                        Aprll9, 1969


Honorable Roy Pickett              Opinion No. M-369
County Attorney
Martin Countv                      Re:   Whether the Commissioners
P. 0. Box lli                            Court may consolidate    cer-
Stanton, Texas 79782                     tain constitutional    funds
                                         with the Officer's    Salary
Dear Mr. Pickett:                        Fund, and related question.

            Your request for an opinion from this office,  accom-
panied by an opinion prepared by you on the matter, presents two
questions,   the first  being whether the Commissioners Court may
consolidate   the funds authorized by Article VIII, Section 9 of
the Texas Constitution.
            Prior to 1967, the law was well established  thatthe
general fund, permanent improvement fund, jury fund and road
and bridge fund, being the four funds about which you inquire
and with which Article VIII, Section 9 of the Constitution     is
concerned. could not be comminRled or used for DurDoses other
than that-for    which each was raised.  To this e?fect, see Carrol
v. .Williams,             155 202 S.W, 564 (1918)    md Attorney
Eeneral's Opin:~&'~~:     0-661 (1939), No. O-869 (1939), No. O-931
          No. O-4763 (1942), No. O-5422 (1943j and No, O-6948

           In 1967, Section 9 of Article VIII, Texas Constitution,
was amended by the addition of a sentence reading:   "Any county
may put all tax money collected  by the county into one gene$al
fund, without regard to the purpose or source of each tax.
That such amendment overruled the prior law as to corn;Fi;;;g
the funds prescribed  by Section 9 Is without doubt.
discussion of this amendment. appears in Attorney General's
Opinion No. M-207 (1968).
          Therefore,   the answer to your first  question is that
Section 9, Article   VIII, Texas Constitution,  as amended In 1967,
clearly authorizes   consolidation of the four funds about which
you have inquired.
Hon. ROY Plckett,   dage 2 (M-369)


            Your second question is predicated   upon an assumption
that the Commissioners Court makes an election     to consolidate
the aforementioned    constitutional funds Into the general fund.
After so electing,    you ask, may the Commissioners Court eliminate
the Officers’   Salary Fund, by consolidating   It with the resultant
general fund of the county?
             In 1935, Section 61 of Article XVI, Texas Constitution,
was adopted, providing for the compensation of county officers
on a salary basis.      The Implementing legislation    passed by the
Legislature,     which became effective   January 1, 1936, is Article
3912e, Vernon’s Civil Statutes,       and provides,  in part:
             II
               . . .
           “Sec. 3.          the assessor and collector    of
     taxes shall coit&e’to     collect  and retain for the
     benefit of the Officers’   Salary Fund or funds
     hereinafter  provided for all fees and commissions
     which he Is authorized vnler law to collect;     and
     It shall be his duty to ackount for and to pay
     all such moneys received by him into the fund
     created and provided for under the provisions      of
     this Act; . , .
           “Sec. 4. In all counties of this State con-.
     talnlng a population  of less than one hundred and
     ninety thousand (190,000)   Inhabitants  according to
     the last preceding Federal Census wherein ,the county
     or precinct  officers are compensated on a salary
     basis under the provisions   of this Act, there shall
     be created a fund to be known as the ‘Officers’




      and shall be protected   to the same extent~as   other
      c,ounty funds.
           ‘“sec. 5. It shall be the duty of all officers
      to charge.and collect  in the manner authorized by
      law all fees and commissions which are permitted
      by law to be assessed and collected  for all official

                           - 1820-
Hon. Roy Plckett,    page 3 (M-369)


     service performed by them. As and when such fees
     are collected   they shall be deposited  in the Of-
     ficers'   Salary Fund, or funds provided In this Act.
     . . .
             "Sec. 6. (a)   In counties wherein the county
     officials    are on a salary basis,    in addition    to the
     monies deposited    In said Officers'     Salary Fund or
     funds under the provisions      of Sections    1; 3 and 5
     of this Act there shall be deposited        therein quarter-
     ly on the first    day of January, April,      July and
     October of each year, such sums as may be apportioned
     to such county under the provisions        of this Act, out
     of the available    appropriations    made by the Legls-
     lature for such purposes,      . . . It shall be the
     duty of the Comptroller of Public Accounts to an;
     nually apportion to all counties in which the
     county officers    are to be compensated on the
     basis of a salary any monies, appropriated         for
     said year for such apportionment;        . . .
           "(b)    No officer  receiving a salary shall
     hereafter    receive any ex officio  compensation;
     provided,    however, the Commissioners'   Court shall
     transfer   from the General Fund of the county to
     the Officers'     Salary Fund or funds of such county
     such funds as may be necessary to pay the salaries
     and other claims chargeable against the same when
     the monies deposited     therein are Insufficient  to
     meet the claims payable therefrom.
           "(c)  Any monies remaining In the Officers'
     Salary Fund or funds of any county at the end of
     any fiscal  year after all salaries  and authorized
     expenses Incurred against said fund for said year
     shall have been paid may be, by order of the Com-
     missioners'  Court, transferred  to the credit of
     the General Fund of the county."    (Emphasls added.)
           Quoting   from Attorney    General's   Opinion No. C-772
(1966):
           "Section 18 of Article   V of the Constitution
     of Texas authorizes   the commissioners court of a
     county to 'exercise   such powers and jurisdiction
     over all county business,    as Is conferred  by this
     Constitution   and the laws of the State I . -'

