                         Apll      12,     1949.

Hon. w!mlam A:~Hensley              Oplnlon ro.~p-808.
Criiaiinal bistrist Atty.
Baar county         --              Rsr T&i Ugallty   OS UWxLng
San Antonio 5, Texae                    warrants to purchase
                                        steel illrug  squiplnent
                                        for the vaults of the
  .                                     County Clepk.
Dear xr.     Rensl~t
              You have requested         an opinion   on the follow-

            "The CoimalssIons~S~' Coilrt of Bexar coun-
      ty, Texas, has requested that I submit to you
      certain questloas regarding the purchase ore
      steel filing  squipment fbr'the    vaults oi'the
      County Clerk by the issuance o? warrants.
            *It la the intent of the county comsls-
      t3lonsrs o? Bexar Caujity'to Issize warrants fdr
      the puvposs~~oi purcflsslng‘612   all-steel    roll-
      er sheIves and 216 all-steel     dooumsfit flles~
      which are' tobs   amhomtV'b6oumlY       to-ths~ Court-
      house Ftuur-:umction         ana to be made a part
      themof sofas to make-these uufts 8tatlonarJ
      and unmovable and a part of the building,
              "The Couaty Commi~alonershave requested
      that    I submit to pu the following questlonst
            Il*   Is the proposed expenaitve    for a ~.
       lpermansnt~~lmprove~entl OS the type oontemplat-
      ea b7 the authorlsatlbn    of warmnts tar the
      sole purposs of ~psrmsnent improvements to the
      courthouss?'                                   _.
           -A"
             2. Assuming the %ons+uotlon      to be a
      pemansnt isqmveimat,      aa eonslae*ing   the
      proposed new law applicable    to Bexar County
      whloh restrfbts   the Count Commissionos     from
      issuing warpants, (H.B.lO& Acts of the 51st
      Lag., R.S. 1949, etfeotlve    Xaroh IL, 1949),
             .

eon.   ~111inm 8. bnsley,       page 2 (~-806)


      hen the Co5uisaione~s legally    issue previously
      autho~ised wamsnta for the puPpose of puv-
      chasing and erecting   this pemsanent lmppove-
      merit?” (PaPenthssla ours.)
        ..
            Section 9 of-~ArtXole VIII of the Constltutlox
of Texas   provides ln part as fO11OWS8
             (I
                     .sitQ no oocmty, olty or town shall
       levy m&i than twenty-firs            (25) oents for
       alty OP oounty proses,             and not exoeedlng
       fifteen    (15) cents fop roads ana bridges,           and
       not.exoeedlng      fifteen     (15) oents to pay jap-
       OPS, on the onb huntied dollvs             valu&tlon,   ex-
       oept ioF the paynent of debts IncaPPed p~lor
       to the-‘adoption      of the Amendment September 25,
       1883: and for the ereotlijn of aub1Io bulld-
       lnga*i streets,      sewers, watemo~ks and other
                                      s not to exceed twenty-
                                       one hundred dollsrs
       valuation,      in any one year, and except as 18
       In this Constitution         othemlae     provldsdt pro-
       vided, however, that the CixumlselonePs Court
       in any county may Pe-allooate            the foPegolng
       oounty taxes by changing the Pates             pPovlded
       for any of the ropegoing purposes by either
       lnopeaslng OP dsopeaalng the SW,               but in no
       event shall the total Of raid foregoing              cotm-
       ty tsxes excised eighty (SO) coats on,the’one
       hundrl)d dollars       valuation,    ln,any one ye&P;
       0 0 0
           The lnoneys scorning from taxes levied and eel-
leoted SOP each of the enumeratedpurposes     ale Constitu-
tional fuuds.    The lmme&iate puppose of the above quoted
provi,slon of the Conat$tutlon la to limit the saounti;f
taxes that may be raised fop the i~ve~al ~uPpoee8.
IS also intended to requiae that any and all money8
ralseU by taxes ZOP a partioulsr    purpose shall be applied
to that purpose and to no            AuIt ve El11 CO=~&
102 Tex. 335, 116 S.W. 359          8 Cappoll v. Will1 -1
log TSX, 155, 202 S.Y. 504
          It was helil iii ths case of Brown v. Graham; 58
Tex. 254 (1883), i%a case lhvolvlng %lIWor
apeala  tax for pepairs and additions   to a CouFthou%er
            "Should the ~omisleslonsrsD court come to
       the conoluslon ths~t a larger court house is
Eon.~ Xllllam   M..kensley,   page 3 (V-808)


