# TEEA~~~RNI~Y GENERAL

Hon. Henry C. Kyle County Attorney Hays County San Marcos, 

### Texas

Dear Sir: Opinion No. O-5338 Re: Is it lawful for Hays County to pay principal and interest due onroad and bridge fund indebtedness with receipts from motor vehicle registration license fees anduse money collected from the levy of the road andbridge constitutional 

### 15$?tax, which has been pledged for retirement of said principal and interest, to pay the salaries of the county commissioners and apart of the ex officio salary of the county judge, and is Article 2350(l), Vernon’s Annotated Civil Statutes, constitutional to the extent of allowing payment of the salaries of county commissioners andapart of the ex officio salary of the county judge out of any fund derived from the 15# constitutional tax levy for roads andbridges?

Your request for anopinion on the above matters has been received and carefully considered. Wequote from your request as follows:

“The receipts of the Hays County road andbridge fund

are derived from the Constitutional 15$ levy as provided in Art. VIII, Sec. 9 (the additional 15# tax for that fund has never been voted); motor vehicle registration fees; fines andforfeitures; and, state aid for retirement of certain indebtedness andpayment of interest. All of the 15$ levy has been heretofore pledged by the Commissioners Court for the payment of principal and interest on outstanding road andbridge fund amortized indebtedness. All of the said State aid is applied as required by law. The entire salary of each County Commissioner and apart of the exofficio salary of the County Judge are paid from the road andbridge fund as is presumably allowed under certain circumstances by Art. 2350(l) of V.A.C.S. where the entire levy of 25$ is madefor the general fund. Such salaries paid from the road andbridge fund donot exceed the income from the 15# constitutional tax levy for roads and bridges. The other income of the road andbridge fund, exclusive of automobile registration fees, state aid and the said 15plevy, is not sufficient to pay such salaries.-- .

Hon. Henry C. Kyle, page 2 (O-5338)

Although the entire said 15$ levy has heretofore been pledged, as stated above, it is contended by the Commissioners Court andthe County Auditor of Hays County that it is impossible to say that any salaries are paid from motor vehicle registration fees, because all the funds

are in one ‘pot’

, so to speak; that such salaries are coming out of the said Constitutional 15p levy andother revenues of the road andbridge fund besides the motor vehicle registration fees and state aid; and, that Art. 6675a-10 specifically provides that motor vehicle registration fees maybe used in payment of principal and interest on obligations issued in construction and improvement of county roads.

‘1.

. . .”

In reply to our request for additional information relative to said matters, you state that Hays County does levy the entire sumof 25$provided for the general fund; that all the taxes levied for retirement of indebtedness are put into the road andbridge fund without setting upafund for anybond or warrant issue andthat whatever amount is due at the various dates is simply paid by awarrant on the road andbridge fund. You also state that the salaries of the county commissioners and apart of the ex officio salary of the county judge are paid from the road and bridge fund, andthat the commissioners’ court andthe county auditor contend that these salaries comeout of the 15Qconstitutional road andbridge fund tax, which has been pledged to paythe indebtedness referred to, since the motor vehicle registration fees are used to paywhat said 15p tax has been pledged to pay, andyou askwhether Article 2350(l) of Vernon’s Annotated Civil Statutes, is constitutional Insofar as it permits the payment of said salaries from the proceeds of said 15# road andbridge fund tax.

Article 6675a-10 of Vernon’s Annotated Civil Statutes, which provides for the apportionment of funds collected by county tax collectors from motor vehicle registration fees, is in part as follows:

“OnMonday of each week each County Tax Collector shall deposit in the County Depository of his county to the credit of the County Road andBridge Fundan amount equal to one hundred (100%) per cent of net collections madehereunder during the preceding week until the amount so aeposited shall have reached atotal sumof Fifty Thousand ($50,000.00) Dollars.

