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 on road and 

bridge fund indebtedness with receipts 

from motor vehicle registration license 

fees and use money collected from the 

levy of the road and bridge constitutional 15$? tax, which has been pledged for 

retirement of said principal and interest, 

to pay the salaries of the county commissioners and a part 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 and a part of the ex 

officio salary of the county judge out of 

any fund derived from the 15# constitutional tax levy for roads and bridges? 

Your request for an opinion on the above matters has 

been received and carefully considered. We quote from your request as follows: 

“The receipts of the Hays County road and bridge 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 and forfeitures; and, state aid for retirement of certain indebtedness and payment 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 and bridge fund amortized indebtedness. All of the 

said State aid is applied as required by law. The entire 

salary of each County Commissioner and a part of the exofficio salary of the County Judge are paid from the road 

and bridge fund as is presumably allowed under certain 

circumstances by Art. 2350(l) of V.A.C.S. where the entire 

levy of 25$ is made for the general fund. Such salaries 

paid from the road and bridge fund do not exceed the income from the 15# constitutional tax levy for roads and 

bridges. The other income of the road and bridge fund, 

exclusive of automobile registration fees, state aid and 

the said 15p levy, 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 and the 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 and other revenues of the road and bridge fund besides the motor vehicle registration fees and state aid; and, that Art. 

6675a-10 specifically provides that motor vehicle registration fees may be 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 sum of 25$ provided for the general fund; that all 

the taxes levied for retirement of indebtedness are put into the 

road and bridge fund without setting up a fund for any bond or 

warrant issue and that whatever amount is due at the various 

dates is simply paid by a warrant on the road and bridge fund. 

You also state that the salaries of the county commissioners 

and a part of the ex officio salary of the county judge are paid 

from the road and bridge fund, and that the commissioners’ court 

and the county auditor contend that these salaries come out of 

the 15Q constitutional road and bridge fund tax, which has been 

pledged to pay the indebtedness referred to, since the motor vehicle registration fees are used to pay what said 15p tax has 

been pledged to pay, and you ask whether 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 and bridge 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: 

“On Monday of each week each County Tax Collector 

shall deposit in the County Depository of his county to the 

credit of the County Road and Bridge Fund an amount equal 

to one hundred (100%) per cent of net collections made hereunder during the preceding week until the amount so aeposited shall have reached a total sum of Fifty Thousand 

($50,000.00) Dollars. 

“Thereafter, and until the amount so deposited for the 

year shall have reached a total of One Hundred Seventy-five 
. - 

Hon. Henry C. Kyle, page 3 

Thousand ($175,plO.OO) 

(O-5338) 

Dollars he shall deposit to the 

credit of said Fund on 

equal to fifty (50$> percsm of 

dsr during the preceding week. 

each week an amount 

collections made hereunII 

. 0 0 . None of the monies so placed to the credit 

of the Road and Bridge Fund of a county 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 and maintenance of lateral roads in such 

county under the supervision of the County Engineer, if 

there be one, and if 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) may be 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 and districts 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 and districts, 

as well as any roads comprising a county 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 and bridge 

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 law was laid down by the 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 a general scheme for exacting 

from taxpayers and expending on roads and bridges of the county 

more money than the Constitution of this State permitted to be 

raised by taxation and expended for tha,t purpose, deliberately 

and purposely levied, for various other purposes defined by 

said Constitution, taxes which were known by that court, at the 

time of such levies thereof, to be much greater 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 and bridge fund, and expended same accordingly. 

In holding that said court did not have such authority, the Supreme Court made the following holdings that are applicable 

here: 

“Going to the real gist of the main issue before us, 

section 9 of article 8 of 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 a sequence, the expenditure, for one purpose there.- 

in defined of tax money raised ostensibly for another such 

purpose. !!he 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, aecl aredly for those several purposes 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 class of purposes. By necessary implication 

said provisions of section 9 of article 8 were 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, and not to any other purpose or use whatsoever. Those 

constitutional provisions control, not only the raising, 

but also, the application of all such funds; D D I 

“True, the Constitution does not say, in so many words, 

that money raised by a county, city or town, by taxation 

for one such purpose shall never be expended for any other purpose --not even for another of the five general 

classes of purposes defined and approved in said section 

v--but that, we think, is its plain and certain meaning 

and legal effect. The very definitions of those several 

classes of purposes, and the declaration of authority to 

tax the people therefor, respectively, coupled, as they 

are, in each instance, with a limitation of the tax rate 

for that class, must have been predicated upon the expectation and intent that 9 as a matter of common honesty and 

fair dealing, tax money taken from the people ostensibly 

for one such specified purpose shall be expended, as 

needed, for that purpose alone, as well 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 a Constitution which designated certain specific funds for counties, cities, and towns, and fixes a 

different maximum tax rate for each such fund, why should 

the local governing body be permitted to expend for one 

such purpose money raised by taxation under an entirely 

different grant of power and for an essentially different 

constitutional purpose? That, it seems to us9 would. 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 may be 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 money from 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 made at a rate less than the maxfmum 

rate permitted by the Constitution, or even, as In the case 

at bar, at a rate less than that authorized at a referendum election. The power to tax, up to the authorfzed maxfmum, but separately for each such purpose, is conferred, 

and exists , and may be 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, on the other hand, said asserted power of 

transfer of tax money from one to another such fund, and 

the consequent expenditure thereof for a purpose 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 and permitted the creation of each 

such separate fuud, and for each expressly and specifically has prescribed a separate maximum tax pate, Utterly and radically at variance with those provisions is the 

whole conception of a transfer of money from one to another such fund, and its consequent application accordingly O 

Under these rules of law, the funds collected by Hays 

County by means 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 regestration 
Hon. 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 much as 7596 of 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 

and bridge 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 down by the Supreme Court in the 

case of Carroll v. Williams9 supra, must be applied9 and no 

funds over and above those authorized by the Constitution may 

be used to pay said salaries. 

In the case of Tinner v a Crow 9 et al0 9 78 S.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 and county judge of Hill County to use their automobiles in the performance of their duties as set out in a bill theretofore passed at 

the regular session of said Legislature providing for a more 

efficient road system in Hill County, and that all of the expenses of said automobiles should be paid by the county out of 

the road and bridge fund. Said law was u@eld on the ground 

that the use by the commissioners of their private automobiles 

clearly had to do with 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 

and bridge fund and to perform various services in connection 

therewith which would have to do ,wi?;h the 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 

1 S,W.(2d) 730, writ dismissed, deals with a contract entered 

into by the commissioners9 court of Childress County for the 

making of an abstract 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 a certain 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.d as 

follows: 
Hon. Henry C. Kyle 9 page 7 (O-5338) 

_ - 

“The commissioners1 court was not authorized to contract for the ayment of the $500 warrants aggregating 

not to exceed ii 16,000, with interest thereon, out of all 

the delinquent, taxes collected except theiportion of said 

delinquent t axe s belonging to Che general fmd of the 

county, as this was obviously an attempt to appropriate 

the state taxes, the jury fund, the road and bridge fund, 

and any improvement fund included in said delinquent taxes 

to the discharge of an obligation payable only out of the 

general fund. Carroll vi Williams, 109 Tex. 155, 202 S.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 

‘IWe are 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&& 

and y2j&, but our conclusion is that the commissioners~ 

court was without authority to set aside and place 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 and used for some other purpose is that of Jefferson 

Iron Company et al. v. Hart, Tax Collector, 45 S.W. 321. The 

facts of this case were that the commissioners* court had levied 

a tax for county purposes for the full limit allowed by law. 

In addition thereto, it had levied a tax for courthouse repairs 

when no such repairs were to be made, the real purpose and intention of levying said tax for courthouse repairs being to raise 

an additional 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., 12 NebO 255a 

11 N.W. 307, was a suit 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 had been transferred to the county general fund. The 

court in that cases uses the following language: PThe limitation upon the rate of taxation is for the protection 

of the taxpayers, and to secure economy in the expenditure 

of public moneys. It is the evident intention of the law 

that only the amount required in any particular fund shall 

be levied, and no more. If the law limits the levy for 

the ordinary: county revenue to ten mills on the dollar valuation, no, greater sum can be raised for that purpose by 
Hon. Henry C. Kyle, page 8 (0-5338) 

levying more than is required for a sinking fund, or any 

other tax, and then transferring the surplus to the general fund. If the law could be thus evaded! it wou1.d 

afford no protection to taxpayers whatever. See 9 also, 

Vanover v. Davis, 27 Ga. 355; State v. Commissioners of 

Marion Co. 21 Kan. 419; Bank v. Barber, 2& Kan. 534; 

Desty, Taxin, 1059; Cooley, Tax’n (2d Ed.) 2Y0 In this 

case it appears that for the past eight years a tax for 

court-house repairs has been levied and coll,ected, and 

appropriated for county purposes. The petRion nl.leges, 

in effect, that there is no necessity for this tax; that 

it is levied for the purpose of, and with the i,n%ention 

of9 using the fund arising therefrom Par the payment of 

current expenses of said county, and aot for the purpose 

of repairing the court house and jnfl. 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 a county 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 a case in which the comni,ssioners’ court was 

exercising its discretion as a court 1.n the levy of a tax, 

we would not feel authorized in interfering wP.th its discretion. The record presents a case in which the comnissioners’ court 9 after having levied a tax for county purposes to the full limit authorized by the cons~tftution, 

has made an additional levy for the purported purpose of 

court house repairs, when the real purpose and intention 

is to raise a fund for general county purposes. This 

seems a meclns adopted to defeat the ,limfta,tion on taxation 

for county purposes imposed by the constitu,tion. o D “” 

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 and bridge fund, i’t is 

clear that funds levied and collected for the road and bridge 

fund must be used for road and brf.dge purposes, an,d ,that no 

part of such funds can be used to Day the salaries of county 

commissioners or county judges, unless such payments be in payment for 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 and bridge fund insofr as t;he f.md; so used are in. 

