Carrollton-Farmers Branch Independent School District v. Edgewood Independent School District , 35 Tex. Sup. Ct. J. 374 ( 1992 )

DOGGETT, Justice,

dissenting.

So many words — so little justice! What does it all mean to the ordinary Texan — the lofty prose, the footnotes and citations, the multiple opinions, the charges and coun-tercharges? It means that the New Year brings an immense new wrong. For the school children, there is delay — perhaps infinite delay — in achieving equal educational opportunity; for the taxpayers, most probably an income tax. This is the unspoken but very real message announced here. A majority of this court has led the Legislature down the primrose path. Today’s unconstitutional legislation is only yesterday’s judicial vision; it is nothing more than the natural response to the majority’s previous encouragement of tax base consolidation. The Legislature, the Governor, and three separate Texas trial judges all followed accurately the prior judicial instructions; now the majority unjustifiably changes the instructions. Its new opinion is a morass of contradictions and excuses. I dissent.

The wrong inflicted on Texans today is aggravated by the majority’s deliberate delay. Public announcement of this improper decision could and should have been made long ago.¹ With each passing day, the majority denied the legislative and executive branches an opportunity to respond to the new judicial instructions for assembling a constitutional school finance system. Surely school boards, teachers, and administrators deserved a year without constant budgetary uncertainty; surely the school children deserved better. Instead, the majority creates another election year crisis ² with an impact far beyond the educational system alone. Taxpayers who awaited a clear indication of their obligations are astonishingly told that they have forfeited their illegally collected 1991 taxes and must continue to pay unconstitutional taxes into 1993.

Disregarding a constitutional provision permitting consolidation of school districts without a vote, the majority announces a new principle — the privileged must be accorded a veto of any sharing of the state’s resources with the underprivileged. Indeed, whenever referencing a local “vote,” today’s opinion really means “veto”. The further declaration that the County Education Districts’ (CEDs’) tax levy is an unconstitutional state ad valorem tax injects confusion in the overall relationship between state government and its subdivisions. Future litigation can be expected over any state mandate that can be satisfied only by the expenditure of revenues generated by local property taxes. After causing this havoc in both education and intergovernmental relations, the court then compounds its errors by compelling Texas taxpayers to pay an unconstitutional tax.

Given the verbosity with which the majority has cloaked its injustice, I have written at length to respond thoroughly to the misinterpretations and to clarify the true consequences of each. This dissent includes the following:

I.The Long Struggle for Justice Page 539

II. Judicial Entrapment by Advisory Opinion 540

III. Rewriting Article YII of the Texas Constitution 547

IV. The “statewide property tax prohibition” 551

V. “Prospective-Plus” Application of Today’s Ruling 557

VI. Response to Justice Cornyn’s Opinion 569

VII. Any Glimmer of Hope? 574

VIII. Conclusion 575

Confronted with one substantive point after another to which it cannot effectively respond, the majority undoubtedly finds this dissent highly distressing. Incredible inconsistencies, repeated rejection of precedent, and an ever-present elitist philosophy permeate the majority’s writing.

It was not always this way. In two prior opinions on this same case, the court worked together to follow the rather clear command of the Constitution without regard to the political consequences of its decision. Through compromise and consensus-building, the court spoke with one firm voice in what many have recognized as the most important case it has ever considered. Tragically, this has all been lost.

In its last writing, the majority concluded that justice demanded too much. Reasoned constitutional determination gave way to political calculation; precedent gave way to partisanship as an interpretive guide. As the Supreme Court, our responsibility is to assure justice by upholding the supreme law of our state — our Constitution. We cannot pick and choose to apply only favored provisions; we cannot invoke its provisions only at times deemed convenient and comfortable for the members of this court; we must consistently and regularly enforce all of its terms. The damage the majority insists on today is not just to our children’s education but to the very credibility of our system of justice.

I. The Long Struggle for Justice

The history of this case is reflected in the efforts of Demetrio Rodriguez and the experiences of thousands of other concerned parents and students from all regions and ethnic groups in Texas. In 1968, Mr. Rodriguez sought relief from the inequities of the state school finance system in federal court. Three federal judges in Texas said that it was inequitable and unconstitutional. All nine members of the United States Supreme Court said this school finance system was inequitable, but only four of them were willing to declare it unconstitutional. Rodriguez v. San Antonio Indep. Sch. Dist., 337 F.Supp. 280 (W.D.Tex.1971), rev’d, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

In many ways today’s ruling is quite similar to this 1973 writing upon which it relies. Pronouncements of compassionate generalities abound, but are unaccompanied by enforcement of constitutional rights. True, five judges of the United States Supreme Court “recognize[d] ‘the vital role of education in a free society.’ ” Majority Op. at 494 (quoting Rodriguez, 411 U.S. at 29, 93 S.Ct. at 1294). They recognized it just before they refused thousands of school children any remedy for a denial of this same “vital” element. As Justice Thurgood Marshall eloquently responded:

[T]he majority’s holding can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens.

Rodriguez, 411 U.S. at 70-71, 93 S.Ct. at 1316 (Marshall, J., dissenting).

After this federal failure and further unsuccessful attempts to obtain state legislative redress, Demetrio Rodriguez and others returned to state court.³ In Edgewood Independent School District v. Kirby, 777 S.W.2d 391 (Tex.1989) (Edgewood I), they obtained it. After two decades of persistently opposing his claims, attorneys for the state and attorneys for its richest school districts have finally conceded the injustice of which Demetrio Rodriguez complained. In oral argument before this court, they have belatedly indicated agreement⁴ with the principle unanimously announced in Edgewood I that:

There must be a direct and close correlation between a district’s tax effort and the educational resources available to it; in other words, districts must have substantially equal access to similar revenues per pupil at similar levels of tax effort. [All] [c]hildren ... must be afforded a substantially equal opportunity to have access to educational funds.

Id. That is the only good news from this case. But it is good news that comes too late for the children of Demetrio Rodriguez; ⁵ it is good news that comes too late for some of the grandchildren of Demetrio Rodriguez. The bad news of today is that with its disposition the majority ensures that the benefits of the reform of the Texas school finance system may not be fully enjoyed even by Mr. Rodriguez’s great-grandchildren. Nearly a quarter of a century after Demetrio Rodriguez began his journey for justice, the end is nowhere in sight.

II. Judicial Entrapment by Advisory Opinion

To understand more completely the injustice which the majority has today accomplished, a review of recent developments in this litigation is necessary. The arguments made in the instant proceeding — that there are constitutional barriers to school districts sharing resources and that restructuring the property tax system would impose an unconstitutional statewide property tax — are not at all new; they were raised in opposition to the principles advanced in Edgewood I.⁶ In its first opinion, this court declined to address these arguments or to mandate a method by which the Legislature could remedy the unconstitutional features of the school finance system.

Confronting a most recalcitrant Governor William Clements and multiple forces which refused to accept this court’s unanimous writing in Edgewood I, the Legislature initially produced Senate Bill l,⁷ only after Judge Scott McCown appointed a master and indicated a willingness to proceed with a court-imposed plan. This inadequate legislation was challenged by property-poor school districts who urged judicial substitution of the Uribe-Luna Plan, consolidating each county’s tax base without an election.⁸ They urged the trial judge to recognize that the Constitution “do[es] not require elections to create county taxing districts.”⁹ Judge McCown rejected this contention, concluding that three constitutional deficiencies precluded the proposed alternative:¹⁰

Because of the resistance to district consolidation, some have advocated tax base consolidation or sharing or recapture. All of these terms mean essentially the same thing. Senate Bill 9 and House Bill 34, the Uribe-Luna Plan, was based on county-wide tax base consolidation and produced significant equity. The Texas Research League has developed a similar plan. Tax base consolidation, however, appears to run afoul of certain constitutional provisions related to taxation. See Tex. Const, art. VII, § 3, and art. VIII, § 1(e); Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20 (1931).

It is precisely these three obstacles referenced by the trial court in its opinion of September 1990 that govern the issues of the present appeal: (1) whether article VII, section 3 requires a vote, (2) whether a levy by the CEDs is an unconstitutional state tax under article VIII, section 1-e,¹¹ and (3) whether Love prohibits the creation of the CEDs and the sharing of resources.

On appeal those same challengers urged “that this Court [in rejecting Senate Bill 1] order the District Court to implement the Uribe/Luna plan as a practicable and just alternative and the only method to assure protection of plaintiffs rights in the 1991-92 school year.”¹² They claimed that Judge McCown had erred in rejecting tax base consolidation and again maintained that the Constitution “do[es] not require elections to create county taxing districts.” ¹³ In response, the State insisted during oral argument that to implement tax base consolidation, “you have to have the local option election. You have to let the citizens vote to impose this new taxing authority on themselves or not.” ¹⁴

Addressing these arguments and concerned that the trial judge had misinterpreted our prior silence on the subject, we unanimously wrote in Edgewood Independent School District v. Kirby, 804 S.W.2d 491, 497-98 (Tex.1991) (Edgewood II), to override all of the constitutional barriers ascertained by the trial court:

Another approach to efficiency is tax base consolidation. Senate Bill 1 expressly provides that future legislatures may use other methods to achieve fiscal neutrality, including “redefining the tax base.” Tex.Educ.Code § 16.001(d). We disagree with the district court’s observation that this option “appears to run afoul of certain constitutional provisions related to taxation.” ... While consolidating tax bases may not alone assure substantially equal access to similar revenues, the district court erred in concluding that it is constitutionally prohibited.