“Thereafter, anduntil the amount so deposited for the year shall have reached atotal of OneHundred Seventy-five. -

Hon. Henry C. Kyle, page 

### 3

Thousand ($175,plO.OO) (O-5338)

Dollars he shall deposit to the 

### credit of said Fundon equal to fifty 

### (50$>percsm of dsr during the preceding week. 

### each week an amount collections madehereunII

. 0 0

. None of the monies so placed to the credit of the Road andBridge Fundof acounty shall be used to pay the salary or compensation of any County Judge or County Commissioner, but all said monies shall be used for the construction andmaintenance of lateral roads in such county under the supervision of the County Engineer, if there be one, andif there is no such engineer, then the County Commissionerss Court shall have authority to command the services of the Division Engineer of the State Highway Department for the purpose of supervising the construction and surveying of lateral roads in their respective counties. All funds allocated in the counties by the provisions of this Act (Arts. 

### 6675a-1 to 6675a-14; P-C, Art. 

### 807a) maybe used by the counties in the payment of obligations, if any, issued and incurred in the construction or the improvement of all roads, including State Highways of such counties anddistricts therein; or the improvement of the roads comprising the County Road system.”

It is the opinion of this department that, under the provisions of said quoted statute, funds received from motor vehicle registration fees could be used in the payment of obligations issued and incurred in the construction or improvement of all roads in Hays County, including State highways anddistricts,

as well as any roads comprising acounty road system, which would evidently include all of the indebtedness referred to by you, but for the following reasons:

Payment of all of said indebtedness has already been arranged for 

### as provided by law, in that the 15$ road andbridge fund tax set out 

### in the Constitution and statutes has been set aside for that purpose and, under the laws of Texas, the funds raised by the levy of said 15# tax cannot be used for any other purpose. This rule of lawwas laid downbythe Supreme Court in the case of Carroll v. Williams, 202 S.W. 504. There was involved in this case the authority of the commissioners~ court of Jefferson County, as part of ageneral scheme for exacting from taxpayers and expending onroads andbridges of the county
more moneythan the Constitution of this State permitted to be raised by taxation and expended for tha,t purpose, deliberately andpurposely levied, for various other purposes defined by said Constitution, taxes which were knownby that court, at the time of such levies thereof, to be muchgreater in amounts than- .

Hon. Henry C. Kyle, page 4 (O-5338)

were required to 

### meet the current expenditures for such other purposes, and afterwards transferred such excesses in such fund to the road andbridge fund, andexpended sameaccordingly. In holding that said court did not have such authority, the Supreme Court madethe following holdings that are applicable here:

“Going to the real gist of the main issue before us, section 9of article 8of our state Const%tution, supra, inhibits any and all transfers of tax money from 

### one to another of the several classes of funds therein authorized) and, as asequence, the expenditure, 

### for one purpose there.- in defined of tax moneyraised ostensibly for another such purpose. !!he immediate purpose in so prescribing aseparate maximumtax rate for each of the classes of purposes there enumerated is, no doubt, to limit, accordingly, the amount of taxes which maybe raised from the people, by taxation, aecl aredly for those several purposes or classes of purposes , respectively. But that is not all. Theultimate andpractical andobvious design andpurpose andlegal effect is to inhibit excessive expenditures for any such purpose or class of purposes. Bynecessary implication said provisions of section 9of article 8were designed, not merely to limit the tax rate for certain therein aesignated purposes, but to require that any and all money raised by taxation for any such purpose shall be applied, faithfully, to that particular purpose, as needed therefor, andnot to any other purpose or use whatsoever. Those constitutional provisions control, not only the raising, but also, the application of all such funds; DDI

“True, the Constitution does not say, in so manywords, that 

### money raised by acounty, city or 

### town, by taxation for one such purpose shall never be expended for anyother purpose --not even for another of the five general classes of purposes defined and approved in said section v--but that, wethink, is its plain and certain meaning andlegal effect. Thevery definitions of those several classes of purposes, andthe declaration of authority to tax the people therefor, respectively, coupled, as they
are, in each instance, with alimitation of the tax rate for that class, must have been predicated upon the expectation and intent that9as amatter of commonhonesty and fair dealing, tax moneytaken from the people ostensibly for one such specified purpose shall be expended, as needed, for that purpose alone, aswell as that the tax rate for that particular class, in any one 

### year, shall not exceed the prescribed maximum. I,

. . D

.. .