payment for services performed in the mai,ntanan.ca of th,e publi::, 

road system of Hays County, but that a,ny salaries paid o,ther-- 

wise would be, in effect 9 taking the funds belonging to the. road 

and bridge fund and appropriating same to the discharge of obligations payable only out of the general rund, thereby defeating 
Hone Henry C. Kyle, page 9 (O-5338) 

the limitation of taxation 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 a county judge, is, in our opinion, of no effect, for the following reasons: 

Article 2350 was passed originally l.n 1925. It has 

been amended several times since then but until the last amendment in 1935 by which what is now Article 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, and provision is mada therein that 

as much as 7yb of the salary of the county judge may, at the 

discretion of the commissioners’ court, be paid from the road 

and bridge 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 by which this amendment .was made makes no 

reference to the fact that the salaries of county judges are to 

be affected thereby, said caption being as follows: 

“An Act to amend Article 2350, Title 44, Revised Civil 

Statutes of the State of Texas, 1925, as amended by the 

Acts nf the Thirty-ninth Legislature, Regular Sessions, Chapter 135, Section 1; and as amended by Act of the Fortieth 

Legislature, page 4359 Chapter 290, Section 1; and as 

amended by 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; and as amended by 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 any part of 

this Act be deolared unconstitutional it shall not(;Feet 

any remaining part; and deolaring an emergency,” 

362, p0 1036, Regl. Session, 44th Legislature, 1,9350)’ 

Article III, Section 35, of the Constitution is as 

follows: 

“No bill, (except general appropriation bfl.ls, 

which may embrace the various subjects and accounts, for 

and as 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 an act) 

which shall not be expressed in the title, such act shall 

be void only as to so much thereof, as shall not be so 

expressed.” 

The general rule of construction of this Article and 

Section of the Constitution, as applied to amendments, is laid 
Hon. Henry C. Kyle, page 10 (O-5338) 

down in 39 Tex.Jur., Sec. 48, pages 102-,104, in the following 

language : 

‘I 48. Amendatorv Act+ -- The title of an amendatory 

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, and article, to be amended. When the ‘title of the original act is 

sufficient to embrace the matters covered by the provisions 

of the amendatory act, the title of the latter act is not 

required to state the subject of the l.aw amended or to specify the nature of the proposed amendment. But new substan-, 

tive matter contained in an amendment, which is not germane 

to or pertinent to that contained in the provision amended, 

is invalid as legislation upon a latter not expressed in 

the title of the amendatory act. 

“Saeciffcation of field of amendment--In addition to 

the statement of a purpose to amend a given law or provfsion, a title may specify the nature of th,e amendment, and 

when it does so the body of the act must conform. A title 

that specifies the particular field an amendment is to 

cover or states a purpose to make a certain chan,ge in the 

prior law 9 and that is not merely descriptive of the matters to which the law relates, limits the amendatory act 

to the making of the change designated and preelu,des any 

additional, contrary or different am,endment. Thus a t; 1,tl.e 

that expresses a purpose to change a prior %aw by adding OI 

extending a provisions or conferring a right does not warrant an amendment that omits OP restricts a provision of 

the original act or destroys a previousl,y existing right. 

Similarly a title expressing a purpose to change a deffnftion does not authorize a change of penalty” Nor does a 

title expressing a purpose to change a penalty authorize 

a change of definition0 And where a title names as the 

purpose of the act the amendment of specified sections of 

a former law, the body of the act 9 after amending such 

sections, may not proceed to set out other soztions which 

would become a part of the original act buo whl.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 and known as Article 2350(l) 9 and it being 

clear that the caption of said ‘bfl.1 did not conttifn any reference to the fact that said bill was i.ntend,ed to make it pccssfble 

for as much as 75jb of the salaries of county ju,dges to be paid 

from the road and bridge fund in counties where thee c,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 

and we so hold. 

of the 

of our 

of the 

concerned, is unconstitutional and void, 

For your information relative to the ,proper handling 

various funds referred to, we hand you herewith a copy 

Opinion No. O-2942. We also refer you to Article 839 

Revised Civil Statutes of Texas, which reads as follows: 

‘INo city 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 may be provided by law. 

Acts 1899, p. 45." 

We think the fund derived from the 15# constitutional 

road and bridge 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 be kept separate from 

the others, as well as separate from the road and bridge fund 

used for other purposes. Since it takes all of the funds derived from said 15$ constitutional road and bridge fund levy to 

pay said indebtedness, there would be no funds to place in the 

regular road and bridge fund, except such funds as may be received from other sources. 

We are returning to you herewith the audit report of 

Hays County for 1942. Trusting that this satisfactorily answers your inquiry, we are 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

By /s/ Jas. W. Bassett 

Jas. W. Bassett, Assistant 

APPROVED JCL 19, 1943 

/s/ Grover Sellers 

FIRST ASSISTANT ATTORNEY GENERAL 

APPROVED: OPINION COMMITTEE 

BY: BUB, CHAIRMAN 

JWB:db:wb 

Enclosures