Untitled Texas Attorney General Opinion

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 15, 2018

The Honorable J. Bryan Clayton Opinion No. KP-0182
Concho County Attorney
Post Office Box 236 Re: Whether a county·may transfer funds from
Paint Rock, Texas 76866 the road and bridge account to a general account
to pay all or a portion of a commissioner's
salary when the commissioner spends a
substantial portion of time performing road and
bridge maintenance (RQ-0175-KP)

Dear Mr. Clayton:

You ask whether funds from a county's road and bridge account may be transferred to the
general account· for payment of all or a portion of a county commissioner's salary "in a county
where county commissioners spend a substantial portion of their worktime personally performing
road and bridge rriaintenance." 1 As background, you explain that "Concho County's four
commissioners are responsible for road maintenance in their precincts," and that "a significant
portion of the work is performed by the commissioners personally." Request Letter at 1. You tell
us the county pays the. commissioners' salary from the general revenue fund, and that because the
county expects decreased revenue in the coming year, "it would be advantageous for the county to
draw all or a portion of the commissioner's salary from the Road and Bridge Fund." Id.

A county commissioner's court possesses broad duties related to matters as wide-ranging
as road maintenance, county finances, land use regulation, public safety, and water utilities, among
many others. See, e.g., TEX. Loe. Gov'T CODE§§ 111.008 (requiring commissioners court to take
action on county budget), 291.001 (requiring the commissioners court to maintain public
buildings), 352.001 (authorizing the commissioners court to furnish fire protection to county
residents); see also TEX. CONST. art. V, ·§ 18(b) (providing that the county commissioners court
"shall exercise such powers and jurisdiction over all county business" as conferred by law). Thus,
a commissioners court's primary responsibilities concern matters other than roads and bridges.

"Money in the road and bridge fund of a county may be used only for working public roads
or building bridges, except as otherwise provided by law." TEX. TRANSP. CODE § 256.001.
Determining whether a county may use money deposited in the road and bridge fund for other
purposes requires an understanding of the multiple sources of income for a county road and bridge
fund and the limitations placed on each of those sources.

'Letter from Honorable J. Bryan Clayton, Concho Cty. Att'y; to Honorable Ken Paxton, Tex. Att'y Gen. at
I (Aug. 15, 2017), http://www.texasatton1eygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable J. Bryan Clayton - Page 2 (KP-0182)

Ad valorem taxes provide a significant source of income for a county road and bridge fund.
Article VIII, section 9 of the Texas Constitution authorizes a commissioners court to levy an annual
property tax rate for four separate constitutional purposes, including a county general fund and the
"road and bridge fund." TEX. CONST. art. VIII, § 9(a). Pursuant to that section, Concho County
levies an annual property tax for the general fund and a separate tax for the road and bridge fund. 2
See id. Section 9( d) authorizes a county to place all constitutionally dedicated property tax revenue
into one general fund, without regard to the purpose or source of each tax. Id. § 9(d). Courts and
this office have construed this provision to authorize a commissioners court to transfer property
tax revenue from one constitutional fund to another. Lewis v. Nacogdoches Cty., 461 S.W.2d 514,
518 (Tex. Civ. App.-Tyler 1970, no writ); Tex. Att'y Gen. Op. Nos. GA-0153 (2004) at 6, H-194
( 1974) at 3 (explaining that the constitutional amendment resulting in subsection (d) was intended
, .

to "allow unrestricted comingling and transfer of these funds"). Thus, Concho County may
transfer article VIII, section 9(a) property tax revenue from the county road and bridge fund to the
general fund, and it may use that money to pay commissioners' salaries. 3

In addition to levying a property tax, counties credit a portion of the motor vehicle
registration fees to the county road and bridge fund. See TEX. TRANSP. CODE§ 502.198(b)-(c).
Chapter 502 of the Transportation Code requires the annual registration of motor vehicles and
imposes registration fees. See id §§ 502.040(a) (requiring registration), 502.190 (requiring the
Department of Transportation to establish a schedule of registration fees). The county assessor-
collector must credit a portion of those fees to the county road and bridge fund on a weekly basis.
See id § 502.198(b)-(c). The Legislature expressly prohibited a county from using that fee
revenue to fund a commissioner's salary:

Money credited to the county road and bridge fund under Section
502.198 may not be used to pay the compensation of the county
judge or a county commissioner. The money may be used only for
the construction and maintenance of lateral roads in the county,
under the supervision of the county engineer.

Id. § 502.1985(a) (emphasis added); see also TEX. CONST. art. VIII, § 7-a (providing for net
revenues derived from motor vehicle registration fees to be used only for specific road purposes).

