The Honorable Jim Sharon Bearden

County Attorney Orange County Orange County Courthouse Orange, Texas 

### 77630 Dear Mr. Bearden: Opinion No. H- 194 Re: Authority of County Auditor to transfer surplus funds in the Road and Bri~dge Fund into the General Fund You have requested an opinion ofthis office on the following question:

“can the County Auditor place all carry-over funds ofthe Road and Bridge Fund into the General Fund after the budget year with or without an order by the county court? ” You further explain: “In Orange County, a county under 225,000,there is a ‘General Fund’, consisting ofthe general fund, **jury** fund, and public building fund, leaving the ‘Road and Bridge Fund! separate. ” The applicable limitation upon the type ofcounty financing which **you** question is Article 8, §9, of the Texas Constitution which provides:

“Sec. 9. The State tax on property, exclusive of the tax necessary to pay the public debt, and ofthe taxes provided for the benefit ofthe public free schools, shall never exceed Thirty-five Cents (35#) on,the One Hundred Dollars ($100) valuation: and no county, city or town shall levy atax rate in excess of Eighty Cents (80$) onthe One Hundred Dollars ($100) valuation in any one (1)year for general fund, permanent improvement fund, road and bridge fund andjury fund purposes; provided further that at the time the Commissioners Court meets ‘tolevy the annual tax rate for each county it shall levy whatever tax rate may be needed for the four (4) constitutional purposes;

p. 909The Honorable JimSharon Bearden, page 2 (H-194)

namely, general fund, permanent improvement fund, road and bridge fund andjury fund so long as the Court does not impair any outstanding bonds or other obligations and so long as the total ofthe foregoing tax levies does not exceed Eighty Cents (80$) on the One Hundred Dollars ($100) valuation in any one (1)year., Once the **Court** has levied the annual **tax rate,**  the same shall remain in force and effect during that taxable year; and the Legislature may also authorize an additional annual ad valorem tax tobe levied and collected for the further maintenance of the public roads; provided, that a majority ofthe qualified property taxpaying voters ofthe county voting at an election to beheld for that purpose shall vote such tax, not to exceed Fifteen Cents (15$) on the One Hundred Dollars ($100) valuation ofthe property subject to taxationin such county. Any county may putall tax money collected by the county into one general fund, without regard to the purpose or source ofeach tax. And the Legislature may pass local laws for the maintenance ofthe public roads and highways, without the local notice required for special or lacal laws. This section shall not be construed as a limitation ofpowers delegated to counties, cities or towns byany other Section or Sections ofthis Constitution. ” We presume that your inquiry relates tothe Road and Bridge Fund referred toin the constitutional provision as one ofthe four funds subject to the combined Ei&ty Cents per One Hundred Dollars valuation limit and that you are not referring to the Public Road Fund that can be established by avote and atax of upto Fifteen Cents per One Hundred Dollars valuation. Prior to 1944, Article 8, $9, ofthe Texas Constitution put individual limitations on each ofthe four funds, specifically Twenty-Five Cents per One Hundred Dollars valuationfor the generalfund, Fifteen Cents for thejury fund and Twenty-Five Cents for public improvement. This was amended in 1944and again in 1956so as to retain only the Eighty Cents on the One Hundred Dollars valuation limitation for the combined four funds and, in 1967, the people added another amendment which states: “Any county may putall tax money collected

p. 910The Honorable Jim Sharon Bearden, page 3 (,I-I-194),

by the county into one general fund, without regard tothe purpose or source ofeach tax.” Prior tothe 1967amendment, it was well established law that the four constitutional funds, namely: the genera 1fund, the permanent improvement fund, ‘the road and bridge,fund, and thejur~yfund had to be kept completely s.eparate.from.one another land no comingling or transfer of,the funds was condoned. Carroll v. Williams, 202 S.W. 504 (Tex. 1918). However, the plain import~of the amendment in 1967, (also shown by its legislative history Andythe publicity which attended its proposal), is to free counties from such .re,strictions and to allow unrestricted comingling and transfer ofthese funds. In Lewis v. Nacogdoches County, 461S.W. 2d 514, 518(Tex. Civ.App., Tyler, 1970, nowrit), the Tyler Court of Civil Appeals stated:

“Appe.llants argue that the Commissioners’ Court cannot legally transfer. one constitutional fund to another fund and in support thereof relies upon Carroll v. Williams, 109Tex. 155, 202S.W. 504 (1918). This was awell established principle oflaw in this state until the Constitutional provision upon which it was founded (Article VIII, Section 9ofthe Constitution of Texas) was amended in 1967to read in part as follows:

’ * * *Any county may putall tax money collected bythe county into. one general fund, without regard tothe purpose or source ofeach tax. ***“’ The fact that the county originally budgeted the road and bridge fund separately would not impair the authority ofthe commissioners court to effect the contemplated transfer. The 1967 constitutional amendment allows the county to “put all tax money . . . into one general fund, ” which plainly allows atransfer as well as an original consolidation.

p. 911The Honorable Jim Sharon Bearden, page 4 (H-194)

Such atransfer would require an order ofthe commissioners cour,t. The amendment permits “any county” tocombine funds. The county acts through the commissioners **court.** See 15Tex. Jur. Zd, Counties 835, et. seq. Any conflicting statements in the following opinions ofthis office are overruled: Attorney General Opinions M-207 ‘(1968), M-369 (1969), M-438 (1964, M- 692’.(1971), M-1195’,(1972); M-1245-A (1972) and M-1250 (1972). SUMMARY A county commissioners court may transfer surplus road and bridge funds into the general fund. Yours very truly,
-

JOHN L. HILL Attorney General of Texas

DAVID M. KENDALL, Chairman Opinion Committee

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