If this court had desired to remove some but not all of the three barriers raised by the trial court to tax base consolidation, it could easily have done so. Instead, this court unanimously concluded that Judge McCown had misinterpreted our prior silence with reference to all three constitutional provisions, not just one.

Unfortunately the majority’s commitment to our Constitution yielded as the pressure of external forces intensified. See Opinion on Motion for Rehearing (Edgewood Two Minus or Edgewood 7/-),¹⁵ 804 S.W.2d at 502 (Doggett, J., concurring) and 804 S.W.2d at 507 (Appendix A). Engaging in a “conscious manipulation,” the majority improperly utilized an unrelated motion for rehearing to issue an advisory opinion. Id. at 506. “[Rjacing to publish this opinion before the other branches provide[d] their own solution,” the majority sought to guide the legislative process,¹⁶ “to legislate rather than adjudicate.” Id.

The opinion on rehearing addressed whether statewide recapture of local taxes was permitted under article VIII, section 1-e of the Texas Constitution:

Our Constitution clearly recognizes the distinction between state and local tax-es_ Tex. Const, art VII, § 1-e, prohibits the Legislature from merely re-characterizing a local property tax as a “state tax.” _ These constitutional provisions mandate that local tax revenue is not subject to state-wide recapture.

Id. at 499 (emphasis added). The majority nonetheless offered a ringing endorsement of local recapture in the form of tax base consolidation:

Focusing on the Legislature’s power to create school districts and define their taxing authority ... consistent with Love and contrary to the district court’s suggestion, tax base consolidation could be achieved through the creation of new school districts_given the authority to generate local property tax revenue for all of the other school districts within their boundaries.

Id. (emphasis added). It further dispensed the unsolicited advice that:

[T]he Legislature ... may, so long as efficiency is maintained, authorize local school districts to supplement their educational resources if local property owners approve¹⁷ an additional local property tax.

Id. at 500 (footnote added).

In short, the majority’s message to the Legislature concerning constitutionally permissible action was:

1. You have independent power to define the taxing authority of school districts;

2. Statewide recapture of local taxes is prohibited;

8. Property tax revenue may, consistent with the constraints of the Texas Constitution, be recaptured locally— through redistribution among school districts — so long as this is confined within the boundaries of the new school districts that are superimposed upon existing districts;

4. Within reasonable limits, districts may supplement or enrich their educational resources with approval of additional taxes by local voters.

As the majority envisioned, the Legislature attempted to draw the precise type of reorganization recommended. Nor is it surprising that, after diligent study of these prior writings, three Texas trial judges found the tax authorized by Senate Bill 351 constitutional, with Judge McCown concluding specifically that “the Supreme Court has already approved tax-base consolidation.” ¹⁸ No one has been able to explain how the CEDs created by Senate Bill 351 differ in the slightest from the “new school districts ... given the authority to generate local property tax revenues for all other school districts within their boundaries,” as specified in Edgewood II-, 804 S.W.2d at 499. Virtually mirroring the majority’s directions, Senate Bill 351 provides:

Each county education district is an independent school district established by the consolidation of the local school districts in its boundaries for the limited purpose of exercising a portion of the taxing power previously authorized by the voters in those school districts .md of distributing revenue of the county education district to those districts.

Tex.Educ.Code § 20.942. After following the majority’s road map, the Legislature is now told it has come to a dead end.

The majority responds to this situation with contradiction and excuses. First, we are told that the decision reached today could not have been “foreshadowed” or suggested beforehand. Op. at 518. Indeed, the majority is correct in this particular, since today’s decision adopts a view directly opposite of that announced previously. But then the majority claims that the vote requirement had been “obviously contemplated” in its earlier writing. Id. at 520 & n. 37. Surely these two conflicting propositions cannot co-exist.

Let us examine how the majority made its prior declaration so “obvious” that it should have been understood immediately by any ordinary person. In short, it is claimed “obvious” for two reasons: (1) the content of the fourteenth footnote to Edge-wood II and (2) certain language to which the court never referred in one of the many authorities it cited.

Assuming a magnifying glass was employed to study the fine print of the footnote, the reader would learn only that the “constitutional grant of powers does not specify the details of statutory implementation [and that accordingly] a number of alternatives are available to the Legislature.” 804 S.W.2d at 497 n. 14. This language demonstrates an understanding that the Legislature enjoys a broad range of options. “One such method,” mentioned by way of example, “allows voters to create an additional countywide school district.” Id. This was certainly not the only constitutionally permissible course, nor does this example suggest that this or any other choice would require a voting prerequisite. Moreover, the text explicitly referred to Tex.Educ.Code § 16.001(d), a statute that contained no additional voting prerequisite to “redefining the tax base.” If this court had desired an election precondition for all constitutionally allowable tax base consolidation, it could have said so clearly and unequivocally. Moreover, not even this single, indirect footnote reference to voting was employed by the majority in its Edgewood II- opinion.

The second excuse is even more peculiar. Previously uncited language is now relied upon from Love v. City of Dallas, 120 Tex. 351, 372, 40 S.W.2d 20, 29-30 (1931), suggesting a vote of the people of one district is necessary before using their “funds and properties for the education of scholastics from another district.” This 1931 opinion was issued several decades before the people of Texas amended the Constitution by adding the current language of article VII, section 3-b in 1966, as discussed in section III, infra. Perhaps even more importantly, a significant objective of the court’s writing about Love in Edgewood II was to correct the mistaken impression that it presented an obstacle to tax base consolidation. We held unanimously and unequivocally that it presented no such barrier. Edgewood II, 804 S.W.2d at 497-98.

Neither a magnifying glass nor a glass of another type — a crystal ball — would have revealed that the reference to Love in Edgewood II-, without discussion of any voting requirement, meant a vote was necessary. In Edgewood II-, the majority did find a way to make its views on voting known: it wrote what it wanted the reader to know. It did not mystically communicate that a vote was required through some obscure reference to an ambiguous footnote or to uncited language in an outdated opinion. There is but one mention of a voting requirement in Edgewood II- Describing the circumstances under which further voter action would be mandated, it said plainly that the voters must be consulted if a local district wished to supplement its resources. Although indicating that the Legislature was constitutionally empowered to implement tax base consolidation, the majority did not indicate, in any way, an election precondition. Rather it directly resolved this matter in the negative.

Having charted the legislative course through the murky waters of Texas constitutional law, it is no minor matter that the majority now claims its map failed to detail the sharp rocks and swift current near the shore. The essence of the peculiar position now adopted is that by formerly providing guidelines for tax base consolidation without saying that a vote was unnecessary, the majority, upon further reflection, finds that it is necessary.

Disavowing paternity of the CED offspring of its prior writing, the majority tries vainly to shift the blame to the Legislature. In doing so, it exercises extreme caution in an attempt to protect itself on another front¹⁹ by professing the “good faith” of the Legislature in enacting Senate Bill 351. Maj. Op. at 493. Once again contradicting itself, the majority then paints a picture of the conference committee chairman, as ringleader, urging the Legislature to confront the court by embarking on the audacious course of implementing tax base consolidation pursuant to this court’s writings. Id. at 493. This attack on the Chairman, Senator Carl Parker, is both nasty and unfounded.²⁰ It also makes clear that despite lip service to the contrary, the majority truly feels that the Legislature acted in bad faith.

The Senator’s comments are misconstrued to create the false impression that the Legislature purposefully disregarded a vote requirement for CEDs in Senate Bill 351 because of fear of voter disapproval. Id. at 493. In fact, his remarks concerned a different alternative — full consolidation of all functions of school districts, described in the transcript as “true consolidation” — that was rejected by the Legislature as unacceptable to the public.²¹ In a further unfair attack, the majority quotes the chairman’s comments on statewide recapture, id. at 493 made prior to its pronouncements on this issue in Edgewood II- After that advice was received, his views were changed, as evidenced by his assessment at the later conference committee hearings. Similarly, the chairman’s question regarding any future state tax challenge has been wrongfully distorted by the majority into a statement. Upon receiving a response to this query from a witness who supported the legislation as constitutional, Senator Parker stated: “I tend to agree with you about that.”²²

Particularly revealing is the majority’s excerpt from the conference committee testimony of an unnamed assistant attorney general that

you can steal the authorization [from existing school districts for CEDs] if you will under article VII, section 3-b, ... can we guarantee that this is gonna meet a constitutional challenge, the answer is, is no.

Id. at 513. This witness spoke neither anonymously nor briefly. He is none other than Kevin T. O’Hanlon, who, in argument to this court, had raised the very question of a vote as a prerequisite to tax base consolidation.²³ While any lawyer would be foolish to “guarantee” to a client anything about what this majority might do, Mr. O’Hanlon’s testimony indicates that Edgewood II- provided him the answer to the argument that he had previously advanced to this court. Set forth below,²⁴ his testimony provided the Legislature the advice of its lead counsel that Senate Bill 351 was both constitutional and directed by the majority’s prior writing.