      needed to meet the demands of the public busl-
      neB8 bf th8lP county,'and      they agree upon its
      plan end dlmenslons,     and find that they can
      secure a building conforming to them in every
      respect,   either by erecting a new structure,
      OP altering;    repalplng and enlarging the old
      one, and that the 1atteP mode will be less-ex-
      pensive by half than-the former, la there any
      Peason In holding that they o&n levy the t&x
      for the more expensive mode of attaining      their
      object,   when they oould not for the other,
      though the structure whioh is the result Is
      ppeolsely    the same in every particular?
             "The object of the fopsgoing pPovlslona
      of out constitution     and statutes w&s to enable
      th8 blffeP8nt    countlss to provide suitable
      public edifices,    leaving it to the judgment of
      the proper authorities     whether this should be
      done-~by bulldlng new houses OP by repalplng
      and adding to old ones, when they oould thus
      be rendeP8d suitable     to the pUPpOSSB of the
      county.    The wopd sepect,g contained in all the
      foregoing   priWislons,   was the most comprehen-
      sive term that could be used to embrace all
      such lmp~ov8menta.
             "To hold that a~couhty whose couPt house,
      with proper repairs and additions,     could be
      rendered commodious and useful in every ma-
      pect, must pull it down and build an entirely
      new one, would be to ohargs out law-givers
      with an intent to encourage an unnecessary ex-
      penditure of the public money. Such a consid-
      eration would not, in Itself   authorlse us to
      infer a power. when not expressly given or neo-
      essarlly   Implied.  Yet when the language-used
      la capable of Including authority to do an act
      not mentl6ned in terms, suah construction       of
      it la ,gPeatly aided by considerations     of pub-
      lic advantage which it would omtalnly       pro-
      duge."
             In the case of Adams v. #oGl11, 146 S.W.2de’332
(Tea Clv. App- 1940, s~ror Pef.J~9 the court held that
Article   2372d, V8rnonts~~Clvll Statutes (expPes%ly authar-
lslq    the oonstruotlon  and 1 Pavement of a livestock    and
horticulture    exhibit building '7 implledly authorized the
county to lseue time w&Prants payable over a period of
Hon. Ullll&m A. Hensley,      page 4 (V-808)


years for    ImpPovemmts on such bulldlng.         We quote the
following    from the opinion of the oonrt:
             I)
                    . h County Subject te the SxpPiiSS
       P8StPIc~ii;ns imPOS8d by the Constltutlon       aad
       g6aeFal lnws, h&s th8 power to issue time
       warrants in payment fop lmpPovements it is
       expressly   authorlsed to construct,     pPevlded
       that the applicable    Pegulatlons   relating   to
       the issuance of such warmnte       b8 ObsePved.'
          Additional  &UthOriti8S on the sasie oint:
L&eater v. Louez, 110 Tex. 179 217 S,U. 373 7 1919)   and
Foremsn v. oooch   184 Saw.26 461 (Tsx. Clv. App. 1944,
emor    ref. w.0.m:).
           Following the holding lm the bboie mentioned
case this Off1a8 held in Attorney General Opinloh Ho.
v-779,  "where tim1ESiOn8Ps t COUP--la exp~8ssly aitthos-
lxed to const~~b    a building, It has ~the ImpXled ~authm-
lty to lasue luterest   bearing tltie warrants to pay id',
such oonstPuotlon."                  ..             _
            Article  2351 gPsntia the authority to eseh Com-
miSaiOu8Ps' CoUPt f.B this Stat8 t0 pPoVf& and keep in
repair coUPthoPs88 and jails.      ThePefoPe,~.if the puPchase
and lnstallatlon    of the filing  equipment 8mounts to b
pWm&netit leovement       of the opurthouse,  than time w&r-
Pants may legally    be issued thepefor,   Unless the same hss
b8Com8 prohibited    undeP"the tePms of House BllT KO. 106,
Acts 51st LegislatuM,      a point iihlch we will later dls-
OUS8. If the purchbse and installation       of auoh filing
equipment does not- amonnt to a permanent improvement,
then, of couPso, payment thePsfoP must be m&de from the
county general fund, for that fund la bhurgeable with
the payment of supplies and equipment as auah.
                 The test applicable     to SOUP first  question is
aaaounced in Hutbhlns v, Masterson, 46 Tex. 551 (1887)
wherein      it 1% stated on page 534:
                 "       -anthertrue oPlterlon far determin-
       ing WheihiP'a chattel has become &n Immovable
       flxttule,     consists    in the UEit8d application
     ..of the folloliing       teStSt
            "1st.~ E&a theP8 been a Peal or OOnStPUOt-
       iV8 anhexatlon of the &PtfOl8 in question to
       the realty?
HOP; William   I.   mneley,   page 5 (v-808)


           "24.  Was there & fltaess or adnptatlon
     of suoh article  to the uses or purposes of the
     realty with vhloh it Is connected?

