.~ ,.
                         February 17, 1947

Hon. N;~ F. ~Foster ’    ..‘Opinion. No. V-23
oountv Auditor
Smith~county. ‘, ~.        Re:.   Whether the Commissioners1
Tyler, Texas                      Court of Smith County may
                                  1,egally expend oo.unty tunas
                                  to build a dwelling for the
 ..   ~,                          use and ooaupancy of the
                                  aouaty engineer.
Dear Sir:’
          Your letter   or. January 20, 1947, in ‘whioh you re-
quested an’opinion   of this Department is as follows:
             *Smith County: employs a Co&y Engineer and
      ‘included.ih  his m?ny ‘duties~ is the supervision or       i
       the County Garage and Warehouse, which serviaes
       and maintains the Road Machinery and Equipment ror         _
       the County Road System.
              “Please advise ii the Commi.ssioners Court of
       Smith County may legally’ expend County Funds. to
      ’build a dwelling for the use, .and oacupancy of the
       County Engineer.     This dwelling is to be built on
       a. portion of the County property upon which the
       County Garage and Warehouse is located,    or upon
       property to be .purchased adjacent to said property.
             “If your opinion shows this to be a legal ex-
       penditure,  from whioh fund should it be made, the
       Permanent Improvement or the Road and Bridge??
            On January 28,;.1947, this~ Department received
 additional  racts ‘relating  tog the same matter from the Hon-
 orable Arch T. Power, County Judge of Smith County, whioh
‘are as r0n0ws:
          "AS you will recall from our conversation in
Austin a rew days ago, I promised to give you a full
statement or racts: concerning the request for an opin-
ion Submitted by’m. F.~ Foster,~ County Auditor of Smith
County, with referenae to the erection   of’ a house for
a keeper or a watchman.
Hon. N. F. Foster      - Page 2


               vsniith County has purchased some three aores or
        land and is in the process of erecting     a county gar-
        age and warehouse ~for general operations,    oountywide.
        The meohanical work upon all of the equipment of the
        County will be done in this garage and all of the sup-
        plies will be stored there.:    As a matter of fact the
        whole Road and Bridge Department of the County will
        operate out of these headquarters.     There will be
        stored on the yard suppl~ies of various kinds and a
        large part. of the maohinery and most ‘of .the truaks
       .belongi.ng to the County will be stored there~each
        night,
             “The Commissioners Court had in mind from the
           ~,.



       beginning ‘to ereot. on the premises or immediately ad- .
       jacent to them on an, additional   plot of ground, a
       cottage to be occupied by some employee or the gener-
       al headquarters,   so that they would be available   ror
       contact at any time, as well as to watch and proteot
       the p.roperties there situated.
              %ow,~ owing to the terrific    hous’ing situation
       we had. decided, t&t we would permit the County R&n-
       eer who is. in comp,Je.te ,charge of’ a 11 of these apera-
       tions,T.to occupy such oot.tage until he made more
       suitable   arrangements, and then ,perhaps .the storekeep-
       er or fiarehousemanwould occupy~ suah aottage.
                                     such an arrangement pure-
                                .and conservation  .of suoh.~prop-
                             the fact that, the oca.upant .of
                                oonstantly   on the-..job or.:sub-
        jeet to oall, would. ,be in linen with the. operation
        of ,such set-up as pontemplated, and certainly     should
       .be a legal expenditures out of’ the Permanent Improve-
       ment”Fund.”

tioe

           ~~vThe.State ~taxou preperty;           exclusive  of the tax
       necessary, tom.pay ~t.h.e.public debt ;, and of the taxes pro-
       vided .qor .the. ,benefit; ,g. the. public ,fres schools.,shall
       neve’r ‘e’xhe’ed’thirty-rive       (35) cents on the one hundred
       dollars    valuation;    and no county, aity or town shall          .,
       levy more~,,than.twenty.-rips, .(25): cents for .city or
       tiounty,~purp’oses;, ,.and-.not. exoeeaing rirteen +15) oents     .
       for roads, .and.,.h:rid:ges ,‘,‘and not. exoeeaing rirteen. (15)
       cents. to;~pay: jyr~rs,,~~..on.~ the .one. hundred dollars ,valu-
                                               (     ..
                                                                           ? ‘22%

Hon. N. F. Foster    - Page 3


        ekibn, exoept tar‘ the ‘myment of debts inourrea
   , ~prior     to the. ~adoption of t~he,+mendment September
        25; 1323i. and for the ereotitin or publie build-
        in@,    streets ,~.sewers, waterworks anb other per-
        manent $mprov,ements, not to ,expeea twenty-five
    : :(25) cents on’the:one         hundred dollars     valuation,
       ,ih any done year, and exoept as, is in this Consti-
        tution, otherwise piovided$‘.p.rovided,        however,that
     .. the Com&isioners. Court in any oounty may re-allo-
        o,ats the foregoing      oounty taxes by changing the
        rates providea for any or the roregoing purposes
        by either increasing        or deareasing the, same, but-
        in no event shall the total of said roregoing
        couqty taxes exceed eighty (80) oents..on the one
  ‘. hundred dollars         valuation,,   in any one year; .pro-
        vided turther,      that berore the said”Commlssioners
        Court may make suoh~ re-allooations         and ohanges in
        said oounty taxes that the same shall be submitted
     ” Tao the qualiriedproperty          tax paying voters of s,uah
        #u&y     at, a general or special      election,     and shall-
        be approved by a majority, of the qualitied            property
  ~’ .tax paying..voters,        .voting in suoh’eleation;       and,
       ~provlded rurther; that ‘if and when saoh ‘rerallooa;
        tions and changes in the atoresaid           county taxes
        have been approved by the’ qualified          pro@erty’. tax ‘.
        paying votersof.any         county,’ as herefn provided,
        such re-aLlooatisns        and ohangee shall remain In
       ,roroe and sire&       tor a period or six (6) years
        from the date of the eleotion         at vrhioh the same
      ,’shsll be approved, ~unlees the same again shall: have
        been-ahanged by a majority vote ~of the .quallfied
        pro dig tax paying voters of suoh oounty, voting
        on r her proposition,      after eubmlssion by tho ~Comnia-
        ~loners Uourt at a general or speoial oleotlon              for
        that pur oso) and the Leglslaturo          may also author&o
        an. addit Ponal annual ad valorom tax to be levied and
       .,oollootod   ror the rurther maintonanoe of the pub116
         roads;   provided,~ that a majority ,of the qualified.
        property tax paying voters OS the oounty voting at
        an olootfon     to be held for that       ur 080 shall vote
        suoh tax, not to oxoeed ritteen          Plb P oenta on the
        oue hundred.dollsrs        valuation or the property eub-
         jeot to .taxetion in such bounty,         And the Leglsla-
        ture may pass looal        laws for the maiatenanoe or the
         pub110 roads and highways,, Without the looe~ aotioe
         require&for     speoial or loos1 laws.        This seotion
         shall not be ao'nstbwd        as a 1imitatlOn of powers del-
     ’ ogated to oountiea,. oitfeti or ~towna by any other seo-
         tioror    seotlons    6f this Conatitutioa.      ‘(Sea. 9, Art.
Hon. N. F. Foster         - Page 4                                         ,'


      VIII,     adopted    election   Nov. 7, 1944.)"      :
               Our State Constitution,      Article     5, Section   18,
provides      in part as r0u0w+7:                          ,:.
            "The county~commissioners    so chosen; with the
      county judge, as presiding offioe.r,.sha'll     compose
      the County:Commissioners Court,, which shall exer-
      cise such powers and.jurisdictiO,n    over all county
      business,  as is conferred~ by this.,Constitution~iina
      the lawsof   the State; or as may be herearterpre-                    ~,
      scr1bed.v
          .Article    2351, V.A.C.S.,  sets forth the follow-
ini3powers  and   duties  of the  County, Commis,sioners~ Co~urt:
            "Sec. 7. Provide and keep in. repair court-
      houses,,jails  and all necessary public buildings.*
           Article   2352; V.A,.C.S., refers to the,$ax.ror
verection   of public buildirigsv b:y the,Cotqty @$aission-
ers' .Court .  .,.              .~.               v@,

               nSa~id'court shall.have      the p&i& to levy and
       collect    a tax for county purposes',.not         to-exceed
       twenty-rive     cents on.the, one hundred d'oilars valua-
       tion, and a tax not~to-.excaed,filteen'cents              on the
       one hundred dollars        valuation to supplement the ju-
       ry fund or the county;and          notto     exceed ,fifteen
       cents forroads        and bridges.o,n the one hundred~dol-
       lars valuation;      except fol'the      payment .of d~ebts,.in-
       curred prior to the adoption.of           the amendment TV
       the.Constitut~ion,~September         25, A.D. 1883, and,ror
       the ereotion.oi       public buildjngs,‘streets,        .sewers,
      water works and other permanent improvements, not
   ~. ,to exceed twenty-five        cents.on    the one'hundreddol-
       lars valuation      in any one year; ma, except as.in
    lithe Constituti?o'n othsqvise         proVid?d. They may levy
       an additi&$%"t~ax ~ror road purposes not t.ooexoeed
       rirteen    oe'%'s'on the one hundred dollar v.aluation
       of the property subj'eot to taxation,            under the lim-
       itations     and in the~manner pro?ided for in Article
      .8;~ Sec. 9;. or the Constitution         Andyin purslianoe of
       the laws‘ relating      thereto."
               $$>~
                  tice Fly in the .oase df Edwards. County vs.
Jennings          orted in 33..Es.W. 5S5,.had~ this to say:
               *Counties are politi'oal,      or 01011 diVisi0~ 0r
       the State,, c.reated Pq:rthe purpose or..bringing            gov-
       ernment.'home toothe peoplei and supplying the neces-
                  ,



Hon. N. F. Foster     - Page 5


      sary means for executing the wishes of the'people,
      and bringing into exercise  the machinery necessary.
      to the enrorcement of local government.   Counties,
      being component parts of the State, have no powers
      or duties except those clearly  set rorth ati de-
      fined in the Constitution  and statutes.”
            "The statutes have' clearly derined the powers?
      prescribed  the duties and, imposed the liabilities
      of the Commissioners' Court, theemedium through
      which the different   counties a&, and from those
      statutes must come all the authority vested in the
      county."   11 Tex. Jur. 563.
          The same ruling was held in Moore vs. McLennan
County, et al, 275 S.W. 478; El Paso County vs. Xlam,,l06
S.W. (2) 393, and in many other cases too numerous to cite.

          From the constitutional   provision and the stat-
utes quoted above, we ~find that the County Commissioners'
Courts have the power to provide and keep in repair all
necessary public buildings.    We quote from Tex. Jur., Vol.
34, page 2, as. r0ii0ws:
            *Public buildings   Is a term ordinarily    used to      '
      designate such structuPes    as the capitol    on the cap-
      itol ground at Austin including the executive mansion,         -
      the various State asylums, all University       buildings
      erected by the State,   oourthouses,   jails and other
      buildings   held for public use by any department or
      branch of government, State, county or municipal."
             Construing Se&ion 9 of Article    VIII or the Tex-
 'as Constitution   and Section 7 of Article  2351, supra, in
  conjunction with all the other statutes relating     to the
  powersof   the County Commissioners1 Court and in the light
  of,the necessity   of the Court acting within the sphere of
  its powers and duties conferred upon it, it is the opin-
  ion of this Department that the term *public buildings"
'means *necessary public buildings*     and that %ecessary
  public buildings"   mean public buildings  necessary for the
  conduct or county business.
            Bearing in mind the foregoing      definitions,    the
 above quoted provision    of the Constitution     and statutes,
 and the foregoing   decisions   of the Courts of this Sta+.e,
 and, furthermore,   since there is no statute in this State
 expressly authorizing    a county to'construct     a
                          in your request, it is t %=F  e op nion
                       tha~tthe Commissioners' Court of Smith
Bon. N. F. Foster-   Page 6                                            .,y
                                                                        ,


County cannot legally build a
tage for the~COunty.EngPneer;
houseman or any other county employee.
                         ,SUhQdARY'
           The Commissioners* Court of Smith County
     cannot legally.expend   any of the Permanent Im-
     provement Funds of ~the county for building a
     private dwelling or cottage for the' County En-
     gineer,  the Storekeeper or Warehouseman;or
     any other co'unty employee.    Article 2351, V;A.
     C.S.; Edwards County'vs.    Jennings, 33 S.W.;5135;.
     11 Tex. Jur. 563; Moore vs. McLennanCounty;et
     al, 275 S.W. 478; El Paso County vs,. &am 106
     S.W. (2) 393.
                                    Yours'very       truly
                                ATTORNEY
                                       GENEBALOF TEEAS



                                          Bruce Allen.
                                          Assistant    ;     ,_   .~
                                      :


                                APPBOVEBFEB. 17, '1947                   '


                                ATTOliWEYGENFBAL .~'
BA:djm:jrb
                           ”




Approved Op~nion.Commlttee
     ByBWB,Chairman