Why does the majority go to such lengths to strain and misconstrue the public record? ²⁵ Because it is determined to shift responsibility for its own handiwork to anyone except itself. The majority cannot escape Edgewood II and II in which the only school financing alternative identified was consolidation — consolidation in whole or consolidation in part through tax base merger. Nor can its previous ruling be avoided by pointing to its disclaimer that only the Legislature could make the final choice of the type of consolidation to be adopted. Op. at 511. The people of Texas and their elected representatives had every reason to believe that the veto issue had been answered by the majority in Edge-wood II- The only change has been in the minds of the majority, as indicated by the doublespeak with which it unsuccessfully attempts to explain its own misdeed:

We did not say that tax base consolidation could not be unconstitutional; all we said was that it could be constitutional.

Id. at 512. The majority entrapped the Legislature, and now it blames the victim. Unfortunately, the children of Texas are the ultimate victims of this entrapment.

For them, the majority offers little hope. Implementation of the majority’s prior suggestion of tax base consolidation is made wholly dependent upon the benevolence of the advantaged to the disadvantaged. If happenstance has given two more populated districts within a county substantially more taxable property than their disadvantaged neighbor, the majority’s consolidation plan will work if the wealthy will simply vote to share with the poor. Criticizing the 188 CEDs as “requiring the taxpayers in one school district ... to fund the schools in other districts over which they have no control,” id. at 500, and “as forcing] taxpayers to pay for schools over which they have nothing to say,” id. at 510, the majority makes no attempt to conceal its disdain for its previous panacea. Today’s writing essentially implies that any citizen of a wealthy district would be almost foolish to vote to implement the preferred solution of the majority in Edge-wood //-. As Judge McCown correctly concluded:

A citizen in a rich district who votes against sharing can still draw on vast resources for his district’s schools. Such a voter has no incentive to vote to share.... [T]he rich districts [have an] advantage in defeating any local vote to consolidate_ The state cannot structure its system so that this right can be defeated by local election, particularly if the election is stacked in favor of property-rich districts.

Tr. at 722-723. Tragically, it is just such a “stacked” election — a veto, not a vote— that the majority has demanded.

The majority has been ever mindful of its duty to protect the rights of the most privileged among us. In Edgewood II- it was so carried away with this notion that it claimed the right to vote was limited to “local property owners.” 804 S.W.2d at 500. While most reflective of the truly elitist attitude of the majority, this requirement of property ownership as a qualification for voting long ago had been held an unconstitutional denial of equal protection. Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172 (1975). Now the virtue of the vote has been converted into a weapon to obstruct the very consolidation the majority previously recommended. Indeed, by rejecting tax base consolidation, the voters of even a single education district among the 188 CEDs can veto the state’s attempt to guarantee the equality required by the mandate of Edgewood I and Edgewood II.

III. Rewriting Article VII of the Texas Constitution

The Legislature may create, abolish or consolidate school districts without the consent of the trustees or the voters of the affected territory. Lee v. Leonard Indep. Sch. Dist, 24 S.W.2d 449, 450 (Tex.Civ.App.—Texarkana 1930, writ ref’d); see also Cowan v. Clay County Bd. of Educ., 41 S.W.2d 513, 516 (Tex.Civ.App.—Fort Worth 1931, writ ref’d). It has plenary power over school districts, which are “but subdivisions of the state government, organized for convenience in exercising the governmental function of establishing and maintaining public free schools for the benefit of the people.” Lee, 24 S.W.2d at 450.

In organizing school districts, the Legislature is not limited to setting boundaries on their total authority; instead, it may fix boundaries on the exercise of particular powers. As we stated in Edgewood II, 804 S.W.2d at 497:

Article VII of the Constitution accords the Legislature broad discretion to create school districts and define their taxing authority.

See also Love v. City of Dallas, 120 Tex. 351, 366, 40 S.W.2d 20, 26 (1931) (the Legislature may “increase or modify or abrogate” powers of school districts). Instead of imposing full consolidation of administrative and other functions, in Senate Bill 351 the Legislature chose the less intrusive approach of consolidating only a single taxing function, without disrupting the control over all other aspects of education exercised by local school boards. Those powers, including budgetary control, remained unaffected.

What is at issue is not the right of voters to approve school taxes, but rather how many times such approval must be obtained. Every penny of taxes the Legislature proposed to reallocate within the newly-created county education districts has been authorized by local voters. In reaching the result that another vote is required, the court ignores clear authority under the Constitution allowing the transfer of taxing authority from school districts to the CEDs without further voter approval. Indeed, in its desire to ensure a veto power for the privileged, the court ignores not just one, but two, previous tax approvals— the vote amending the Texas Constitution in 1966 and the vote setting the tax rate in individual districts.

Whether voters must approve taxes levied by the CEDs is a question answered by article VII, sections 3 and 3-b of the Texas Constitution. The majority’s analysis of the former provision represents a significant departure from traditional methods of constitutional interpretation. This court has repeatedly and recently stated that in construing our Constitution, “we rely heavily on the literal text.” Edgewood I, 777 S.W.2d at 394; Damon v. Cornett, 781 S.W.2d 597, 599 (Tex.1989). Article VII, section 3, a broad grant of power to create school districts, states that “the Legislature shall be authorized to pass laws for the assessment and collection of taxes in all said districts.” As the majority concedes, this provision was enacted in 1909 as a separate sentence, unconditioned by any voting requirement: “The more plausible ... construction is that clause four [imposing the voting requirement] applied only to clause three [and not to the 1909 amendment].” Op. at 505 n. 18. To have its way, the majority does the implausible by reading out of the Texas Constitution words that permit the Legislature to do precisely what it did in Senate Bill 351. It rejects reliance on the literal text as the first rule of constitutional interpretation with the deceptive nonexplanation that it declines “to rest [its] construction of the provision on its grammar.” Id.

A second cardinal rule of construction cast aside today is that absent a prohibition or limitation in the Texas Constitution, the Legislature is fully empowered to act. Shepherd v. San Jacinto Junior College Dist., 363 S.W.2d 742, 743 (Tex.1962); see also Mumme v. Marrs, 120 Tex. 383, 391-92, 40 S.W.2d 31, 33-34 (1931). Finding no explicit limitation, grammatically or defini-tionally, the majority invents a new one, purportedly to give effect “to all [of the Constitution’s] provisions if possible.” Op. at 506. While the court’s imposition of a voting requirement purportedly gives effect to part of section 3,²⁶ it renders superfluous the language of the 1909 amendment.

Previous noninvocation of this language by the Legislature is the next argument for which the majority grasps. Walker v. Baker, 145 Tex. 121,196 S.W.2d 324 (1946), the single authority upon which the majority relies, presented a very different situation. There the Legislature sought to imply a power — the ability to call itself into session — which was not specifically authorized by the Constitution. In contrast, Senate Bill 351 represents legislative invocation of authority expressly granted by the Constitution — the levy of taxes — which the majority takes away by implying a limitation on its exercise. That the 1909 amendment may have grown dusty from nonuse should not vitiate its vitality, or cause it to crumble from age upon this court’s touch. The makeshift reasoning employed today disserves the history of this court in analyzing the Texas Constitution with dignity and respect for its terms, and is insufficient to justify overriding the plain words of this fundamental governing document. Although not grounding this dissent on article VII, section 3, I find the reasoning of Judge McCown far more persuasive and constitutionally true than that proffered today. Tr. 726-38.

Even should article VII, section 3 require an authorization election, the majority recognizes that the “people may surrender their right to vote ... by amending that provision.” Op. at 507. The people have done precisely that. In November 1966, the voters amended the Texas Constitution to “facilitate the process of [school district] consolidation by eliminating the costly elections,” 2 George D. Braden et al., The Constitution of the State of Texas: An Annotated and Comparative Analysis 521 (1977) (hereinafter Braden), by providing that:

No tax for the maintenance of public free schools voted in any independent school district ... shall be abrogated, cancelled or invalidated by any change of any kind in the boundaries thereof. After any change in boundaries, the governing body of such district, without the necessity of an additional election, shall have the power to assess, levy and collect ad valorem taxes on all taxable property within the boundaries of the district as changed ... in the amount, at the rate, or not to exceed the rate, and in the manner authorized in the district prior to the change.... In those instances where the boundaries of any such independent school district are changed by the annexation or consolidation with one or more school districts, the taxes to be levied for the purposes hereinabove authorized may be in the amount or not to exceed the rate theretofore voted in the district having at the time of such change the greatest scholastic population according to the latest scholastic census ....

Tex. Const, art. VII, § 3-b.²⁷ The need for this amendment was manifest. In 1929 there were 7,840 school districts; in 1949, 4,474; and in 1969,1,244. 2 Braden at 521. These consolidations were largely designed to create school districts that were more fiscally and administratively efficient and to improve curricula. Id. (citing James Hankerson, Special Governmental Districts, 35 Tex.L.Rev. 1004 (1957)).²⁸ The difficulty presented was that, under Crabb v. Celeste Independent School District, 105 Tex. 194, 146 S.W. 528 (1912), no tax could be levied in altered districts without voter approval.

