Honorable Frank Coffey          Cpinion No. M-207
Criminal District Attorney
Tarrant County                  Re:      Whether a County Commis-
Port Worth, Texas                        sioners Court, having levied
                                         taxes for each fund at a
                                         separate rate, may consolidate
                                         its jury fund, permanent im-
                                         provement fund and general
                                         fund while maintaining separate
                                         and apart its road and bridge
Dear   Mr. Coffey:                       fund.

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

            "The County Connnissioners of Tarrant
       County have consolidated the general fund,
       the jury fund, and the building or permanent
       improvement fund into a single fund pursuant
       to Article VIII, Section 9 of the Constitution
       as amended, but have failed to include the
       road and building fund in that consolidation.
       From this action has arisen the question of
       the constitutionality of combining less than
       all funds into a single fund as construed as
       mandatory by Article VIII, Section 9."

  \       Section 9 of Article VIII, Texas Constitution, as
amended by the people of Texas on November 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 and bridge fund and jury

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Hon. Frank Coffey, page 2 (~-207)



    fund purposes: provided further that at the time
    the ConvnissionersCourt meets to levy the annual
    tax rate for each county it shall levy whatever
    tax rate may be needed for the four (4) consti-
     tutional purposes: namely, general fund, permanent
     improvement fund, road and bridge fund and Jury
    fund so long as the Court does not impair any         (;
    outstanding bonds 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
    'during that taxable year; . . .   Any county may
     put all tax money collected by the county into
     one general fund, without regard to the purpose
     or source of each tax. . . ,*

          ~Section 9 of Article VIII, Texas Constitution, was
previously amended in 1956, at which time substantial changes
were made by 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 change by adding the following quoted language: "Any
county may put all tax money collected by the county into one -'~-
                                                                 .'
general fund, without regard to the purpose or source of each
tax."

          The leading case on Section 9 of Article.VIII of
the Texas Constitution, is Carroll v. Williams, 109 Tex. 155,
202 S.W. 504 (1918),in which the Court held that the specific
tax limitations in Section 9 on the various funds controlled
not only the raising but also the application of all such funds
and so prevents the expenditure of money raised for one purpose
being used for another purpose. The Court stated at page 506:

          "Going to the real gist of the main issue
     before us, section 9 of article 8 of our state
     Constitution, supra, inhibits any 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 tax money raised
               ostensibly for another such purpose. The im-
               mediate DurDose in so Drescribins a sewrate
               maximum tax rate for each of the classes of
               purDoses there enumerated is. no doubt. to
               limit accordinqlv, the amount of taxes which
               may be raised from the woDle bv taxation;
               decidedly for those several purposes or classes
               of purposes, respectively. But that is not all,
               The ultimate and oractical and obvious desian
               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 8 were
               desisned. not merelv to limit the tax rate for
               certain therein desiqnated Durooses. but to
               require that anv and all monev raised bv
               taxation for anv such DurDose shall be aDDlied.
               faithfully to that particular DurDose, as needed
               therefor. and not to anv other DurDose or use
               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 many words, that money raised by a county,
               city, or town, by taxation for one such pur-
               pose shall never be expended for any other
               purpose--not even for another of the five
               general classes of purposes defined and ap-
               proved in said section g--but that, we think,
               is its plain and certain meaning and legal
               effect. The very definitions of those several
               classes of purposes, and the declaration of
               authority to tax the people therefor, respective-
               ly, coupled as they are, in each instance, with
               a limitation of the tax rate for that class, must
               have been predicated upon the expectation and in-
               tent that, as a matter of common honesty and fair
               dealing, tax money taken from the people ostensibly

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Hon. Frank Coffey, page 4 (M-207)



    for one such specified purpose shall be expended, as
    needed, for that purpose alone, as well as that the
    tax rate for that particular class, in any one year.
    shall not exceed the prescribed maximbm.

         *Conversely, and upon a like course of rea-
    soning, it must have been intended that expendi-
    tures for any such designated purpose shall never
    include tax money in excess of the proceeds of the
    maximum tax rate prescribed by the Constitution
    for that purpose.

          *Unless our above-stated conclusions are sound,
    7ter   w   n
     tional limitations upon the said five separate
     designated tax rates specific: the limitatic)n upon
     the taxing power might as well have been couched




      ional provisions were designed to limit the
    application or expenditure of each such tax fund
    for the specific purpose or purposes for which,
    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 conveniently by making, in~said section 9
    of article 8, one general limitation upon the
    taxing power with reference to all five such
    classes of purposes, collectively, thereby
    leaving the governing body free to apply any
    and all such funds according to its own judg-
    ment, provided only that no portion thereof
    shall be applied to any extraneous purpose,
    not included by the terms of that section."
     (Emphasis added.)

          The Court, in construing Section 9 of Article VIII
of the Texas Constitution, emphasizes the specific taxing limi,
tion on the funds in question and construes such limitation as
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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 to be raised for each fund, and secondly such
limitations require that money raised for such a fund be applied
for that use and no other.

          The 1956 and the 1967 amendments to Section 9 re-
move the specific taxing limitations upon the various funds, but
retain the overall taxing limitation (8Oc on $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 (see quoted language underlined above, page 4)
by concluding that an overall taxing limitation or an aggregate
maximum tax rate applicable to all the funds would 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 speci-
fied purposes.

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

           The language authorizing any county to put all its
,tax money from the four funds above mentioned into one general
 fund is discretionary since the word "may" conditions the au-
 thority. "The word 'may' ordinarily connotes discretion or
 permission." Ross v. Tide Water 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 Oaks v. Lake Worth Villaqe, 231 S.W.Zd
 768 (Tex.Civ.App. 1950, error ref. n.r.e.). Such language being
 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 in question according to its own judgment,
 as discussed in Carroll v. Williams, supra. Therefore, it is
 our opinion that your County Commissioners may consolidate the
 general revenue fund, jury fund, and permanent improvement fund
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    Hon. Frank Coffey, page 6 w-207)



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

                             SUMMARY

              Section 9 of Article   VIII of Vernon'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 fund and jury fund into one general
         fund, while maintaining separate and apart its
         road and bridge fund.

                                           s very truly,

                                                z-w-
                                                C. MARTIN
                                                General of Texas

    Prepared by James Clayton McCoy
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

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

    A. J. CARUBBI, JR.
    Executive Assistant




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