2
See http://www.co.concho. tx. us/default.aspx?Concho_ County/Tax.Rate.

3
Article VIII, subsection 9(c) permits the Legislature to authorize additional property taxes to be levied and
collected for further maintenance of the public roads. TEX. CONST. art. VIII, § 9(c). Pursuant to this provision, the
Legislature enacted section 256.052 of the Transportation Code authorizing a county to adopt an additional ad valorem
tax "for the further maintenance of the county roads." TEX. TRAN SP. CODE § 256.052( a). Regardless of where the
county places such funds, they rriay be used only for "the further maintenance of the public roads." TEX. CONST. art.
VIII, § 9(c). A county may also levy an additional property tax under article VIII, section 1-a for the "construction
and maintenance-of Farm to Market Roads or for Flood Control." Id. art. VIII, § 1-a. A county may use revenue from
this tax only for its constitutionally designated purpose. See Tex. Att'y Gen. Op. Nos. GA-0153 (2004) at 5, H-530
(1975) at 2. If Concho County levies any of these taxes, it must use revenue therefrom for its constitutionally
designated purposes.
The Honorable J. Bryan Clayton - Page 3 (KP-0182)

Thus, Concho County may not use funds deposited in the road and bridge fund pursuant to section
502.198 of the Transportation Code to pay all or a portion of a commissioner's salary. 4

Alongside the vehicle registration fees applicable statewide, a commissioners court "may
impose an additional fee, not to exceed $10, for registering a vehicle in the county," and such fees ·
are "to be credited to the county road and bridge fund." TEX. TRANSP. CODE § 502.40l(a); (f).
While the section authorizing the collection of the additional fee does not restrict the use of the
funds collected, article 8, section 7-a of the Texas Constitution provides that any net revenues
derived from motor vehicle registration fees "shall be used for the sole purpose of acquiring rights-
of-way, constructing, maintaining, and policing such public roadways." TEX. CONST. art. VIII,
§ 7-a. Thus, a county may not divert these additional vehicle registration fees for other purposes.

Finally, a county may also receive other income from fuel taxes, grants or donations, or
fines that it chooses to deposit into the county road and bridge fund. See Tex. Att'y Gen. Op. No.
GA-0153 (2004) at 5-6 (addressing whether a county may use its road and bridge funds received
from these sources to pay private counsel retained by the commissioners court). Whether a county
may use any of these specific monies from the county road and bridge fund to pay a
commissioner's salary depends upon the constitutional, statutory, or contractual provisions
governing their disposition. Id.

Thus, while a county may use funds not dedicated to a particular purpose to pay a
commissioner's salary, funds dedicated specifically for mad and bridge work must be used only
for that purpose. Your emphasis on the significant roadwork that Concho County commissioners
personally perform suggests an argument that a commissioner's salary itself might be considered
as funds used for public roads and bridge maintenance. Request Letter at 1. The Legislature
expressly authorized certain commissioners to pay the salaries of their road and bridge work
employees from the county road and bridge fund, but it did not do so with regard to commissioner
salaries. TEX. TRANSP. CODE§ 252.006(c) (providing that "an ex officio road commissioner may
'employ persons for positions in the commissioner's precinct to be paid from the county road and
bridge fund"). Furthermore, the extent to which a commissioner spends time on road and bridge
maintenance in contrast to other county responsibilities will vary significantly depending on the
county and the individual commissioner. With respect to a given commissioner's salary, a county
:would likely find it difficult to account for the specific amount of the salary allocated directly to
co:unty road and bridge maintenance versus other county business. We therefore advise against
transferring funds dedicated to only road and bridge work to the general fund to pay for
commissioner salaries.

4
"The commissioners court of a county that does rtot impose a tax for the construction and maintenance of
roads and bridges may transfer surplus money derived from the motor vehicle registration fees to any county fund that
the court designates and may. spend that money for any purpose authorized by Section 7-a, Article VIII, Texas 1

Constitution." TEX. TRANSP. CODE§ 256.007. However, because Concho County imposes such a tax, this provision
does not allow Concho County to use motor vehicle registration fees for other purposes. Furthermore, even in counties
where this provision applies, such funds still may be used only for the purposes authorized by article VIII, section 7-a
of the Texas Constitution. Tex. Att'y Gen. Op. No. JC-0250 (2000) at 5.
The Honorable J. Bryan Clayton - Page 4 (KP-0182)

SUMMARY

A county road and bridge fund may derive income from
multiple sources. Whether a county may transfer money from the
road and bridge fund to the general fund to pay a commissioner's
salary depends on the constitutional, statutory, or contractual
provisions governing the disposition of the specific money at issue.

Concho County may transfer article VIII, section 9(a)
property tax revenue from the county road and bridge fund to the
general fund, and it may use that money to pay a commissioner's
salary. However, it may not use funds deposited in the road and
bridge fund pursuant to section 502.198 of the Transportation Code
to pay all or a portion of a commissioner's salary.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee