Hon. Bill F. Griffin, Jr.   Opinion No. C- 39
County Attorney
Shelby County               Re:      The legality of certain ex-
Center, Texas                        penditures 'by Shelby County
                                     and whether-those expendi-
                                     tures may be paid out of the
Dear Mr. Griffin:                    Permanent Improvement Fund.
          Reference is made to your request which reads in part
as follows:

          "Shelby County, Texas, by and through its
     Commissioners Court, is interested in investing
     the sum of $1,200.00 in connection with the em-
     ployment of Forrest and Cotton, Inc., Consult-
     ing Engineers and Marvin Springer & Associates,
     Urban Planning and Development Consultants for
     the purpose of developing a planning program for
     the Shelby County Area, primarily concerning the
     development of areas surrounding the proposed
     Toledo Bend Reservoir. . . .      .~
          (1
           . . .
          "1 would like to have the benefit of your
     views concerning the legality of such an expendi-
     ture on the part of Shelby County. . . .
          "Assuming that such an expenditure by Shelby
     County would be legal, our first:question is
     whether same could be paid out of the Permanent
     Improvement Fund of Shelby County. . . .'I

           The decisions of the Texas courts have repeatedly he:Ld
that 'the Commissioners I Court is a court of limited jurisdiction
and has only such powers as are conferred upon it, either by ex-
press terms or by necessary implication, by the statutes and C'zn-
stitution of this State.          ess Counts v. State, 127 'kc. 1343,
92 S.W.2d 1011 (1936);Vo          berg v. Lovett l/5 S.W. 508 ('Tex.
Civ.App. 1915, error ref.); Rooer v. Hall 280'S.W. 289 (Tex.Civ.
App. 1925); Article 23.51,Vernon's Civil 6tatutes; 11 Tex.Jur.
632, Counties, Sec. 95.

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        Hon. Bill F. Griffin, Jr., page 2   (C-39)


                  In order for Shelby County to have the authority to
        make expenditures for the planning of a county development
        program, there must be a granting of such authority by the Con-
        stitution or by the Legislature of the State of Texas. The only
        statute which would seem to apply to such an expenditure would
        be Acts 54th Leg., R.S. 1955, Ch. 351, p. 899, which reads in
        part as follows:

                  "'Section 1. That all counties in the State
             of Texas may appropriate from the General Fund of
             said counties an amount not exceeding Five Cents
             (5$) on the One Hundred Dollars (#lOO) assessed
             valuation, for the purpose of advertising and pro-
             moting the growth and development of such county;
             providing that before the Commissioners Court of
             any county may appropriate acy sums for such pur-
             pose, the qualified taxpaying voters of said county
             shall, by a majority vote of the persons voting at
             such election, authorize the County Commissioners
             to thereafter appropriate not to exceed Five Cents
                  on the One Hundred Dollars ($+OO) assessed
             %ll,tion . I
                                               .-
                  ". . .
                  YSec. 2. The authority to levy the tax pro-
             vided for herein shall be restricted to counties
             of more than one hundred thousand (lOC,OOO) popu-
             lation, according to the most recent United States
             Census.
                  "Sec. 3. The authority to appropriate the
             amount authorized in this bill out of the General
             Fund shall be restricted to counties of more than
             fifty thousand (50,000) population according to
             the last preceding Federal Census."
                  The manner in which Article 2352d is reported in Ver-
        non's Civil Statutes, Volume 7, is somewhat misleading in that
        Sections 2 and 3, quoted above, are found in the note following
        the compilation of Article 2352d rather than as a part of the
        present statute. Article 2352d, as it was amended and passed by
        the Legislature in 1955, has two Sections 2, 3, 4, and 5. (Acts
        54th Leg., R.S. 1955, Ch. 351, p. 899). Tie second Sections 2,
        3, 4 and 5, are carried in Verr?on!s Civil Statutes as a note to
        Article 2352d.
                  The second Section 2 limits the authority to lavy a
        tax for this purpose to counties of 100,000 population or more,
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                          Hon. Bill F. Griffin, Jr., page 3        (C-39)
;   .’




                          and the second Section 3 of Article 2352d limits the authority
                          to appropriate funds to counties which have a population in ex-
                          cess of fifty thousand (50,000) according to the last preceding
                          United States Census. The last United States Census was taken
                          in 1960, and at that time Shelby County had a population of twenty
                          thousand four hundred and seventy-nine (20,479). Texas Almanac,-
                          1961-1963. Therefore Shelby Countjrwould not be included in the
                          authority granted under Article 2352d. We know of no other stat,-
                          ute which would grant Shelby County such authority.
                                    Shelby County does not have the authority to expend
                          money'for the development of a planning program for the Shelby
                          County Area.
                                    In view of the answer to your first question, it is no,t
                          necessary to answer the second question posed.
                                                      SUMYARY

                                     Under the facts stated, Shelby County is not
                                authorized to expend money for the development of
                                a planning program for the Shelby County Area.

                                                           Yours very-truly,
                                                           WAGG OXER CARR
                                                           Attorney General


                                                           BZ7Z???or~;a
                          JN:wb                                Assistant

                          APPROVED:
                          OPINION COMMITTEE
                          W. V. Geppert, Chairman
                          Pat Bailey
                          Frank Booth
                          Howard Kays
                          APPROVED FOR THE ATTORNEY GENERAL
                          BY:     Stanton Stone




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