.




                 E   A~~oI+~EY         GENERAL

                          OFTEXAS




    Honorable A. E. Hickerson
    County Auditor
    Montgomerg'Countg
    Conroe, Texas
    Dear Sir:              Opinion NO. o-6762
                           Re: Proper funds from which to pay
                                for operation and improvement of
                                county airport.
            We are in receipt of your letter of recent date re-
    questing the opinion of this department on the above stated
    matter. We quote from your letter as follows:
            "For your information, we have an airport
        recently built which IS second to none in Texas.
        It has approximately twelve hundred acres and Is
        approximately four miles from Conroe. It was
        built to be used by the Navy Patrol.
            "The Navy and the C. A. A. are about to dump
        it into our lap. This alrport cost approximately
        a million and half dollars, ana the problem con-
         fronting the Commissloners' Court today, is from
        what funds we are to pay for the operation an8
        maintenance of this airport. Of course, we under-
        stand from former rulings, that it was properly
        financed from the Permanent Improvement Fund.
            "It is estimated that it will take twenty-five
        thousand dollars per year to maintain this port in
        a manner requested by the C. A. A. There will be
        a pa 011 for salaries of about $12,500 per year,
        and r-
             12,500 per year for maintaining and sealing
        the run-ways.
           "What we would like to know is from what funds
       would thts be paid.  Would it be possible to set up
       a tax levy for this expense inasmuch as our General
       Fund IS as usual, badly over-loaded."
            Article 126qh, Vernon's Annotated Civil Statutes, In
    part provides:
Hon. A. E. Hickerson, page 2          O-6762



    "That the governing body of any incorporated city
   in this State may receive through gift or dedication,
   and is hereby empowered to acqufre, by purchase with-
   out condemnation or by purchase through condemnation
   proceedings, and thereafter maintain and operate as
   an airport, or lease, or sell, to the Federal Govern-
   ment, tracts of land either within or without the
   corporate limits of such city and within the county
   in which such city is situated, ana the Commissioners'
   Court of any county may likewise acquire, maintain end
   operate for like purpose tracts of land within the
   limits of the county.
        tt
         . . . .
        "That in addition to and exclusive of any taxes
    which may be levied for the interest and sinking fund
    of any bonds issued under the authority of this Act,
    the governing body of any city or the Commlssioners'
    Court of any county, falling within the terms hereof,
    may and is hereby empowered to levy and collect a
    special tax not to exceed for any one year five cents
    on each One Hundred Dollars for the purpose of lmprov-
    inks,operating, maintaining and conducting any Air Port
    which such city or county may acquire under the provi-
    sions of this Act, and to provide all suitable struc-
    tures, and facilities therein. Provided that nothing
    in this Act shall be construed as authorizing any city
    or county to exceed the limits of indebtedness placed
    upon it under the Constitution."
        S~ection9, Article 8,   Constitution of Texas (as
amended, 1944) provides:
        "The State tax on property, erclusive of the tax
    necessary to pay the public debt,'and of the taxes
    provided for the benefit of the public free schools,
    shall never exceed thirty-five (35) cents on the one
    hundred dollars valuation; and no county, city or
    town shall levy more than twenty-five (25)cents for
         or county purposes, and not exceeding fifteen
    3    cents for roads and bridges, and not exceeding
    fifteen (15) cents to pay jurors, on the one hundred
    dollars valuation, except for the payment of debts
    incurred prior to the adoption of the Amendment
    September 25, 1883; and for the erection of public
    buildings, streets, sewers, waterworks and other per-
    manent improvements, not to exceed twenty-five (25)
    cents on the one hundred dollars valuation, in any
    one year, and except as 1s in this Constitution
Hon. A. E. Hfckerson, page 3         o-6762



