.




    HonorableTomA< Craven
    'Courity.Audltor
    MC-      county
    Waco, Texas

    Dwar Sir:                          Opinion   No.~O-1397
                                       Re: Whetherthe commissioners'
                                           court haw authorityto allow
                                           road and bridge precinctsin
                                           need of funds to operate
                                           pendingthe collectionof
                                           currentrevenuesto borrow
                                           fund6 from the Road Bond ac-
                                           count,to supplementtheir
                                           road and b,ridgefund accounts,,
                                           such borrowedfunds to be paid
                                           back to the Road Bond Fund out
                                           of collectionsof the borrow-
                                           ing Road & BridgePrecinct
                                           duringthe ensuingyear.

             We quote the followingtwo paragraphsof your letterof Aug-
    ust 6, requestingan opinionfrom this department:

              "The Road.andBridge Departmentof Mclenuan County
         is operatedon a countywide basis.

             "The balanceto the credit of at least one, and pos-
        sibly two, precinctsof the road and bridge department
        will be exhaustedbefore additionalfunds will become
        availablefrom currenttax collectiona. In your opinion,
        would the Commissioners~~Courthave authorityto allow
        road and bridge precinctsin need of'fundsto operate
        pendingthe collectionof currentrevenuesto borrow
        funds from the Road Bond Account,to supplementtheir
        Road & Bridge Fund Accounts,with the understandingthat
        .suchborrowedfunds be paid back to the Road Bond Fund
        out of collectionsof the borrowingRoad & BridgePre-
        cinct duringthe ensuingyear?"

             You furtherstate in your letter that the funds desiredto
    be loaned constitutesthe unexpendedbalance of a county-widebond
    issue voted a number of years ago for the purpose of "C~onstruction,
    maintenanceand operationof gravel or paved roadw~andturn-pikes,or
Hon. Tom A. Crave,Page 2 (o-1397)



in aid thereof",equaling wome $35,000.00. We are to amme that the
bonds have been retiredwith principaland interestpaid leavingsuch
balanceand that no.equitabledivisionof such funds as authorizedby
Section18 of your SpecialRoad Law ie questionedor contemplated being
made by the commlsslonerslcourt. We furtherassume by your request
that such nborrowednfunds are not necessarilyto be expendedfor those
purposesfor which said bonds were originallyauthorized.

          It Is to be noted that Section18, Chap. 34, Acts 1929,First
Called Session,41st Legislature,being a portionof the SpecialRoad
Law passed for the benefit of McLennan County,provider:

         "All county,road and bridge funds raisedby direct
    taxationor by the ssle of countyor districtbonds and
    all other moneys that may come into the Road and Bridge
    Fund in McLennanCounty, shallbe appliedby an order of
    the commlssloners"court  to building,CbIlBtI'idCt~ and
    repair of,thevariousroads,bridgesand culvertsin said
    county in such manner,as to give a,fair and equitable
    divisionof eald funds,baaed upon the taxableproperties
    in each commisaloner~s precinct."

          As to the authorityand duties of the conml6alonara'court
and other countyofficer6ln the handllngand expenditureof countyfunds,
said road law 1s cumuIatIveof all other laws upon the subject.

          Accordingto your request,such fkdr were raieedthroughthe
sale of bonds under Article 726-752, Revised CivlI Statutes,pursuant
to Article3, Section53 of the Constitutionof Texas, prior to the re-
peal of said,artlcles by the 39th Legislature,Acts 1926, Fir& Called
session,chap. 1.6. Article 7520, Revised Civil Statutes 1925, as amended,
readingaubstantlally  the same aw the repealedarticle742, provides:

         "The countytreasureris custodianof all funde col-
    lectedby virtue of this law, and shall depositthem, with
    the county depositoryin the same manner as countyfunds
    are deposited. It shall be the duty of the countytreaw-
    urer to promptlypay the interestand principalas it be-
    comas due on such bondw.out-ofthe fundB collectedand de-
    positedforthat purpose."

         Article'17C9,Revised-CivilStatutes,provide%

         "The countytreasurershall receiveaI1 moneysbelong-
    ing to the county from whateversourcethey may be derived,
        p y d
    endaauda                                     in such man-
    ner as the coi+mlsslonerwcourt of,his'county'may
                                                   require
    and direct." (Underscoreours)

         Article 1624, Revised Civil Statutes,provides:
Hon. Tom A. Crave,Page 3 (O-1397)



         "An accountwith the countytreasurershallbe kept
    in said ledger,in which such treasurershallbe charged
    separatelywith the amount of each fund for which he gives
    a receiptto the sheriff,collector,or other person pay-
    lng the 6ame into the treasury;and such treasurershall
    have creditfor all moneys paid out by him, when the com-
    missionerscourt has approvedhis reportsof the same and
    for hie legal commls~1ons.w

          Article1625, RevisedCivil Statutes,providesfor the regis-
tering of claimsagainstthe county in the order of their presentation,
makingpaymentof each in the order in which they are registered.

          It will be noted that there la no provisionin the statute6
authorizingthe countytreasurerto pay out such surplusof funds other
than as requiredby Law.

         Counties,being a componentpart of the atate,have no powers
or dutiesexceptthose which are clearlyeet forth and definedln the
Constitutionand statutes. The statuteshave clearlydefinedthe pow-
ers, prescribedthe duties,and imposedthe liabilitiesof the commlw-
sioners'court,a mediumthroughwhich the differentcountiesact, and
from those statutesmust come all the authorityvested in the county.
(Xdwgdw County v8. Jennings, 33 S. Ii.585, Tex. Juris,Vol. 11, p. 563).

          PracticaIlythe Identicalquestionas containedin your request
was presentedto this departmentfor an opinionby Hon. Thomas L. Elanton,
Jr., CountyAttorney,ShackelfordCounty,Albany,Texas, and under date
of February4, 1939, in an opinionwrittenby Hon. BenjaminWoodall,
AssistantAttorneyGeneral,the partiouIarquestionsas well as other
relatedque6tionspertainingto the transferof funds VBB renderedto
Mr. Blantonunder our OpinionNo. O-66. We encloseherewitha copy of
OpinionNo. O-66, callingyour particularattentionto questionNo. 2
on page 2 thereof,and the holdingof thle departmentaB shown on page
3 to the effectthat any unlawfuland unauthorizedtraneferof such funds
to be an illegaldiversionof same.

          It is, therefore,the opinionof this departmentthat the com-
missioners'court is not authorizedto aI.low Road and BridgePrecincts
in need of funds to operatependingthe collectionof currentravenues
to borrow funds from the Road Bond Account,to supplementtheir Road
and Bridge Fund Account,althoughsuch transferis made with the under-
stsndlngthat such borrowedfunds be paid back to the Road Bond Fund
out of collectionsof the borrowingRoad aqd Bridge Precinctduringthe
ensuingyear.
WI& Jm:lm                    APPROVED           Yours very truly
APPROVED0'3 10, 1939         OPINION       m;oRNEY GgNERALOFTKKAS
/a/ RobertE. Kapke          col.mITmE      By /a/ Wm. J. R. 'King
ACTlliGATIORNEX GRNRRAI     BY /s/BwB              Wm. J. R. King
       OF TEXAS               CHAIRMAN                 ABSiStmt
