A-OBZTWEY CENEWAL August 29, 1962

Honorable Dean Martin OpinionNo. W-1428 County Attorney Grayson County Re: Whether Article 1lOgk of Courthouse Vernon's Civil Statutes is Sherman, Texas constitutional,and whether disbursementsmay be made from the Permanent Improvement Fund for the construction of water control and soil conservation structures, Dear Mr. Martin: and related questions.

We are in receipt of your letter of August 9, 1962, requesting a re-considerationof our OpinionNo. ~~-1382. The holding of that opinionwas as follows:

"Since Grayson Countyhas not complied with the provisions of Article 7048a of Vernon's Civil Statutes, there are no existing funds thatmay be expended for the purchase of land ormaintenance ofwater control and soil conservation structuresconstructedby the U. S. Department of Agriculture Soil Conservation Service.

"If the County Auditor approves illegal and unauthorizeddisbursementsdrawn on existing county funds, he and the sureties on his bond are liable for the amounts illegally expended."

In the course of our opinionwe stated the following: "Subsequentto the release of the above cited opinionsflW-595 and WW-596-7the Leglslature passed Article 1109kj and'in Section 3 of said statute specificallyauthorized the disbursement of Permanent ImprovementFunds for carrying out the purposes of the Act. However, an inspection of that statute leads us to the conclusion that its provisionswere to apply when a soil conservationdistrict,water control and improvementdistrict, or drainage district-:

.

Hon. Dean Martin, page 2 (W-1428)

had been created. No such district having been created In Grayson County, it follows that the provisions of Article 1109k do not apply. For the above stated reasons Article 1581e is likewise inapplicable."
This statementwas premised on the assumption that no soil conservationdistrict,water control and improvement district or drainage districtwas involved in your contract. Your last letterpresents to us additional information stated by you as follows:

"The contract in questionwas entered into between the Upper Elm Red Soil ConservationDistrict; the Collin County, Soil ConservationDistrict; the ChoctawWatershed Water Improvement District,which is a water control and improvement district, createdby'H.B. 156, 56th Leg., (as amended, H.B. 999) approved March 24, 1959; and the Grayson County CommissionersCourt. A COPY of this contract is attachedhereto for your information.

"Inview of the statementsmade in paragraph 1, page 4 of your opinion, it was felt that you did not know these facts."

You then ask the following additional questions:
"1. Is Article 1109k of the Revised Civil Statutes of the State of Texas Constitutionaland valid?
"2. If your answer to QuestionNo.,1 is 'yes,' can Grayson County legally expendmoney under Article 1109k in fulfillment of its contractwith the other parties Involved out of Its Permanent Improvement Funds?
“3. If your answer to QuestionNo. 2 is Ino' then in what particularhave the parties involved failed to complywith Article llOgk?"
Section 9 of ArticleVIII of the Constitution of Texas states as follows:

"The State tax on property, exclusive of the tax necessary to pay the public debt, and of. -

Hon. Dean Martin, page 3 (W-1428)

the taxes provided for the benefit of the public free schools, shall never exceed thirty-five (35) cents on the one hundred dollars valuation; and no county, city or town shall~levvmore than twentv-five (25) cents for city"or county exceeding fifteen 715) ce
'Hi ;ii ;~~o~~~e~~'~~ef~~~e~~n~~~~dollars valuation, except for the payment of debts incurredprior to the adoption of the Amendment September 25, 1883; and for the erection of public buildings, streets, sewers,waterworks and other permanent improvements,not to exceed twenty-five (25) cents on the one hundred dollars valuation, in-any one year, and except as is,,in

this Constitutionotherwiseprovided;

. . . (Emphasisadded).
Article 1109k of Vernonss Civil Statutes states as follows:
"Section 1. All counties, cities,water

control and improvementdistricts, drainage districts and other political subdivisions in the
:rlc.t.s fnr the

Agreements shall contain such terms, provisions and details as the governingbodies of the respectivepolitical subdivisionsdetermine to be necessary under all facts and circumstances.

"Sec. 2. All counties, cities,water control and imorovementsdistricts,drainage districts and other political subdivisions in the State of Texasmay contribute funds to soil conservation districts for constructionor maintenance of canals, dams, flood detention structures,drains, levees and other improvements for flood control and drain-

= as related to flood control and for making- .

