A-OBZTWEY       CENEWAL
                                 August 29, 1962

            Honorable Dean Martin        Opinion No. W-1428
            County Attorney
            Grayson County               Re:   Whether Article 1lOgk of
            Courthouse                         Vernon's Civil Statutes is
            Sherman, Texas                     constitutional, and whether
                                               disbursements may be made
                                               from the Permanent Improve-
                                               ment Fund for the construc-
                                               tion of water control and
                                               soil conservation structures,
            Dear Mr. Martin:                   and related questions.
                   We are in receipt of your letter of August 9, 1962,
            requesting a re-consideration of our Opinion No. ~~-1382.
            The holding of that opinion was as follows:
                        "Since Grayson County has not complied
                   with the provisions of Article 7048a of
                   Vernon's Civil Statutes, there are no exist-
                   ing funds that may be expended for the purchase
                   of land or maintenance of water control and
                   soil conservation structures constructed by
                   the U. S. Department of Agriculture Soil Conser-
                   vation Service.
                        "If the County Auditor approves illegal
                   and unauthorized disbursements drawn on exist-
                   ing county funds, he and the sureties on his
                   bond are liable for the amounts illegally ex-
                   pended."
                   In the course of our opinion we stated the following:
                        "Subsequent to the release of the above
                   cited opinions flW-595 and WW-596-7the Legls-
                   lature passed Article 1109kj and'in Section 3
                   of said statute specifically authorized the dis-
                   bursement of Permanent Improvement Funds for
                   carrying out the purposes of the Act. However,
                   an inspection of that statute leads us to the
                   conclusion that its provisions were to apply
                   when a soil conservation district, water control
                   and improvement district, or drainage district
                                                                -:   .




Hon. Dean Martin, page 2 (W-1428)


       had been created. No such district having
       been created In Grayson County, it follows
       that the provisions of Article 1109k do not
       apply. For the above stated reasons Article
       1581e is likewise inapplicable."
       This statement was premised on the assumption that no
soil conservation district, water control and improvement
district or drainage district was involved in your contract.
Your last letter presents to us additional information stated
by you as follows:
            "The contract in question was entered into
       between the Upper Elm Red Soil Conservation Dis-
       trict; the Collin County,Soil Conservation Dis-
       trict; the Choctaw Watershed Water Improvement
       District, which is a water control and improvement
       district, created by'H.B. 156, 56th Leg., (as
       amended, H.B. 999) approved March 24, 1959; and
       the Grayson County Commissioners Court. A COPY
       of this contract is attached hereto for your in-
       formation.
            "In view of the statements made in paragraph
       1, page 4 of your opinion, it was felt that you
       did not know these facts."
       You then ask the following additional questions:
            "1. Is Article 1109k of the Revised Civil
       Statutes of the State of Texas Constitutional and
       valid?
            "2. If your answer to Question No.,1 is 'yes,'
       can Grayson County legally expend money under Arti-
       cle 1109k in fulfillment of its contract with the
       other parties Involved out of Its Permanent Improve-
       ment Funds?
            “3.  If your answer to Question No. 2 is Ino'
       then in what particular have the parties involved
       failed to comply with Article llOgk?"
       Section 9 of Article VIII of the Constitution of Texas
states as follows:
            "The State tax on property, exclusive of
       the tax necessary to pay the public debt, and of
.   -




        Hon. Dean Martin, page 3 (W-1428)


                the taxes provided for the benefit of the
                public free schools, shall never exceed
                thirty-five (35) cents on the one hundred
                dollars valuation; and no county, city or
                town shall~levv more than twentv-five (25)
                cents for city"or county
                exceeding fifteen 715) ce
                'Hi      ;ii ;~~o~~~e~~'~~ef~~~e~~n~~~~ dol-
                lars valuation, except for the payment of
                debts incurred prior to the adoption of the
                Amendment September 25, 1883; and for the erec-
                tion of public buildings, streets, sewers, water-
                works and other permanent improvements, not to
                exceed twenty-five (25) cents on the one hundred
                dollars valuation, in-any one year, and except
                as is,,inthis Constitution otherwise provided;
                . . .   (Emphasis added).
                Article 1109k of Vernonss Civil Statutes states as fol-
        lows:
                     "Section 1. All counties, cities, water
                control and improvement districts, drainage dis-
                tricts and other political subdivisions in the
                                                 :rlc.t.s
                                                       fnr the




                                              Agreements   shall
                contain such terms, provisions and details as the
                governing bodies of the respective political sub-
                divisions determine to be necessary under all
                facts and circumstances.
                     "Sec. 2. All counties, cities, water control
                and imorovements districts, drainage districts
                and other political subdivisions in the State of
                Texas may contribute funds to soil conservation
                districts for construction or maintenance of canals,
                dams, flood detention structures, drains, levees
                and other improvements for flood control and drain-
                =   as related to flood control and for making
                                                               -   .