Hon. Henry C. Kyle, page 5 (O-5338)

“Under aConstitution which designated certain specific funds for counties, cities, andtowns, and fixes a different maximumtax rate for each such fund, whyshould the local governing body be permitted to expend for one such purpose money raised by taxation under anentirely different grant of power and for anessentially different constitutional purpose? That, it seems to us9would. not
conserve any sound public policy.

“No implied power to transfer money from one to another such constitutional fund is derived from the fact that the original fund contains more than enough to meet the current demands against it. Such excess maybe retained in that fund, and applied in succeeding years to the very purpose for which it was raised, thereby possibly reducing the future tax rate for that purpose.

“Nor is the asserted power to transfer moneyfrom one to another such fund aided, even to the slightest extent, by the circumstance that any particular levy of taxes for the benefit of the specific fund which would be augmented by such transfer was madeat arate less than the maxfmum rate permitted by the Constitution, or even, as In the case at bar, at arate less than that authorized at areferendumelection. Thepower to tax, upto the authorfzed maxfmum,but separately for each such purpose, is conferred, and exists

, andmaybe exercised freel.y, without regard to the existence or nonexistence of the asserted power to transfer, under any circumstances, the proceeds of such taxation, or any portion thereof, from one to another such 

## fund. But, onthe other hand, said asserted power of transfer of tax money from one to another such fund, and the consequent expenditure thereof for apurpose essentially different from that for which, ostensibly, it was taken from that taxpayer, effectually is inhibited and nullified, fn law, by reason of the fact that our Constftution itself--to say nothing of our statutes--specifftally has designated andpermitted the creation of each such separate fuud, andfor each expressly andspecifically has prescribed aseparate maximumtax pate, Utterly andradically at variance with those provisions is the whole conception of atransfer of moneyfrom one to another such fund, andits consequent application accordingly O

Under these rules of law, the funds collected byHays County bymeans of the 156 constitutional tax levy for the purpose of paying the principal and interest on outstanding road and bridge fund indebtedness cannot be used for any other purpose and, the funds so collected being sufficient to take care .of said fndebtedness, the funds received from motor veh%cle regestrationHon. Henry C. Kyle, page 

### 6 (O-5'338)

fees cannot be used to pay said indebtedness. It is clear from the provisions of Article 

### 6675a-lo, that said motor vehicle registration fees cannot be used to pay any of the salaries of county commissioners or county judge.

In determining whether or not Article 2350(l), which provides that as muchas

### 7596of the salaries of the county judge and all of the salaries of the county commissioners may, at the discretion of the commissioners9 court9 be paid from the road andbridge fund in counties where the constitutional l.imit of 25$ on the $100.00 is levied for general purposes, is constitutional, the rules of law laid downbythe Supreme Court in the

case of Carroll v. Williams9 supra, must be applied9 andno funds over andabove those authorized by the Constitution may be used to pay said salaries.

In the case of Tinner vaCrow9et al09

### 78S.W.(2d) 

### 588, Com.App., there was involved the constitutionality of Section 8a, Special Laws

### 19199 2nd Called Session9 page 

### 16, Chapter 79 authorizing the members of the commissionersN court andcounty judge of Hill County to use their automobiles in the performance of their duties as set out in abill theretofore passed at the regular session of said Legislature providing for amore efficient road system in Hill County, andthat all of the expenses of said automobiles should be paid by the county out of the road andbridge fund. Said lawwas u@eld on the ground that the use by the commissioners of their private automobiles clearly had to dowith the maintenance of the public roads of the county, and if so9 the Legi.:lature nad’the authority under the Constitution to authorize tjie use 0:: a.part of the road and bridge fund to accomplish this gurpoce, +$plying this reasoning to the question here under co~:?i.ueration, it is evidently necessary for someone to have char*ge of and administer the road andbridge fund andto perform various services in connection therewith which would have to do,wi?;hthe mafntenance of the public road system of Hays County, therefore, it is proper that compensation for such services should be paid from the road and bridge fund, though, ordinarily, all salarit’:i should be paid from the general fund.