Section 3-b eliminated the requirement of subsequent elections, easing consolidation and other changes for school districts. “Section 3-b is essentially an exception to the requirement in Section 3 that the voters of a school district approve any taxes levied by the district.” 2 Braden at 521-22 (emphasis added). The Legislature relied upon the voter’s preauthorization of taxes set forth in article VII, section 3-b in creating CEDs empowered to levy taxes without requiring another vote.²⁹ Nonetheless, today’s opinion abruptly dismisses the applicability of this critical constitutional provision, by finding that Senate Bill 351 neither changes the boundaries of any school district nor consolidates whole school districts. In reaching this result, the court begins by overlooking the statute that created each CED as a new “independent school district established by the consolidation of the local school districts in its boundaries.” Tex.Educ.Code § 20.942 (emphasis added). There is no question but that the geographical boundaries of the taxing powers of all existing school districts have been altered substantially. While recognizing that Senate Bill 351 works a boundary change, the majority labels the boundaries of the 188 CEDs as “imaginary,” so it can ignore them. Op. at 508. These boundaries are no more or less real than those of any governmental unit, including the territorial limitations on school districts’ governing power. Both can be drawn on a map. Residents within these boundaries can be identified without difficulty. The CEDs are not the Legislature’s imaginary friend; everyone can see them but a majority of this court.

Equally perplexing is the court’s conclusion that Clinton Manges was right and this court was wrong when it decided Freer Municipal Independent School District v. Manges, 677 S.W.2d 488 (Tex.1984) (per curiam). There the court rejected an argument by Manges strikingly similar to the one it embraces today — that taxes could not be imposed by a newly-created school district without a vote. Manges owned property originally included in the Bena-vides Independent School District. The City of Freer, also part of the Benavides ISD, opted for disannexation and formed another district, wholly within the former. The Freer ISD then annexed additional territory, including the property owned by Manges. Having never voted to approve the creation of the Freer ISD, its expansion or its tax authorization, Manges refused to tender taxes to it.

This court upheld the levy and collection of the tax, stating that:

Article VII, section 3-b authorizes independent school districts to tax for school purposes in those instances in which the school district was formed wholly by disannexation from an existing school district that possessed the power to tax.

Id. at 490. This language applies to districts formed by the disannexation of the power to tax from school districts and thus authorizes the CED taxes. Just as the newly-created Freer district derived its power from the previously authorized power of the Benavides district, so do CEDs derive their power from existing school districts.

Consequently, we discover today that the writing in Manges, the only previous case to consider the question, is erroneous. It is wrong because “no part of that section addresses specifically the creation of new districts.” Op. at 509. This statement is incorrect, because section 3-b clearly applies to districts — such as CEDs — newly created through the consolidation of whole districts.

The majority then distinguishes Manges because the Freer district was formed by a change in the boundaries of the old Bena-vides district. Yet the CEDs are similarly formed by a change in boundaries in existing districts. Since the majority views the CEDs’ boundaries as “imaginary,” it is not surprising that it refuses to apply the court’s unequivocal decision in Manges to them.

Article VII, section 3-b also permits school districts formed by consolidation to tax without an authorization election. To skirt the consolidation issue, the majority must misrepresent the arguments of the parties. The conclusion that “Senate Bill 351, as appellees admit, does not consolidate whole school districts,” Op. at 509 (emphasis altered), contradicts their brief which clearly states that:

Each of the C.E.D.’s described in S.B. 351 is a consolidation of whole school districts.

Brief of Appellees State Defendants at 41. Moreover, the court fails to observe that no CED is geographically configured to include part of a school district; each encompasses only whole districts.

While conceding the legislative power to establish CEDs as school districts, Op. at 504, the majority refuses to treat these same CEDs as school districts for the purposes of article VII, section 3-b. Emphasizing that CEDs “perform no educational duties. They employ no teachers, provide no classrooms, and educate no children ...,” Op. at 498, the court finds Senate Bill 351 defective in failing to remove control over these functions from local school boards. The court thus rejects the less intrusive consolidation of Senate Bill 351 by requiring full consolidation under section 3-b. Asserting that tax base consolidation is as intrusive as full consolidation because it requires taxpayers to “share the cost of schools” within the CEDs, Op. at 510, the majority then transmutes this debatable proposition into constitutional mandate. Contrary to the majority’s reasoning, the Constitution does not distinguish between consolidations affecting all and those affecting only part of the prior district’s functions. While the Legislature may undoubtedly dictate full consolidation without a local vote, under today’s opinion it is precluded from choosing the less far-reaching alternative of tax base consolidation.

Applicable only to school districts, section 3-b is a unique, but quite narrow, exception to the requirement of voter approval. It ensures that the existing tax authorization cannot be enlarged by establishing a limit on the taxes imposed by the consolidated entities without a subsequent election. The newly-created CEDs, as consolidated entities, are constitutionally empowered to levy a tax not to exceed that already authorized by voters “in the district having at the time of such change the greatest scholastic population according to the latest scholastic census.” Tex. Const, art. VII, section 3-b.

In 1991, all of Texas’ school districts had voter authorization to levy a tax. The District Court and Edgewood III, supra note 18 at 33 n. 81. While it is argued that in some CEDs, the tax necessary to raise the local share may exceed this rate, either currently or at some unspecified future time as the required local share increases under Senate Bill 351, nothing in the record supports this conclusion. Judge McCown, in the suits pending before him, was petitioned to take judicial notice of the level of existing tax authorizations. Having concluded that the Legislature could, under article VII, section 3 of the Texas Constitution, empower the CEDs to tax, he determined it was unnecessary to consider this question, overruling the request to take judicial notice and deferring any factual hearing or determination. Tr. 793-94.³⁰ Since the records in the consolidated cases are also inconclusive,³¹ this court may not, in the absence of facts, presume an unconstitutional effect. See Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Tex.1990, orig. proceeding) (determination of whether statute as applied violates Constitution “requires a fully-developed factual record”).

Even were it shown to have a factual basis, this argument should not disrupt the application of Senate Bill 351. Instead, the tax rate used in those districts would be limited to that previously authorized by voters. A similar issue was presented in Harris County Flood Control District v. Mihelich, 525 S.W.2d 506 (Tex.1975), in which the district sought to void a judgment under the Texas Tort Claims Act, arguing that the Legislature was powerless to authorize a “tort claims tax” against it without approval of the voters. This court, in upholding the constitutionality of the enactment, concluded that:

The District contends that the Tort Claims Act is void in its entirety as to this District, because it violates that part of ... the Texas Constitution which prohibits the Legislature from providing for any indebtedness against a reclamation district unless such proposition shall first be submitted and adopted by the voters of the district. We think the Act can be reconciled with the Constitution.... Even if the collecting and taxing provisions are unconstitutional when applied to a conservation and reclamation district whose voters have not approved a maintenance and operations tax, it would not affect the remainder of the Act or forego its application to those districts whose voters have approved a tax from which such judgments can be paid.

Id. at 509; see also Brady, 795 S.W.2d at 715 (“Statutes are given a construction consistent with constitutional requirements, when possible_”). By limiting CED taxes to that previously authorized under article VII, section 3-b of the Texas Constitution, Senate Bill 351 can and should be upheld.

IV. The “statewide property tax prohibition”

Another barrier to reform asserted by the majority is article VIII, section 1-e of the Texas Constitution, which provides:

No state ad valorem taxes shall be levied upon any property within this State.

The court, parsing the words without reflecting on the circumstances in which they were adopted,³² erroneously suggests that the State may not impose upon local districts the obligation to fund education through a property tax levy. The prohibition against state ad valorem taxes represented the culmination of 34 years of constitutional amendments. An examination of the history of school finance during that period reflects an intent that ad valorem tax revenues be used for education. Neither the Legislature nor the people of Texas contemplated that the proposal would require a complete redistribution of authority between state government and its subdivisions. Henceforth any legislation requiring any county, school district or other entity financially dependent on ad valorem taxes to take some action is subject to being invalidated as requiring a statewide property tax.

In determining that Senate Bill 351 imposes an impermissible state ad valorem tax, the majority fails to accord the required presumption of constitutionality that even today’s opinion indicates is necessary. Op. at 503. See Texas Public Bldg. Auth. v. Mattox, 686 S.W.2d 924, 927 (Tex. 1985). That presumption is especially strong with respect to tax statutes, requiring a showing of a clear violation of a constitutional provision. Vinson v. Burgess, 773 S.W.2d 263, 266 (Tex.1989).

Judge McCown was one of three state district judges who properly accorded this presumption in determining that Senate Bill 351 does not impose an unconstitutional state ad valorem tax. His opinion set forth a thoughtfully developed test for distinguishing between a state tax and a local tax. The first element considers the manner in which the tax is collected and spent:

A state ad valorem tax is a tax by the state assessed according to the value of property, which goes into the treasury of the state, and is withdrawn by an appropriation of the Legislature. A local ad valorem tax is a tax by a local unit of government assessed according to the value of property, which goes into the treasury of the local government, and is withdrawn by an appropriation of the local government.

Tr. 738-39. The second element focuses on the nature of the purpose for which the tax is collected and spent; when both state and local functions are served, the tax is not an unconstitutional state ad valorem tax. Id. at 741-48.

