddollars i! 

### ra uation, Oxcept fop thepayment of debts 1nerzrreQ **prior** tb the ad tlon of theAmendment September 25, 1%; and for the erection ofpublio 

### bu%ldiage, streets, sewers, waterworks and other permanent 1 rovements, not to exceed twenty-five“p

### 25) cents on the onehundred dollars valuation, inany one year, and except as 1s in t&&s Conetitatl.onotherwise provided 0 D *’
Sectien 4 ofArticle 1269h, V,C.S,, pro**ViU88:**Hon. JimW. Weatherby, page 3 (V-1.381)

"That inaddition to and exclusive Of any taxes which may be levied for the interest and sinking fund ofany bonds issued under the authority of thisAct, the governing body of any city or the Commissioners' Court of any,county, fallingwithin the terms hereof, may and 16 hereby empowered to levy and collect a special taxnot to exceed for any one year five Cents on each One Hundred DOllars for the purpose of improving, operating, maintaining and conducting any Air Port which such city or county may acquire under the provision of this Act, and toprovide all suitable structures, and facilities therein. Providsd that nothing in this Act shall be construed as authorizing any city or county to exceed the limita of indebtedness placed upon it under the Constitution."

The order of th,eCommfesionersf Court of Kerr County reflects that the taxwas levied 

### for *airport maintenzincen,which is ordinarily an expense payable out of the county general fund. IiOWever,the County Judge has advised that itwas levied for the specific purpose of improving the runways of the airport. ,Inthis event, the taxbecomes a part of the permanent improvement fund. In Attorney General's Opinion O-6762 (1945) it is stated:

"From the information given inyour letter, we understand that a part of the contemplated expenses in connection with the airport is for the improvement of the runways. It Is apparent that the runways and the improvements thereto are in the nature ofpermanent improvements. v8 think, therefore, that the expenses for the improvement of the runways should be allocated 

### as a part of the total levy authorized by the Constitution for permanent improvements, but inno event should such allocation have the effect of increasing the total 

### county levy for permanent Improvements beyond the conatitutlonal limit for such purposes."

In view of the foregoing, and assuming theHon. Jim W.Weatherby, page 4 

### (v-1381)

tax **Vas,** in fact, levied for **rUnVay** iq3rOvetZMJntS, it la our opinion that themoney in question isa part of the permanent improvement f~&l of the county.

S.W. 

### 504,506,50 (lqltr),it is stateds

In Capr,;llv,Williama, 109 Tex. 

### 155,202

'Going to the real gist of thenin Issue bePore us, Section 9 ofArtMle 8 of OCR state Constitution, Bupra, inhibits any and all transfers of tax money from one to another of the several classes of funds therein authorized, and, aa a 

### wqwnce, the expen<Ure, Sor one purpose therein dsilned, of taxmoney raised ostensibly 

### for another BUCh pIlrpose. The Immediate purpose in so prescribing a separate maximum tax rate 

### for each of the classes ofpurposes there enulssratedis, no boubt, to limit, accordingly, the anount of taxes which may be raised from the people, by taxation, declaredly for thOB8 several purposes or classes ofpuTposes, respectively. But that Isnot all. The ultimate and practical and obvious derign and purpose and legal effect is to Inhibit excessive expenditures for any such purpose or clars ofpurposea. By necessary impli

### cation said provisione of

### section 9 of article

### 8WUP~eerigwe, not merely to limit the tax rate fa certain therein 4esignated 

### purposes,but torequire that any and all u8kej raised by taxatien for any such purpeso shall be applied, faithfully, to that part&alar purpose, as needed therefor, and not to any other purpose orUs0 vfhatroever. Those constitutional provisions central, not C&J the raising, but also the applioatlon, & a21 such funds; and such is the legal effect of articles 2242 and 

### 7357,supra, vhe~ p~operlj 00nam6a and applied. 

## l 'frue,ths Constitution does not say, 

### la so any VOP~B,that mtme~raised bj a oemt~, city, w tom, kq taxatioa fa ow BUCh purpose ahsll **never** be expended for any 

### other purpoeo-not even for Ulether of the five general classes of purposes defined 

### andapproved in said 

### section 9--but that, 'veHon. Jim W. Weatherby,'page 

### 5 (v-1381)

think, Is ita plain and certain meaning and legal effect. The very deflnitlona of those several classes ofpurposes, and the declaration ofauthority to tax the people therefor, respectively, coupled, as they are, in each instance, with a limitation of the tax rate for that class, must have been predicated upon the expectation and intent that, a8
amatter of common honesty and fair dealing, taxmoney taken from the people osteneibly for one such specified purpose shall be expended, as needed, for that purpose alone, 

### as well as that the tax 

### rate for that particular claw, inany one year& shall not exceed the preaaribed maximum.

Baaed upon the assumption that the tax wa6 levied Sor runway improvements, it la our opinion that the only purpose for which this money may be expended is for repairing 

### and improving the airport.
The decisions of theTexas courts have repeatedly held that the commissioners' court la a court of limited jurisdiction and has only such powers aa 

### are conferred upon It, either by express terme or by necessary implication, by the Constitution and statutes of thi8 State, Childress County v. State,

92 Z.W,2d ltm (1936) VonRosenberg .W.

### 508(Tex. Civ. Appi 

### 1915 v.

,error ref.); DRail; 

### 280s,W..289(Tex.Clv. App. 1925); Art.

11Tex, Jur. 

### 632,Countled, Sec. 95.

There is

### no law which authorizes a county to

### relinquia$I 

### the operation of 

### an airport to a city. The only reiatsd,proviblan at the time of thilipurported'.raZlnqulshmantvaa that which authorized the coIIpIas$onere'Court to lease a county-owned airport to any citywithin the cs. Art. 1269h, V.C.S., There is no law authorizing a county to ContribUt8 money to

### a city for the operation of

### an airport. However, Article 46d-l&,.V.C.S,, authorizes the joint operation of an airport by a county and city. This act provides that a joint board shall be created and prescribes themethod of operatlon by such board. There ienothing inyour request indicating that the- .



### Hon. JimW.weatherby, page 6 (V-191)

PrOCOdure 

### outlined in Article 464-14, V.C;.S., hae been folloved D

In view of the ioregolng, It is our opinion that Article 46d-14 mustbe complied vlth before county moneymaybe expenrled in the operation OSajoint airport.
SUMMARY

Moneycollectc)(l by a county for airmrt maintenance 

### cannot be contributed to the mafxitenance of an

Ueno~rollected by a county through the levy a? tax08 for the purpom of iaprotins th* ruawa7r of tba couat7 @irport is aput of t&a permanent 

### llprorrunt fUnd ati OIllb. r)eRt On1 fOP 6Uah Att'f @on. Opq O-6762 (I&); 

### Carrel !WpeS.. 

### v. lrslliar, log tot. 

# 155, 29223. 504 /A~~).
Yours very 

### tmalp,

YEroEa!iAnEL Attsraw Oweal



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