                                May      15. 1950


Hon. B. .F. McKee                         Opinion   No. V-1057.
County Auditor
Hidalgo County                            Re:   The authority of counties to
Edinburg;Texas                                  use anexcess    oft the State tax
                                                remission,   over the annual
                                                bond retirement     requirements,
                                                to build and maintain farm-
Dear    Mr.   McKee:                            to-market   road6,.

               You have requested        the opiidon   0%this office      on the above-
captioned     matter.

               Section 51 of Article      III of the Texas   Constitution       pro-
vides   in part as follows’:

                “The Legislature     shall have no power to make
        anjr grant   or authoriszthe    making of any grant of pub-
        lic moneys to any individual.       association   of individuals,
        municipal or other corporations         whatsoever;.provided,
        . . . further; that the,provlsions      of this section shall
        not be construed so as to nrevent the grant of aid in
        cases ofpublic     calamity.i    .(Emphasicadded       through-
        out.)

               Section   10 of Article    VIII of the Constitution        provides:

                “The Legislature    shall have no power to release
        the inhabitants of, or .property in, a~ny county, city or
        town from the payment of taxes levied for State or coun-
        ty purposes,   &less   itrcase of great public calamity in
        any such county, city or town. when such release       may
        be-made by a vote of two-thirds      of each House: of the-
        Legislature.“’

             It is clear that these .ronstitutional    provisions  them-
selves would prevent the use of remitted’tax        funds for any purpose
other than the prevention of.public calamities,        under the conditions
set forth in the statutory .grant. unless there is some subsequently
adopted constltutlonal   provision  that provides     otherwise.

                In Opinion No. O-1276 this office        ruled    that:
Hon. B. F. McKee,    Page   2 (V-1057)




             ,-The calamity clause fin Article     3. Section 51, of
      the Constitution was not intended to provide a vehicle
      for the wholesale transfer     of money from one coastitu-
      tiooal fund to another.    It was written into the Constitu-
      tion to enable the State as a whole to extend relief to
      those parts of its areas which from time to time might
      be stricken with such calamitous       visitations    as fire,
      flood, tempest or disease.      We think the term ‘public
      calamity’ has the same meaning in Article           3, Section
      51, as in Article 8, Section 10 of the Constitution.          In
      the case of Jones P. Williams.      45 S.W. 2d 130, the ques-
      tiouas to the constitutionality    of a tax remission       bill
      of state-wide   s,cope was before the Supreme Court.             In
      that Act the Legislature     had found as a fact that the ‘pres-
      ent world-wide     economic crisis’ constituted a public ca-
      lamity.   We take the following excerpts        from Chief Jus-
      tice Cureton’s    opinion:

             * ‘As stated, the Legislature   was of’ the opinion
      that .the present industrial depression    was .a ‘great pub-
      lic calamity” within the meaning of Section 10, Article
      8, of the Constitution.   With that interpretation   of the
      Constitution we cannot agree.      The word ‘calamity”      in-
      dicates ,or suppases a somewhat contiguous state; pro-
      duced .aot usually by the direct agency of man, ybut by
      aatural causes, such as fire., flood,.teanpes,t, disea6.e:”
      etc. .Webster’s   Revised Uuabridged     Dictiouary   . . .

             “We thixk it clear that it was thus co&mplated
      and intended that levies for State and county.~urpose.s.
      should be kept separate and distinct; snd that taxes col-
      lected for county pnrposes   should uot be appropriated
      for State uses, nor taxes collected for State purposes
      diverted to county uses.”