The tax authorized by Senate Bill 351 is not assessed by the state, nor is it placed into the state treasury or appropriated by the Legislature. The levy is made by the CEDs, goes into the treasuries of the CEDs and is used to finance schools within the CEDs.³³ The tax rate is not predetermined by Senate Bill 351. Op. at 498. As the court recognizes, Senate Bill 351 as originally introduced was amended so that the act no longer “prescrib[ed] the rate itself.” Op. at 498 n. 10. The legislation does impose upon each CED the responsibility for raising a share of the cost of education in that district. That share is not a specified dollar amount, but rather is initially calculated as a percentage of its tax base equal to $0.72 per $100.00 of value, with adjustments in subsequent years. Tex. Educ.Code § 16.252. The tax rate is not $0.72. The amount of the levy will vary among CEDs depending upon collection rates and other factors unique to the district. Tr. 740.³⁴ The State thus does not impose the tax nor set the rate, but imposes a burden that can only be met by the local government's levy.

There is undoubtedly a superficial appeal to the argument that, by requiring school districts to levy a tax that the State cannot itself impose, the State has achieved indirectly what it cannot achieve directly. Whether Senate Bill 351 reflects the most prudent public policy alternative should not, however, be determinative of its constitutionality.

Absent from the majority’s analysis is any consideration of whether the CEDs’ levy serves a local purpose, a key factor in classifying the tax as state or local. Although claimed by some parties in this case to be purely a state function, education has undeniably significant local benefits and has traditionally been viewed as a joint responsibility shared by state and local governments. The Texas Constitution clearly permits the state to share the burden of financing education with localities and the power to determine most of the terms of that partnership.

Today’s invalidation of Senate Bill 351 is accomplished in a way that both contradicts precedent concerning inter-governmental relations and places in doubt the validity of numerous enactments far beyond the arena of school finance where the state has imposed duties upon its various subdivisions. Texas courts have not been receptive to the notion that the state’s imposition of a financial burden on local government unconstitutionally interferes with the power to tax. These challenges have been mounted under article VIII, section 9 of the Texas Constitution, granting to the counties the power to levy a tax, and setting the maximum chargeable rate. In Pogue v. Duncan, 770 S.W.2d 867, 869 (Tex.App.—Tyler 1989, writ denied), the court rejected the argument that a statute vesting district court judges with the authority to set compensation levels for county-paid court reporters constituted state impairment of the local government’s taxing powers. Accord Gill-Massar v. Dallas County, 781 S.W.2d 612, 617 (Tex.App.—Dallas 1989, no writ). The counties were thus obligated to pay an expense of the state district court, without any right of approval or control. Similarly, in Harris County v. Dowleam, 489 S.W.2d 140, 145 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n.r.e.), the court rejected a challenge to the constitutionality of the Texas Tort Claims Act as requiring a tax beyond the lawful rate set for the county. Cf. Vinson v. Burgess, 773 S.W.2d at 267 (holding constitutional state statute authorizing rollback elections).

Interpreting the only other state constitutional provision in the country to bar the levy of state ad valorem taxes,³⁵ the State of Florida has had the opportunity to explore its limits. Three times that state’s highest court has rejected reasoning similar to that adopted here by the majority. Not surprisingly, this extremely insightful experience of a sister state with a similar problem is relegated to a footnote in today’s opinion.

In Board of Public Instruction v. State Treasurer, 231 So.2d 1 (Fla.1970) (per cu-riam), it was argued that legislation imposing upon local school districts the duty to render financial assistance to junior colleges not under the control of the local board violated the constitutional prohibition of a state property tax. Identifying the determinative question as whether the ad valorem tax receipts were used to further a local purpose, the court held:

Plaintiff finally asserts that the whole legislative plan is to establish junior colleges as state institutions and to require their support by local ad valorem taxes thus circumventing the provision section 1 article VII which prohibits state ad valorem taxes. Junior colleges serve a state function. So do universities. So do the free public schools. Junior colleges also serve a distinctly local function. ... Ad valorem taxes levied by school districts for support of such institutions are local taxes levied for local purposes.

While the Legislature may not circumvent the prohibition of state ad valorem taxation by any scheme or device which requires local ad valorem taxes and then channels the proceeds into essentially state functions which are not also local functions, no such situation is here presented.

Id. at 4. In other words, the Florida Supreme Court, faced with a constitutional prohibition against statewide ad valorem taxes, upheld a state requirement that schools be funded by local property taxes.

Similarly, in St. Johns River Water Management District v. Deseret Ranches of Florida, Inc., 421 So.2d 1067, 1070-71 (Fla.1982), the court held that taxes levied by a local water district to further the state’s interest in water resource conservation did not constitute state ad valorem taxes. This case is unjustifiably distinguished on the basis that the Florida Constitution authorizes the creation of water districts with the power to levy ad valorem taxes. The majority fails to recognize that article VII, section 3 of the Texas Constitution accomplishes a similar purpose by authorizing the creation of school districts, including CEDs, with the power to levy ad valorem taxes.

In Sandegren v. State, 397 So.2d 657 (Fla.1981), Sarasota County challenged a statute requiring local government to fund a share of the cost of mental health services. The Supreme Court, finding that these services benefitted the local community, compelled the county to make payments due to health care providers:

Although local governing bodies are given the right to review, comment on, and approve plans drawn up by district mental health boards, this does not give them the right to refuse to fund mental health programs.... The judgment of a local governing body as to the necessity for such a program is not material when the legislature has declared those programs are necessary and that a share of the costs should be locally funded.... The funding of local programs, therefore, has been made a ministerial, rather than a discretionary, act and is enforceable through mandamus.

Id. at 659. Not only could it impose a financial burden without running afoul of the constitutional bar on state ad valorem taxes, but the state could also mandate payment, and remove the local government’s discretion to participate.

Rejecting both the analysis of Judge McCown and guidance provided by precedent under the Texas and Florida Constitutions, the court adopts an unworkable and unpredictable test that imperils the delicate balance of rights and responsibilities between our state and local governments. By leaving unclear the exact wrong committed by Senate Bill 351 and the means to correct it, the majority invites a multitude of similar challenges to existing laws that impose any financial burden on a unit of local government that is funded by ad valo-rem tax revenues.

One example of what could be numerous statutes having substantial fiscal impact on local government is the 1985 Indigent Health Care and Treatment Act, Tex. Health & Safety Code §§ 61.001-.065. That Act imposes upon counties the obligation to fund up to $30,000 in health care expenses for each indigent resident. Only after expending 10% of revenues generated from taxes is the county entitled to state funding. The effect on local property taxes has been documented:

[O]ver two-thirds of Texas counties have raised their effective tax rates to meet the new obligations. [In 1988], Cameron County spent $1.2 million on indigent health care and was reimbursed just under $500,000. The county has a $15 million general fund, and taxes had to be increased 13 percent to cover the program’s cost. Hidalgo County officials— who met their ten percent statutory cap within the first six months of fiscal year 1987 — estimate that they will be spending 15 percent of their total tax revenue on indigent care within two years.

R. Fritz, Texas Local Government Finance, in Select Committee on Tax Equity, Rethinking Texas Taxes 125 (1989) (emphasis added); see also Office of the State Auditor, Report on the Indigent Health Care System (1990).³⁶

In attempting to distinguish the Indigent Health Care Act, the majority leaves the misimpression that all counties have multiple sources of revenue available to meet the’ substantial obligation to fund health care for indigents. These sources are identified as “sales and use taxes, ... property taxes, reducing expenses, or some combination of these,” Op. at 502 n. 14, citing Tex.Health & Safety Code § 61.002(6), which, in fact, defines “general revenue levy” to consist solely of the property tax and any sales and use tax revenue received. Basically the majority is implying that the availability to counties of revenues other than ad valorem taxes differentiates the burden imposed by the Indigent Health Care Act from that of Senate Bill 351.

This facile distinction exhibits the court’s inability or unwillingness to understand the mechanics of local government finance. Although Texas now permits counties to impose sales and use taxes, that ability has significant limitations and, in certain instances, is barred completely. If any part of a county is located in a rapid transit authority or a regional transit authority, it may not adopt the tax. Tex.Tax Code § 323.101(b). Further, a county may not impose a tax if the combined rate of all sales and use taxes by other political subdivisions within the county exceeds two percent. Id. § 323.101(d). Thus, fewer than half of Texas counties have implemented these taxes. To name but a few, the counties of Bexar, Cameron, Collin, Dallas, Den-ton, Fort Bend, Galveston, Harris, Hidalgo, Montgomery, Nueces, Potter, Tarrant, Taylor, Travis, Wichita and Williamson collect no general sales and use taxes. Comptroller of Public Accounts, Texas Sales and Use Tax Rates (Jan. 1992).

Because counties do not receive as significant a contribution from state and federal sources, many are in fact more dependent on ad valorem taxes than school districts. See John Kennedy & Jeff Cole, The Property Tax in Texas, in Rethinking Texas Taxes at 321 (in 1986, “[cjounties relied most heavily on property tax reve-nues_”).³⁷ Additionally, most special districts in Texas, including junior college districts, fire prevention districts, water control districts and a host of others, have only the property tax available to fund their operations. See generally Tex.Prop. Code § 1.04(12). Under the test announced today, it is difficult to comprehend how any statutorily-mandated burden imposed on these entities would not deprive them of “meaningful discretion.” Op. at 502.

