## THEA ORNEY GENERAL. 0F TEXAS

Honorable E. G, Garvey CountyAuditor Bexar County San Antonio, Texas

Dear Sir: opinionNO. 0-6446 Re: Is the cost of painting an office in the Court House where there is ho'new construction chargeable against the General Fund Tax or the-Permanent ImprovementFund Tax, under Article 8, Sectlon 9, of the Constitution of Texas?

We have YOUP request for an opinion on the above matter, said request being as follows:

"Pleases

furnishme with an opinlon on the followingmatter.

"Is the cost for paintfng an office in the Court House where there is no new construction chargeable against the Genegal Fund Tax OP then Permanent ImprovementFund ax under,Artlcle 8, Sectfon 9 of the Constitution of Texas?
"This County has always charged the cost of painting various offices In the 'Court House to General Fund, classifying itas a maintenance cost, unless there was a new offfce constructedand in this case the cost of construction and painting
was charged to Permanent ImprovementFund. However, the CountyJudge contends that the straight painting of an office Is not a maintenance cost chargeable to theGeneral Fund but is a charge against the Perma,nent ImprovementFund, so I will ask you please to furnishme wfth an opinion on the above question."
Article 8, Section 9 of the Constitution of Texas, Is as follows:

"The State tax'on property, exclusive of the tax necessary to pay the public debt, and of theHon. E. G. Garvey, page 2 o-6446

taxes provlaed for the benefit of the public free schools, shallneveFexcei3d thirtg-five cents on the one hundred."'dollars valuatidn; and no county, city or t6wn shall levy more than twenty-five cents for city or county piirpbses, and not"exceedlng fifteen cents for road-'and bridges, and not exceeding fifteen cents-topay jurors, on"the one hundred dollars valuation, exci?pt for the paym&nt 'ofdebts incurredprior to the adoption of the amendment September 25th, 1883; ,andfor the erection bf publib buildings, streets; sewers,water works and other vtimen~nf,lrn~Qvaman_ts, notetd exceed~~twentg-five cents bn the one hundred do$lars valuation, In any on& year, and'except as 1s Wthis CdnstitutXonotherWis6 providhd;"

and"th6 Legislatur‘e may also authorize 8n additional annual ad.vaIWem t&x to be levied atid cbllected for the flirther~ maintenance of the public roads; proiridea,

that a majority of the qualifies property tax-pagingvoters of-'the county vtiting

at iW~'elebtion

to be held for that purpose shall vote such tax, not to i3xceedfifteen cents on the one hundred dollars valuation of the property stibject t-6tajiation

in stich

county. And thii

Legislature may pass local 1aws"'for the maintenance~"ofthe'publit roads and highways,wfthout the localnotice required for special or local 'laws."
Article 2352 of Vernon'sAnnotatM Civil St&ttites;"giving the Commissioners' Court power to levy taxes, is as follows:

%ai.d c'6urtshall have the power to levy and collect a tax for county purposes,not to"exce&d " twenty:fi+ cents on the on6 hundred dollars valuation, and a tax hot to exceed fifteen cents on the
one hundreddollars valuation to supplement th6 jury fund bf thi+ccunty, and not to exceed fifteen"cents for roada~andbridges on the one hundreddollars valuation, exdept for the paginent of debts incurred prior to the adoptton of the amendment of the Constitution,September 25, A.D; 1883, and for'the -' &r&ctFbn of public buildings, streets;sewers, water works and otherpermanent improvements,not to.ex6eed"~twenty-five

cents bn-the one hunW6d dollars' valuation In ang one year, and e'xcept-"as in the Constltution"'otherwibe provided. 'Theymay levy an additional tax forroad purpoaesnot"'toexceed fifteen cents on the one'huiidred,dollar valuatibn.'of

the"property sub~ject~

to taxation,under the limitations.and in the manner provided for in-.Ai%lcle 8, Sec. 9, df the Constitutionand in pursuance of the laws relating thereto.".