    otherwise
     . _      provided;
               -    .   provided, however, that
                                           --   the Com-
    mIssloners uour'tIn any county may re-allocate the
    foregoing county taxes by changing the rates provided
    for any of the foregoing purposes by either Increasing
    or decreasing the same, but in no event shall the total
    of said foregoing county taxes exceed eighty (80) cents
    on the one hundred dollars valuation, in any one year;
    provided further, that before the said Commissioners
    Court may make such re-allocations and changes in said
    county taxes that the same shall be submitted to the
    qualified property tax paying voters of such county
    at a general or special election, and shall be ap-
    proved by a majority of the qualified property tax
    paying voters, voting in such election; and provided
    further, that if and when such re-allocations and
    changes in the aforesaid county taxes have been
    approved by the qualified property tax paying voters
    of any county, as herein provided, such re-allocations
    and changes shall remain in force and effect for a
    perlod of six (6) years from the date of the election
    at which the same shall be approved, unless the same
    again shall have been changed by a majority vote of
    the qualified property tax paying voters of such
    county, voting on the proposition, after submission by
    the Commissioners Court at a general or special election
    for that purpose; and the Legislature may also authorize
    an additional annual ad valorem tax to be levied and
    collected for the further maintenance of the public
    roads; provided, that a majorfty of the quallfi,ed
    property tax paying voters of the county voting at an
    electlon to be held for that purpose shall vote such
    tax, not to exceed fifteen (15) cents on the one
    hundred dollars valuation of the property subject to
    taxatlon in such county. And the Legislature may pass
    local laws for the maintenance of the public roads and
    highways, wIthout the local notice required for special
    or local laws. This sectton shall not be construed as
    a limitation of powers delegated to counties, cities or
    towns bx any other section or sections of this Consti-
    tution.
        Under the provisions of Article 1269h, supra, a tax
(exclusive of and In addition to taxes levied for the sinking
fund of bonds Issued for airports) In an amount not to exceed
five cents on each one hundred dollars valuation, may be
levied and collected for the purpose of "improving, operating,
maintaining and conducting" the county airport, and. 'to
provide all suitable structures and faclllties therein."
However, the amount of taxes that may be levied for such
purposes is not only subject to the limitation of five cents
Hon. A. E. Bickerson, page 4         o-6762



per one hundred dollars, but it is also subject to the
limitations set forth in the above quoted constitutional pro-
visions. In view of the foregoing, such,tax when levled
cannot operate to increase the total levy for any of the
constitutional purposes beyond the limits above set out.
        From the information given in your letter, we under-
stand that a part of the contemplated expenses in connection
with the airport is for the improvement of the runways. It
Is apparent that the runways and the improvements thereto
are in thennature of permanent improvements. We think,
therefore, that the expenses for the Improvement of the run-
ways should be allocated as a part of the total levy author-
ized by the Constitution for permanentimprovements, but in
no event should such allocation have the effect of increasing
the total county levy for permanent improvements beyond the
constitutional limit for such purposes.
        As to the proper levy within which to allocate the
contemplated expenditures for the purpose of paying salarles
in connection with the operation of the airport, it has been
held that unless some law makes a particular authorized ex-
pense a charge against a special fund, such expense must be
paid from the general fund. In this connection we quote from
the opinion of the Supreme Court in Bexar County v. Mann,
157 S. W. (26) 134, as follows:

       "All county expenditures lawfully authorized
   to be made by a county must be paid out of the
   county's general fund, unless there IS some law
   which makes them a charge against a special fund.
   Williams v. Carroll, Tex. Clv. App., 182 S. W. 29."
        In view of the foregoing, it is our opinion that the
expenditures for salaries should.be allocated as a part of
the levy for general purposes, and in 'no event, should such
allocation have the effect of increasing the total levy for
general purposes beyond the constitutional limit for such
purposes. Also, we point out that the~total amount,of the
allocation or levy for the purposes of "improvlng, operating,
maintaining and conducting" the airport and "to provide
suitable structures and facllitles therein", should not ex-
ceed for any one year the limit of five cents on the one
hundred dollars valuation, even though a part of such amount
may be allocated as a part of the levy for general purposes
and a part allocated within the levy for permanent lmprove-
ments.
        In your letter reference was made to the heavy bur-
den already placed upon the general fund of your county. We
Hon. A. E. Bickerson, page 5           O-6762



assume that your county
                   -~   is now levying twenty-five cents for
general purposes. The only means whereby such levy may be
increased is by a re-allocation of tax levies, authorized by
the voters of the county, in conformity with the provisions
of Sectlon 9, Article 8, of the Constitution of Texas (as
amended in 1944). For a dlscussion of this matter, we are
enclosing copies of our Opinions Nos. o-6278, O-6427 and
O-6477.

        We trust that the above and foregoing satisfactorily
answers your inquiry.
                                 Yours very truly,
                               ATTORNEY GENERAL OF TEXAS

                                 By s/J. A. Ellis
                                      J. A. Ellis
                                        Assistant
JAE:LJ:wc
encls.

APPROVED AUG 9, 1945
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEYGERERAL
Approved Opinion Committee By s,fBWBChairman
