Honorable Frank Coffey CpinionNo. M-207

Criminal DistrictAttorney Tarrant County Re: Whether a County CommisPort Worth, Texas sionersCourt, having levied taxes for each fund at a separate rate,may consolidate its jury fund, permanent improvement fund and general fundwhile maintaining separate and apart its road and bridge Dear Mr. Coffey: fund.

By recent letter, accompaniedby brief, you have requested an opinion from this office regarding the above stated question. We quote fromyour letter as follows:

"TheCounty Connnissionersof Tarrant Countyhave consolidated the general fund, the jury fund, and thebuilding or permanent improvement fund into a single fund pursuant toArticle VIII, Section 9 **of** the Constitution
as amended,but have failed to include the road andbuilding fund in thatconsolidation. From this action has arisen the question of the constitutionality of combining less than all funds into a single fund as construed as mandatoryby Article VIII, Section 9." \ Section 9 of Article VIII, Texas Constitution, as amended by the people of Texas onNovember 11, 1967, is quoted in part as follows:

”

. . . and no county, city or town shall levy a tax rate in excess of Eighty Cents (8Oc)
on the One Hundred Dollars ($100)valuation in any one (1)year for general fund, permanent improvement fund, road andbridge fund and jury

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fund purposes: provided further that at the time the ConvnissionersCourt meets to levy the annual tax rate for each county it shall levywhatever tax rate may be needed for the four (4)constitutional purposes: namely, general fund, permanent improvement fund, road andbridge fund and Jury fund so long as the Court does not impair any (; outstandingbonds or other obligations and so long as the total of the foregoing tax levies does not exceed Eighty Cents (8OC)on the Gne Hundred Dollars ($100)valuation in any one (1) year. Gnee the Court has levied the annual tax rate, the same shall remain in force and effect 'duringthat taxableyear;
. . . Any county may putall taxmoney collectedby the county into
one general fund,without regard to the purpose or source of each tax.

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~Section9 ofArticle VIII, Texas Constitution,was previously amended in 1956, atwhich time substantial changes
were madeby the people of Texas. Among other things, the 1956 amendment remwed the specific tax limitation on the fundr in question here. The 1967 amendment to Section 9 made only
one changeby adding the followingquoted language: "Any county may put all taxmoney collectedby thecounty into one -'~- .' general fund,without regard to the purpose or source of each tax."

The leading case on Section 9 ofArticle.VIII of the TexasConstitution, isCarrollv. Williams, 109 Tex. 155, 202 S.W. 504 (1918),inwhich theCourt held that the specific tax limitations in Section 9 on thevarious fundscontrolled not only the raisingbut also the application of all such funds and so prevents the expenditure ofmoney raised for one purpose being used for another purpose. TheCourt statedat page 506:

"Going to the real gist of the main issue before us, section 9 of article 8 of our state Constitution, supra, inhibitsany 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

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Hon. Frank Coffey, page 3 (~-207)

purpose therein defined, of taxmoney raised ostensibly for another such purpose. The immediate DurDose in so Drescribinsa sewrate maximum tax rate for each of the classes of purDoses there enumerated is. no doubt. to limit accordinqlv, the amount of taxeswhich may be raised from the woDle bv taxation; decidedly for those several purposes or classes of purposes, respectively. But that isnot all, The ultimate and oracticaland obviousdesian and DurDose and lesal effect is to inhibit excessive exDenditures for anv such DurDose or class of DurDoses. Bv necessarv imDlication said Drovisions of section 9 of article 8were desisned. not merelv to limit the tax rate for certain therein desiqnated Durooses.but to require that anv and all monev raisedbv taxation for anv such DurDose shallbe aDDlied. faithfully to that particular DurDose,as needed therefor. and not to anv other DurDose oruse whatsoever. Those constitutional provisions control, not only the raising,but also the application of all such funds: and such is the legal effect of articles 2242 and 7357, supra, when properly construed and applied.

