A-OBZTWEY CENEWAL 

August 29, 1962 

Honorable Dean Martin Opinion No. W-1428 

County Attorney 

Grayson County Re: Whether Article 1lOgk of 

Courthouse Vernon's Civil Statutes is 

Sherman, Texas constitutional, and whether 

disbursements may 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-consideration of our Opinion No. ~~-1382. 

The holding of that opinion was as follows: 

"Since Grayson County has not complied 

with the provisions of Article 7048a of 

Vernon's Civil Statutes, there are no existing funds that may be expended for the purchase 

of land or maintenance of water control and 

soil conservation structures constructed by 

the U. S. Department of Agriculture Soil Conservation Service. 

"If the County Auditor approves illegal 

and unauthorized disbursements drawn on existing county funds, he and the sureties on his 

bond are liable for the amounts illegally expended." 

In the course of our opinion we stated the following: 

"Subsequent to the release of the above 

cited opinions flW-595 and WW-596-7 the Leglslature passed Article 1109kj and'in Section 3 

of said statute specifically authorized the disbursement of Permanent Improvement Funds for 

carrying out the purposes of the Act. However, 

an inspection of that statute leads us to the 

conclusion that its provisions were to apply 

when a soil conservation district, water control 

and improvement district, 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 statement was premised on the assumption that no 

soil conservation district, water control and improvement 

district or drainage district was involved in your contract. 

Your last letter presents to us additional information stated 

by you as follows: 

"The contract in question was entered into 

between the Upper Elm Red Soil Conservation District; the Collin County, Soil Conservation District; the Choctaw Watershed Water Improvement 

District, which is a water control and improvement 

district, created by'H.B. 156, 56th Leg., (as 

amended, H.B. 999) approved March 24, 1959; and 

the Grayson County Commissioners Court. A COPY 

of this contract is attached hereto for your information. 

"In view of the statements made 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 Constitutional and 

valid? 

"2. If your answer to Question No.,1 is 'yes,' 

can Grayson County legally expend money under Article 1109k in fulfillment of its contract with the 

other parties Involved out of Its Permanent Improvement Funds? 

“3. If your answer to Question No. 2 is Ino' 

then in what particular have the parties involved 

failed to comply with Article llOgk?" 

Section 9 of Article VIII 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~levv more 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 incurred prior 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 Constitution otherwise provided; 

. . . (Emphasis added). 

Article 1109k of Vernonss Civil Statutes states as follows: 

"Section 1. All counties, cities, water 

control and improvement districts, drainage districts and other political subdivisions in the 

:rlc.t.s fnr the 

Agreements shall 

contain such terms, provisions and details as the 

governing bodies of the respective political subdivisions determine to be necessary under all 

facts and circumstances. 

"Sec. 2. All counties, cities, water control 

and imorovements districts, drainage districts 

and other political subdivisions in the State of 

Texas may contribute funds to soil conservation 

districts for construction or 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 conservation district, so long as the 

work to be accomplished is for the mutual benefit of the donor and the agency or political 

subdivision having title to such property on 

which the improvements are located. 

tricts, drainage districts and other political 

subdivisions may 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 Carroll v. Williams, 109 Tex. 155, 202 

S.W. 504 (1918), the Supreme Court stated at page 506: 

(1 

. . . Going to the real gist of the main 

issue before us, section 9 of article 8 of our 

state Constitution, supra, inhibits any and all 

transfers of tax money 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 Immediate purpose 

in so prescribing a separate maximum 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 several purpose3 

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 said provisions of section 9 of article 
Hon. Dean Martin, page 5 (W-1428) 

8 were designed, designed, not merely to limit the tax 

rate for certain certain therein therein designated designated purposes, purposes, 

b t to require require that any and all money raised 

by taxation taxation for any such purpose purpose shall be applied, faithfully faithfully to that particular particular purpose, purpose, 

as needed therefoG, therefoG, and not to any other purpose or use whatsoever. whatsoever. Those constitutional constitutional 

provisionscontrol; provisions control; not only the raising, 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- 

(Emphasis added). 

also the application of all such funds; and 

such is the legal effect of articles 2242 and 

;5?';; tupra, when properly constructed and ap- 

(Emphasis added). 

From the language of the --- Carroll opinion, it can be seen 

that no disbursements may be made under any circumstances from 

the Permanent Improvement Fund except for permanent improvements themselves. 

We do not consider Article 1109k to be an inroad~on 

Section 9 of Article VIII of the Constitution, provided, of 

course, that the disbursements made under the authority of 

this statute go only for the erection of permanent improvements. We therefore hold that Article 1109k is constitutional, and that the Commissioners I Court is authorized to make 

disbursements for permanent improvements. 

We respectfully call your attention to the fact that 

not all expenditures relating to water control or soil conservation structures Involve permanent improvements. Opinion No. 

O-37 (1939) held that expenditures for legal services af-lda;;ling fee expenses do not come within the term "erection, 

consequently were not expenses of "erection" of a permanent 

improvement. Opinion No. O-629 (1939) held that disbursements 

could not be made from the Permanent Improvement Fund for the 

construction and maintenance 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-way for public roads. Cur Opinion No. kibi-596 

(1959) held that disbursements could not be made for the maintenance of projects constructed by 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, Coinion No. w-1382 is hereby modified to the extent that amounts 

may be disbursed from the Permanent Improvement Fund 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 constitute permanent improvements. 

SUMMARY 

Article 1109k of Vernon's Civil Statutes is constitutional insofar as it authorizes disbursements from'the Permanent 

Improvement Fund for the erection of permanent improvements. The Commissionerst 

Court of Grayson County may, by authority 

of Article 1109k, make disbursements from 

the Permanent Improvement Fund for permanent improvements in connection with the 

construction of water 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 THE ATTORNEY GENERAL 

By: Leonard Passmore