The Honorable   Jim Sharon       Bearden                Opinion   No.   H-   194
County Attorney
Orange County                                           Re:    Authority   of County
Orange County Courthouse                                       Auditor   to transfer
Orange,  Texas 77630                                           surplus funds in the
                                                               Road and Bri~dge Fund
Dear   Mr.   Bearden:                                          into the General     Fund

      You have requested    an opinion of this office on the following question:
“can the County Auditor   place all carry-over    funds of the Road and Bridge
Fund into the General   Fund after the budget year with or without an order
by the county court? ”

       You further   explain:    “In Orange County,     a county under       225, 000, there
is a ‘General   Fund’,   consisting   of the general  fund, jury fund,       and public
building fund, leaving    the ‘Road and Bridge      Fund! separate. ”

        The applicable   limitation  upon the type of county financing  which            you
question is Article    8, § 9, of the Texas Constitution   which provides:

                      “Sec.   9. The State tax on property,         exclusive    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    Cents (35#) on, the One Hundred
              Dollars    ($100) valuation:   and no county,     city or town shall
              levy a tax rate in excess       of Eighty Cents (80$) onthe One
              Hundred Dollars       ($100) valuation   in any one (1) year for
              general   fund, permanent       improvement     fund, road and
              bridge fund and jury fund purposes;          provided    further   that
              at the time the Commissioners           Court meets ‘to levy the
              annual tax rate for each county it shall levy whatever              tax
              rate may be needed for the four (4) constitutional             purposes;




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The Honorable     JimSharon     Bearden,        page   2   (H-194)




              namely,    general   fund, permanent        improvement      fund,
              road and bridge fund and jury fund so long as the Court
              does not impair     any outstanding      bonds or other obliga-
              tions and so long as the total of the foregoing          tax levies
              does not exceed Eighty Cents (80$) on the One Hundred
              Dollars   ($100) valuation     in any one (1) year.,    Once the
              Court has levied     the annual tax rate, the same shall remain
              in force and effect during that taxable year; and the Legis-
              lature may also authorize         an additional   annual ad valorem
              tax to be levied and collected        for the further   maintenance     of
              the public roads; provided,         that a majority   of the qualified
              property   taxpaying    voters    of the county voting at an election
              to be held for that purpose        shall vote such tax, not to exceed
              Fifteen  Cents (15$) on the One Hundred Dollars             ($100) valua-
              tion of the property    subject to taxationin      such county.      Any
              county may put all tax money collected           by the county into one
              general   fund, without regard       to the purpose    or source of each
              tax.   And the Legislature      may pass local laws for the main-
              tenance    of the public roads and highways,         without the local
              notice required    for special    or lacal laws.      This section shall
              not be construed     as a limitation     of powers   delegated    to counties,
              cities or towns by any other Section or Sections            of this Consti-
              tution. ”

        We presume     that your inquiry   relates   to the Road and Bridge Fund referred
to in the constitutional    provision  as one of the four funds subject to the combined
Ei&ty   Cents per One Hundred Dollars         valuation   limit and that you are not refer-
ring to the Public Road Fund that can be established           by a vote and a tax of up to
Fifteen  Cents per One Hundred Dollars         valuation.

         Prior     to 1944, Article    8, $ 9, of the Texas Constitution    put individual
limitations       on each of the four funds, specifically       Twenty-Five    Cents per One
Hundred Dollars           valuationfor   the generalfund,   Fifteen   Cents for the jury fund
and Twenty-Five            Cents for public improvement.        This was amended in 1944 and
again in 1956 so as to retain only the Eighty Cents on the One Hundred Dollars
valuation      limitation     for the combined   four funds and, in 1967, the people added
another amendment             which states:   “Any county may put all tax money        collected




                                           p.   910
The Honorable     Jim Sharon     Bearden,     page      3 (,I-I-194),




by the county   into   one general   fund,    without     regard    to the purpose   or source
of each tax.”

        Prior   to the 1967 amendment,        it was well established      law that the four
constitutional    funds,    namely:    the genera 1 fund, the permanent       improvement
fund, ‘the road and bridge,fund,         and the jur~y fund had to be kept completely
s.eparate.from.one       another land no comingling      or transfer   of,the funds was
condoned.      Carroll    v. Williams,     202 S.W.   504 (Tex.    1918).

        However,      the plain import~of     the amendment   in 1967, (also shown by
its legislative    history   Andy the publicity   which attended its proposal),     is to
free counties from such .re,strictions          and to allow unrestricted   comingling
and transfer     of these funds.

       In Lewis v. Nacogdoches     County,        461 S. W. 2d 514, 518 (Tex.        Civ.App.,
Tyler,   1970, no writ), the Tyler  Court        of Civil Appeals  stated:

                      “Appe.llants    argue that the Commissioners’         Court
              cannot legally     transfer. one constitutional   fund to another
              fund and in support thereof relies        upon Carroll     v. Williams,
              109 Tex.    155, 202 S. W. 504 (1918).      This was a well estab-
              lished principle      of law in this state until the Constitutional
              provision    upon which it was founded (Article        VIII, Section
              9 of the Constitution      of Texas)  was amended in 1967 to read
              in part as follows:

                               ’ * * * Any county may put all tax money
                       collected    by the county into. one general fund,
                       without regard     to the purpose or source of each
                       tax. ***“’

       The fact that the county originally     budgeted the road and bridge fund
separately  would not impair     the authority   of the commissioners      court to
effect the contemplated    transfer.    The 1967 constitutional     amendment    allows
the county to “put all tax money . . . into one general         fund, ” which plainly
allows a transfer   as well as an original     consolidation.




                                         p.   911
The   Honorable   Jim Sharon      Bearden,      page    4    (H-194)




       Such a transfer    would    require      an order     of the commissioners       cour,t.
The amendment   permits      “any   county” to combine funds.   The county acts
through the commissioners         court.  See 15 Tex. Jur. Zd, Counties 8 35, et. seq.

       Any conflicting   statements   in the following   opinions of this office are
overruled:   Attorney    General   Opinions M-207 ‘(1968), M-369 (1969), M-438
(1964, M- 692’.(1971),   M-1195’,(1972);   M-1245-A    (1972) and M-1250 (1972).

                                    SUMMARY

                      A county commissioners    court may transfer                surplus
              road   and bridge funds into the general fund.

                                             Yours    very   truly,
                                       -



                                             JOHN L. HILL
                                             Attorney General          of Texas




DAVID M. KENDALL,           Chairman
Opinion Committee




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