"True, the Constitution does not say, in so manywords, thatmoney raisedby 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 g--but that,we think, is its plain and certain meaning and legal effect. Thevery 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 expectationand intent that, as a matter of common honesty and fair dealing, taxmoney taken from thepeople ostensibly

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for one such specified purpose shallbe expended, as needed, for that purpose alone, aswell as that the taxrate for that particular class, in any oneyear. shall not exceed the prescribedmaximbm.
*Conversely, and upon a like course of reasoning, itmust have been intended that expenditures for any such designated purposeshall never include taxmoney in excess of theproceeds of the maximum tax rate prescribedby the Constitution for that purpose.
*Unless our above-stated conclusions are sound, 7 ter w n tional limitationsupon the said five separate designated tax rates specific: the limitatic )nupon the taxing powermight aswell have been couched

ionalprovisionswere designed to limit the application or expenditure of each such tax fund for the specific purpose or purposes forwhich, declaredly, it is raised, as well as to limit the tax rate therefor, the same result in the way of protecting the people against exorbitant taxes could have been attained more simply and more convenientlyby making, in~said section 9 of article 8, one general limitation upon the taxing powerwith reference to all five such classes of purposes, collectively, thereby leaving the governingbody free to apply any and all such funds according to its own judgment, provided only that no portion thereof shall be applied to any extraneous purpose, not includedby the terms of that section." (Emphasisadded.)

The Court, in construing Section 9 ofArticle VIII of the Texas Constitution, emphasizes the specific taxing limi, tion on the funds inquestion and construes such limitation as -995-

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Hon. Frank Coffey, page 5 (R-207)

‘i having a double purpose. First the specific limitations limit the amount of tax tobe raised for each fund, and secondly such limitations require thatmoney raised for such a fundbe applied for that use and no other.

The 1956 and the 1967 amendments to Section 9 remove the specific taxing limitationsupon thevarious funds,but retain the overall taxing limitation (8Ocon $100 valuation) upon the four funds; that is, the general fund, permanent improvement fund, road and bridge fund, and jury fund. The Court discusses this possibility (seequoted languageunderlined above, page 4) by concluding that an overall taxing limitation or an aggregate maximum tax rate applicable to all the fundswould permit the governing **bodie.s** (counties,etc.) to apply the funds according to its own judgment as long as it used such funds for the specified purposes.

Clearly, the 1956 amendment and the 1967 amendment to Section 9 have now placed one general limitation upon the taxing powerwith reference to the funds in question. The 1967 amendment to Section 9bestowing power upon any county to put all its tax money into one funddoes not require that thisbe done, but instead confers the power subject to the good judgment of the Commissioners Court, so long as it does not impair outstanding bonds or obligations. Limited exercise of conferred power, as under the factshere, iswell recognized by our Courts. cf. State v. Citv ofAustin, 160 Tex. 348, 331 S.W.2d 737, 743 (1960).

The language authorizing any county to put all its ,taxmoney from the four funds abovementioned into one general fund is discretionary since theword "may" conditions the authority. "Theword 'may'ordinarily connotes discretion or permission." Ross v. TideWater Oil Co., 136 Tex. 66, 145 S.W.Zd 1089 (1941);Mitchell v. Hancock, 196 S.W. 694 (Tex.Civ.App.1917,
no writ): City of River Oaksv. LakeWorth Villaqe, 231 S.W.Zd 768 (Tex.Civ.App. 1950, error ref. n.r.e.). Such languagebeing discretionary, it seems clear that a county may use one general fund for its taxes, subject to its outstanding debts, or a county may use the four funds inquestion according to its own judgment,
as discussed in Carroll v. Williams, supra. Therefore, it is
our opinion thatyour County Commissioners may consolidate the general revenue fund, jury fund,and permanent improvement fund -996-.

Hon. **Frank** Coffey, page 6 w-207)

into one general fund andkeep the road andbridge fund separate therefrom,without violating the provisions of Section 9 of Article VIII of the Texas Constitution.

SUMMARY
Section 9 ofArticle VIII ofVernon's Texas Constitution, as amended, will permit a county commissioners court, having levied taxes for each of the four funds in question at a separate rate, to consolidate its general fund, permanent improvement fundand jury fund into one general fund,while maintaining separate and apart its road andbridge fund.

s very truly,

z-wC. MARTIN General of Texas
Preparedby James Clayton McCoy Assistant Attorney General

APPROVED: OPINION COMMITTEE

Hawthorne Phillips,Chairman Kerns Taylor, Co-Chairman W. V. Geppert W. 0. Shultz BillAllen Harold Kennedy

A. J. CARUBBI, JR. Executive Assistant

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