## THEA NEY GENERAL OF TEXAS

CRAWPORD c.MARTIN AUSTIN, **TEXAS** 78711

AnORm OENERAX. October 3, 1967

Hon. Joe Resweber Opinion NO.M-142 County Attorney Harris County Re: Constitutionality of Houston, Texas and construction of certain provisions of House Bill 78,Acts 60th Legislature, Regular Session, 1967, Chapter Dear Mr. Resweber: 681, Page 1789.

You have requested our opinion as towhether Rarris County is required topay fees to the County Clerk of Harris County in condemnation proceedings brought by Harris County. All fees collected by the County Clerk are required tobepaid into the County Treasury "foraccount of theproper fund." Article XVI, Section 61, Constitution of Texas. Robinson, 155Tex. Wichita County vs. 1, 276 S.W.2d 509 (1954). Thus, fees collected by the County Clerk of Harris County will be deposited into the Officers Salary Fund of Harris County, apart of the General Fund of Harris County. Therefore, ifHarris County is required topay fees, set out inHouse Bill 78,Acts 60th Legislature, Regular Session, 1967, Chapter 681, Page 1789, Harris County would bepaying to itself such fees.

All county funds are constitutional funds. Ifonly the General Fund is involved, itwould amount to auseless book-. keeping entry in the General Fund. Ifother constitutional funds are involved, such payment would amount to an invalid transfer of constitutional funds. It iswell settled in this State that taxmoney raised ostensibly for one purpose cannot be used for another purpose and therefore transfers of constitutional funds i are inviolation of Section 9ofArticle VIII of the Constitution of Texas. Carroll vs. Williams, 109Tex. 155, 202 S.W. 504 (1919); Ault vs. Hill County, 102Tex. 335, 116 S.W. 359 (1909);Sanders 1920, no writ); Lamon vs. ~~~~~~~~~:~:~~~.~~s~~~:~~~~~~~~':'1948, no writ); First State y 306 S.W.Zd 246 (Tex.Civ.App., 1957, nowrit.)

Inview of the foregoing, it is our opinion that the payment of fees ina condemnation proceeding by Harris County to the Clerk of Harris County would amount to anunconstitutional transfer of taxmonies. Furthermore, suchpayments amount-to

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bookkeeping transfers andwould require unnecessary time, energy, and labor by various county officials. As youpointed out in your request, in the construction of statutes, it is tobepresumed that.the Legislature did not intend torequire an absurd, foolish, unreasonable or useless thing. Floydada Independent School District vs. Shipley, 238 S.W. 1026 (Tex.Civ.App., 1922, affirmed 250 S.W. 159, 1923). Therefore, you are advised that fees cannot legally bepaid to the County Clerk ofHarris County by Harris County.

With regard to other governmental agencies in condemnation proceedings, we agree with you that it is established that a condemnation, in its initial stage, isnot a cause, action, or suit in aCourt, but isan administrative proceeding. Henderson vs. Turnpike Authority,,308 S.W.2d 199 (Tex.Civ.App., 1951, error ref.); Denton County vs. Brammer, 361 S.W.Zd 198 (Tex.Sup. 1962). Therefore, feeswhich arepayable by other condemners are not payable until an objection is filed by the condemnor or a judgment isentered. SUMMARY _------ Fees cannot be paid by a county to its own County Clerk. In condemnation proceedings where the condemnor is other than the county inwhich the condemnation proceeding is filed, feespayable by a condemnor other than the county are not due andpayable until an objection is filed by the condemnor or a judgment isentered.
Y4 rsvery truly,

Prepared by John Reeves Assistant Attorney General
APPROVED: OPINION COMMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman W.V. Geppert Pat Bailey John Grace Sam Kelly

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Hon. Joe Resweber, page 3(M-142)

A. J. Carubbi, Jr. Staff Legal Assistant

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