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                       HE
                                 Q,P TEXAS




                                March 16, 1965


            Hon. Jules Damlanl, Jr.           Opinion No. C-405
            Criminal District Attorney
            Galveston County                 Re: Whether the Commissioner's
            Galveston,Texas                      Court of Galveston County
                                                 is authorized to expend Sea-
                                                 wall Funds (PermanentIm-
                                                 provement Funds) for the
                                                 maintenance of the boulevard
                                                 constructedon top of the
                                                 Seawall in that area where
                                                 the wall no longer serves as
                                                 a protectivework from the
            Dear Mr. Damiani:                    sea.
                      Your letter requesting an opinion of this office reads
            in part as follows:
                       "In 1902 Galveston County acquired the
                necessary rights of way for the construction
                of a seawall commencing at what is commonly
                known as the South Jetty extending in a gen-
                erally   Southerly direction parallel with 6th
                Street to a point intersectingwhai.is now
                commonly known and referred to as Galveston
                Seawall Boulevard, then continuing in a gen-
                erally Westerly direction along the Beach to
                39th Street being commonly known as the Sea-
                wall Boulevard, this area also faces and bor-
                ders along the Gulf of Mexico. Since the
                original construction,additionalfilling and
                additional protectiveworks have taken place
                in front of the area lying between the beginning
                point to the old Seawall and where 6th Street
                intersectsthe Boulevard; and this area is no
                longer exposed to wave action of the water,
                nor does it afford any protection from wave
                action since the filling In front of the area
                in question (beginningpoint to 6th Street and


                                         -1916-
Hon. Jules Lamianl, Page 2 (C-405)


    Boulevard) is now filled to the same elevation
    as the top of the old wall.
         "It Is well settled that the Commissioner's
    Court has authority to expend funds from the
    Permanent ImprovementPund for the maintenance
    and beautificationof a boulevard built in con-
    nection with a seawall so long as said seawall
    affords protection from the sea; however, after
    such seawall no longer affords any protection
    from the sea, can the county continue to expend
    the funds for the improvementor maintenance of
    the boulevard which was constructedin connection
    with such seawall?. . .'
          Article XI, Section 7 of the Texas Constitution,pro-
vides in part:
         "All counties and cities bordering on the
    coast of the Gulf of Mexico are hereby authorized
    upon a vote of two-thirdsmajority of the resident
    property taxpayers voting thereon at an election
    called for such purpose to levy and collect such
    tax for constructionof seawalls, breakwaters,or
    sanitary purposes, as may now or may hereafter be
    authorizedby law, and may create a debt for such
    works and issue bonds in evidence thereof. . . .'I
         Article XI, Section 8 of the Texas Constitution,pro-
vides:
         'The counties and cities on the Gulf Coast
    being subject to calamitous overflows, and a
    very large proportion of the general revenue
    being derived from those otherwise prosperous
    localities,the Legislatureis especially au-
    thorized to aid by donation of such portion
    of the public domain as may be deemed proper,
    and In such mode as may be provided by law,
    the constructionof wea walls, or breakwaters,
    such aid to be proportionedto the extent and
    value of the works constqcted, or to be con-
    structed in any locality.
          Article XI, Section 7 and Article XI, Section 8, allow
gulf coast communitiesto build seawalls In the Interest of the
DUbliC and clearly establish as their purposes the protection
against floodwaters,Increasing state kohomic   wealth, and keeping
ports open for the flow of commerce. White v. City of Port Arthur,
201 S.W.2d 65 (Tex.Civ.App.1947).

                            -1917-
Hon. Jules Damiani, page 3 (C- 405)


          Originally,the Galveston seawall or breakwater was
constructedas authorized by Article XI , Section 7, and Article
XI, Section 8, and Articles 6830 and 6831 of Vernon's Civil
Statutes. However, Galveston County now has Seawall funds within
the ConstitutionalPermanent ImprovementPund. These permanent
improvementfunds are now the funds sought to be used for the
boulevard in question.
          Article VIII, Section 9 of the Texas Constitution,
provides In part:
              .providedfurther that at the time
    the CommissionersCourt meets to levy the an-
    nual tax rate for each county it shall levy
    whatever tax rate may be needed for the four
    (4) constitutionalpurposes; namely, general
    fund, permanent improvementfund, Toad and
    bridge fund, and jury fund. . . .
         Article 683gg, Vernon's Civil Statutes, provides in
part:
         'Section 1. The CommissionersCourt of
    any county bordering on the coast of the Gulf
    of Mexico, except Nueces, Kleberg, Kenedy,
    Jefferson, Orange and Willacy Counties, is
    hereby authorized to construct breakwaters.
    Payment for the same shall be made from th$
    ConstitutionalPermanent ImprovementFund.
          Money derived from the sale of bonds or levied taxes
allocated to the county's ConstitutionalPermanent Improvement
Fund must be held in trust exclusivelyfor permanent Improvements,
as the CommissionersCourt has no power to levy a tax for one
purpose and use the money for another. Ault v. Hill County, 102
Tex. 335, 116 S.W. 359 (1909); Sanders v. Looney, 225 S W 280,
(Tex.Clv.App.1920); Carroll v. Williams, 109 Tex. 155,'202 S.W.
504 (1918).
          The maintenance of the boulevard in question will con-
stitute the constructionof roads rather than permanent lmprove-
ments under the facts submitted. We, therefore, are in accord
with your conclusionthat the CommissionersCourt of Galveston
County is not authorized to expend permanent improvementfunds
of the County on any constructionsuch as the maintenance of a
boulevard erected in connectionwith a seawall which is no longer
an Integral part of the seawall project of Galveston County.



                            -1418;
Hon. Jules Damlanl, page 4 (C- 405)


                    SUMMARY
         The CommissionersCourt of Galveston County
    is not authorized to expend constitutionalper-
    manent Improvementfunds upon a boulevard erected
    In connectionwith a seawall which Is no longer
    an Integral part of the seawall project of Gal-
    veston County.
                                Very truly yours,
                                WAGGONER CARR
                                Attorney General


                                BY:
                                    %a/,,,
                                      Gordon Houser
                                      Assistant
GH:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
James Strock
Harold Kennedy
Gordon Cass
APPROVED FOR THE ATTORNEP GENERAL
BY: Stanton Stone




                            -1919-