Hon. Dean Martin, page 4 (WW-1428)



      the necessary outlets and maintaining them
      regardless of whether the title to such
      properties is vested in the State of Texas, or
      a soil conservation district, so long as the
      work to be accomplished is for the mutual bene-
      fit of the donor and the agency or political
      subdivision having title to such property on
      which the improvements are located.




       tricts, drainage districts and other political
       subdivisions may expend the appropriate funds of
       the various cities and political subdivisions for
       carrying out the purposes of this Act." (Emphasis
       added).
       In the case of Carroll v. Williams, 109 Tex. 155, 202
S.W. 504 (1918), the Supreme Court stated at page 506:
            (1
             . . . Going to the real gist of the main
       issue before us, section 9 of article 8 of our
       state Constitution, supra, inhibits any and all
       transfers of tax money from one to another of the
       several classes of funds therein authorized, and,
       a3 a sequence, the expenditure, for one purpose
       therein defined, of tax money raised ostensibly
       for another such purpose. The Immediate purpose
       in so prescribing a separate maximum tax rate for
       each of the classes of purposes there enumerated
       Is, no doubt, to limit, accordingly, the amount
       of taxes which may be raised from the people, by
       taxation, declaredly for those several purpose3
       or classes of purposes, respectively. But that
       Is not all. The ultimate and practical and ob-
       vious design and purpose and legal effect Is to
       inhibit excessive expenditures for any such pur-
       pose or classes of purposes. By necessary impll-
       cation said provisions of section 9 of article
Hon. Dean Martin, page 5 (W-1428)


       8 were designed, not merely to limit the tax
       rate for certain therein designated purposes,
       b t to require that any and all money raised
       by taxation for any such purpose shall be ap-
       plied, faithfully to that particular purpose,
       as needed therefoG, and not to any other pur-
       pose or use whatsoever. Those constitutional
       provisionscontrol;
       provisions control; not only the raising, but
       also the application of all such funds; and
       such is the legal effect of articles 2242 and
       ;5?';;tupra, when properly constructed and ap-
                (Emphasis added).
       From the language of the ---
                                Carroll opinion, it can be seen
that no disbursements may be made under any circumstances from
the Permanent Improvement Fund except for permanent improve-
ments themselves.
       We do not consider Article 1109k to be an inroad~on
Section 9 of Article VIII of the Constitution, provided, of
course, that the disbursements made under the authority of
this statute go only for the erection of permanent improve-
ments. We therefore hold that Article 1109k is constitution-
al, and that the CommissionersI Court is authorized to make
disbursements for permanent improvements.
       We respectfully call your attention to the fact that
not all expenditures relating to water control or soil conser-
vation structures Involve permanent improvements. Opinion No.
O-37 (1939) held that expenditures for legal services af-lda;;l-
ing fee expenses do not come within the term "erection,
consequently were not expenses of "erection" of a permanent
improvement. Opinion No. O-629 (1939) held that disbursements
could not be made from the Permanent Improvement Fund for the
construction and maintenance of drainage ditches. Opinion No.
O-5422 (1943) held that funds collected as a permanent improve-
ment tax could not be legally expended for the purpose of,buy-
ing right-of-way for public roads. Cur Opinion No. kibi-596
(1959) held that disbursements could not be made for the main-
tenance of projects constructed by the Soil Conservation %%?
vice. These same principles apply to the contract entered in-
to by your Commissioners' Court.
       Accordingly, in the light of our discussion above, Coin-
ion No. w-1382 is hereby modified to the extent that amounts
may be disbursed from the Permanent Improvement Fund if they
are used "for the erection of public buildings, streets,
Hon. Dean Martin, page 6 (WW-1428)


sewers, waterworks and other permanent improvements." The
County Auditor is only liable for amounts disbursed for pur-
poses which do not constitute permanent improvements.

                      SUMMARY
            Article 1109k of Vernon's Civil Stat-
       utes is constitutional insofar as it au-
       thorizes disbursements from'the Permanent
       Improvement Fund for the erection of perma-
       nent improvements. The Commissionerst
       Court of Grayson County may, by authority
       of Article 1109k, make disbursements from
       the Permanent Improvement Fund for perma-
       nent improvements in connection with the
       construction of water control and soil con-
       servation structures.
                          Yours very truly,
                          WILL WILSON
                          r322q



                                Fred D. Ward
                                Assistant
FDW:wb:ms
APPROVED:
OPINION COMMITTEE
1:'.
   V. Geppert, Chairman
Scranton Jones
Dudley McCalla
Sam Stone
Tom Hunter
RFVIEWED FOR THE ATTORNEY GENERAL
By: Leonard Passmore
