THEA




                                  July 3, 1950


Hon. B. F. McKee                        Opinion    No.   V-1077.
County Auditor
Hidalgo County                           Re:    Constitutionality      of statute
Edinburg, Texas                                requiring     favorable    vote of
                                               majority     of voting qualified
                                               property     taxpaying    voters   in
                                               county    prior to levy, assess-
                                               ment and collection        of coun-
                                               ty ad valorem       tax for Farm
                                               to Market Roads or for Flood
Dear   Sir:                                    Control.

               You have requested       the opinion of this office as to the
validity of those sections1     of H.B. 107, ch. 464, Acts 51st Leg,,
R.S. 1949, which require      a favorable       vote of a majority    of the qual-
ified property    taxpaying  voters     of the county, voting at an election
called for that purpose, before        the county may levy the new tax for
Farm to Market Roads or for Flood Control               purposes    as author-
ized by the amendment       to Article     VIII, Section   l-a of the Constitu-
tion of Texas.     H.B. 107 is presently        carried  as Article    7048a. V.
C.S.

               H.B. 107 was ‘enacted in pursuance        to and in execution
of the provisions    of ~the constitutional    amendment    proposed   by H.
J.R. 24, which was adopted by vote of the people in the 1948 Gen-
eral Election.     The pertinent    provisions   of H.J.R. No. 24 are the
following:

                “Section     1. That Section l-a of Article VIII of
       the Constitution        be amended so as to be and read as
       follows:

              W‘Section  l-a.    From and after January 1, 1951,
       no State ad valorem     tax shall be levied upon any prop-
       erty within this State for general     revenue   purposes.
       From and after January 1, 1951, the several         counties
       of the State are authorized     to levy ad valorem    taxes
       upon all property    within their respective    boundaries
       for county purposes,     except the first Three    Thousand




1 Sets.       7, 8, and 9.
Hon.   B. F. McKee,    Page   2 (V-1077)




       Dollars   ($3,000)   value of residential     homesteads,   not
       to exceed thirty cents (3OC) on each One Hundred Dol-
       lars ($100) valuation,     in addition to all other ad valo-
       rem taxes authorized      by the Constitution     of this State,
       provided    the revenue   derived    therefrom   shall be used
       for construction     and maintenance      of Farm to Market
       Roads or for Flood Control,        except as herein other-
       wise provided.”


              In view of the fact that the constitutional     amendment
does not make the imposition      of the tax contingent    on an affirma-
tive vote of a majority   of the qualified  property    taxpaying  voters
of the county, you ask whether the Legislature        could impose this
requirement.


             At the outset we should examine    the general  purpose
and effect of this constitutional provision together  with applicable
rules of construction.


              Prior   to the adoption   of this constitutional   amendment,
county ad valorem      taxes for the purposes     enumerated     could not be
levied in excess    of the maximum      rates fixed by Section 9, Article
VIII of the Texas Constitution.       The effect of the amendment       was
to lift these maximum       limits-to the extent of authorizing     counties
to levy.an additional    ad valorem    tax not to exceed 30 cents on each
$100.00 valuation     for the limited   purposes   of “construction    and
maintenance    of Farm to Market Roads or for Flood Control.”


             Since the constitutional    amendment        does not provide
the method and means by which the counties            shall determine    the
time, rate, and purpose (as between Farm to Market              Roads and
Flood Control)   of the tax, or how it shall be levied and collected,
it was within the power and duty of the Legislature           to provide   such
method and means.      Tex. Const. Art. VIII, Sec. 3.and Art. III, Sec.
42. See Stratton v. Commissioners’         Court of Kinney County, 137
S.W. 1176, 1117 (T       C’   A       1911               f )’ Stevenson   v.
Blake,  131 Tex. lO~‘ll?S.W%          525,‘5ezf;rT)l9ie8): ’


             By H.B. 107 the Legislature    provided a method which
gives both the Commissioners’     Court and the property  taxpaying
voters a part in determining  if, when, why and for how much the
newly authorized  tax shall be levied.   Such method has been pro-
Hon. B. F. McKee,           Page   3 (V-1077)




vided     by the Legislature       for   the levy   of many    local    taxes. 2

                If the vote requirement         of H.B. 107 were subject to two
interpretations       of legislative    intent -- (1) as an unconstitutional   at-
tempt to limit the authority          of the county   to levy the tax and (2) as
a valid step in the procedure           or method for levy of the tax --, we
would be compelled          to follow   the latter interpretation.   As stated
in Sutherland      (3rd Ed.) on Statutory Construction:

                 “It is constantly    asserted  by the courts that every
          presumption     favors   the validity of an act of the Legis-
          lature and that all doubts, must be resolved       in support
          of the act.”   (Vol. 2, Sec. 4509, p. 326.)