            “3d.   Whether or not it iI&s the intention
     of'the   party making the annexation that the
     chattel should become a p8rm&nent accession         to
     the freehold?     - this lnteatloa~belng  InTerable
     fl'Om th8--lJatU'e Of tb8.~aZ'tiOl8, the Z'elatiOn
     and Sltu&tlon of the parties interested,        the
     policy   of the,liziw in rsspeot thereto,   the mode
     of aiinexatlon,    and purpose or uae.for which
     the annexation Is made.
           "And bf tiese three tests,    pre-emlnenoe
     IS to ba given to--the qU8stloii of intention    to
     make  the article  n permanent  socession   to the
     ire&hold, whlle“the   others sxe chiefly    of val-
     ue as evidence as to this lntentlon.A
             Filing ogblnets tid shelves would ordlnsrlly
be olaseifl8d     ns equipment and payable out of the gen-'-
era1    fund of the obunty.   fan 'drtlole would not become a
flXtur8 simply becaiise it 1%.~anohored d6wn'to the bulld-
lhg.     For example, a chnlr, a desk, or ail adding m&chine
m&y be neoessstry in oounty offloes,       but auohorlng on8 of
them to the building for convenience would not mske it a
fiXtIll'8.   The seoond and third tests would not be met.
           Yet, ii bulldliig @ouId b8 oonstruoted withPill-
lhg space 8nd Oabin8tS be a p&~t thereof.      Slloh bulldlngs
have-been built;    The walls of th8 bulldlng~ are the walls
of the flllmg oabliiet, eta.    In such n situation   thbre
o&a be no doubt that the filing    cabinets &re a persaenent
part of the building.
           We a0 not h&v0 eufflole~t      facts to answer   your
ijuestlon odtegorlcally,      for such &n &nswe~ woMd~lnvolv8
a determlnatibn    o? faotd ,Pel&tive ~to'the installation
whloh la yet to t&k8 place.        We can snswer yoUr question
only by Sayl~.lf      the filing   equipment is Lnstalled ln
suoh a mannoF whloh would sbtlsfy       the tests laid dowr.by
the 6ouPt Iii the Rut&la% case and thereupon beoomes a
perm&nent part of the oourthouae structure,       the same
could be paid out of the county permanent lmprovemi$nt
fund, and time w~iant.8 could be issued therefor,         asaum-
lag, of course, that they are issued in accordsme with
law.
Eon. William   1. Bensley,    psge 6 (V-606)


           The 51et Legislature  h&s llmltdd the power of
the fhImissionera~  Court in certain inetsnaes to iSSU8
time w&r.rants by the provisions  of House Bill lo. 106,
Ch. 36, which provides,   in p&H, ns follows;
            'Section  1,   In all oountles having a
     ptipulatlon In excess of @~i#e hundred thou-
     sdnd (300,000)    inhabitants     acoordldg to the
     last preceding OP any TutWe Federal l%nsus,
     the Commlesloners Court shalI hisve no anthop-
     Ity or power to lssue~tlms warpants until
     Snd unless the same have been authorlsed by
     a majopitjl i?ots of the quallfled        eleotoi%
     who ovll taxable property-in       the obuhty and
     have duly Wind8psd the s&m8 for taxation
     voting at an eleotlon      theMfor,     such elbc-
     tloil to be held under the authority          of Wd
     in accordance with the provlslo~           of Chapter
     1 of Titlo 22 of the Revised Civil Statutes
     of Texas~ oi 1925,~~ Provided,      that in case of
     public Cal&silty o&used by itie,        flood,    sotrm,
     or to protect tbs-'public     health, OF in cash
     of unforeaeea d&mage to public property,            ma-
     chinery;    or equipment, the ComMlsalonere
     Court %iay Issue such time wamants la the
     aggregnte~~amount of not exoeedlng Fifty-~Thou-
     sand DOllSrs ($50,000) during any on6 calen-
     d&r year as &Fe neoess&ry to provide for the
     fSSIWdicit8repair,    preservation     OP protection
     of public property,      and the lives and health
     of th8 oltisens     of the county without the sew
     oesslty    of such electlen.    .
         Aa “sec. 2.  Thla Aizt shall not be construed
     to apply-Y0 time warrants of such.oountlee     ls-
     sued or authorized to be Issued prior to the
     efreotlve   date of this A0t 0" IEmphasis oqs.)
 -
             In answer tij oiir request SoF addltlonbl lnfor-
matloa,'your    office   has savieed us that in J&nuary of
this yeap, the warrants PefePred to in your request were
a.uthorized to be i88t88de-~ As Rouse Bill Ro. 106 did not
bei5ome effective     until March 11, 1949, then under the
plain prov~s~~ndmrs   of Section 2 tM:~Abt wrll not apply to
the tlr    wlirrantaiiudtir consideration,  saWming, of
oourBe, that the wsrrants were issued in acoordano~ with
law and the 6xpenditures prop8Ny come within the,authd-
lred purpose thereof.
Ron. tilllfsm   11. Rensley,   page 7   (v-m)



             The purchase and installation     of oertaln
      flllng    equipment in'-thd a?urthWse can be ao-
      oompllShed ln such a~m@ria+r that the same be-
      oom8s e fixture     and’s &irt of the courthoue8
      building.      If ths itame bgtomes a fixture,   then
      payment therefor may be &&de by Bexar Countj
      by the lssuanoe of tlms warrants payable,out
      of the couiity permansiit laprovem8at fund, said
      warrants having been authorlsed prior to the
      effective    date i3f~Roue8 Bill go. 106, Acts of
      the 51et Lsglslat~e.
                                         Very truly      yours,
                                   ATTObEY @HERAL OF TEXAS




JRzbh                                    -,. Assistant




                                   FIRST ASSISTART
                                   ATTORIiEY OELWUL