Regrettably there is little value in gaining a reasoned understanding of the majority’s test for which taxes are state and which are local, because they admit it is not a very useful test. The majority accepts the unpredictability of the application of today's decision, stating that “[i]t is difficult, perhaps impossible, to define ... precisely where along this continuum such taxes become state taxes,” Op. at 503. The Legislature is left to guess as to the manner of correcting its error:

Therefore, if the Legislature, in an effort to remedy Senate Bill 351 with as few changes as possible, chose to inject some additional element of leeway in the assessment of the CED tax, it is impossible to say in advance whether that element would remove the tax from the prohibition of article VIII, section 1-e.

Id. Unless willing to submit to the vagaries of this court’s decisionmaking process in Edgewood IV, V and so forth until it gets it “right,” the Legislature is advised by the majority to junk tax base consolidation and try something else: “The Legislature can avoid these constitutional conundra by choosing another path altogether.” Id. at 503.

In the majority’s opinion, what should be deference to the Legislature degenerates into thinly-veiled contempt. Its colorful analogies charge the legislative branch with intentional obstruction of the school finance process. Describing the CEDs as “puppets,” it accuses “the State [of] pulling all the strings.” Id. at 501. We are also informed that the court's unhelpful test for distinguishing between state and local taxes produces a conundrum, but it is one the Legislature has created. Id. at 503. (“Although [the court’s] parsing the differences may be likened to dancing on the head of the pin, it is the Legislature which has created the pin, summoned the dancers, and called the tune.”). After now refusing to say what form of CED would pass constitutional muster, the majority blames the Legislature for daring to ask. This diatribe of disdain is designed to camouflage the majority’s role as manipulator of the legislative process. See supra note 16 and accompanying text.

The uncertainty injected into the distribution of authority between state and local government by today’s opinion is all the more objectionable in that it is based on a most incomplete analysis of our Constitution. In tracking constitutional developments beginning in 1948 and culminating in 1982 with abolition of state ad valorem taxes, the court fails to note that the shift away from a state property tax and the increased reliance on local taxes to finance public schools have not developed independently. As dependence on state property taxes declined over these 34 years, local funding of education increased proportionately. Even before voters had passed the first of several amendments commencing the slow death of the state property tax, the Gilmer-Aikin Education Committee had convened to evaluate public education. Confronting a crisis strikingly similar to the present, it realized the need for action to fulfill the Legislature’s constitutional obligation to provide “an efficient system of public free schools.” Gilmer-Aikin Commission, Finance Subcommittee, Financing Public Education in Texas: A Proposed Plan 2 (1948) (hereinafter Financing Public Education).

With the prohibition of the use of the statewide property tax for general revenue purposes, simultaneously, the committee envisioned that school funding would be achieved through the use of local property taxes. The Gilmer-Aikin Committee, To Have What We Must 15 (1948) (“Every local system in Texas should be required to raise some local funds for education....”) (emphasis added); see also Rae Stills, The Gilmer-Aikin Bills 8 (1950) (“In order to obtain state aid, it is necessary for the district to levy a tax which will raise the funds assigned to it by the formula.”) and 60-61 (legislation would require some districts to raise tax rates). Furthermore, school financing would be equalized by distributing the wealth, derived from local property taxes, throughout the county. James Taylor, Texas Moves Forward in Education, in Rae Stills, The Gilmer-Aikin Bills 167 (1950).

The committee’s plan created a partnership between state and local governments.³⁸ The state would provide funds to all schools on a per capita basis and establish minimum standards of education. The local districts had imposed upon them the burden of raising their share of school funds through local property taxes and the responsibility of meeting the minimum standards set by the program because “it is important that local communities make a direct contribution to the cost of education.” Financing Public Education at 10. In order to finance the Minimum Foundation Program, the committee relied upon local property taxes because the exercise of local initiative and local effort were viewed as essential in any finance plan. See James Taylor, Texas Moves Forward in Education, supra, at 167 (1950).

The constitutional amendments limiting the levy of a state ad valorem tax were adopted within this framework, to permit increased reliance on the local tax to fund education. See Texas Comm’n on State and Local Tax Policy, The State Property Tax 11 (Dec. 1962). Surely it was not the objective of the voters of Texas and the Legislature to render unconstitutional school funding laws enacted contemporaneously with the first step toward eliminating the state ad valorem tax.³⁹ In construing the language of the Texas Constitution, we must look to “the history of the times out of which it grew and to which it may be rationally supposed to have direct relationship, the evils intended to be remedied and the good to be accomplished.” Edgewood I, 777 S.W.2d at 394 (quoting Markowsky v. Newman, 134 Tex. 440, 136 S.W.2d 808, 813 (1940)). The meaning of the literal text is derived with the “understanding that the Constitution was ratified to function as an organic document to govern society and institutions as they evolve through time.” Edgewood I, 777 S.W.2d at 394. The historical context of article VIII, section 1-e, highlighting the interplay between school funding and state taxes, supports the conclusion reached by the three trial courts below — that Senate Bill 351 does not impose an unconstitutional tax.

V. Taxpayer, Pay Thy Unconstitutional Taxes

Unwilling to live with the legal consequences of its own improper action, the majority weaves a more tangled web by adopting a new rule: convenience dictates that taxpayers must pay the tax which this court just declared unconstitutional. The majority attempts to justify its refusal to enforce the law by invoking “equity.” This incantation is of little consolation to Texas taxpayers who bear the inequity of being forced to pay an illegal tax, a burden even the majority describes as “very onerous, indeed.” Op. at 521. Those taxpayers of Mitchell and Glen Rose Counties that brought this suit are now rewarded for their efforts and expense with the pronouncement that they win, that from the outset they have been absolutely correct, that the tax complained of violates the fundamental charter of this state, but, nevertheless, “keep paying.”⁴⁰ How “disingenuous” of the majority to suggest that it is this dissent which lacks “sympathy for taxpayers.” Op. at 521 n. 38. The majority’s assurance that they “do not leave the parties before us unaffected” but rather “only limit [their] relief,” Op. at 521, represents an incredible understatement. The prevailing taxpayers have been denied any relief for a two year period.⁴¹ The majority is more than willing to inflict this wholesale injury ⁴² in order to avoid the unhappy results of their maneuvering. Despite blus-terings to the contrary, today’s rejection of a refund for taxpayers is not so much to avoid chaos in school financing as to distract attention from the broken promise of Edgewood II- By declaring the law they recommended unconstitutional yet refusing to enforce that declaration, the majority denies responsibility and diffuses resentment for having created the crisis in the first place.

In the name of avoiding its self-inflicted chaos, the majority has in fact only prolonged and intensified it. Inviting collateral attacks in federal court, the majority may offer only a brief respite before the state sinks into the quagmire of federal law.

One of the stranger responses of the majority is the accusation that this dissent is involved in mere “word tricks.” Op. at 507. In fact, a very genuine “word trick” lies at the heart of the majority’s mishandling of this appeal. All of our prior rulings⁴³ have considered challenges to the constitutionality of the school finance system; today’s ruling for the first time considers the constitutionality of a school finance tax. Proclaiming to be “constrained by the arguments raised by the parties to address only issues of school finance,” id. at 524, the majority carefully disregards the fact that the parties have only objected to a school finance tax. The constitutionality of the school finance system is still pending before Judge McCown.

That today’s judgment is instead directed to the system and not to the tax is no mere drafting error. Rather it is indispensable to the illusion created by the majority that its opinion amounts to more than a simple declaration that the victorious taxpayers must continue to pay a tax which has been held unconstitutional. This calculated jumble of terms is designed to justify the majority’s incredible decision to declare the petitioning taxpayers as winners but deny them their winnings.

Misconstruing this tax appeal as a system appeal conveniently allows today’s opinion to:

conclude, as we have in both those prior school funding decisions, that the constitutional defects we have found pertain not to individual statutory provisions but to the scheme as a whole. It is the system that is invalid, and not merely a few of its components.

Op. at 515. At the same time this appeal is treated precisely like Edgewood I and II, which concerned the entire “scheme as a whole” for financing schools in Texas, id., the court recognizes the differing nature of this appeal, which concerns “a few of [the] components” of the system, specifically the CED tax. Id. at 515. Brushing the latter realization aside, the majority insists that not giving retroactive effect to the present tax ruling is consistent with action taken on the system invalidations in Edgewood I, II and II-, which “could not be given retroactive effect because the past could not be corrected.” Id. at 515. Today’s wholly unwarranted delay then incomprehensibly becomes a mere parallel of the delays in Edgewood I and II and in opinions of “[ojther courts which have required revisions in their state’s school finance laws.” Op. at 522. Revision in the system is not mandated today, except for a change in one tax. The reason for this confusion is simple: if the court’s remedy were limited to the requested relief — to enjoining an unconstitutional tax — there would be no excuse for denying a tax refund.