                  This   rule   is applicable   to tax   statutes      the same    as oth-
er   stiltutes.

                   “This rule that when a statute        is attacked    as un-
         constitutional,       it is the duty of the courts,     when the
         statute     is subject    to different  constructions,    to adopt
         such construction          as will make the statute     constitution-
         al if the language will reasonably           permit,   is applied to
         tax statutes      time and time again the same as to other
         statutes.”      (Cooley     on Taxation   (4th Ed. 1924) Vol. 2,
         Sec. 509, p. 1133.)



’ Article      6078, V.C.S.,      provides    that no tax for the purchase          and
improvement        of lands for use as county parks may be levied                  “until
the proposition      is submitted       to and ratified  by the property        taxpay-
ing voters     of the county at a general         or special election      held for
that purpose      . . . /%ndf two-thirds        majority   of the property       taxpay-
ing voters     . . . de&rriiine     in favor of said tax.” Articles          4436a-2
and 4436a-3 authorize           the Commissioners’       Courts      in certain    coun-
ties to levy a tax in stated         amounts for creating       a county health
unit if the proposition        to levy said tax is approved         by a majority
of thrproperty       taxpaying      voters at an election     called for that pur-
pose.    Articles    4478, 4494c, 4494g, and 4437a, dealing with county
hospitals,    all require     that the voters     of the county shall determine
whether a tax for establishing            and maintaining     a hospital will be
imposed.      Articles    2352a. 2352b. and 2352~ provide             for the levy of
a tax in a stated amount for the purpose of advertising                   the county
and its county seat providing            that a majority    of the qualified      taxpay-
ing voters     of the county shall, by a majority          vote, authorize        the
Commissioners’         Court     to levy the tax. (These       articles    are simply
cited as illustrative.        No opinion is expressed         as to their constitu-
tionality.)
Hon.   B. F. McKee,       Page    4 (V-1077)



                However,      in our opinion, the situation before              us requires
no resort    to statutory      construction.        Here we have a statute which
from the caption to the emergency                clause   clearly    reveals      that the
Legislature     intended to include the vote of the taxpaying                   citizens
as part of the method for levying             the tax. The constitutional             amend-
ment does not prohibit           such procedure.3         The Constitution          does not
clothe the Commissioners’              Courts    with any general       power to levy
taxes except as provided            by the Legislature.         Most functions         of the
Commissioners’         Courts      in the levying     of ad valorem        taxes are stat-
utory,   and in the absence          of a constitutional      provision      to the con-
trary, the Legislature          is authorized      to pass statutes       regulating       the
levying and assessing          of county ad valorem          taxes.    Stevenson        v.
Blake, 131 Tex. 103, 113 S.W.Zd 525, 527 (1938). -It is noteworthy
-with        few exceptions,         the specific    powers which have been con-
ferred    on Commissioners’            Courts   with regard      to levying,      assess-
ing and collecting      county ad valorem           taxes have been conferred               on
said courts    by statutes       and not by the Constitution.            The rule is that
Commissioners’         Courts      have no general       blanket authority         over coun-
ty business,     but only such powers as are expressly                  given them by
the Constitution      and statutes.        Canales v. Laughlin,         i47 Tex. 169;
214 S.W.Zd 451, 453 (1948).

