                    ~%~ATTOMNEY     GENE-I.
                           ov TEXAS
                            AunTrN    11. TExas
PRICE  DANIEL
ATTORNEYGENERA,.
                           December 19, 1951


        Hon. Jim W. Weatherby        Opinion No. v-1381
        District Attorney
        Kerrville, Texas             Re:   Le,gality of using the
                                           proceeds of a county
                                           tax levied for airport
                                           maintenance when the
                                           county has relinquished
                                           to a municipality its
                                           interest in the airport
        Dear Sir:                          in question.

                  Your request for an opinion of this office
        reads in part as follows:

                    "In 1941 the City of Kerrville and
               Kerr County, Texas acquired land and con-
               structed an airport; thereafter, the op-
               eration of the airport was under the City
               of Kerrville.

                    "In 1943 Kerr County paid one-half
               of the expense of additional hangars on
               such airport.

                    "In September of1945, Kerr County
               relinquished to the City of Kerrville all
               right to participate in the upkeep, opera-
               tion and control, with the understanding
               that the City of Kerrville would be re-
               sponsible thereafter for all expenses ln-
               curred in the operation, upkeep, manage-
               ment and control thereof, without any de-
               mand against Kerr County.

                    "In 1950 the tax was levied For alr-
               port maintenance.

                    "All taxes were paid without protest
               and no claim, demand or protest was made
               as to the payment of such five cent levy
               for airport maintenance.

                    "The City of Kerrvllle requested
               the County to contribute money for up-
               keep expenses.  The tax collected is 1x2
Han. Jim W. Weatherbg, page 2                (v-1.381)


         a spealal fun4 set aside for al??port
         uaintenance       .
                 %      view of &e      rellnquismnt       by
         Kerr County of its Fights, and lacept;
         anee by the City of Kerrville, it 1s
         requested that you advise:

              ll. Whether br not this money
         could be used by Smr County as a eon-
         trrtbmtlon tovard the upkeep maintenance
         el rath airport,

              w2, If the above question Is
         answered in the negative, then whether
         OF net such money could be rxpendsd by
         SeFr county,

                 *3*     If srteh money can be orpended
         grEe”         County, what may it be expended
            .

                 “4.     It such money can be eXpended
         by Sum        WWg,    may it be used In fts
         (iawml        Fund.

          3% pel?tUunt part of Seetie 9, Article
VT11 of the Texar Constltutisn la a8 followsr
                 a             and no c@untT, city or town
         shall &~*EOCO             than twenty-five      (25)
         cente       itw city
                        ‘or -county    po808, and
         not exceeding fiSteon (15 p” oentr ir
         roads and bridges, and not exceeding
         fifteen (15) cents to par urora, On
         the one hxmdrad dollars ra i!
                                     uation, Ox-
         cept fop the payment of debts 1nerzrreQ
         prior tb the ad tlon of the Amendment
         September 25, 1%;    and for the erection
         of publio bu%ldiage, streets, sewers,
         waterworks and other permanent 1 rove-
         ments, not to exceed twenty-five “p 25)
         cents on the one hundred dollars valua-
         tion, in any one year, and except as
         1s in t&&s Conetitatl.on otherwise pro-
         vided 0 D *’
                 Sectien 4 of Article 1269h, V,C.S,, pro-
ViU88:
Hon. Jim W. Weatherby, page 3   (V-1.381)



           "That in addition to and exclusive
     Of any taxes which may be levied for the
     interest and sinking fund of any bonds
     issued under the authority of this Act,
     the governing body of any city or the
     Commissioners' Court of any,county, fall-
     ing within the terms hereof, may and 16
     hereby empowered to levy and collect a
     special tax not to exceed for any one
     year five  Cents on each One Hundred DOl-
     lars for the purpose of improving, oper-
     ating, maintaining and conducting any
     Air Port which such city or county may
     acquire under the provision of this Act,
     and to provide all suitable structures,
     and facilities therein. Providsd that
     nothing in this Act shall be construed as
     authorizing any city or county to exceed
     the limita of indebtedness placed upon it
     under the Constitution."

           The order of th,e Commfesionersf Court of
Kerr County reflects that the tax was levied for *air-
port maintenzincen, which is ordinarily an expense pay-
able out of the county general fund. IiOWever, the
County Judge has advised that it was levied for the
specific purpose of improving the runways of the air-
port. ,In this event, the tax becomes a part of the
permanent improvement fund. In Attorney General's
Opinion O-6762  (1945) it is stated:

          "From the information given in your
     letter, we understand that a part of the
     contemplated expenses in connection with
     the airport is for the improvement of the
     runways.   It Is apparent that the runways
     and the improvements thereto are in the
     nature of permanent improvements.   v8 think,
     therefore, that the expenses for the im-
     provement of the runways should be allocated
     as a part of the total levy authorized by
     the Constitution for permanent improvements,
     but in no event should such allocation have
     the effect of increasing the total county
     levy for permanent Improvements beyond the
     conatitutlonal limit for such purposes."

          In view of the foregoing, and assuming the
Hon. Jim W. Weatherby,       page 4       (v-1381)


tax Vas, in fact, levied for rUnVay iq3rOvetZMJntS,
it la our opinion that the money in question is a
part of the permanent improvement f~&l of the county.