The case of Underwood’v. Howard9 County Judge, et al. 9 1S,W.(2d) 730, writ dismissed, deals with acontract entered into by the commissioners9 court of Childress County for the making of anabstract covering delinquent taxes and9 in complying with said contract, said commissioners9 court issued various warrants which were to be paid in part from delinquent taxes as collected over acertain period of time9 except county general fund delinquent taxes9 and in part from delinquent taxes collected for the general county fund0 In holding that the warrants first above referred to could not be thus paid9 the court he1.das follows:Hon. Henry C. Kyle9page 7 (O-5338)

_ -

“The commissioners1 

### court wasnot authorized to con

### tract for the ayment ofthe $500warrants aggregating not to exceed 16,000, with interest thereon, out of 

### all

ii the delinquent, taxes collected except theiportion of said delinquent taxesbelonging to Chegeneral fmd ofthe county, as this was obviously anattempt to appropriate 

### the state taxes, the jury fund, the road andbridge fund, and any improvement fund included in said delinquent taxes to the discharge of anobligation payable only out of the general fund. Carroll 

### vi Williams, 109Tex. 155, 202S.W. 504; Commissioners’ Court of Henderson County v. Burke, (Tex.Civ.App.) 262

### S.W. 94; Wallace et al. v0 

### Commissioners’ Court of Madison County et al. (Tex.Civ.App. 281 S.W. 5939

‘IWeare not to be understood, however, as holding that said warrants issued for the payment of the making of the abstract of the property of Childress county are Q&& andy2j&, but our conclusion is that the commissioners~ court waswithout authority to set aside andplace in a separate fund, for the payment of said warrants, all the delinquent taxes collected, belonging to said severzilconstitutional funds, except that portion thereof belon ing to the general fund. Austin Bras. v. Patton et al. 7 Tex. Com.App.) 288 S.W. 182.”

Another case applying the rule of law that iunds levied and collected for certain purposes cannot be transferred to some other fund andused for some other purpose is that of Jefferson Iron Companyet al. v. Hart, Tax Collector, 45 S.W. 321. The facts of this case were that the commissioners* court had levied

atax for county purposes for the full limit allowed by law. In addition thereto, it had levied atax for courthouse repairs when no such repairs were to be made, the real purpose andintention of levying said tax for courthouse repairs being to raise

anadditional fund for general county purposes. In holding such levy for courthouse repairs invalid, the court held as follows:

“The case of Railroad Co. v. Dawson Co., 12NebO255a 11N.W. 307, was asuit by injunction to restrain the collection of a sinking-fund tax. It appeared that large sums collected for the sinking-fund tax for the three previous years hadbeen transferred to the county general fund. The court in that cases uses the following language: PThelimitation upon the rate of taxation is for the protection of the taxpayers, andto secure economy in the expenditure of public moneys. It is the evident intention of the law that only the amount required in anyparticular fund shall be levied, andnomore. If the law limits the levy for the ordinary: county revenue to ten mills on the dollar valuation, no,greater sumcan be raised for that purpose byHon. Henry C. Kyle, page 8 (0-5338)

levying more than is required for asinking fund, or any other tax, andthen transferring the surplus to the general fund. If the law could be thus evaded! it wou1.d afford noprotection to taxpayers whatever. See9also, Vanover v. Davis, 27Ga. 355; State v. Commissioners of Marion Co. 21 Kan. 419; Bankv. Barber, 2&Kan. 534; Desty, Taxin, 1059; Cooley, Tax’n (2d Ed.) 2Y0 In this

case it appears that for the past eight years atax for court-house repairs has been levied and coll,ected, and appropriated for county purposes. ThepetRion nl.leges, in effect, that there is nonecessity for this tax; that it is levied for the purpose of, andwith the i,n%ention of9 using the fund arising therefrom Par the payment of current expenses of said county, andaot for the purpose of repairing the court house andjnfl. These allegations