                            -.1821-
Hon. Roy Pickett,     page 4 (M-369)


        Our courts have held that this provision      does not
        confer on commissioners courts general authority
        over county business,    but, on the contrary,   limits
        their authoritv to that conferred,     exoressly   or by
        necessary implication,    by the statutes   or cbnstl--
        tution.     Mills County v. Lampasas County, 90 Tex.
        603, 40 S.W. 403 (1897); Childress County v. State,
        127 Tex. 343, 92 S.W.2d loll    (193b ; Canales v.       .
        Laughlin, 147 Tex.169, 214 S.W.2d 51m)
        Anderson v. Wood, 137 Tex. 201, 152 S.W.2d 1084
        11941) . '.
             Ncwhere In Article   3912e, Vernon's Civil Statutes,
does any authority appear which would allow the Officers'         Salary
Fund to be consolidated      with the general fund authorized by Sec-
tlon 9 of Article VIII of the Texas Const;tution.         Indeed, it
Is stated in Section 4 of Article       3912e, "Such fund shall be kept
separate and apart from all other county funds, and shall be
held and disbursed for the purpose of paying the salaries         of
officers    and the salaries   of deputies,   assistants and clerks
of officers    who are drawing a salary from said fund under the
provisions    of this Act, and to pa the authorized      expenses of
their off1ces.I'     (Emphasis added. 4 The use of ."shall"    In the
foregoing    makes the provision   mandatory, and directs   for what
purposes the fund Is to be used.        The necessary result of such
mandatory provision     is that the fund may not be used for pur-
poses other than those directed.
           Moneys may be transferred    to the Officers'    Sa,lary
Fund from the general fund, when the Officers'      Salary Fund is
depleted,  so that the salaries   payable therefrom can no longer
be paid.   Section 6(b) of Article   3912e, V.C.S.     For discussion
of this practice,   see Attorney General's   Opinions No. O-1431
(1939), No. O-1494 (1939) and No. O-4844 (1942).         Moneys may
also be transferred   under Section 6(c) of Article      3p12e, where-
in It is provided that, in the event a surplus in the Officers'
Salary Fund exists at the end of the year, the Commissioners
Court may transfer   such surplus to the general fund.
            In light of the express prohibition    a ainst commingling
the Officers'    Salary Fund with any other funds 7 Section 4, Article
3912e) as well as the two well defined circumstances      under which
there may be an interplay    between the Officers'~ Salary Fund and
the general fund, as set out in Section 6(bj      and 6(c) of Article
3912e, It seems evident that the two funds can not be consolidated.
             Further, the 1967 amendment of Section 9 of Article
VIII,    Texas Constitution, allows consolidation  of the general
                               -1822 -
Hon. Roy Pickett,   page 5 (M-369)


fund, permanent Improvement fund, jury fund and road and bridge
fund, but In no way Indicates  an intention    that such provision
shall apply to any funds other than those composed solely of
revenues from county taxes.   As the Officers'     Salary Fund in-
cludes funds derived from sources other than county taxation
(see Sections 1, 3, 5 and 6, Article   3912e), It necessarily
follows that the Officers ' Salary Fund may not be consolidated
with the general fund of the county.
            For the reasons stated above, it Is the opinion of
this office   that the Commissioners Court of a county may con-
solidate   the general fund, permanent Improvement fund, road and
bridge fund and jury fund Into the general fund of the county,
as provided for by the 1967 amendment of Section 9 of Article
VIII, Texas Constitution.    However, where such an election     has
been made, and such consolidation    achieved,   the Commissioners
Court may not consolidate   the Officers'   Salary Fund with the
resultant   general fund.
                      SUMMARY
           The Commissioners Court of a county may con-
     solidate   the general fund, permanent Improvement
     fund, road and bridge fund and jury fund Into a
     county general fund, as provided'for     by the 1967.
     amendment of Section 9 of Article    VIII, Texas
     Constitution.     However, where such an election
     has been made, and such consolidation     achieved,
     the Commissioners Court may not consolidate       the
     Officers'   Salary Fund with the resultant    general
     fund of the county.




Prepared by Bill Corbusier
Assistant Attorney General
APPROVED:
OPINION COMMITTEE




                          -1823-
Hon. Roy Plckett,   page   6 (M-369)



Kerns Taylor, Chairman
George Kelton, Vice-Chairman
David Longorla
Ralph Rash
W. 0. Shultz
Jay Floyd
W. V. GEPPERT
Staff Legal Assistant




                             - 182-L -