“[D]efer[ing] the effect of [its] ruling,” Op. at 522, the majority compels taxpayers to continue paying an illegal tax even in 1992. Given the holding that the state may collect “1991 and 1992 CED taxes” under Senate Bill 351, no Texas property owner who paid the unconstitutional levy for tax year 1991, even under protest, before January 31, 1992, when 1991 taxes are due, will ever be entitled to a refund. Only in 1993 will today’s dormant opinion spring to life, making the illegal tax at last officially un-collectible and unenforceable. This prospective application of the court’s ruling is contrary to the very basis of the doctrine of prospectivity, which requires that a rule begins to apply as of the time of decision. As the United States Supreme Court recently explained: “It is, of course, a fundamental tenet of our retroactivity doctrine that the prospective application of a new principle of law begins on the date of the decision announcing the principle.” American Trucking Ass’ns v. Smith, 496 U.S. 167, 110 S.Ct. 2323, 2335, 110 L.Ed.2d 148 (1990) (plurality opinion). Since today’s opinion declares that the rule shall apply only at some future date, it is questionable whether the doctrines of retroactivity and prospectivity on which the majority dwells are controlling. Today’s amazing ruling is not prospective, it is unprecedented “prospective-plus.”

The decision to apply a rule to the litigants before the court beginning at least a year in the future renders today’s ruling an advisory opinion. Invalidating an enactment in Wessely Energy Corp. v. Jennings, 736 S.W.2d 624 (Tex.1987), we noted that to declare that statute unconstitutional “and then not apply the holding here would transform our pronouncement into mere advice.” Id. at 628. Although not previously slowed in its writing on school finance by this prohibition against advisory opinions, see Edgewood II-, 804 S.W.2d at 503-05 (Doggett, J., concurring), the majority should not again compound its error. The majority contends only that “[i]n some respects ... every prospective decision is advisory,” and that this court and “every other jurisdiction” apply some decisions prospectively. Op. at 521. These generalities utterly beg the question. That pros-pectivity may be appropriate in some circumstances certainly does not explain its unprecedented use in the unique context of tax law. Nor does it indicate that this opinion is not only prospective, but prospective as of two years in the future. Neither this nor other jurisdictions typically apply such prospectivity-plus.⁴⁴

While inviting chaos, the majority has also ensured inequity, not only for the school children of Texas, but also for the taxpayers. It is well-established that when a tax statute is ruled unconstitutional, relief applies retroactively. In this unique context, retroactivity allows taxpayers to seek a refund of their illegally collected taxes. This court has never allowed an unconstitutional tax to be collected without permitting the taxpayers to seek a retroactive refund.

When declaring a state franchise tax unconstitutional, this court required a complete refund to all corporate taxpayers, despite the potentially extensive reimbursements required for every affected party during a ten-year period. National Biscuit Co. v. State, 134 Tex. 293, 135 S.W.2d 687, 695 (1940). In considering the effect of a previously invalidated state statute taxing citrus fruit packed or processed pri- or to sale, we mandated the refund of all the unconstitutional taxes paid, despite the possibility that some of what had been collected had already been expended. State v. Akin Prods. Co., 155 Tex. 348, 286 S.W.2d 110, 112 (1956); see also Harris County Water Control & Improvement Dist. v. Homberger, 601 S.W.2d 66, 68 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref d n.r.e.) (requiring a full refund of an unconstitutionally collected tax). Until now, it has always been the law in Texas that when the tax collecting entity “received from the [taxpayers] money to which it now appears it was not entitled ... it would not be just for the [entity] to continue to retain the money.” Crow v. City of Corpus Christi, 209 S.W.2d 922, 925 (Tex.1948). Any other result condoning the state’s refusal to pay back money it collected illegally simply “would be against good conscience.” Id.⁴⁵

Only when an illegal tax has been paid voluntarily may there be no claim for repayment. National Biscuit Co., 135 S.W.2d at 692. This “voluntary payment rule” will not, however, bar an action for recoupment where there has been “express or implied duress” motivating payment of the tax. Id.; Texas Nat’l Bank v. Harris County, 765 S.W.2d 823, 824-25 (Tex.Civ. App.—Houston [14th Dist.] 1988, writ denied).⁴⁶ When there has been such duress, the taxpayer can later seek a refund even if the tax was not explicitly paid “under protest.” Crow, 209 S.W.2d at 924.

Having announced to the taxpayers of Texas that this tax is illegal but must be paid to avoid statutory penalties, this court creates a situation in which everyone is paying under implied duress, yet no one gets a refund. The majority announces that for taxpayers who, awaiting this court’s tardy opinion still have not paid, its “ruling is not to be used as a defense to the payment of any such taxes,” Op. at 522, meaning that the state is not precluded from pursuing delinquent tax suits. The penalties for non-payment of these taxes range from monetary fines to seizure and sale of property.⁴⁷ In other words, “either pay this illegal tax or pay even more in fines and have your property seized.” In Akin Prods. Co., 286 S.W.2d at 111, this court found that duress may be shown when payment is made to avoid accrual of penalties and interest on unpaid taxes. Again in Highland Church of Christ v. Powell, 640 S.W.2d 235 (Tex.1982), this court found that tax payments to avoid penalties and interest were made under duress. Id. at 237. Accord Fort Bend Indep. Sch. Dist. v. Weiss, 570 S.W.2d 241 (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ) (taxpayer is entitled to an injunction against illegal collection of taxes if liable in penalties and interest for non-payment); City of San Antonio v. Grayburg Oil Co., 259 S.W. 985 (Tex.Civ.App.—San Antonio 1924, no writ). “Texas Courts [have consistently held] that where a legislative act by its terms provides for penalty and interest on taxes (as is the case for ad valorem taxes), the taxpayer may pay the taxes and recover them back if the tax is illegal....” City of Houston v. Standard-Triumph Motor Co., 347 F.2d 194, 199 (5th Cir.), cert. denied, 382 U.S. 974, 86 S.Ct. 539, 15 L.Ed.2d 466 (1965) (emphasis added).⁴⁸

This line of Texas tax cases is wholly ignored by the majority in favor of a number of non-tax opinions. Even then, the majority must concede that “[generally, judicial decisions apply retroactively.” Op. at 515. See Bums v. Thomas, 786 S.W.2d 266, 267 n. 1 (Tex.1990) (“[T]he general rule is that a decision of this court is retrospective in operation.”).

Who knows what law the majority is applying to reach its predetermined result of abandoning the well established Texas rule.⁴⁹ Surely its claim that this court has never “clearly articulated the factors which bear upon [prospectivity] decisions,” id. at 518, conflicts rather dramatically with our recent announcement of just such factors in Wessely Energy Corp. v. Jennings, 736 S.W.2d 624 (Tex.1987):

To determine whether, and to what extent, a judicially modified rule will apply retroactively, a court should determine (1) whether the holding decided an issue of first impression not clearly foreshadowed by prior decisions; (2) whether retroactive operation will further or retard the holding in question; and (3) whether a retroactive application could produce substantial inequitable results.

Id. at 628. While that case did cite Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), it clearly set forth a Texas interpretation of the factors that a Texas court should consider when determining retroactivity questions. See also Segrest v. Segrest, 649 S.W.2d 610, 612 (Tex.), cert. denied, 464 U.S. 894, 104 S.Ct. 242, 78 L.Ed.2d 232 (1983). Among the significant differences in this prior writing from the version of the three-part Chevron Oil test set out by the majority at Op. at 520-521, are: addition of the requirement that a holding must not have been clearly foreshadowed “by prior opinions; ” a requirement that the retroactive application not retard “the holding” in question rather than the underlying “rule”; and the qualification that any inequitable result be truly “substantial.” Compare Chevron Oil, 404 U.S. at 106-07, 92 S.Ct. at 355-56, with Wessely, 736 S.W.2d at 628.⁵⁰ The obvious reason for rejecting this court’s own interpretation of Chevron Oil is that the majority cannot meet that standard, and therefore must today weaken it. Instead of acknowledging the Texas standard, the majority searches through the unique interpretations of Chevron Oil in dozens of sister states. Op. at 519 n. 35.

Apparently not satisfied with the law of other states, the majority selectively turns to a number of lower federal courts which have to varying degrees focused on the first and third factors of the three-part test. Op. at 519.⁵¹ It actually should be irrelevant how, for instance, a federal district court in Washington, D.C. chooses among the three requirements of Chevron Oil, Op. at n. 36 (citing Silverman v. Barry, 845 F.2d 1072 (D.C.Cir.1988)), when Texas has consistently required that all three be met. Wessely, 736 S.W.2d at 628-29; Segrest, 649 S.W.2d at 612-13; First Bank v. Deer Park Indep. Sch. Dist., 770 S.W.2d 849, 851 (Tex.App.—Texarkana 1989, writ denied).⁵² Indeed, the signatory of today’s opinion, Justice Gonzalez, recently emphasized the indispensable nature of the first part of the Texas test in Reagan v. Vaughn, 804 S.W.2d 463 (Tex.1990): prospective application is appropriate only when “the court’s decision establishes a new principle of law that either overrules clear past precedent on which litigants may have relied or decides an issue of first impression whose resolution was not clearly foreshadowed.” Id. at 467-68.⁵³ Nevertheless, the majority explains at length that the three factors set out in Chevron Oil should be balanced. Op. at n. 36. It is difficult to escape the conclusion that the majority is simply making law up as it goes, here and there grabbing an odd mix of federal law and precedent from other states. This dissent chooses instead to rely on established and relevant Texas case-law.⁵⁴

But even if other jurisdictions are considered, the general rule throughout this country is similar to that of Texas — an “unconstitutional act is not a law; it confers no rights; it imposes no duties ...; it is, in legal contemplation, as inoperative as though it had never passed.” Norton v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, 1125, 30 L.Ed. 178 (1886); see Clifford L. Pannam, The Recovery of Unconstitutional Taxes in Australia and the United States, 42 Tex.L.Rev. 777, 795 n. 74 (1964) (“Judges in the United States have vied with one another in describing the utterness of the nullity that they believe an unconstitutional statute to be.”); Note, Limitation of Judicial Decisions to Prospective Operation, 46 Iowa L.Rev. 600, 617 (1961) (“As a general rule judicial decisions operate retroactively as well as prospectively.”).