            In Capr,;ll v, Williama,        109 Tex.   155, 202
S.W.   504, 506, 50 (lqltr), it is stateds
             'Going to the real gist of the nin
       Issue bePore us, Section 9 of ArtMle 8 of
       OCR state Constitution, Bupra, inhibits any
       and all transfers of tax money from one to
       another of the several classes of funds
       therein authorized, and, aa a wqwnce,    the
       expen&ltUre, Sor one purpose therein dsilned,
       of tax money raised ostensibly for another
       BUCh pIlrpose. The Immediate purpose in so
       prescribing a separate maximum tax rate for
       each of the classes of purposes there enu-
       lssrated is, no boubt, to limit, accordingly,
       the anount of taxes which may be raised from
       the people, by taxation, declaredly for thOB8
       several purposes or classes of puTposes, re-
       spectively.   But that Is not all. The ulti-
       mate and practical and obvious derign and
       purpose and legal effect is to Inhibit ex-
       cessive expenditures for any such purpose
       or clars of purposea.   By necessary impli-
       cation said provisione of section 9 of arti-
       cle 8 WUP~ eerigwe, not merely to limit
       the tax rate fa certain therein 4esignated
       purposes, but to require that any and all
       u8kej raised by taxatien for any such pur-
       peso shall be applied, faithfully, to that
       part&alar   purpose, as needed therefor, and
       not to any other purpose or Us0 vfhatroever.
       Those constitutional provisions central, not
       C&J the raising, but also the applioatlon,
       & a21 such funds; and such is the legal
       effect of articles 2242 and 7357, supra,
       vhe~ p~operlj 00nam6a    and applied.

            l
            'frue, ths     Constitution does not say,
       la so any   VOP~B, that mtme~ raised    bj a
       oemt~,  city, w tom,       kq taxatioa fa ow
       BUCh purpose ahsll never     be expended for any
       other purpoeo-not      even for Ulether       of the
       five general classes of purposes defined
       and approved in said     section     9--but   that, 've
Hon. Jim W. Weatherby,' page   5   (v-1381)


     think, Is ita plain and certain mean-
     ing and legal effect. The very deflni-
     tlona of those several classes of pur-
     poses, and the declaration of authority
     to tax the people therefor, respectively,
     coupled, as they are, in each instance,
     with a limitation of the tax rate for
     that class, must have been predicated
     upon the expectation and intent that, a8
     a matter of common honesty and fair deal-
     ing, tax money taken from the people os-
     teneibly for one such specified purpose
     shall be expended, as needed, for that
     purpose alone, as well as that the tax
     rate for that particular claw, in any
     one year& shall not exceed the preaaribed
     maximum.

          Baaed upon the assumption that the tax
wa6 levied Sor runway improvements, it la our opin-
ion that the only purpose for which this money may
be expended is for repairing and improving the air-
port.

           The decisions of the Texas courts have re-
peatedly held that the commissioners' court la a
court of limited jurisdiction and has only such powers
aa are conferred upon It, either by express terme or
by necessary implication, by the Constitution and
statutes of thi8 State, Childress County v. State,
                92 Z.W,2d ltm (1936) V on Rosenberg v.
               .W. 508 (Tex. Civ. Appi 1915, error ref.);
        D Rail; 280 s,W..289(Tex. Clv. App. 1925); Art.
                11 Tex, Jur. 632, Countled, Sec. 95.

             There is no law which authorizes a county
to relinquia$I   the operation of an airport to a city.
The only reiatsd,proviblan at the time of thili pur-
ported'.raZlnqulshmant vaa that which authorized the
coIIpIas$onere' Court to lease a county-owned airport
to any city within the cs.         Art. 1269h, V.C.S.,
There is no law authorizing a county to ContribUt8
money to a city for the operation of an airport. How-
ever, Article 46d-l&,.V.C.S,, authorizes the joint
operation of an airport by a county and city. This
act provides that a joint board shall be created and
prescribes the method of operatlon by such board.
There ie nothing in your request indicating that the
                                                                      -   .




Hon. Jim W. weatherby,           page 6    (V-191)



PrOCOdure outlined         in Article     464-14,    V.C;.S.,   hae
been f olloved    D
            In view of the ioregolng,  It is our opinion
that Article   46d-14 must be complied vlth before coun-
ty money may be expenrled in the operation OS a joint
airport.

                                 SUMMARY
               Money collectc)(l by a county for air-
     mrt       maintenance cannot be contributed    to
                                 the mafxitenance of an




          Ueno~ rollected by a county through
     the levy a? tax08 for the purpom of ia-
     protins th* ruawa7r of tba couat7 @irport
     is a put of t&a permanent llprorrunt
     fUnd ati OIll b. r)eRt On1 fOP 6Uah WpeS..
     Att'f @on. Opq O-6762 (I&);   Carrel ! v.
     lrslliar,        log tot.   155,292     23.     504 /A~~).
                                        Yours very tmalp,
                                          YEroE a!iAnEL
                                        Attsraw      Oweal




                                              Arslstart