              The constitutional    amendment      being silent on the sub-
ject, the House Committee        on State Affairs,   .51st Legislature,    ask-
ed this office if the amendment      was self-enacting      or if it required
an enabling act such as H.B. 107 to provide          a method for levy of
 the tax. Our reply by Opinion No. V-797, March 29, 1949, was in
part as follows:

                “Passing    to a consideration of the remainder      of
        H.J.R. 24, we may ho,ld it .self-executing     ‘if it supplies
        a sufficient   rule   by means of which the right given may



3   “This Court  has repeatedly      held that no Act of the Legislature
will be declared    unconstitutional    unless some provision    of the Con-
stitution can be cited which clearly       shows that the Act is invalid.
Texas National    Guard Armory       Board v. k&Craw,     132 Tex. 613, 126
  . a    42V; Hcirris qount)r y. Stewart,      91 Tex. 133, 41 S.W. 650;
Brown v. Cityci;ifCialveston,     9TTex.    1, 75 S.W. 488, 9 Tex. Jur.,
pp. 4f I, 478, sec. 54.

    “No provision  of the Constitution   has been pointed out which pro-
hibits the enactment    of the Act under consideration,    . ~ .” The State
of Texas ex rel. Carl Rector      v. McClelland,   Texas Supreme7    ourt
Reporter,   Vol. 19, No. 9, p. 123; 224 S .W . 2 d 706 (1949).
Hon.   B. F. McKee,                Page   5 (V-1077)



       be enjoyed and protected     or the duty imposed  may be
       enforced;  and it is not self-executing   when it merely    *
       indicates  principles,  without laying down rules   by which
       these principks     may be given the force of law.’

                “This excerpt   from Cooley on Constitutional         Lim-
       itations   was quoted by the Supreme Court of Texas in
       Mitchell    County v. City National     Bank, 91 Tex. 361, 371,
             . D     0 083, when the court      was determining      wheth-
       er or not th; provisions      of Section 7 of Article      XI of
       the Texas Constitution      were self-executing;      i.e., said
       the court, whether     ‘the source    of authority for making
       the levy and collecting     the tax is the Constitution      and
       not the act of the Legislature.’
               u
                   .   0   .   .



               “The Court   reached     the conclusion that the pro-
       visions   of Section 7 of Article    XI were not self-execut-
       ing in the following   analysis:

                “ ‘The only parts of the constitution            which bear
       upon this subject are section 9 of article               8, and sec-
       tions 2 and 7 of article         11. Section 9 confers         no author-
       ity upon any offic,er of a city or county to levy a tax for
       any purpose,      but by the language,        “No county, city or
       town shall levy more than one-half               of said state tax . . ~
       and for the erection        of public buildings        not to exceed
       fifty cents on the one hundred dollars               in any one year,”
       places a prohibition        or limitation     upon the power of the
       legislature     to authorize     counties    to impose      taxes for
       such purposes.         Section 2 of article       11 expressly      re-
       quires the enactment          of a general     law to carry its man-
       dates into effect;       and section    7 of the same article         con-
       tains no grant of authority          to levy a tax nor designation
       of any official      by whom the tax specified          is to be levied
       and collected,       but is, in effect, a limitation        upon the
       power of the legislature          to authorize      such corporations
       to create     debts.    In the sense that all laws in conflict
       with these prohibitions         are void, section        9 of article    8
       and section      7 of article    11 are self-executing;         but, in
       so far as anything is required            to be done to carry them
       into effect,    they are not so, because           they prescribe       no
       rules by which any act could be done in the enforcement
       of their requirements.         ’

              ‘*Although the provisions    of section 7 of Article
       XI expressly    required  future action by the Legislature
       (the vote of the taxpayer,    and the amount of the tax,
Hon.     B. F, McKee,      Page   6 (V-1077)



         were to be ascertained          ‘as may be provided          by law’),
         we think that the language of the court above quoted
         precludes     our holding that the last part of H.J.R. 24
         is self-executing.        There    is no ‘designation       of any of-
         ficial by whom the tax specified             is to be levied and
         collected;’    nor is ‘anything       . . . required    to be done
         to carry    . . . (it) into effect     . . . because    . . . no rules
         . D . (are prescribed       by) which any act could be done
         in the enforcement        of their requirements.’           The Mitch-
         ell case at least casts enough doubt on the matter to
         fully justify   the enactment        of enabling    legislation.

                  “Even if the main provi$ions           of H.J.R. 24 are
         self-executing,       legislation     could still be deemed de-
         sirable     for the purpose of ‘providing          convenient     rem-
         edies for the protection           of the right secured,     or of
         regulating      the claim of the right so that its exact lim-
         its may be known and understood;               but all such legisla-
         tion must be subordinate            to the constitutional     provi-
         sion, and in furtherance           of its purposes,    and must not
         in any particular        attempt to narrow        or embarrass       it.’
         Cooley Constitutional          Limitations,     8th Ed., Vol. 1, pp.
          170, 171. The power of the Legislature               to implement
         the present amendment             is indisputable    because,     should
         it be regarded       as self-executing,       the machinery       for its
         enforcement        could only be found in existing         legislation
         whic.h is, of course,        in the main, subject to repeal or
         amendment        at the pleasure       of the presently    constituted
         legislative     body.”

                In Section   13 of H.B. 107, the Legislature             found the en-
abling    act necessary    in the following words:

                 “The fact that House Joint Resolution             No. 24,
         Acts, Fiftieth    Legislature,      has been adopted by the
         people of Texas at the General           Election    held in this
         State on the first Tuesday         in November,       1948, and an
         enabling act is necessary         to authorize     the levy, assess-
         ment and collection       of taxes provided       for therein by
         the several    counties    in this State, create an emergency,
         and an imperative       necessity     that the Constitutional     Rule
         requiring   bills to be read on three several            days in each
         House be suspended,         0. a W

             A full reading of the caption and body of the bill leaves
no doubt that the requirement     for approval  by a majority    of the prop-
erty taxpaying  voters   was intended as an essential   part of the meth-
od for levy of the tax rather than a restriction    on the authority    of
the county.   Someone had to be authorized     by the Legislature     to act
     Hon. B. F. McKee,        Page   7 (V-1077)



     on behalf of the county to determine        (1) if any part of the newly au-
     thorized   tax would be levied;    (2) if so, how much and when; and, (3)
     whether for Farm to Market Roads, Flood Control,              or both.  H.B.
     107 authorizes    the Commissioners’       Court   by majority   vote or up-
     on petition of ten per cent of the qualified       property  taxpaying  voters
     to submit these questions     to the voters and levy the tax if and as
     the majority   of the voters   decide.

                    This nrocedure.      whether authorized      bv constitutional
     provision    or statute, has been held to be part of the levy of the tax.
     Crabb v. Cel,este Ind. School D,ist., 105 Tex. 195, 146 S.W. 528 (1912);
     San Saba County v. McGraw,           130 Tex. 54, 108 S.W.Zd 200 (1937).
     In the Crabb case the Supreme Court            of Texas held that,an indenend-
     ent schooldistrict      had nb authority    to levy and collect      a tax on prop-
     erty annexed after the tax had been voted for the reason that Section                 ‘~~
     3 of Article    VII provided   a “mode of levying”       which required       a vote
     of “two-thirds     of the qualified   property    taxpaying   voters    of the dis- _
     trict, voting at an election      held for that purpose.”      The court      point-
     ed out that in those cases which were cited as authority               for uphold-
     ing the levy the right of the property         owner to participate       in the
     proceeding     with relation   to the levy of the tax on his property          was
     fixed by statute and not by the Constitution.           The-court     said;

                      “Here lies the important         distinction,      If we had
            no constitutional       provision     to grapple with, we would
            be constrained       to hold that, where the legislative            act
            gave the,property        owner the right to participate            in the
            proceeding      to determine       whether     or not the tax shoiiI?l
            be levied,     another    legislative    act, authoriamg        ,an ex-
             tension of the district       where the tax had been voted,
            would subject the property            within the extension        sub-
            ject to the tax, notwithstanding           the non-participation
            of the property       owner in the levy of the tax. This, how-
            ever,    is not the status      of the case at bar; for here the
            right to participate        in the levy of the tax is given the
            resident     property    owner by the Constitution,            and the
             Legislature     is denied authority        to abridge    that right.
            Where there is no constitutional              inhibition,   the power
             of the Legislature       to enact laws is supreme            and un-
            limited. ” (Emphasis          ours.)

                   In addition to designating     constitutional      and statutory
     voting provisions    as part of the proceedings       for levy of the tax, the
     opinion in the Crabb case recognizes         the unquestioned        power of the
     Legislature,    inmbsence       of constitutional      prohibitions,     to pro-
     vide the method which counties      shall use in levying         taxes, includ-
     ing the power to confer on property       taxpaying      voters    the right to
     participate  in proceedings   to determine      if and when an authorized
;:   tax will be levied.
Hon.     B. F. McKee,     Page   8 (V-1077)




                The decision    of the Supreme Court of Oklahoma           in Til-
ley v. Overton,     116 P. 945 (1911). fully recognizes         and sustains
this legislative    power to prescribe      the manner, time, and by what
authority    the levy of a constitutionally     authorized    tax may be made.
In this case the legality     of a school district     levy for the year 1908
was attacked on various        grounds, among which was the proposition
that a portion of the tax authorized        to be levied by the Oklahoma
Constitution     must be levied by the board of the district         and not by
a vote of the people.      The constitutional     provision    there involved
read as follows:
                ”
                  e . 0 school district   levy, not more than five
         mills on the dollar for school district      purposes   for
         support of common      school:    Provided,   that the afore-
         said annual rate for school purposes        may be increas-
         ed by any school district      by an amount not to exceed
         ten mills on the dollar valuation,      on condition  that a
         majority   of the voters   thereof voting at an election,
         vote for said increase.”       Okla. Const. Art. X, Sec. 9.

               The court held that this provision          as supplemented       by
the statutes    extended   in force in the state upon its admission           to the
Union was self-executing.          The controlling     statutory  provision     in-
volved provided      that the inhabitants    qualified    to vote at a school
meeting    shall have the power “To vote annually a tax not exceed-
ing two per cent. on all the taxable property            in the district,   . ~ 0”
With regard      to this provision    the court said:

                 “The foregoing     statutory    provision,      in so far as
         it authorizes   an annual levy of 20 mills,          is in violation
         of section 9, art. 10, of the Constitution,           in that under
         that section the maximum          that may be levied in any one
         year is 15 mills, but in so far as the statute provides
         the manner of levy and by whom it shall be made, it is
         in no wise in conflict     with the Constitution.           By that
         statute the people are authorized          by vote at a meeting
         of the district   lawfully   assembled      to levy directly      such
         tax as they deem necessary           and sufficient      for the var-
         ious school purposes       for any current       year.      They are
         authorized    by this section to levy by their vote at such
         meetings    not only the first five mills, but all other a-
         mounts that may be levied for the district.”

                 The court    reached  this decision on the basis of the fol-
lowing     interpretation    of the above quoted constitutional  provision:

                 “It will be observed   that that portion of the sec-
          tion providing   for a school district  levy for the support
          of common     schools  may be separated     in two parts, the
Hon. B. F. McKee,       Page    9 (V-1’077)



      first of which authorizes           a levy for a district        of not
      more than five mills on the dollar each year.                     The sec-
      tion is silent as to how this tax may or shall be levied.
      No attempt is made to define the procedure                   for its levy,
      bywhom        it shall be levied,       or when it shall be levied.
      It authorizes      unqualifiedly,       without restrictions        or lim-
      itation so far as the Constitution              attempts’ to regulate
      it, a levy for school district           purposes     not more than
      five mills on the dollar,           . . . The legislative        intent
      was to authorize        first a levy of a tax not to exceed five
      mills,    leaving    it to the Legislature         to prescribe     the man-
      ner, time, and by what authority               this levy shall be made;
      but when a levy is to exceed five mills, which is author-
      ized by the second part of the section,                then there is
      placed upon the authority            to levy such additional         amount
      the constitutional        restraint     that it shall not be levied
      except with the approval            of a majority      of the voters      of
      the,district     voting at an election         thereon.     The addition-
      al amount that may be levied under the limitation                     and
      restrictions      of the second part of the section             is ten mills,
      instead of five mills;          and the limitation       as to the man-
      ner of such levy, which does not occur                  as to the.five
      mills authorized        by the proceding         clause,   is that it must
      receive     the sanction       of a majority      of the voters     of the
      district    voting at the election,         wh~ereas the first five
      mills may be levied with or without such sanction                      of the
      voters as the Legislature             may provide.        We cannot con-
      cur in the construction           contended for that it was intend-
      ed to require      that the first five mills should be levied
      by the school district          board.     No such intention finds
      specific    expression       in the seutiomnor         do we think that
      the same exists by implication.                . D ~ All that was in-
      tended by these provisions             as to the school district         tax
      was that in no event should there be a tax levied for any
      year in excess        of fifteen mills.       The first five mills of
      which may be levied by such authority                  and under such
      procedure       as the Legislature         may from time to time
      prescribe,      and the additional        ten mills may be levied in
      like manner except that such levy shall never be made
      without the approval          of the people of the district          as pre-
      scribed     in the second clause          of the section.”

