.

E A~~oI+~EY GENERAL
OFTEXAS

Honorable A. E. Hickerson CountyAuditor Montgomerg'Countg Conroe, Texas

Dear Sir: OpinionNO. o-6762 Re: Proper funds from which to pay for operation and improvementof county airport.

We are in receipt of your letter of recent date requesting the opinion of thisdepartment on the above stated matter. We quote from your letter as follows:

"Foryour information,we have an airport recently built which IS second to none inTexas. It has approximately twelve hundred acres and Is approximately four miles from Conroe. It was built to be used by the Navy Patrol.
"TheNavy and the C. A. A. are about todump it into our lap. This alrport cost approximately
a million and half dollars, ana the problem confronting the Commissloners' Court today, is from what fundswe are to pay for the operation an8 maintenance of this airport. Of course,we understand from former rulings, that itwas properly financed from the Permanent ImprovementFund.

"It is estimated that it will take twenty-five thousanddollars per year to maintain this port in a manner requested by the C. A. A. Therewill be
a pa 011 for salaries of about $12,500per year, and 12,500per year formaintaining and sealing r- the run-ways. "Whatwe would like to know is fromwhat funds would thts be paid. Would it be possible to set up a tax levy for this expense inasmuchas 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 incorporatedcity in this State may receive through gift or dedication, and is hereby empowered to acqufre, by purchasewithout condemnation or by purchase through condemnation proceedings,and thereaftermaintain and operate as an airport, or lease, or sell, to the Federal Government, tracts of land eitherwithin orwithout the corporate limits of such city and within the county inwhich such city is situated,ana the Commissioners' Court of any countymay likewiseacquire,maintain end operate for like purpose tracts of landwithin the limits of the county. tt

. . . . "That in addition to and exclusiveof any taxes which may be levied for the interestand sinking fund of any bonds issuedunder the authority of thisAct, the governingbody of any city or the Commlssioners' Court of any county, fallingwithin 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 OneHundred Dollars for the purpose of lmprovinks, operating,maintaining and conductingany Air Port which such city or countymay acquire under the provisions of thisAct, and to provide all suitable structures, and facilities therein. Provided that nothing in thisAct shall be construed as authorizingany city or county to exceed the limits of indebtednessplaced upon itunder the Constitution."
S~ection9, Article 8, Constitutionof Texas (as amended, 1944) provides:

"TheState tax on property, erclusive of the tax necessary to pay the publicdebt,'and of the taxes provided for the benefit of the public free schools, shallnever exceed thirty-five (35) cents on the one hundreddollars valuation;and no county, city or town shall levymore than twenty-five (25)centsfor

3 or countypurposes, 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 incurredprior to the adoption of the Amendment September 25, 1883; and for the erection of public buildings, streets, sewers,waterworks and otherpermanent improvements,not to exceed twenty-five (25) cents on the one hundreddollars valuation, in any one year, and except as 1s in this ConstitutionHon. A. E. Hfckerson, page 3 o-6762

otherwiseprovided;provided, however, that

. _ - . -- the CommIssloners uour'tIn any countymay re-allocate the foregoing county taxes by changing the rates provided for any of the foregoingpurposes 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 hundreddollars valuation, in any one year; provided further, that before the said Commissioners Court may make such re-allocationsand changes in said county taxes that the same shallbe submitted to the qualifiedproperty tax paying voters of such county at a general or special election,and shallbe approved by a majority of the qualified property tax paying voters, voting in such election;and provided further, that if and when such re-allocationsand changes in the aforesaid county taxes have been approved by the qualifiedproperty 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 shallbe 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 submissionby the CommissionersCourt at a general or special election for that purpose; and the Legislaturemay also authorize an additional annual ad valorem tax to be levied and collected for the furthermaintenance 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 hundreddollars valuation of the property subject to taxatlon in such county. And the Legislaturemay 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 (exclusiveof 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 hundreddollars valuation,may be levied and collected for the purpose of "improving,operating, maintaining and conducting" the county airport, and. 'to provide all suitable structuresand faclllties therein." However, the amount of taxes thatmay be levied for such purposes is not only subject to the limitation of five centsHon. A. E. Bickerson, page 4 o-6762

per one hundreddollars, but it is also subject to the limitations set forth in the above quoted constitutionalprovisions. In view of the foregoing, such,taxwhen levled cannot operate to increase the total levy for any of the constitutionalpurposesbeyond the limits above set out.

From the informationgiven inyour letter,we understand that a part of the contemplated expenses in connection with the airport is for the improvementof the runways. It Is apparent that the runways and the improvementsthereto are in then

nature of permanent improvements. We think, therefore, that the expenses for the Improvementof the runways shouldbe allocatedas a part of the total levy authorizedby the Constitution for permanentimprovements, but in no event should such allocation have the effect of increasing the total county levy for permanent improvementsbeyond the constitutional limit for such purposes.

As to the proper levywithin which to allocate the contemplated expendituresfor the purpose of paying salarles in connectionwith 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 expensemust be paid from the general fund. In this connectionwe quote from the opinion of the Supreme Court inBexar County v. Mann, 157 S. W. (26) 134, as follows:

"All county expenditureslawfullyauthorized to be made by a countymust be paid out of the county'sgeneral 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 'noevent, should such allocation have the effect of increasing the total levy for general purposesbeyond the constitutional limit for such purposes. Also, we point out that the~totalamount,of the allocation or levy for the purposes of "improvlng,operating, maintaining and conducting" the airport and "toprovide suitable structuresand facllitles therein", shouldnot exceed for any one year the limit of five cents on the one hundreddollars valuation, even though a part of such amount may be allocated as a part of the levy for general purposes and a part allocatedwithin the levy for permanent lmprovements.

In your letter referencewas made to the heavy burden alreadyplaced upon the general fund of your county. WeHon. A. E. Bickerson, page 5 O-6762

assume that your county is -~ now levying twenty-fivecents for general purposes. The onlymeans whereby such levy may be increased is by a re-allocation of tax levies,authorizedby the voters of the county, in conformitywith the provisions of Sectlon 9, Article 8, of the Constitutionof Texas (as amended in 1944). For a dlscussion of this matter, we are enclosing copies of our OpinionsNos. 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/CarlosC.Ashley FIRST ASSISTANT ATTORNEYGERERAL Approved Opinion CommitteeBy s,fBWB Chairman