Case Information

*1 .

Honorable TomA< Craven

'Courity.Audltor

MC- county

Waco, Texas

Dwar Sir: Opinion No.~O-1397 Re: Whether the commissioners'

court haw authority to allow road and bridge precincts in need of funds to operate pending the collection of current revenues to borrow fund6 from the Road Bond ac- count, to supplement their road and b,ridge fund accounts,, such borrowed funds to be paid back to the Road Bond Fund out of collections of the borrow- ing Road & Bridge Precinct during the ensuing year.

We quote the following two paragraphs of your letter of Aug- ust requesting an opinion from this department:

"The Road.and Bridge Department of Mclenuan County is operated on a county wide basis.

"The balance to the credit of at least one, and pos- sibly two, precincts of the road and bridge department will be exhausted before additional funds will become available from current tax collectiona. In your opinion, would the Commissioners~~Court have authority to allow road and bridge precincts in need of'funds to operate pending the collection of current revenues to borrow funds from the Road Bond Account, to supplement their Road & Bridge Fund Accounts, with the understanding that .such borrowed funds be paid back to the Road Bond Fund out of collections of the borrowing Road & Bridge Pre- cinct during the ensuing year?"

You further state in your letter that the funds desired to be loaned constitutes the unexpended balance of a county-wide bond issue voted a number of years ago for the purpose of "C~onstruction, maintenance and operation of gravel or paved roadw~and turn-pikes, or *2 Hon. Tom A. Crave, Page 2 (o-1397)

in aid thereof", equaling wome $35,000.00. We are to amme that the bonds have been retired with principal and interest paid leaving such balance and that no.equitable division of such funds as authorized by Section of your Special Road Law ie questioned or contemplated being made by the commlsslonersl court. We further assume by your request that such nborrowedn funds are not necessarily to be expended for those purposes for which said bonds were originally authorized.

It Is to be noted that Section 18, Chap. 34, Acts 1929, First Called Session, 41st Legislature, being a portion of the Special Road Law passed for the benefit of McLennan County, provider:

"All county, road and bridge funds raised by direct taxation or by the ssle of county or district bonds and all other moneys that may come into the Road and Bridge Fund in McLennan County, shall be applied by an order of the commlssloners"court to building, CbIlBtI'idCt~ and repair of,the various roads, bridges and culverts in said county in such manner, as to give a, fair and equitable division of eald funds, baaed upon the taxable properties in each commisaloner~s precinct."

As to the authority and duties of the conml6alonara' court and other county officer6 ln the handllng and expenditure of county funds, said road law 1s cumuIatIve of all other laws upon the subject.

According to your request, such fkdr were raieed through the sale of bonds under Article 726-752, Revised CivlI Statutes, pursuant to Article Section of the Constitution of Texas, prior to the re- peal of said,artlcles by the 39th Legislature, Acts Fir& Called session, chap. 1.6. Article 7520, Revised Civil Statutes 1925, as amended, reading aubstantlally the same aw the repealed article 742, provides:

"The county treasurer is custodian of all funde col- lected by virtue of this law, and shall deposit them, with the county depository in the same manner as county funds are deposited. It shall be the duty of the county treaw- urer to promptly pay the interest and principal as it be- comas due on such bondw.out -of the fundB collected and de- posited forthat purpose."

Article'17C9, Revised-Civil Statutes, provide% "The county treasurer shall receive aI1 moneys belong- ing to the county from whatever source they may be derived, endaauda d p y in such man- ner as the coi+mlsslonerw court of,his'county'may require and direct." (Underscore ours) Revised Civil Statutes, provides:

Hon. Tom A. Crave, Page (O-1397)

"An account with the county treasurer shall be kept in said ledger, in which such treasurer shall be charged separately with the amount of each fund for which he gives a receipt to the sheriff, collector, or other person pay- lng the 6ame into the treasury; and such treasurer shall have credit for all moneys paid out by him, when the com- missioners court has approved his reports of the same and for hie legal commls~1ons.w Revised Civil Statutes, provides for the regis-

tering of claims against the county in the order of their presentation, making payment of each in the order in which they are registered.

It will be noted that there la no provision in the statute6 authorizing the county treasurer to pay out such surplus of funds other than as required by Law.

Counties, being a component part of the atate, have no powers or duties except those which are clearly eet forth and defined ln the Constitution and statutes. The statutes have clearly defined the pow- ers, prescribed the duties, and imposed the liabilities of the commlw- sioners' court, a medium through which the different counties act, and from those statutes must come all the authority vested in the county. (Xdwgdw County v8. Jennings, S. Ii. Tex. Juris, Vol. 11, p. 563).

PracticaIly the Identical question as contained in your request was presented to this department for an opinion by Hon. Thomas L. Elanton, Jr., County Attorney, Shackelford County, Albany, Texas, and under date of February 4, in an opinion written by Hon. Benjamin Woodall, Assistant Attorney General, the partiouIar questions as well as other related que6tions pertaining to the transfer of funds VBB rendered to Mr. Blanton under our Opinion No. O-66. We enclose herewith a copy of Opinion No. O-66, calling your particular attention to question No. 2 on page 2 thereof, and the holding of thle department aB shown on page 3 to the effect that any unlawful and unauthorized tranefer of such funds to be an illegal diversion of same.

It is, therefore, the opinion of this department that the com- missioners' court is not authorized to aI.low Road and Bridge Precincts in need of funds to operate pending the collection of current ravenues to borrow funds from the Road Bond Account, to supplement their Road and Bridge Fund Account, although such transfer is made with the under- stsndlng that such borrowed funds be paid back to the Road Bond Fund out of collections of the borrowing Road aqd Bridge Precinct during the ensuing year.

WI& Jm: lm APPROVED Yours very truly m;oRNEY GgNERALOFTKKAS APPROVED 0'3 10, 1939 OPINION By /a/ Wm. J. R. 'King /a/ Robert E. Kapke col.mITmE Wm. J. R. King ACTlliGATIORNEX GRNRRAI BY /s/BwB OF TEXAS CHAIRMAN ABSiStmt