.~ ,. 

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 and Warehouse, which serviaes 

i 

and maintains the Road Machinery and Equipment ror _ 

the County Road System. 

“Please advise ii the Commi.ssioners Court of 

Smith County may legally’ expend County Funds. to 

’ build a dwelling for the use, .and oacupancy of the 

County Engineer. This dwelling is to be built on 

a. portion of the County property upon which the 

County Garage and Warehouse 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 Road and Bridge?? 

On January 28,;.1947, this~ Department received 

additional racts ‘relating tog the same matter from the Honorable Arch T. Power, County Judge of Smith County, whioh 

‘are as r0n0ws: 

"AS you 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 and warehouse ~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 and Bridge Department of the County will 

operate out of these headquarters. There will be 

stored on the yard suppl~ies of various kinds and a 

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 we would permit the County R&neer who is. in comp,Je.te ,charge of’ a 11 of these aperations,T.to occupy such oot.tage until he made more 

suitable arrangements, and then ,perhaps .the storekeeper or fiarehousemanwould occupy~ suah aottage. 

such an arrangement pure- 

.and conservation .of suoh.~propthe fact that, the oca.upant .of 

oonstantly on the-..job or.:subjeet to oall, would. ,be in linen with 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,+mendment September 

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 any done year, and exoept as, is in this Constitution, otherwise piovided$‘.p.rovided, however,that 

. . the Com&isioners. Court in any oounty may re-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 may make suoh~ re-allooations and ohanges in 

said oounty taxes that the same shall be submitted 

” Tao the qualiriedproperty tax paying voters of s,uah 

#u&y at, a general or special election, and shallbe approved by a majority, of the qualitied property 

~’ .tax paying..voters, .voting in suoh’eleation; and, 

~provlded rurther; that ‘if and when saoh ‘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 ~of the .quallfied 

pro dig tax paying voters of suoh oounty, voting 

on r her proposition, after eubmlssion by tho ~Comnia- 

~loners Uourt at a general or speoial oleotlon for 

that pur oso) and the Leglslaturo may also author&o 

an. addit P onal annual ad valorom tax to be levied and 

.,oollootod ror the rurther maintonanoe of the pub116 

roads; provided,~ that a majority ,of the qualified. 

property tax paying voters OS the oounty voting at 

an olootfon to be held for that ur 080 shall vote 

suoh tax, not to oxoeed ritteen P lb P oenta on the 

oue hundred.dollsrs valuation or the property eubjeot to .taxetion in such bounty, And the Leglslature may pass 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 ~towna by any other seotioror seotlons 6f this Conatitutioa. ‘(Sea. 9, Art. 
Hon. N. F. Foster - Page 4 ,' 

VIII, adopted election Nov. 7, 1944.)" : 

Our State Constitution, Article 5, Section 18, 

provides in part as r0u0w+7: ,:. 

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 may be 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:y the,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 amendment TV 

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 may levy 

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, 

and bringing 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 same ruling 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 many other cases too numerous to cite. 

From the constitutional provision and the statutes quoted above, we ~find that the County Commissioners' 

Courts have the power to provide and keep in repair all 

necessary public buildings. We quote from Tex. Jur., Vol. 

34, page 2, as. r0ii0ws: 

*Public buildings Is a term ordinarily used to ' 

designate such structuPes as the capitol on the capitol 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 7 of 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" mean public buildings necessary for the 

conduct or county business. 

Bearing in mind the foregoing definitions, the 

above quoted provision of the Constitution and statutes, 

and the 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 t %=F e op nion 

tha~tthe Commissioners' Court of Smith 
Bon. N. F. Foster- Page 6 .,y 

, 

County cannot legally build a 

tage for the~COunty.EngPneer; 

houseman or any other county employee. 

,SUhQdARY' 

The Commissioners* Court of Smith County 

cannot legally.expend any of the Permanent Improvement Funds of ~the county 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, 33 S.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 OF TEEAS 

Bruce Allen. 

Assistant ; ,_ .~ 

: 

APPBOVEB FEB. 17, '1947 ' 

ATTOliWEYGENFBAL .~'