.        .




                      "Bler~A7t3roxru~~             GENERAL

                                     OF   YI-EXAS




             Hon. C. J. Wilde
             County Auditor; Nueces County
             Corpus Christi, Texas
             Dear Mr. Wilde:          Opinion No. O-440
                                      Re: Legality of spending county.funds
                                           for dredging a channel, located
                                           wLthin the city llmlts of an in-
                                           corporated city, to be used by
                                           fIshermen
                     This wi,llacknowledge receipt of your letter of
             March 6, 1939,~requesting an opinion from this Department,
             the pertinent parts of which are quoted as follows:
                     "At a Commissioners' Court meetlng of this
                 date, the City Commissioners approached the
                 County Commissioners for the sum of $l,OOO.OO
                 to partially pay for the dredging of e channels
                 et the north~end of town.'
                     "The dred,glngof e cha'nnelbecame necessary
                 on the account of the Bay-front Improvement 1-n
                 the City of Corpus Chrlsti and.said channel is to
                 be used.by fishermen and shrimpers who heretofore
                 made their headquarters on a Mu.niclpalPier owned
                 and operated by the City.
                    "The matter being placed before the writer
                was answered with e statement that in the first
                place the item was not 1n the Annual Budget and
                in the second place that I did not feel it was
                an expenditure that could be made from County
                Funds. The reply to this was that if these fish-
                ermen are not given this channel with which to
    .a          bring their boats into the land that they would
                have no means of maklng a livelihood, and that
                sooner or later they would be public charges and
                would undoubtedly asked to be placed on the in-
                digent roll.
                     "Please advise whether or not you believe
                 this expenditure is justified out of County Funds,
                 if so, from which fund do you believe the item
                 should be paid."
                                                             l   .




   Hon. C. J. Wilde, March 22, 1939, page 2        O-440



           The County Commissioners' Court is provided for by
   ArtLcle 5, Section 18 of the Constitution of Texas, and has
   certain powers, express end Implied, given it by that docu-
   ment and the Acts of the Legislature. It is A court of
   limited jurisdiction and has no authority except such es 1s
   expressly or implledly given it. Ex parte Thomas, 2 S.W.
   (2d) 270. The Constitutional provision that the Commls-
   sioners' Court shall exercise such powers end jurisdiction
   over all "county business" as is conferred by the Constltu-
   tlon end laws of the State, suggests the questlon whether
   or not the expenditure proposed under the facts stated is
   "county business" within the meaning of that term as used
   in the Constitution, It Is the op,lnionof this Department
   that dredging the c.hannelas proposed in this Instance Is
   not "county business".
           The counties borderingon the coast of the Gulf of
   Mexico have special authority granted them in Article 11,
   Section 6~ of,~theConstitution, which was enacted into law
   by en Act of the Legislature passed at the First Called
   Session, 27th Legislature,-'lgOlch. 12 p. 23, and amended
   by Acts of the 39th,Leglslature, RegularSessIon, 1925, Ch.
   96 p. 270, Article 6830, R. C. S. 1925,,as follows:

           "The county commissioners' court,of all
       counties, and the municipal authorittes of all
       cities, bordering on the coast of the Gulf of
       Mexico, shell have the power and are authorized
       from time to time~to establish, locate; erect,
       construct, extend, protect, strengthen, maintain,
       and keep Fn repair end otherwise Improve any sea
       wall or breakwater, levees, dikes, floodways and
       drainways, and to improve, maintain and beautify
       any boulevard erected In connection with such sea
       well or breakwater, levees, dikes, floodways and
       dralnways, and to Incur indebtedness therefor,
       the payment of which may be provlded for either
       with or without the issuance of bonds. And said
       commissionersI courts end municipal authorities
       shall also have power and are hereby authorized
       to levy taxes not to exceed in any one year fifty
       cents on the one hundred dollars of taxable values
.e     of said county or city for the payment of said
       indebtedness, provided that when the taxes are levied.
       as herein provided for, will not pay off said ln-
       debtedness within five years, then the paymentof
       said indebtedness shell be provided for.by the is-
       suance of bonds es hereinafter provided."
                .*
           It is conceivable that a channel located wlthin the
   city limits of an Incorporated city might be e floodway or
  Hon. C. J. Wilde, March 22, 1939, page 3         O-440


  drainway within the contemplation of the foregoing article,
  but in the Instant case, where the admitted and express pur-
  pose of dredging the channel is to provide a place for fish-
  ermen and shrimpers to operate, who formerly made their
  headquarters on a municipal pier owned and operated by the
  City of Corpus Christl, the channel is not such a floodway
  or drainwey as contemplated In said article and county
  moneys cannot legally be spent for Its dredging.
            If the aforesaid-article is not authority for the
   expenditure contemplated, the question arises whether or not
   tax moneys raised under the provisions of Article 8, sectlon
   9 of the Constitutfon can be spent for the purposes set out
   In your statement of the facts. The pertinent provisions
   of Article 8, section 9 of the Constitution are as follows:
          "* * *No county, city or town shall levy more
      then twenty-five cents for city or county purposes,
      end not exceeding fifteen cents for roads end
      bridges, and not exceeding fifteen cents to pay
      jurors, on the one hundred dollars valuation, .ex-
      cept for the payment of debts Incurred prior to
      the edoptlon of the amendment September 2th; 1883;
      and for the erection of public buildings, streets,
      sewers, waterworks and other permanent Improvements,
      not to exceed twenty-five cents on the one hundred
      dollars valuation, In any one year, and except as
      Ls In this Constitution otherwise provided; l * *'I
          Although your letter does not state what fund it was
  proposed tt& the bill for dredging be paid from, it could
  not be paid from any of the three funds provided for Fn the
  above article and section of the Constitution.
           It Is elementary that money realized from taxes can-
   not be spent except for the express or necessarily implied
   purpose or purposes for which it was raised. Carroll v.
   Willlams, 109 Tex. 155, 202 S.W. 504. Since the dredging
   of a channel wlthin the city limits of en incorporated city
   for the purposes stated by you does not come within the pur-
   poses for which the taxes were levied, the expenditure for
   same cannot be,legally made. It would be e grant of public
   money in violation of Article 3, Section 51 of the Constltu-
.- tion of Texas.
          A letter opinion, dated September 12, 1934, addressed
  to 0. C. Fisher, County At.torneyof Tom Green County, covers
  a somewhat similar question and the writer of that opinion
  reached the same conclusion.
                                                             ,   -




Hon. C. J. Wilde, March 22, 1939, page 4             O-440


        In view of the fact that It is the opinion of this
Department that county funds cannot be legally spent for
paying part of the costs of dredging a channel located wlth-
in the city limits of an incorporated city, which channel
la to be built for the use of fishermen and shrlmpers, we
do not deem it necessary to discuss the necessity of having
such an item Included in the annual budget of the county.
                                Yours very   truly
                             ATTORNEYGENERAL    OF TRXAS

                                By s/James Noel
                                     James Noel
                                      Assistant
JN:BT:wc.

APPROVED:
S/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