           Section .1-a of, Article VIII of the Constitution        was a-
mended in 1.948 to provide in part as follows:

           : “Prdvided    that in those. counties or political sub-.
      divisions or areas of the State from which tax donations
      have heretofore. been granted, the State Automat16 Tax
      Board shall continue to kvythe        full amount of the State
      ad valorem    tax for .the duration of such donation. or. un-
      til all legal obllgatio~ns heretofore    authorized   by .the law
      granting such donation or donations shall have been fully
      dischar.ged. .whichever shall first o&r;         provided-:tbat
      if suchdomtion      toany such county or’political      s&di’d-
      *ion is for less than the~fullamount       of State advalorem
      taxes so levied, the portio~n of such taxes .retiining          over
Hon. B.. F. McKee,     Page   3 (V-1057).   ,




       ,and above su.ch donation 6hall.be retained by said coun-
        ty or. subd{vision.- Sec. 1a. Ar.t,. 8, adopted. electiou
       Nov. 2. 1948.7.

             After the .ameudment of .Section.l-a,    the 51st Legisla-
ture enacted Chapter 464, codified as Article      704ga, V’.C.S.  Sec-
tion 10(a) provides in part as follows:

               y(l) :Begianlng      in the.year ,195i;atid each year
       thereafter    the State Automatic        Tax Board created by
       Article   7041 of the Revised Civil Statutes of Texasi
        1925, shall cause to be levied annually in each county,
       political subdivision       or other defined area, the full
       thirty cents (30$) State ad.valorem           tax for general rev-
       enue purpose’s, the proceeds of which heretofore               were
       donated and granted by the .Legislat,uye to certain coun-
       ties, political s.ubdivisionq o,r other. ,defined areas .for
       the purpose of carrying          out pndperforming      actious of.
       preventing     calamities,     improving., protecting and xc-
       clamting certain’areas          for pnd ,op. betalf of the State as.
       more fully declared        in each applicable      law or laws mak-
       ing .such donation or grant and said Board shall contin-
       ue to levy such tax at said rate in each such designated
       area uutil.,the bonds or .other obhgahons            of said areas
       authorized     or incurred’in       connection with the pertorm-
       ante of such aC&OD on behalf of the State shall have been
       fully pald or discharged          or until the expiration date of
       such dohation or grant as Wy             be determined     from the
       law or laws rziaking such grant or donation, whichever
       shall first occur.      . . .

               “(3) The tax assessors    and collectors    in each of
       such Counties shall continue to assess and collect ,su.ch,
       tax and make the proceeds      thereof available    to the. douees
       or grantees in the manner provided by the law or laws
       makiugeachsuch      grant or..donation.    The moneys.thus
       collected by said tax assessors      and collectors   and.re-.
       ceived by su,ch grantees or donees shall be used~ano ac-
       counted for annually as prescribed      by the law or laws
       making such grant or donation.

              “(4)’ In those instances where less than the full
       State general ad valore’m    tax was granted or donated,
       the oortion of the monev collected in excess ot the a-.
       mot&t donated or grantkd shall be paid over to the gov-
       erning body of the county or political subdivision from
       which such tax is collected and in the discretion   of said
       gpvernlng body shall be us& either for the construction
       and maintenance of F&-m-to-Market        Roads or for’Elood
       Control only withiu the county,,,. , . ”
Hon. R. F. McKee,    Page   4 (V-1057)



              Thus. we see that, under both the Constitution and the
statutes, the.doaated taxes can be used only for the prevention of
the recurrence      of public calamities,   under the condition6 set forth
in the statutory    grants.   The donation is to continue until the end of
the statutory    grant or untilallobligations    are paid, whichever  shall
occur first.

             Mauitestly.  the collbtruction and mainteoauce    of farm-
to-market  roads ‘would not constitute a prevention of recurrence       of
public calamities  within the coqtemplation   of the Constitution or
statutes.



                              SUMMARY

              .State ad valorem   taxes douated or granted to
       counties   to prevent the recurrence   of “great public
       calamities+” caused by dkmitous       overflows, floods,
       storms,    and the like, cannot be diverted to the con-
       struction and maintenance of farm-to-market       roads.

                                                     Yours   very   truly,

                                                       PRICE DANIEL
                                                     *,:“?rxwGew.i&


APPROVED:

W. V. Geppert                                                  Assistant
Taxation Division

Joe R. Greenhill
First Assistant

Price Daniel
Attorney Geneial

FL/ls/mwb
