            THEA          ORNEY   GENERAL.
                         0F TEXAS




Honorable E. G, Garvey
County Auditor
Bexar County
San Antonio, Texas
Dear Sir:                opinion NO. 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 Improvement Fund
                              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:
        "Pleasesfurnish me with an opinlon on the
    following matter.
       "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 Improvement Fund ax under,Artlcle 8,
   Sectfon 9 of the Constitution of Texas?
       "This County has always charged the cost of
   painting various offices In the 'CourtHouse to
   General Fund, classifying it as a maintenance cost,
   unless there was a new offfce constructed and in
   this case the cost of construction and painting
   was charged to Permanent Improvement Fund. How-
   ever, the County Judge contends that the straight
   painting of an office Is not a maintenance cost
   chargeable to the General Fund but is a charge
   against the Perma,nentImprovement Fund, so I will
   ask you please to furnish me 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 the
Hon. E. G. Garvey, page 2         o-6446



   taxes provlaed for the benefit of the public free
   schools, shall neveFexcei3d 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-'andbridges, and not exceed-
   ing fifteen cents-to pay jurors, on"the one hundred
   dollars valuation, exci?ptfor the paym&nt 'of debts
   incurred prior to the adoption of the amendment
   September 25th, 1883; ,and for the erection bf pub-
   lib 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      CdnstitutXon other-
   Wis6 providhd;"and"th6 Legislatur‘emay 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-paging voters of-'thecounty vtitingat
   iW~'elebtionto be held for that purpose shall vote
   such tax, not to i3xceedfifteen cents on the one
   hundred dollars valuation of the property stibject
   t-6tajiationin stichcounty. And thiiLegislature
   may pass local 1aws"'forthe maintenance~"ofthe'pub-
   lit roads and highways, wfthout the local notice re-
   quired for special or local 'laws."
        Article 2352 of Vernon's AnnotatM 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 valua-
    tion, and a tax hot to exceed fifteen cents on the
    one hundred dollars valuation to supplement th6 jury
    fund bf thi+ccunty, and not to exceed fifteen"cents
    for roada~and bridges on the one hundred dollars
    valuation, exdept for the paginentof debts incurred
    prior to the adoptton of the amendment of the Con-
    stitution, September 25, A.D; 1883, and for'the -'
    &r&ctFbn of public buildings, streets;sewers, water
    works and other permanent improvements, not to.ex-
    6eed"~twenty-fivecents bn-the one hunW6d dollars'
    valuation In ang one year, and e'xcept-"as
                                             in the Con-
    stltution"'otherwibeprovided. 'They may levy an add-
    itional tax for road purpoaes not"'toexceed fifteen
    cents on the one'huiidred,dollarvaluatibn.'ofthe"prop-
                 to taxation, under the limitations.and
    erty sub~ject~
    in the manner provided for in-.Ai%lcle8, Sec. 9, df
    the Constitution and in pursuance of the laws relat-
    ing thereto."
.




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



            Article  2351 of such statute, which sets~forth the .'
    power and dutfes of the Commissioners' Court, reads in part as
    follows:
             t,
              . o . 0 . 0
            '7'; Provided and keep In repair court housestl
        jails and all necessary public buildings. . . 0 .
            Your attention Is dlrected~to the fact that the above,,
    Quoted section of the Constitutfon, as well as said Article 2352;.
    provides for~~afund-for county purposes, which 1s generally'call-
    ed the General Fund, and's fund for the erection of public 'build-
    inm, .streets, sewers, water works and other permanent improve-
    ments, which fs generally called the Permanent Improvement Funded
    Subdivision7 of Article 2351 authorizes the Commissioners' Ccurt
    to provide and keep fn repair COUP% houses, jails and all nec-
    essary public buildings.
                                                                ,
            In the case of Sanders v',Looneg etal"225 S.W. 280,
    the,cour%'was passing upon the validity of a tax of 234 on the
    $100 valuation of all %axable property In Bowie County for court
    house and jail repafr purposes* The con%ention was made that    '-~
    the levy of said tax was void, because there was no constitutional
    OP statutory authority to levy a special'tax for the repairsof
    the cburt Rouse and ;jafl. In holding that said tax’was not void
    for lack of authorftg to make %be levy, the court said:
            "The second ground of oomplaint we conclude should
        also be overruled. Artfele 8, fj 9, of the Constltuion
        provides:
            "'And no county, city or town shall levy
        more than twenty'-fivecents 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 hundred dollars valuation, In
        any one gear. * * * +'
            "And,ar%icle 2242, Vernon's Sayles' Civil
        Statutes , provides:
            "'Said court (commissioners') shall have the
        power to levy and collect a tax for county pur-
        poses, not to exceed twenty-five cents on the one
        hundred dollar valuation + Q * and for the erec-
        tion of public buildings, streets, sewers, water-
        works and other permanent improvements, not to-.ex-
        ceed"twenty-five cents on the one hundred dollars
        valuatfon in any one year. * * + *'
Hon. E. G. Garvey, page 4         o -6446



        "The wording of the Constitution and statute
    are, as seen, the same. It enjoins upon the com-
    missioners' court the duty to provide by 'special
    tax for the erection of public buildings and other
    permanent improvements. A courthouse and jail are
    Tn the'lrnature public buildings, and the spirit
    at least of the law is both to require the conrmis-
    'aionersto erect in the first instance a""courthouse
    and a jail and then to keep them fn suitable condi-
    tion for the purpbses of public buildings. In con-
    struing the very article of-~theConstitution above
    the Supreme Court said, in a case Involving the
    levy of a special tax for repairs and additions to
    a courthouse:
        "'The word "erect," contained in all'the fore-
    going provisions, was the mostcomprehensive term
    that could-'be.usedto embrace all such-improvements.
    to tioldthata countjrwhose courthouse, with proper
    repairs and additions, could be rendered commod'i'ous
    and useful in every respect, must pull it down and
    build an entirely new one, would be td.charge.our
    lawgivers with an intent to encourage an untieces-
    sary expenditure of the public 'money. Such a consid-
    eration would not, In itself, authorize us to Infer
    a power when not expressly given or necestiarily
    Implied. Yet when the language used is capable of
    including authority to do an act not mentioned in
    terms, such construction of it is greatly aided by
    considerations of public advanta&'whi,ch it would
    certainly produce.' Brown v, Graham, 58 Tex. 254.
        "As the Commissioners' Court had the power to
    levy the special tax, the levy would 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~courthouse where there is no new construction
is chargeable against the Permanent Improvement Fund.
                                                            _'
        Trusting that this satisfactory answers your InquWy, we
remain
Hon. 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/Carlo8 C, Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee by s/BWB Chairman
