## .~ ,. February 17, 1947
Hon.N;~F. ~Foster ’

..‘Opinion.No. V-23 oountv Auditor Smith~county. ‘, ~. Re:. Whether the Commissioners1 Tyler, Texas Court of Smith County may 1,egally expend oo.unty tunas to build a dwelling for the

.. ~, use and ooaupancy of the aouaty engineer. Dear Sir:’ Your letter or.January 20, 1947, in ‘whioh you requested an’opinion of this Department is as follows:

*Smith County:employs a Co&y Engineer and

‘included.ih his m?ny‘duties~ is the supervision or the County Garage andWarehouse, which serviaes i andmaintains the RoadMachinery and Equipment ror
_ the County Road System.

“Please advise ii the Commi.ssioners Court of Smith County maylegally’ expend County Funds.to ’build a dwelling for the use,.andoacupancy of the County Engineer. This dwelling is to be built on a.portion of the County property uponwhich the County Garage andWarehouse is located, or upon property to be .purchased adjacent to said property.

“If your opinion shows this to be a legal expenditure, from whioh fund should it be made, the Permanent Improvement or the Roadand Bridge?? OnJanuary 28,;.1947, this~Department received additional racts ‘relating togthe samematter from the Honorable Arch T. Power, County Judge of Smith County, whioh

‘are as 

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"ASyou will recall from our conversation in Austin a rew days ago, I promised to give you a full statement or racts: concerning the request for an opinion Submitted by’m. F.~Foster,~ County Auditor of Smith County, with referenae to the erection of ’ a house for a keeper or a watchman.Hon. N. F. Foster - Page 2

tioe vsniith County has purchased some three aores or land and is in the process of erecting a county garage andwarehouse ~for general operations, oountywide. The meohanical work upon all of the equipment of the County will be done in this garage and all of the supplies will be stored there.: As a matter of fact the whole Road andBridge Department of the County will operate out of these headquarters. There will be stored on the yard suppl~ies of various kinds anda large part. of the maohinery and most ‘of .the truaks .belongi.ng to the County will be stored there~each night,

~,. “The Commissioners Court had in mind from the beginning ‘to ereot. on the premises or immediately ad-

. jacent to them on an,additional plot of ground, a cottage to be occupied by some employee or the general headquarters, so that they would be available ror contact at any time, as well as to watch and proteot the p.roperties there situated. %ow,~ owing to the terrific hous’ing situation we had.decided, t&t wewould permit the County R&neer whois. in comp,Je.te,charge of ’ a11 of these aperations,T.to occupy such oot.tage until he mademore suitable arrangements, and then ,perhaps .the storekeeper or fiarehousemanwould occupy~suah aottage. such an arrangement pure- .andconservation .of suoh.~propthe fact that, the oca.upant .of oonstantly on the-..job or.:subjeet to oall, would.,be in linenwith the. operation of ,such set-up as pontemplated, and certainly should .be a legal expenditures out of ’ the Permanent Improvement”Fund.”

~~ vThe.State ~taxou preperty; exclusive of the tax necessary, tom.

pay ~t.h.e

.public debt ;, and of the taxes provided .qor .the.,benefit; ,g. the. public ,fres schools.,shall neve’r ‘e’xhe’ed’thirty-rive (35) cents on the one hundred dollars valuation; and no county, aity or town shall levy more~,,than.

twenty.-rips, .(25): cents for .city or ., tiounty,~purp’oses;,,.and-. not.exoeeaing rirteen +15) oents
. for roads,.and.,.h:rid:ges,‘,‘and not. exoeeaing rirteen. (15) cents. to;~pay:jyr~rs,,~~..on.~ the .one. hundred dollars ,valu-

(

. .?‘22%

Hon. N. F. Foster - Page 3

ekibn, exoept tar‘ the ‘myment of debts inourrea

, ~prior to the. ~adoption of t~he,+mendmentSeptember 25; 1323i. and for the ereotitin or publie buildin@, streets ,~.

sewers, waterworks anb other permanent $mprov,ements, not to ,expeea twenty-five : :(25) cents on’the:one hundred dollars valuation, ,ih anydoneyear, and exoept as, is in this Constitution, otherwise piovided$‘.p.rovided, however,that

. .the Com&isioners. Court in any oounty mayre-alloo,ats the foregoing oounty taxes by changing the rates providea for any or the roregoing purposes by either increasing or deareasing the, same, butin no event shall the total of said roregoing couqty taxes exceed eighty (80) oents..on the one
‘

. hundred dollars valuation,, in any one year; .provided turther, that berore the said”Commlssioners Court maymakesuoh~re-allooations and ohanges in said oounty taxes that the sameshall be submitted ” Taothe qualiriedproperty tax paying voters of s,uah #u&y at, a general or special election, and shallbe approved by amajority, of the qualitied property

~’.tax paying..voters, .voting in suoh’eleation; and, ~provlded rurther; that ‘if andwhensaoh ‘rerallooa; tions and changes in the atoresaid county taxes have been approved by the’ qualified pro@erty’

. tax ‘

. paying votersof.any county,’ as herefn provided, such re-aLlooatisns and ohangee shall remain In ,roroe and sire& tor a period or six (6) years from the date of the eleotion at vrhioh the same

,’shsll be approved, ~unlees the same again shall: have been-ahanged by a majority vote ~ofthe .quallfied pro dig tax paying voters of suoh oounty, voting on herproposition, after eubmlssion by tho ~Comnia- r ~loners Uourt at a general or speoial oleotlon for that pur oso) and the Leglslaturo mayalso author&o an.addit onal annual ad valorom tax to be levied and

