. 

E A~~oI+~EY GENERAL 

OFTEXAS 

Honorable A. E. Hickerson 

County Auditor 

Montgomerg'Countg 

Conroe, Texas 

Dear Sir: Opinion NO. o-6762 

Re: Proper funds from which to pay 

for operation and improvement of 

county airport. 

We are in receipt of your letter of recent date requesting the opinion of this department on the above stated 

matter. We quote from your letter as follows: 

"For your information, we have an airport 

recently built which IS second to none in Texas. 

It has approximately twelve hundred acres and Is 

approximately four miles from Conroe. It was 

built to be used by the Navy Patrol. 

"The Navy and the C. A. A. are about to dump 

it into our lap. This alrport cost approximately 

a million and half dollars, ana the problem confronting the Commissloners' Court today, is from 

what funds we are to pay for the operation an8 

maintenance of this airport. Of course, we understand from former rulings, that it was properly 

financed from the Permanent Improvement Fund. 

"It is estimated that it will take twenty-five 

thousand dollars per year to maintain this port in 

a manner requested by the C. A. A. There will be 

a pa 011 for salaries of about $12,500 per year, 

and r- 12,500 per year for maintaining and sealing 

the run-ways. 

"What we would like to know is from what funds 

would thts be paid. Would it be possible to set up 

a tax levy for this expense inasmuch as our General 

Fund IS as usual, badly over-loaded." 

Article 126qh, Vernon's Annotated Civil Statutes, In 

part provides: 
Hon. A. E. Hickerson, page 2 O-6762 

"That the governing body of any incorporated city 

in this State may receive through gift or dedication, 

and is hereby empowered to acqufre, by purchase without condemnation or by purchase through condemnation 

proceedings, and thereafter maintain and operate as 

an airport, or lease, or sell, to the Federal Government, tracts of land either within or without the 

corporate limits of such city and within the county 

in which such city is situated, ana the Commissioners' 

Court of any county may likewise acquire, maintain end 

operate for like purpose tracts of land within the 

limits of the county. 

tt 

. . . . 

"That in addition to and exclusive of any taxes 

which may be levied for the interest and sinking fund 

of any bonds issued under the authority of this Act, 

the governing body of any city or the Commlssioners' 

Court of any county, falling within the terms hereof, 

may and is hereby empowered to levy and collect a 

special tax not to exceed for any one year five cents 

on each One Hundred Dollars for the purpose of lmprovinks, operating, maintaining and conducting any Air Port 

which such city or county may acquire under the provisions of this Act, and to provide all suitable structures, and facilities therein. Provided that nothing 

in this Act shall be construed as authorizing any city 

or county to exceed the limits of indebtedness placed 

upon it under the Constitution." 

S~ection 9, Article 8, Constitution of Texas (as 

amended, 1944) provides: 

"The State tax on property, erclusive of the tax 

necessary to pay the public debt,'and of 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 levy more than twenty-five (25)cents for 

3 

or county purposes, and not exceeding fifteen 

cents for roads and bridges, and not exceeding 

fifteen (15) cents to pay jurors, on the one hundred 

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 1s in this Constitution 
Hon. A. E. Hfckerson, page 3 o-6762 

otherwise provided; provided, however, that . _ - . -- 

the CommIssloners uour't In any county may re-allocate the 

foregoing county taxes by changing the rates provided 

for any of the foregoing purposes by either Increasing 

or decreasing the same, but in no event shall the total 

of said foregoing county taxes exceed eighty (80) cents 

on the one hundred dollars valuation, in any one year; 

provided further, that before the said Commissioners 

Court may make such re-allocations and changes in said 

county taxes that the same shall be submitted to the 

qualified property tax paying voters of such county 

at a general or special election, and shall be approved by a majority of the qualified property tax 