Hon. E. G, Garvey, page 3 o-6446

Article 2351 of such statute,which sets~forth power and dutfes of the Commissioners'Court, reads in follows:t,

. o
. 0

. 0

'7'; Providedand keep In repair court housestl jails and all necessary public buildings.

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. the .' part as

Your attention Is dlrected~to the fact that the above,, Quoted section of the Constitutfon,as well as said Article 2352;. provides for~~a

fund-for county purposes,which 1s generally'called the General Fund, and's fund for the erection of public 'buildinm, .streets,sewers,water works and other permanent improvements,which fs generally called the Permanent ImprovementFunded Subdivision7 of Article 2351 authorizes the Commissioners'Ccurt to provide and keep fn repair COUP% houses, jails and all necessary public buildings.

,

In the case of Sanders v', Looneg etal"225 S.W. 280, the,cour%'waspassingupon the validity of a tax of 234 on the $100 valuation of all %axableproperty In Bowie County forcourt house and jail repafr purposes* The con%entionwas made that '-~ the levy of said taxwas void, because therewas no constitutional OP statutory authority to levy a special'tax for the repairsof the cburt Rouse and ;jafl. In holding that said tax’wasnot void for lack of authorftg to make %be levy, the court said:

"The secondground of oomplaintwe conclude should also be overruled. of the Constltuion provides: Artfele 8, fj 9,

"'Andno county, city or town shall levy
more than twenty'-five cents for city or county purposes, * + * and EOP the erection of'publlc buildings, streets, sewers,waterworks and other permanent improvements,not tb exceed twenty-five cents on the one hundreddollars valuation, In any one gear. * * * +' "And,ar%icle2242, Vernon's Sayles' Civil Statutes,provides:
"'Saidcourt (commissioners')shall have the power to levy and collect a tax for county purposes, not to exceed twenty-five cents on the one hundred dollar valuation + Q * and for the erection of publicbuildings, streets, sewers,waterworks and otherpermanent improvements,not to-.exceed"twenty-fivecents on the one hundreddollars valuatfon in any one year. * * + *'Hon. E. G. Garvey, page 4 o-6446

"Thewording of the Constitutionand statute are, as seen, the same. It enjoinsupon the commissioners' court the duty to provide by 'special tax for the erection of publicbuildings and other permanent improvements. A courthouse and jail are Tn the'lr

nature public buildings, and the spirit at least of the law is both to require the conrmis- 'aionersto erect in the first instancea""courthouse and a jail and then to keep them fn suitable condition for the purpbses of public buildings. In construing the very article of-~the Constitutionabove the Supreme Court said, in a case Involving the levy of a special tax for repairs and additions to a courthouse:

"'Theword "erect,"contained in all'the foregoing provisions,was the mostcomprehensive term that could-'be.used to embrace all such-improvements. to tioldthata countjrwhosecourthouse,with proper repairs and additions, could be rendered commod'i'ous and useful in every respect, must pull it down and build an entirelynew one,would be td.charge.our lawgiverswith an intent to encourage an untiecessary expenditure of the public 'money. Such a considerationwould not, In itself, authorizeus to Infer
a powerwhen not expresslygiven or necestiarily Implied. Yet when the languageused is capable of includingauthority to do an act not mentioned in terms, such construction of it is greatly aided by considerationsof public advanta&'whi,ch itwould certainlyproduce.' Brown v, Graham, 58 Tex. 254.

"As the Commissioners'Court had the power to levy the special tax, the levywould not be void for lack of authority to make the levy." Accordingly, It Is our opinion that the cost of painting
an office in the~courthousewhere there isno new construction is chargeable against the Permanent ImprovementFund. _'

Trusting that this satisfactoryanswers your InquWy, we remainHon. E. G. Garvey, page 5 o-6446

Yours very truly

ATTORNEY GENERAL OF TEXAS
By s/Jas.W. Bassett Assistant

JWB:fb:wc

APPROVED MAR 20, 1945 s/Carlo8C, Ashley FIRST ASSISTANT ATTORNEY GENERAL Approved Opinion Committeeby s/BWB Chairman