               The court also pointed out that at a special      session    of
the Legislature    in 1910 (subsequent     to the levy involved   in the case)
an act was passed by which a different        procedure    was prescribed
for the levy of the first five mills authorized       by the Constitution.
Under the terms of the 1910 act it became          the duty of the county ex-
cise board, upon the estimates      received    from a school district     to
levy a tax (not exceeding    five mills on the dollar)     for the support of
                                                                                      c




Hon. B. F. McKee,       Page   10 (V-1077)




the common    schools     of such districtc      At page    948 of the opinion
the court said:

               “If there is any doubt as to whether               the legisla-
      tive department        in passing the act of 1908 placed upon
      section 9, art. 10 of the Constitution,              the construction
      we have here given it, an examination                  of the act of 1910
      will remove      such doubt; for, it is clear that the legis-
      lative interpretation        of this provision        in the last act
      was that as to the first five mills, authorized                 to be lev-
      ied for school district        purposes,      the Legislature        has
      power, without any limitations             by reason of said sec-
      tion, to designate       by whom and under what procedure
      the same shall be levied,, and may do so likewise                     as to
      all amounts in excess          of said’five     mills     authorized     to
      be levied by that section,         except Such levy must be made
      by a majority       of the voters     of the district;       and, what was
      intended to be accomplished             by the last act as to school
      districts    not in cities of the first class, was to change
      the method and procedure             of levying    the school district
      tax within five mills from the method prescribed                      under
      the law extended        in force in the state to that prescribed
      by said act.      It is true that legislative          construction      of
      constitutional      provisions     is not binding upon the courts,
      when called upon to construe             such provisions;         but the
      construction      given to this provision         of the Constitution
      by the legislative       department      is in harmony         with our
      views,     and we think it is the correct           one.”

              We have heretofore        pointed out that a method or pro-
cedure for levying      taxes~which    allows the voters     to participate  in
the levy of the tax is not unusual in Texas.           Neither  is it unusual
in other jurisdictions.      It is well established     as a proper and rea-
sonable means of local determination           as to the need and uses of au-
thorized  local taxes.      Cooley  on Taxation     (4th Ed. 1924) Vol, 3, Sec.
 1019, pp. 2062-2063.

              We have referred        to the custom and reasonableness         of
the voting procedure     as added evidence        that it was not intended by
the Legislature   as a limitation       on the special    taxing power author-
ized by the constitutional      amendment.       Had the Legislature     provid-
ed an unreasonable     or obviously       impossible     method of levy, such
as a unanimous vote of the property           taxpaying    voters, we would be
confronted   with an entirely     different    question.    We do not pass on
that question because      it is not here presented.

               For the foregoing  reasons   we are of the opinion              that
Sections   ‘7-9 of H.B. 107, 51st Legislature,   are valid.
Hon. B. F. McKee,      Page    11 (V-1077)




                                  SUMMARY

              The provisions      of H.B. 107, Acts 51st Leg., R.S.
      1949, ch. 414, p. 852 (Art. 7048a, V.C.S.),              which re-
      quire a local election       to determine      if and when the 30
      cent per $100.00 valuation          county tax authorized         by the
      amendment       to Section l-a of Article         VIII of the Texas
      Constitution     shall be levied,     are valid.      In the absence
      of a conflicting     constitutional     directiqn     as to the meth-
      od for levying     the tax, ‘the Legislature’has          the authority
      to provide    by law any reasonable          mode of procedure,
      including    the mode which allows          the qualified     property
      tax paying voters      of the county to participate          in the levy
      of the tax.

                                         Yours      very   truly,

                                          PRICE      DANIEL
                                         Attorney     General


APPROVED:                                By ~~~~~%J~                            a
                                            Mrs. MariettaMcGreg             Creel
Chas. D. Mathews                                                      Assistant
Executive Assistant

Joe R. Greenhill
First Assistant

Price   Daniel
Attorney   General


MMC /mwb