paying voters, voting in such election; and provided 

further, that if and when such re-allocations and 

changes in the aforesaid county taxes have been 

approved by the qualified property tax paying voters 

of any county, as herein provided, such re-allocations 

and changes shall remain in force and effect for a 

perlod of six (6) years from the date of the election 

at which the same shall be approved, unless the same 

again shall have been changed by a majority vote of 

the qualified property tax paying voters of such 

county, voting on the proposition, after submission by 

the Commissioners Court at a general or special election 

for that purpose; and the Legislature may also authorize 

an additional annual ad valorem tax to be levied and 

collected for the further maintenance of the public 

roads; provided, that a majorfty of the quallfi,ed 

property tax paying voters of the county voting at an 

electlon to be held for that purpose shall vote such 

tax, not to exceed fifteen (15) cents on the one 

hundred dollars valuation of the property subject to 

taxatlon in such county. And the Legislature may pass 

local laws for the maintenance of the public roads and 

highways, wIthout the local notice required for special 

or local laws. This sectton shall not be construed as 

a limitation of powers delegated to counties, cities or 

towns bx any other section or sections of this Constitution. 

Under the provisions of Article 1269h, supra, a tax 

(exclusive of and In addition to taxes levied for the sinking 

fund of bonds Issued for airports) In an amount not to exceed 

five cents on each one hundred dollars valuation, may be 

levied and collected for the purpose of "improving, operating, 

maintaining and conducting" the county airport, and. 'to 

provide all suitable structures and faclllties therein." 

However, the amount of taxes that may be levied for such 

purposes is not only subject to the limitation of five cents 
Hon. A. E. Bickerson, page 4 o-6762 

per one hundred dollars, but it is also subject to the 

limitations set forth in the above quoted constitutional provisions. In view of the foregoing, such,tax when levled 

cannot operate to increase the total levy for any of the 

constitutional purposes beyond the limits above set out. 

From the information given in your letter, we understand that a part of the contemplated expenses in connection 

with the airport is for the improvement of the runways. It 

Is apparent that the runways and the improvements thereto 

are in then nature of permanent improvements. We think, 

therefore, that the expenses for the Improvement of the runways should be allocated as a part of the total levy authorized by the Constitution for permanentimprovements, but in 

no event should such allocation have the effect of increasing 

the total county levy for permanent improvements beyond the 

constitutional limit for such purposes. 

As to the proper levy within which to allocate the 

contemplated expenditures for the purpose of paying salarles 

in connection with the operation of the airport, it has been 

held that unless some law makes a particular authorized expense a charge against a special fund, such expense must be 

paid from the general fund. In this connection we quote from 

the opinion of the Supreme Court in Bexar County v. Mann, 

157 S. W. (26) 134, as follows: 

"All county expenditures lawfully authorized 

to be made by a county must be paid out of the 

county's general fund, unless there IS some law 

which makes them a charge against a special fund. 

Williams v. Carroll, Tex. Clv. App., 182 S. W. 29." 

In view of the foregoing, it is our opinion that the 

expenditures for salaries should. be allocated as a part of 

the levy for general purposes, and in 'no event, should such 

allocation have the effect of increasing the total levy for 

general purposes beyond the constitutional limit for such 

purposes. Also, we point out that the~total amount, of the 

allocation or levy for the purposes of "improvlng, operating, 

maintaining and conducting" the airport and "to provide 

suitable structures and facllitles therein", should not exceed for any one year the limit of five cents on the one 

hundred dollars valuation, even though a part of such amount 

may be allocated as a part of the levy for general purposes 

and a part allocated within the levy for permanent lmprovements. 

In your letter reference was made to the heavy burden already placed upon the general fund of your county. We 
Hon. A. E. Bickerson, page 5 O-6762 

assume that your county is -~ 

now levying twenty-five cents for 

general purposes. The only means whereby such levy may be 

increased is by a re-allocation of tax levies, authorized by 

the voters of the county, in conformity with the provisions 

of Sectlon 9, Article 8, of the Constitution of Texas (as 

amended in 1944). For a dlscussion of this matter, we are 

enclosing copies of our Opinions Nos. o-6278, O-6427 and 

O-6477. 

We trust that the above and foregoing satisfactorily 

answers your inquiry. 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

By s/J. A. Ellis 

J. A. Ellis 

Assistant 

JAE:LJ:wc 

encls. 

APPROVED AUG 9, 1945 

s/Carlos C. Ashley 

FIRST ASSISTANT 

ATTORNEYGERERAL 

Approved Opinion Committee By s,fBWB Chairman