are sustained by the findings of the .trial ccurt. Under these fa&s, if the tax for the Pcourthouse repairs is sustained, it in effect renders nugatory the limitation in the constitution prohibiting acounty from levying a tax in excess of 25 cents on each $100 valuation of the property for county purposes. This provision of the constitution cannot be defeated in this indirect manner” If this were acase in which the comni,ssioners’ court was exercising its discretion as acourt 1.nthe levy of atax,
wewould not feel authorized in interfering wP.thits discretion. The record presents acase in which the comnissioners’ court 9after having levied atax for county purposes to the full limit authorized by the cons~tftution, has madeanadditional levy for the purported purpose of court house repairs, when the real purpose andintention is to raise afund for general county purposes. This

seems ameclnsadopted to defeat the ,limfta,tion ontaxation for county purposes imposed by the constitu,tion. oD“”
Applying these well settled rules of law to the question of whether or not salaries of county commi,ssioners and county judges can be paid from the road andbridge fund, i’t is clear that funds levied and collected for the road and bridge fund mustbe used for road andbrf.dge purposes, an,d,that no part of such funds can be used to Daythe salaries of county commissioners or county judges, unless such payments be in paymentfor services performed in the maintenan~;e of the public road system. It is our opinion, ,therefore, that the salaries of the county commissioners ?f Rz.ys County ran be paid from the road andbridge fund insofr as t;he f.md; so used are in. payment for services performed in the mai,ntanan.ca of th,epubli::, road system of Hays County, but that a,nysalaries paid o,ther-- wise would be, in effect 9taking the funds belonging to the. road andbridge fund and appropriating sameto the discharge of obligations payable only out of the general rund, thereby defeatingHoneHenry C. Kyle, page 

### 9 (O-5338)

the limitation oftaxation for county purposes imposed by the 

### Constitution. This holding would also apply to the county judge of Hays County but for the fact that Article 2350(l), insofar



### as it applies to acounty judge, is, in our opinion, ofnoeffect, for the following reasons:

Article 2350waspassed originally l.n1925. It has been amended several times since then but until the last amendment in 

### 1935 bywhich what is nowArticle 2350(l) was added, it had covered only salaries of county commissioners. In this last amendment, salaries of county judges of certain counties are mentioned for the first time, andprovision is madatherein that

as muchas

### 7yb of the salary of the county judge may, at the discretion of the commissioners’ court, be paid from the road andbridge fund in counties where the constitutional limit of 25p on the $100.00 is levied for the general fund, However, the caption of the bill bywhich this amendment.wasmademakes no reference to the fact that the salaries of county judges are to be affected thereby, said caption being as follows:

“AnAct to amendArticle 2350, Title 44, Revised Civil Statutes of the State of Texas, 1925, as amendedby the Acts nf the Thirty-ninth Legislature, Regular Sessions, Chapter 

### 135, Section 1; andas amendedby Act of the Fortieth Legislature, page 

### 4359 Chapter 290, Section 1; andas amendedby Act of the Fortieth Legislature: First Called Session, page 

### 138, Chapter 46, Sections 1; and as amended by Act of the Forty-third Legislature, Regular Session Chapter 

### 216; andas amendedby Act of the Forty-third Eegislature, First Called Session, Chapter 

### 83>page 220; and

so as to provide the salaries of County Commi.ssEoners and Precinct Commissioners in certain counties; providing that all laws or parts of laws in conflict with this Act are hereby expressly repealed; providing that if anypart of this Act be deolared unconstitutional it shall not(;Feet any remaining part; anddeolaring an emergency,” 

### 362, p0 

### 1036, Regl. Session, 44th Legislature, 

### 1,9350)’

Article III, Section 

### 35, of the Constitution is as follows:

“Nobill, (except general appropriation bfl.ls, which mayembrace the various subjects and accounts, for andas on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in anact) which shall not be expressed in the title, such act shall be void only as to so muchthereof, as shall not be so expressed.” The general rule of construction of this Article and Section of the Constitution, as applied to amendments, is laidHon. Henry C. Kyle, page 10 

