May 19, 1965

Hon. Raleigh Brown, Chairman House Committee on Counties State Capitol Austin, Texas

Dear Mr. Brown: OpinionNo. 

### C-441
Re: Whether the Seawall Commission for Matagorda County createdby Chapter 4, page 11, 43rd Leglslature, Fourth Called Session, 

### 1934,Is stillan effective body, and alternative questions.
You have requested the opinion of this office as to whether the Seawall Commission for Matagorda County is still an active body with statutorypower. This commissionwas created by Acts of the,43rd Legislature, Fourth Called Session,page 11, Chapter 4, 1934 (not codified - see note under Article 

### 6830, VernonPs Civil Statutes). In the event it is the opinion of this office that this commission is no longer in existence,you ask whether House Bill 

### 908,relating to the establishmentof seawall commissions Is constitutional. In the further alternative,you ask whether the said House Bill 

### 908would permit a county to transfer to its seawall commissionmonies from the Permanent ImprovementFund, the Road and Bridge Fund and the GeneralFund of the county.

In reply to your first question, it 9s observed that Section 1 of the 1934 Act provides for the grant of eight-ninths of the net amount of the State ad valorem taxes collected in Commissioner'sPrecinct 

### 3 of Matagorda County, saiddonation to be held in trust by the Seawall Commission createdby the Act. The period of donated taxeswas stated to be thirtyyears, beginning September 1, 1933. By Section 7 of the 1934 Act, it was provided that when the sinking fund createdby the Act shallbecome sufficientto retire all outstandingbonds, the Act shall cease to be operative and the donations of taxmonies provided for shall cease.

By Acts, 50th Legislature,page 1071, Chapter 

### 457, 1947, the Legislatureprovided for a two-year extension of the
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ori &inal donationperiod of thirtyyears provided for in the 193 Act. Therefore, the total period of donated taxmonles was thirty-twoyears from September 1, 1933. We are informed that bonds issuedby theMatagorda County Seawall Commission have been retired. By virtue of the terms of the Acts'imolved, it is the opinion of this office that, by virtue of the retirement of the bonds, theMatagorda County Seawall Commission,as such, expiresunder the terms of the Act.

We now turn to the question of the constitutionality of House Bill 908. We have been cited to no particularprovision of this proposed statutewhich has been called into question, but rather have been requested to examine it generally as to its constitutionality. House Bill 908 provides for the optional creation of a seawall commissionby a county and any city bordering on the coast of the Gulf of Mexico, This commission is to undertake to perform the functions set out in Article 6830, Vernon's Civil Statutes. House Bill 908 conveys rather broad authority to the seawall commission,with the city and county governments retaining control only through the power of appointment and approval of budgets. However, the only constitutional questionwhich reveals itself on the face of the bill Is in regard to Section 3(a) thereof,which reads in part as follows:

'Theoperations of the seawall commission shallbe financed by appropriationsto It by the city and by the county out of their general revenues. The . . . (Emphasis supplied). The city governmentmay, under the provisions of its charter, appropriate their general revenue funds to the seawall commission,butthe government of a home rule city operatesunder more relaxed rules than does a county government. A seawall is a permanent Improvement,and county fundsmay be expended therefor only when the funds are derived from the constitutionalPermanent ImprovementFund or through bonds votedunder Article 

### 6830,et seq.,Vernon's Civil Statutes. A countywould not be authorized to expendmonies from the Road and Bridge Fund, the Officers Salary Fund, or any other constitutionally-restrictedfund for a seawall. The commissioners courthas no Dower to lev!? a tax for one purpose and use themoney for another. Ault v.-Hill County 102 Tex. 

### 335,116 S.W. 359 (1909); Sanders v. Looney, 2> S i 280 (Tex Civ A p 

### 1255, $0; S.W. 504'(19i8p." 1920); Carroll v. Will1ams, 109 Tex.

In considerationof the foregoing, it is the opinion of this office that Section 3(a) of House Bill 908 isunconstitutional Insofaras it purports to authorize a county to appropriate its general revenues to a seawall commission. A part of

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### 3'(C-441)

the general revenues of the county, of course, are the funds which go to make up the Permanent ImprovementFund. The~sefunds may properly be appropriated for the purposes stated in the bill. However, we may not change the wording of a statute in order to make it constitutional;we may strike a word or a phrase in order to preserve an act, but judicial constructionmay go no farther:

.thata statutewhich includesby generai ianguage subjectswithin and those without the constitutional jurisdictionof the state cannot be limitedby judicial construction to the former class, and then sustained," 

### 82 C.J.S., p. 

### 160,Statutes, Sec. 93. Accordingly, it is the opinion of this office that House Bill 

### 908, for the reason of the defect above discussed, Isunconstltutlonal in its entirety.

In view of our answer to your second question regarding the constitutionalityof House Bill 

### 908,,itis not necessary to answer your third question.
SUMMARY The Seawall Commission establshedby Acts, 43rd Legislature, Fourth Called Session,page 11, Chapter 4, (1934)will no longerbe an effective body after September 1, 

### 1965.
House Bill 

### 908 isunconstitutional in that It authorizes the expenditureby a county of constitutional funds for other than the purposes established for such funds.
Yours very truly,
WAGGONER CARR Attorney General

By:Assistant MLQ:ms:mkh

-2098-Hon. Raleigh Brown, page 4 (C-441)

APPROVED: OPINION COMMITTEE
W. V. Geppert, Chairman Pat Bailey R?&ph Rash Frahk Booth
APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone

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