Hon. Dean Martin, page 4 (WW-1428)

the necessary outlets and maintaining them regardless of whether the title to such properties is vested in the State of Texas, or a soil conservationdistrict, so long as the work to be accomplished is for the mutual benefit of the donor and the agency or political subdivisionhaving title to suchproperty on which the improvementsare located.

tricts, drainage districts and otherpolitical subdivisionsmay expend the appropriate funds of the various cities and political subdivisions for carrying out the purposes of this Act." (Emphasis added).

In the case of Carrollv. Williams, 109 Tex. 155, 202 S.W. 504 (1918), the Supreme Court statedat page 506:

(1

. . . Going to the real gist of the main issuebefore us, section 9 of article 8 of our state Constitution, supra, inhibits any and all transfers of taxmoney from one to another of the several classes of funds therein authorized, and, a3 a sequence, the expenditure,for one purpose therein defined, of tax money raised ostensibly for another such purpose. The Immediatepurpose in so prescribing a separatemaximum tax rate for each of the classes of purposes there enumerated Is, no doubt, to limit, accordingly, the amount of taxes which may be raised from the people,by taxation, declaredly for those severalpurpose3 or classes of purposes, respectively. But that Is not all. The ultimate and practical and obvious design and purpose and legal effect Is to inhibit excessive expenditures for any such purpose or classes of purposes. By necessary impllcation saidprovisions of section 9 of articleHon. Dean Martin, page 5 (W-1428)

8 were designed,not merely to limit the tax

designed, rate for certain therein designatedpurposes,

certain therein designatedpurposes, require b t to require that any and all money raised taxation purpose by taxation for any suchpurpose shallbe apfaithfully particular purpose, plied, faithfully to that particular purpose, as needed therefoG, and not to any other purtherefoG, pose or use whatsoever. Those constitutional

whatsoever. constitutional provisionscontrol; raising, provisions control;not only the raising,but also the application of all such funds; and such is the legal effect of articles 2242 and ;5?';;tupra,when properly constructed and ap-

(Emphasisadded). also the application of all such funds; and such is the legal effect of articles 2242 and ;5?';;tupra,when properly constructed and ap-

(Emphasisadded).

From the language of the Carroll opinion, it can be seen --- that no disbursementsmay be made under any circumstances from the Permanent ImprovementFund except for permanent improvements themselves.

We do not consider Article 1109k to be an inroad~on Section 9 of ArticleVIII of the Constitution,provided, of course, that the disbursementsmade under the authority of this statutego only for the erection of permanent improvements. We thereforehold that Article 1109k is constitutional, and that the CommissionersI Court is authorized to make disbursements for permanent improvements.

We respectfully call your attention to the fact that not all expendituresrelating to water control or soil conservation structures Involve permanent improvements. Opinion No. O-37 (1939)held that expenditures for legal servicesaf-lda;;ling fee expenses do not comewithin the term "erection, consequentlywere not expenses of "erection"of a permanent improvement. OpinionNo. O-629 (1939)held that disbursements could not be made from the Permanent ImprovementFund for the constructionandmaintenance of drainage ditches. Opinion No. O-5422 (1943)held that funds collected as a permanent improvement tax could not be legally expended for the purpose of,buying right-of-wayfor public roads. Cur OpinionNo. kibi-596 (1959)held that disbursements could not be made for the maintenance of projects constructedby the Soil Conservation %%? vice. These same principles apply to the contract entered into by your Commissioners'Court.

Accordingly, in the light of our discussion above, CoinionNo. w-1382 is hereby modified to the extent that amounts may be disbursed from the Permanent ImprovementFund if they are used "for the erection of public buildings, streets,Hon. Dean Martin,page 6 (WW-1428)

sewers,waterworks and other permanent improvements." The County Auditor is only liable for amounts disbursed for purposes which do not constitutepermanent improvements.

SUMMARY
Article 1109k of Vernon's Civil Statutes is constitutional insofar as it authorizesdisbursements from'the Permanent ImprovementFund for the erection of permanent improvements. The Commissionerst Court of Grayson Countymay, by authority of Article 1109k,make disbursements from the PermanentImprovementFund for permanent improvements in connectionwith the construction ofwater control and soil conservation structures.

Yours very truly,

WILL WILSON r322q

Fred D. Ward Assistant FDW:wb:ms

APPROVED: OPINION COMMITTEE
1:'. V. Geppert, Chairman

Scranton Jones Dudley McCalla Sam Stone Tom Hunter

RFVIEWED FOR THEATTORNEY GENERAL By: Leonard Passmore