### (O-5338)

downin 

### 39Tex.Jur., Sec. 

### 48, pages 102-,104, in the following language :

‘I

### 48. Amendatorv Act+ -- Thetitle of anamendatory act is-ordinarily sufficient to allow any amendment germane to the subject of the original statute, if it properly specifies the chapter and section, or the revision, andarticle, to be amended. Whenthe ‘title of the original act is sufficient to embrace the matters covered bythe provisions of the amendatory act, the title of the latter act is not required to state the subject of the l.awamended or to specify the nature of the proposed amendment. But newsubstan-, tive matter contained in anamendment, which is not germane to or pertinent to that contained in the provision amended, is invalid as legislation upon alatter not expressed in the title of the amendatory act.

“Saeciffcation of field of amendment--In addition to the statement of apurpose to amendagiven law or provfsion, atitle mayspecify the nature of th,e amendment, and when it does so the body of the act must conform. Atitle that specifies the particular field anamendment is to
cover or states apurpose to makea certain chan,ge in the prior law9andthat is not merely descriptive of the matters to which the law relates, limits the amendatory act to the making of the change designated andpreelu,des any additional, contrary or different am,endment. Thus at;1,tl.e that expresses apurpose to change aprior %awby adding OI extending aprovisions or conferring aright does not warrant anamendmentthat omits OPrestricts aprovision of the original act or destroys apreviousl,y existing right. Similarly atitle expressing apurpose to change adeffnftion does not authorize achange of penalty” Nor does a title expressing apurpose to change apenalty authorize

achange of definition0 Andwhere atitle names as the purpose of the act the amendment of specified sections of

aformer law, the body of the act9after amending such sections, maynot proceed to set out other soztions which would become apart of the original act buowhl.ch are not included in the title by reason of being changes in, or enlargements of, the sections specified thereon.“’ Applying this rule of law to the amendmen%of Article 2350 passed in 

### 1935 andknown as Article 2350(l) 9andit being clear that the caption of said ‘bfl.1 did not conttifn anyreference to the fact that said bill was i.ntend,ed to makeit pccssfble for as muchas

### 75jbof the salaries of county ju,dges to be paid from the road andbridge fund in counties where theec,onsti,tutianal limit of 254!on the $100.00 is levied for the general fund, there is no question but that said amendment, insofar as the salaries. -

Hon. Henry C. Kyle, page 11 

### (O-5338)

of county judges Is andweso hold.

of the of our of the concerned, is unconstitutional andvoid,

For your information relative to the ,proper handling various funds referred to, wehandyou herewith acopy Opinion No. O-2942. Wealso refer you to Article 

### 839 Revised Civil Statutes of Texas, which reads as follows:

‘INocity or county treasurer shall honor any draft upon the interest and sinking fund provided for any of the bonds of such city or county, nor pay out nor divert any of the same, except for the purpose of paying the interest

on such bonds or for the redeeming the same, or for investment in such securities as maybe provided by law. Acts 

### 1899, p. 

### 45."

Wethink the fund derived from the 15# constitutional road andbridge fund levy should be placed in interest and sinking funds for the purpose of paying the indebtedness referred to, each of said interest and sinking funds to bekept separate from the others, aswell as separate from the road andbridge fund used for other purposes. Since it takes all of the funds derived from said 15$ constitutional road andbridge fund levy to pay said indebtedness, there would be no funds to place in the regular road andbridge fund, except such funds as maybe received from other sources.

Weare returning to you herewith the audit report of Hays County for 1942. Trusting that this satisfactorily answers your inquiry, weare Very truly yours

ATTORNEY

GENERAL

OFTEXAS
By/s/ Jas. W.Bassett Jas. W.Bassett, Assistant APPROVED

JCL

### 19, 1943 /s/ Grover Sellers FIRST ASSISTANTATTORNEY GENERAL

APPROVED:OPINIONCOMMITTEE BY: BUB,CHAIRMAN

JWB:db:wb

Enclosures