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                      E        ORNEY         GENERAL
                                F      XAS




                               October 26, 1961

        Hon. Charles J. Lieck, Jr.      Opinion   NO.   w-1178
        Criminal District Attorney
        San Antonio, Texas              Re: Whether expenses incurred
                                            in the defense of a suit
                                            for damages arising out of
                                            the purchase of land for
                                            a State highway, the orig-
                                            inal purchase of which was
                                            paid out of Bond Funds may
                                            b,epaid out of the County
                                            "General Fund" and related
        Dear Mr. Lieck:                     questions,

                  In reference to your inquiry of September 14, 1961,
        the relevant facts set out are these: a bond election was
        called by the county to issue bonds in Bexar County Road Dls-
        trict No, 1; a pre-election order was passed by the Commls-
        sioners Court allocating the proceeds from the sale of bonds
        in the event they were voted; certain appraisals were neces-
        sary in conjunction with a lawsuit in which the county was a
        defendant, growing out of a purchase by the county of a right-
        of-way with the proceeds; the Commissioners Court passed an
        order authorizing the county auditor to draw voucher warrants
        for the appraisal fees, such fees to be charged equally between
        the General Road and Bridge Fund--District No. 1 and the Gen-
        eral Fund, a constitutional fund.
                  Your present three-part inquiry is as follows:
                 "1. Can the constitutional fund, commonly known
            as the 'General fund' be used for the purpose of pay-
            ing expenses incurred In the defense of a suit for
            damages arising out of the purchaseof the land for
            a~State Highway, the original purchase price of which
            was paid out of Bond Funds, voted at least in part
            for such purposes?
                 "2. Is the order of the Commissioners Court
            which directs that l/2 of such expenses be paid out
            of the 'General Fund' and l/2 out of the 'Road and
            Bridge Fund' a valid order?
                                                                -




Hon.   Charles J. Lie&,   Jr., page 2 (-N-1178)

            "3. Can the remaining balances, or such por-
       tion thereof as is necessary, of the bond issue
       of December 1.O, 1954 in Road Dfstrict No. 1 be
       used for the purpose of paying such expenses upon
       a proper finding and order of the Commissioners
       Court as is provided in the pre-election order?"
          The answers to these questions necessitates an e;;-
amination of Article 1630, V.C.S. and Section 9, Article VIII
of the Texas Constitution, which are as follows:
            "Article 1630. The ComtnlssionersCourt by
       an order to that effect may transfer the money
       in hand from one fund to another, as it may deem
       necessary and proper, except that the funds which
       belong to the class first shall never be diverted
       from the payment of the claims registered in Class
       first, unless there is an excess of such funds."
          Section 9 of Article VIII of the Texas Constitution
is in part as follows:
            "Section 9.     .   provided further that at
       the time the CommiisloAers Court meets to levy the
       annual tax rate for each county it shall levy what-
       ever tax rate may be needed for the four (4) con-
       stitutional purposes; namely, general fund, per-
       manent improvement fund, road and bridge fund and
       jury fund ,      Once the Court has levied the an-
       nual tax rati,'the same shall remain in force and
       effect during that taxable year, , . .'
           We will attempt to answer your first two questions
at  the same time since they are interrelated. There are four
 constitutional county funds listed in Section 9 of ,Article
VIII of the Constitution, to-wit: general fund, permanent im-
provement fund, road and bridge fund and the jury fund, It
 is too well settled for discussion that the Commissioners
 Court cannot levy a tax for one purpose and then spend the
 funS for another. (See Attorney General's Opinions O-413
(1939) ~Lnd:;-219jlg56).) Consequently, constitutional funds
~,y .lotbe transferred from one fund to another. Sanders v.
 Looney, 225 S.W, Z?8O.(Civ.App.1920). The leading authority
 on this matter is the landmark case of Carroll v. Williams
                                                       --.;.ys
 109 Tei:.155, 20:-'
                   S.!;!,
                        504 (1918), where the court spec:Lflcally
held that the money collected for the various constitutional
funds could not be spent for ang other purpose than the pur-
pose for which such fund was set up by the Constitution. In
 so holding, the court stated:
-




    Hon. Charles J. Lleck, Jr., Page 3 (~~-1178)

              11
               . . . Taxes levied ostensibly for any
         specific purpose'or class of purposes deslg-
         nated in Section 9 of Article 8, supra, must
         be applied thereunto, in good faith; . . .'I
              Article 1630, V.C.S., on the other hand, deals with
    statutory, not constitutional funds. The funds in question
    here are constitutional funds, being specifically the "General
    Fund" and the "Road and Bridge Fund." In Carroll v. Williams,
    supra, the Supreme Court clearly drew a'distinctlon between
    constitutional and statutory funds holding that the Commis-
    sioners Court under Article 1630, V.C.S., is not authorized
    to direct a transfer from one constitutional fund of money
    received from taxes levied ostensibly for one purpose into
    another fund or expend for another and distinct purpose. (See
    Attorney General'sOpInIon O-2942 (1940).)
              Thus, it is clear that the constitutional fund, com-
    monly known as the "General Fund" cannot be used to pay appraisal
    expenses of a damage suit arising out of the purchase of land
    for state highways. So also, the Commissioners Court cannot
    direct that such expenses be paid In part out.of the "Genera1
    Fund" and such order is void to that extent.
              Further, as to whether such expenses may be pald out
    of the constitutional fund known as the "Road and Bridge Fund,"
    your attention is directed to Article 6674n, V.C.S., which
    reads In part as follows:
              I,
               . . . This authority includes the power to
         exercise the right of eminent domain by any County
         Commissioners Court within the boundaries of a
         municipality with the prior consent of the gov-
         erning body of such municipality. Provided that
         the county in which the State highway Is located
         may pay for same out of the County Road and Bridge
         find, or any available county funds."
               We are of the~opinlon that any unencumbered surplus
    In the county "Road and Bridge Fund" may be used to pay the
    appraisal costs in question under the authority of the above
    quoted statute.   Such expenditure would escape the prohibitions
    of Carroll v. Williams, supra, as It would not be one unrelated
    and dl tl t f      th                  "Road and Bridge Fund
    (See A&oiEey ~~~era~l~~~~~~~nosfSE:~7 (1954) and v-694 (&8).)
    Thus, in our opinion, the portion of the order of the Commis-
    sioners Court prescribing payment out of the "Road and Bridge
    Fund" would be valid to that extent.

                   .
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Hon. Charles J. Lieck, Jr., page 4 (~~-1178)

           The remaining part of your inquiry deals with whether
these appraisal fees can be paid out of the remaining balances
of the fund raised by the bond issue of December 10, 1954, upon
a proper finding and order of the Commissioness Court. Refer-
ence is made to the Commissioners Court's ore-election alloca-
tion order which contained the following paragraph, which is
Section 3(c):
         "If this Court find6 that It is not necessary
    or desirable to use any of the funds above allocated
    for the purposes for which such funds are allocated,
    such funds may be used for any of the other purposes
    hereinabove set forth; but none of such funds shall
    ever be used for any projectwhich is not consistent
    with the overall long term planning of the State
    Highway Department for State and Federal Highways
    and Farm-to-Market Highways or Roads In Bexar County,
    Texas. . . ."
          It is the opinion of this office that the paragraph
above reserves limited discretion in the Commissioners Court
of Bexar County in the expenditure of funds under the pre-
election allocation order. The only qualification Is that
such discretionary exoenditure be consistent with the overall
long term planning. Murray v. Wilkinson, 32 s.w.2d 823,(civ.
App. 1930). The expenditure of funds for appraisal fees in
connection with the defense of a suit growing out of the pur-
chase by the county of certain rights-of-way-with the bond
election proceeds would seem to be consistent with'the overall
objectives. (See Attorney General's Opinion S-219, supra.)
Thus, we are of the opinion that your third question should
be answered affirmatively, and that portion of the remaining
balance of the bond proceeds In the Bexar County Road District
No. 1 may be used in paying the appraisal expenses here in
question;
                       SUMMARY
         Expenses Incurred in the defense of a damage
    suit
    -.   arising out of the purchase of land for a
    State Highway (originally purchased with bond
    funds) cannot be paid with Constitutional funds
    (i.e. the "General Fund") other than the unencum-
    bered portion of the County Road and Bridge Fund,




                                           .
Hon. Charles J. Lieck, Jr., page 5 (WW-1178)

    but such may be paid out of the remaining
    balance of the original bond issue funds.
                             Yours very truly,
                             WILL WILSOI?1
                                        sneral
                              ttorney Gc-..--  of Texas
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EBS:dhs


APPROVED:
OPINION COMMITTEE
w. V. Geppert, Chairman
W. 0. Schultz
Iola Wilcox
Gordon Zuber
Milton Richardson
REVIEWED FOR THE ATTORNEY GENERAL
BY: Howard W. Mays
