                       THEA             NEY        GENERAL
                                  OF    TEXAS

                              AUSTIN,   TEXAS      78711
CRAWPORD    c. MARTIN
                                  October 3, 1967
  AnORm     OENERAX.




     Hon. Joe Resweber                    Opinion NO. M-142
     County Attorney
     Harris County                        Re:     Constitutionality of
     Houston, Texas                               and construction of
                                                  certain provisions of
                                                  House Bill 78, Acts
                                                  60th Legislature, Regu-
                                                  lar Session, 1967, Chapter
     Dear Mr. Resweber:                           681, Page 1789.

               You have requested our opinion as to whether Rarris
     County is required to pay fees to the County Clerk of Harris
     County in condemnation proceedings brought by Harris County.
     All fees collected by the County Clerk are required to be paid
     into the County Treasury "for account of the proper fund."
     Article XVI, Section 61, Constitution of Texas. Wichita County
     vs. Robinson, 155 Tex. 1, 276 S.W.2d 509 (1954). Thus, fees
     collected by the County Clerk of Harris County will be deposited
     into the Officers Salary Fund of Harris County, a part of the
     General Fund of Harris County. Therefore, if Harris County is
     required to pay fees, set out in House Bill 78, Acts 60th Legis-
     lature, Regular Session, 1967, Chapter 681, Page 1789, Harris
     County would be paying to itself such fees.

               All county funds are constitutional funds. If only
     the General Fund is involved, it would amount to a useless book-.
     keeping entry in the General Fund. If other constitutional funds
     are involved, such payment would amount to an invalid transfer
     of constitutional funds. It is well settled in this State that
     tax money raised ostensibly for one purpose cannot be used for
     another purpose and therefore transfers of constitutional funds i
     are in violation of Section 9 of Article VIII of the Constitution
     of Texas. Carroll vs. Williams, 109 Tex. 155, 202 S.W. 504 (1919);
     Ault vs. Hill County, 102 Tex. 335, 116 S.W. 359 (1909); Sanders
                                             1920, no writ); Lamon vs.
     ~~~~~~~~~:~:~~~.~~s~~~:~~~~~~~~':'1948,      no writ); First State
                                        y 306 S.W.Zd 246 (Tex.Civ.App.,
     1957, no writ.)

               In view of the foregoing, it is our opinion that the
     payment of fees in a condemnation proceeding by Harris County to
     the Clerk of Harris County would amount to an unconstitutional
     transfer of tax monies.  Furthermore, such payments amount-to

                                         - 661.
Hon. Joe Resweber, page 2(M-142)



bookkeeping transfers and would require unnecessary time, energy,
and labor by various county officials. As youpointed   out in
your request, in the construction of statutes, it is to be pre-
sumed that.the Legislature did not intend to require an absurd,
foolish, unreasonable or useless thing. Floydada Independent
School District vs. Shipley, 238 S.W. 1026 (Tex.Civ.App., 1922,
affirmed 250 S.W. 159, 1923). Therefore, you are advised that
fees cannot legally be paid to the County Clerk of Harris County
by Harris County.

          With regard to other governmental agencies in condem-
nation proceedings, we agree with you that it is established that
a condemnation, in its initial stage, is not a cause, action, or
suit in a Court, but is an administrative proceeding.  Henderson
vs. Turnpike Authority,,308 S.W.2d 199 (Tex.Civ.App., 1951,
error ref.); Denton County vs. Brammer, 361 S.W.Zd 198 (Tex.Sup.
1962). Therefore, fees which are payable by other condemners
are not payable until an objection is filed by the condemnor or
a judgment is entered.

                             SUMMARY
                             _------
          Fees cannot be paid by a county to its own
     County Clerk. In condemnation proceedings where
     the condemnor is other than the county in which
     the condemnation proceeding is filed, fees pay-
     able by a condemnor other than the county are not
     due and payable until an objection is filed by the
     condemnor or a judgment is entered.

                                       Y4 rs very truly,




Prepared by John Reeves
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
Pat Bailey
John Grace
Sam Kelly

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Hon. Joe Resweber, page 3(M-142)



A. J. Carubbi, Jr.
Staff Legal Assistant




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