May 19, 1965 

Hon. Raleigh Brown, Chairman 

House Committee on Counties 

State Capitol 

Austin, Texas 

Dear Mr. Brown: 

Opinion No. C-441 

Re: Whether the Seawall Commission for Matagorda 

County created by Chapter 

4, page 11, 43rd Leglslature, Fourth Called Session, 

1934, Is still an 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 statutory power. This commission was 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 establishment of seawall 

commissions Is constitutional. In the further alternative, you 

ask whether the said House Bill 908 would permit a county to 

transfer to its seawall commission monies from the Permanent 

Improvement Fund, the Road and Bridge Fund and the General Fund 

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's Precinct 3 of Matagorda County, said donation to 

be held in trust by the Seawall Commission created by the Act. 

The period of donated taxes was stated to be thirty years, beginning September 1, 1933. By Section 7 of the 1934 Act, it was 

provided that when the sinking fund created by the Act shall become sufficient to retire all outstanding bonds, the Act shall 

cease to be operative and the donations of tax monies provided 

for shall cease. 

By Acts, 50th Legislature, page 1071, Chapter 457, 

1947, the Legislature provided for a two-year extension of the 

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Hon. Raleigh Brown, page 2 (C-441) 

ori 

& 

inal donation period of thirty years provided for in the 

193 Act. Therefore, the total period of donated tax monles 

was thirty-two years from September 1, 1933. We are informed 

that bonds issued by the Matagorda 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, the Matagorda County Seawall Commission, as 

such, expires under the terms of the Act. 

We now turn to the question of the constitutionality 

of House Bill 908. We have been cited to no particular provision of this proposed statute which 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 commission by 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 

question which reveals itself on the face of the bill Is in regard to Section 3(a) thereof, which reads in part as follows: 

'The operations of the seawall commission 

shall be financed by appropriations to It by 

the city and by the county out of their general 

revenues. Th e . . . (Emphasis supplied). 

The city government may, under the provisions of its charter, 

appropriate their general revenue funds to the seawall commission, butthe government of a home rule city operates under more 

relaxed rules than does a county government. A seawall is a 

permanent Improvement, and county funds may be expended therefor 

only when the funds are derived from the constitutional Permanent 

Improvement Fund or through bonds voted under Article 6830, et 

seq., Vernon's Civil Statutes. A county would not be authorized 

to expend monies from the Road and Bridge Fund, the Officers 

Salary Fund, or any other constitutionally-restricted fund for 

a seawall. The commissioners court has no Dower to lev!? a tax 

for one purpose and use the money 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. Will1 ams, 109 Tex. 

In consideration of the foregoing, it is the opinion 

of this office that Section 3(a) of House Bill 908 is unconstitutional Insofar as it purports to authorize a county to appropriate its general revenues to a seawall commission. A part of 

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Hon. Raleigh Brown, page 3'(C- 441) 

the general revenues of the county, of course, are the funds 

which go to make up the Permanent Improvement Fund. The~se funds 

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 construction may go no farther: 

.that a statute which includes by 

generai ianguage subjects within and those without 

the constitutional jurisdiction of the state cannot be limited by 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, Is unconstltutlonal in its entirety. 

In view of our answer to your second question regarding 

the constitutionality of House Bill 908, ,it is not necessary to 

answer your third question. 

SUMMARY 

The Seawall Commission establshed by Acts, 

43rd Legislature, Fourth Called Session, page 

11, Chapter 4, (1934) will no longer be an effective body after September 1, 1965. 

House Bill 908 is unconstitutional in that 

It authorizes the expenditure by 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 

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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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