P .,oollootod ror the rurther maintonanoe of the pub116 roads; provided,~ that a majority ,of the qualified. property tax paying voters OSthe oounty voting at an olootfon to be held for that ur 080 shall vote suoh tax, not to oxoeed ritteen lb oenta on the P P oue hundred.dollsrs valuation or the property eubjeot to .taxetion in such bounty, And the Leglslature maypass looal laws for the maiatenanoe or the pub110 roads and highways,, Without the looe~ aotioe require&for speoial or loos1 laws. This seotion shall not be ao'nstbwd as a 1imitatlOn of powers del- ’ ogated to oountiea,. oitfeti or ~townaby any other seotioror seotlons 6f this Conatitutioa. ‘(Sea. 9, Art.Hon. N. F. Foster - Page 4 ,'

VIII, adopted election Nov. 7, 1944.)" : OurState Constitution, Article 5, Section 18, provides in part as 

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ini3 "The county~commissioners so chosen; with the county judge, as presiding offioe.r,.sha'll compose the County:Commissioners Court,, which shall exercise such powers and.jurisdictiO,n over all county business, as is conferred~ by this.,Constitution~iina the lawsof the State; or as maybe herearterpre- ~, scr1bed.v .Article 2351, V.A.C.S., sets forth the followpowers and duties of the County,Commis,sioners~ Co~urt: "Sec. 7. Provide and keep in. repair courthouses,,jails and all necessary public buildings.* Article 2352; V.A,.C.S., refers to the,$ax.ror verection of public buildirigsv b:ythe,Cotqty @$aissioners' .Court

. .,. .~. v@,

nSa~id'court shall.have the p&i& to levy and collect a tax for county purposes',.not to-exceed twenty-rive cents on.the, one hundred d'oilars valuation, and a tax not~to-.excaed,filteen'cents on the one hundred dollars valuation to supplement the jury fund or the county;and notto exceed ,fifteen cents forroads and bridges.o,n the one hundred~dollars valuation; except fol'the payment.of d~ebts,.incurred prior to the adoption.of the amendmentTV the.Constitut~ion,~September 25, A.D. 1883, and,ror the ereotion.oi public buildjngs,‘streets, .sewers, water works and other permanent improvements, not
~.,to exceed twenty-five cents.on the one'hundreddollars valuation in any one year; 

## ma,except as.in lithe Constituti?o'n othsqvise 

## proVid?d. They maylevy an additi&$%"t~ax ~ror road purposes not t.ooexoeed rirteen oe'%'s'on the one hundred dollar v.aluation of the property subj'eot to taxation, under the limitations and in the~manner pro?ided for in Article .8;~Sec. 9;.

## or the Constitution Andy in purslianoe of the laws‘ relating thereto." $$>~ tice Fly in the .oase df Edwards.County vs. Jennings orted in 33..Es.W.5S5,.had~ this to say:

*Counties are politi'oal, or 01011 

## diVisi0~ 0r the State,, c.reated Pq:rthe purpose or..bringing government.'home toothe peoplei and supplying the neces-,

Hon. N. F. Foster - Page 5

sary means for executing the wishes of the'people, andbringing into exercise the machinery necessary. to the enrorcement of local government. Counties, being component parts of the State, have no powers or duties except those clearly set rorth ati defined in the Constitution and statutes.” "The statutes have'clearly derined the powers? prescribed the duties and,imposed the liabilities of the Commissioners' Court, theemedium through which the different counties a&, and from those statutes must come all the authority vested in the county." 11 Tex. Jur. 563. The sameruling was held in Moore vs. McLennan County, et al, 275 S.W. 478; El Paso County vs. Xlam,,l06 S.W. (2) 393, and in manyother cases too numerous to cite.

Fromthe constitutional provision and the statutes quoted above, we ~findthat the County Commissioners' Courts have the power to provide and keep in repair all necessary public buildings. Wequote from Tex. Jur., Vol. 34, page 2, as.

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*Public buildings Is a term ordinarily used to ' designate such structuPes as the capitol on the cap- itol ground at Austin including the executive mansion, the various State asylums, all University buildings erected by the State, oourthouses, jails and other buildings held for public use by any department or branch of government, State, county or municipal." Construing Se&ion 9 of Article VIII or the Tex- 'as Constitution and Section 7of Article 2351, supra, in conjunction with all the other statutes relating to the powersof the County Commissioners1 Court and in the light of,the necessity of the Court acting within the sphere of its powers and duties conferred upon it, it is the opinion of this Department that the term *public buildings" 'means *necessary public buildings* and that %ecessary public buildings" meanpublic buildings necessary for the conduct or county business.

Bearing in mind the foregoing definitions, the above quoted provision of the Constitution and statutes, andthe foregoing decisions of the Courts of this Sta+.e, and, furthermore, since there is no statute in this State expressly authorizing a county to'construct a in your request, it is %=F t e op nion tha~tthe Commissioners' Court of SmithBon. N. F. Foster- Page 6 .,y , County cannot legally build a tage for the~COunty.EngPneer; housemanor any other county employee. ,SUhQdARY' The Commissioners* Court of Smith County cannot legally.expend any of the Permanent Improvement Funds of ~thecounty for building a private dwelling or cottage for the' County Engineer, the Storekeeper or Warehouseman;or any other co'unty employee. Article 2351, V;A. C.S.; Edwards County'vs. Jennings, 33S.W.;5135;. 11 Tex. Jur. 563; Moore vs. McLennanCounty;et al, 275 S.W. S.W. (2) 393.478; El Paso County vs,. &am 106

BA:djm:jrb ” Approved Op~nion.Commlttee ByBWB,Chairman Yours'very truly ATTORNEY

GENEBAL

OFTEEAS

Bruce Allen. Assistant ; ,_ .~
: ' APPBOVEB

FEB. 17, '1947

ATTOliWEYGENFBAL.~'