                     May 19,   1965


Hon. Raleigh Brown, Chairman          Opinion No. C-441
House Committee on Counties
State Capitol                         Re:   Whether the Seawall Com-
Austin, Texas                               mission for Matagorda
                                            County created by Chapter
                                            4, page 11, 43rd Leglsla-
                                            ture, Fourth Called Session,
                                            1934, Is still an effective
                                            body, and alternative ques-
Dear Mr. Brown:                             tions.
          You have requested the opinion of this office as to
whether the Seawall Commission for Matagorda County is still an
active body with statutory power. This commission was created
by Acts of the,43rd Legislature, Fourth Called Session, page 11,
Chapter 4, 1934 (not codified - see note under Article 6830,
VernonPs Civil Statutes). In the event it is the opinion of this
office that this commission is no longer in existence, you ask
whether House Bill 908, relating to the establishment of seawall
commissions Is constitutional. In the further alternative, you
ask whether the said House Bill 908 would permit a county to
transfer to its seawall commission monies from the Permanent
Improvement Fund, the Road and Bridge Fund and the General Fund
of the county.
          In reply to your first question, it 9s observed that
Section 1 of the 1934 Act provides for the grant of eight-ninths
of the net amount of the State ad valorem taxes collected in
Commissioner's Precinct 3 of Matagorda County, said donation to
be held in trust by the Seawall Commission created by the Act.
The period of donated taxes was stated to be thirty years, be-
ginning September 1, 1933. By Section 7 of the 1934 Act, it was
provided that when the sinking fund created by the Act shall be-
come sufficient to retire all outstanding bonds, the Act shall
cease to be operative and the donations of tax monies provided
for shall cease.
          By Acts, 50th Legislature, page 1071, Chapter 457,
1947, the Legislature provided for a two-year extension of the

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Hon. Raleigh Brown, page 2 (C-441)


ori inal donation period of thirty years provided for in the
193& Act. Therefore, the total period of donated tax monles
was thirty-two years from September 1, 1933. We are informed
that bonds issued by the Matagorda County Seawall Commission
have been retired. By virtue of the terms of the Acts'imolved,
it is the opinion of this office that, by virtue of the retire-
ment of the bonds, the Matagorda County Seawall Commission, as
such, expires under the terms of the Act.
          We now turn to the question of the constitutionality
of House Bill 908. We have been cited to no particular pro-
vision of this proposed statute which has been called into ques-
tion, but rather have been requested to examine it generally as
to its constitutionality. House Bill 908 provides for the op-
tional creation of a seawall commission by a county and any city
bordering on the coast of the Gulf of Mexico, This commission
is to undertake to perform the functions set out in Article 6830,
Vernon's Civil Statutes. House Bill 908 conveys rather broad
authority to the seawall commission, with the city and county
governments retaining control only through the power of appoint-
ment and approval of budgets. However, the only constitutional
question which reveals itself on the face of the bill Is in re-
gard to Section 3(a) thereof, which reads in part as follows:
          'The operations of the seawall commission
     shall be financed by appropriations to It by
     the city and by the county out of their general
     revenues. The . . .    (Emphasis supplied).
The city government may, under the provisions of its charter,
appropriate their general revenue funds to the seawall commis-
sion, butthe government of a home rule city operates under more
relaxed rules than does a county government. A seawall is a
permanent Improvement, and county funds may be expended therefor
only when the funds are derived from the constitutional Permanent
Improvement Fund or through bonds voted under Article 6830, et
seq., Vernon's Civil Statutes. A county would not be authorized
to expend monies from the Road and Bridge Fund, the Officers
Salary Fund, or any other constitutionally-restricted fund for
a seawall. The commissioners court has no Dower to lev!?a tax
for one purpose and use the money for another. Ault v.-Hill
County 102 Tex. 335, 116 S.W. 359 (1909); Sanders v. Looney,
 2> S i 280 (Tex Civ A p    1920); Carroll v. Will1ams, 109 Tex.
1255,$0; S.W. 504'(19i8p."
          In consideration of the foregoing, it is the opinion
of this office that Section 3(a) of House Bill 908 is unconsti-
tutional Insofar as it purports to authorize a county to appro-
priate its general revenues to a seawall commission. A part of

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Hon. Raleigh Brown, page 3'(C- 441)


the general revenues of the county, of course, are the funds
which go to make up the Permanent Improvement Fund. The~sefunds
may properly be appropriated for the purposes stated in the bill.
However, we may not change the wording of a statute in order to
make it constitutional; we may strike a word or a phrase in order
to preserve an act, but judicial construction may go no farther:
               .that a statute which includes by
     generai ianguage subjects within and those without
     the constitutional jurisdiction of the state can-
     not be limited by judicial construction to the
     former class, and then sustained," 82 C.J.S.,
     p. 160, Statutes, Sec. 93.
Accordingly, it is the opinion of this office that House Bill
908, for the reason of the defect above discussed, Is unconstl-
tutlonal in its entirety.
          In view of our answer to your second question regarding
the constitutionality of House Bill 908, ,it is not necessary to
answer your third question.
                     SUMMARY
          The Seawall Commission establshed by Acts,
     43rd Legislature, Fourth Called Session, page
     11, Chapter 4, (1934) will no longer be an ef-
     fective body after September 1, 1965.
          House Bill 908 is unconstitutional in that
     It authorizes the expenditure by a county of
     constitutional funds for other than the purposes
     established for such funds.
                               Yours very truly,
                               WAGGONER CARR
                               Attorney General


                               By:
                                     Assistant
MLQ:ms:mkh




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Hon. Raleigh Brown, page 4 (C-441)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
R?&ph Rash
Frahk Booth
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




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