June 28, 1956

Honorable Marion M. Lewis County Attorney Goliad County Goliad, Texas OpinionNo. S-203
Re: Whether the cost of public scales lnstalled under Article 2372n,V.C.S., may be paid out of the County Dear Sir: Permanent Improvement Fund. You have requested an opinion on the following question: 'Can Goliad County, upon compliance

with the necessaryrequirements, purchase and installpublic platform tonnage scales, as authorizedby Art. 2372n,V.C.S., and pay for them out of the Public Improvement fund of said Goliad County?" Section 9 of ArticleVIII of the Constitution of Texas provides for a general purpose fund, a road and bridge fund, a jury fund and a permanent improvement fund. commissioners Court of Henderson County, et al v. Burke, et al, 262 S.W. 94 (Tex.Civ.App.1924). The restriction upon the use of these funds Is described inAttorney General's OplnionV-808 (1949)where the cases 102 Tex. 335, 116 S.W. 359 of Ault v. Hill CountY 109 Tex. 155. 202 S.W. 504 and Carroll v. Willi.&s, 'are correctls stated as authority for the following.

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and "Themoneys accruing from taxes levied collected for each of the enumeratedpurposes are Constitutional funds. The immediate purpose of the above quoted provision of the Constitutionf3ec. 9, Art. ~~27 is to limit the amount of taxes that may be raised for the several purposes. It is also Intended to require that any and all moneys raised by taxesHon. Marion M. Lewis, page#2. (S-203)

for a particularpurpose shall be applied to~thatpurpose and to no other." TEmphasis added.) Thexefore, expenditureof money from the Permanent ImprovementFund of Goliad County for public platform scales, as authorizedby Article 2372n,Vernon's Civil Statutes, is authorized if these scales can be properly classifiedas a permanent improvement.

The only Texas case construing the words 'permanent improvements" Is Holman, County Judge, et al~v.,Broadway Improveme~nt

Co., 300 S.W. 15 (Comm.App. 1927),Where seawalls were held to be within this term. Thus, the interpretation of thesewords must be found in the decisionsof the courts.
In the leading case of Teaff v. Hewitt, 1 Oh. St. 511 (1853),Chief Justice Bartley laid down certainrules which were in essence an attempt to define the requisites of a "fixture"which would bring it within the common concepts of an improvementon land. In determiningwhether a fixture has become a part of the land, Chief JusticeBartley, spoke as follows: "Theunited application of the following requisiteswill be found the safest criterion of a fixture: "(1)Actual annexation to the realty or somethingappurtenant thereto. (2) Am-opriation to the use or purpose of that part of the realty with which it is connected. (3) The intentionof the partymaking the annexation to make the article a permanent accession to the freehold - this intentionbeing inferred from the nature of the article affixed, the relation and situationof ~thepartymaking the annexation, the structureand mode of annexation,and the purpose or use for which the annexationhas been made." This rule was followed in Texas by our Supreme Court in Hutchins v. Masterson, 46 Tex. 551 (1.877) and applied as the determinativerule for construingthe permanent improvement section of the State Constitutionby Attorney General's OpinionV-808.

Because we do not have sufficient facts to give aHon. Marion M. Lewis, page#3.

categorical answer and because of the principal element of the rule, the intentionof the county,we can only point out the elementswhich must exist before the purchase of the scales can be made out of the permanent improvement fund. ,

The followingmust exist to authorize the purchase: (1) The countymust attach the scales to the land or an appurtenance theretowith the.intentand In suchway as to affix them in a permanentmanner; (2) the scales and the land or appurtenance to which they are attached must have a relative and correspondinguse or purpose; (3)~the~countymust have the Intention of making the scales a permanentaccession to the land or appurtenance. STJMMARY The cost of public scales installed under Article 2372n, V.C.S., may be paid out of the County Permanent Improvement Fund if they are attached to appropriate land or an appurtenance theretowith the intent and in such a manner as to make them a permanent fixture.
Yours very truly, APPROVED: JOHNBEN SHEPPERD Attorney General of Texas J. C. Davis, Jr. CountyAffairs Division
W. V. Geppert Reviewer AssistantAttorney General

J. Arthur Sandlin Reviewer
L. W. Gray SpecialReviewer Davis Grant First Assistant John Ben Shepperd Attorney General

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