Nor with rare exception have the courts of other states applied a prospective ruling of an illegal tax in the manner of the majority. Normally when other states utilize prospectivity in a tax context, the ruling applies immediately rather than at some future date.⁵⁵ Taxes not yet collected need not be paid;⁵⁶ the ruling is applied at least to the litigants before the court to allow complete relief from an illegal tax;⁵⁷ a refund is permissible for anyone who had already brought a suit or paid under protest; ⁵⁸ and a refund is refused only when parties fail to act timely,⁵⁹ the tax had been collected for many years,⁶⁰ or the tax is not capable of being neatly and accurately refunded.⁶¹ These distinguishing factors demonstrate the absence of support for applying today’s decision to deny a refund even to the successful litigants in this suit.

Eagerly seeking refuge in federal law, the majority mistakenly assumes that there has been no recent evolution of that law, and neglects to consider precedents which appear to disfavor or even doom this approach. In fact, federal law offers more unrest than refuge, as evidenced by the majority’s reliance on a source appropriately entitled “Confusion in Federal Courts.” Op. at 519 n. 36.

A review of Chevron Oil shows that the majority has failed to satisfy the critical first prerequisite expressed in the federal test:

First the decision to be applied nonretro-actively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ..., or by deciding an issue of first impression whose resolution was not clearly foreshadowed....

Chevron Oil, 404 U.S. at 106, 92 S.Ct. at 355 (citations omitted) (emphasis added). The major thrust of this first requirement is that the change in law cannot have been foreshadowed. Put another way, a rule of law will not be applied prospectively when it is “predictable” that the rule would be announced. Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv.L.Rev. 1733, 1794 (1991) (hereinafter Fallon & Meltzer).

When the Legislature follows established precedent which is later overruled, the first part of the Chevron Oil test is met. American Trucking, 110 S.Ct. at 2326, 2334. The logic behind this rule is again a respect for stare decisis: announcements of law should be adhered to except where that law is so new and unpredictable that its application would be unjust. To warrant prospectivity, a new rule of law must be downright “revolutionary.” Ashland Oil, Inc. v. Caryl, 497 U.S. 916, 110 S.Ct. 3202, 3205, 111 L.Ed.2d 734 (1990) (per curiam). See also Fallon & Meltzer at 1755 (concluding that under American Trucking, “a rule of law [is] sufficiently new to trigger nonretroactivity analysis only when it marks a ‘clear break’ with settled authority.”). The rulings of the United States Supreme Court indicate that this is particularly true in the tax context. See id. at 1831.

But today’s opinion claims that the law is and always has been that a tax of the sort imposed by Senate Bill 351 is unconstitutional, and denies any contrary holding in Edgewood II- This assertion is completely inconsistent with meeting the Chevron Oil test. Under its own theory, the court neither overturns any precedent nor establishes any remotely new rule of law. The majority is thus trapped in an internal inconsistency. Their concession that the Legislature acted “in good faith,” Op. at 493, assumes a legislative belief in the constitutionality of Senate Bill 351. Yet the majority also argues that Senate Bill 351 is unquestionably unconstitutional, and goes to great pains to note that the Legislature was aware of the problems with tax base consolidation before it enacted Senate Bill 351, as evidenced in the comments of the chairman of the conference committee. Id. at 513. While claiming that “today’s opinion involves issues of first impression,” id. at 520, the majority unhesitatingly concludes that the type of tax enacted in Senate Bill 351 is undoubtedly illegal, in part because enacted without the voter approval “obviously contemplated” by the writing in Edgewood II- Id. at 512 & 520 n. 37. How could the Legislature have acted in good faith in adopting a law which is so obviously illegal? ⁶² Certainly, under the majority’s own theory, it should have been clearly foreshadowed that Senate Bill 351 was unconstitutional. When there has been no truly new declaration of law and a holding is predictable, neither the first prong of the Chevron Oil test nor the standards established by this court in Wessely and Reagan can be met.⁶³ To deny the taxpayer’s claims, today’s decision would have to be not only a case of first impression, but also one whose result was not even remotely foreseeable. See Ash-land Oil, 110 S.Ct. at 3205. Only by contradicting itself can the majority attempt to justify the unjustifiable refusal of relief to the taxpayers in this case.⁶⁴

It is impossible to square today’s approach with that undertaken by this court only weeks ago in Caller-Times Publishing Co. v. Triad Communications, Inc., 35 Tex.Sup.Ct.J. 114 (Tex. Nov. 13, 1991).^* That case represented this court’s first interpretation of the Texas Free Enterprise and Antitrust Act of 1983. Tex.Bus. & Com.Code §§ 15.01-15.51. Despite acknowledging that “this [was] a case of “first impression” in Texas,” the majority applied its new rule of law purely retroactively, even denying a remand to retry the case under a newly announced standard, because its decision allegedly did “not reflect an unpredictable change in the law.” This was so even though the exact form and even much of the content of the new standard had never been applied before by any state or federal court. See id. at 601 (Doggett, J., dissenting).⁶⁵ If the unlikely outcome of that case of first impression could be predictable, certainly today’s decision, which is purported to be an obvious application of the State Constitution, is also predictable. The only way to rectify these two cases is in their identical result: relief was denied in both cases to the parties seeking relief.

Now the majority tells us that despite our crystal clear writing in Edgewood II-, and the supposedly well-established law of Love v. City of Dallas, the rule was a little unsettled — that despite the alleged determination of the Legislature to flout this court, these misguided officials must have been acting in “good faith.” The majority is willing to use any magic words to create the impression that it need not now apply a decision that is solely the product of its own misdeed. Because today’s opinion insists that the Legislature should have known that Senate Bill 351 would be unconstitutional, the holding should, under Texas law, be applied retroactively.

In addition to these “first prong” problems, there is a deficiency regarding the second requirement of Chevron Oil, that the purpose of the constitutional provision involved be retarded by retroactivity. Chevron Oil, 404 U.S. at 106-07, 92 S.Ct. at 355-56. The majority first attempts to escape this part of the test by citing non-Texas cases which have put more stress on the first and third prerequisites. Op. at 519 n. 36. But this second prerequisite cannot so easily be wished away, as seemingly conceded by the majority’s hurried attempt to show its satisfaction:

There is no need to attempt a detailed analysis of all the purposes served by the constitutional provisions at issue here.... Suffice it to say that the effect of a retroactive application of our decision ... could not further any purpose of the Constitution.

Id. at 520-521. Because, as the court emphasizes, the Constitution facially prohibits the type of statute embodied by Senate Bill 351, the purpose of the relevant constitutional provisions is arguably absolute: such a tax, collected through CEDs and without a vote, is always void. This unequivocal constitutional prohibition is retarded by not applying it to all cases at all times — there is no “King’s X” from the command of the constitution.⁶⁶ Since the thrust of the majority’s holding is that the tax is unconstitutional, that holding is clearly retarded by not allowing a tax refund. See Wessely, 736 S.W.2d at 628 (the second question is “whether retroactive application will ... retard the holding in question.’’) (emphasis added).

The court is willing to brush aside the law so that it may play with the more malleable concept of equity. It must alter state law because today’s action is unprecedented. Likewise, it must qualify and in part ignore the Chevron Oil test because the facts before it cannot be shaped to meet that test. Instead, it shapes the test to fit the facts by rushing past the first two prongs in order to reach the third, which allows consideration of equity. Chevron Oil, 404 U.S. at 107, 92 S.Ct. at 355-56.

In balancing equities, however, the court examines only half of the equation when the payment of taxes is the issue. While a refund of already collected taxes may be harsh, the competing inequity is compelling taxpayers to pay an unlawful tax. It is difficult to see inequity in “ordering that the State not pick a taxpayer’s pocket” or in requiring the State to “return the money when it is caught doing so.” ,Swanson v. State, 329 N.C. 576, 407 S.E.2d 791, 797 (Mitchell, J., dissenting). Indeed, one state court recently ruled that “[i]f inequitable results occur whether retroactivity is applied or not, we must make the ruling retroactive,” and on that basis mandated a tax refund. Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286, 293 (1991), petition for certiorari filed, 60 U.S.L.W. 3173 (U.S. Sept. 3, 1991) (No. 91-375). The true nature of prospective rulings in the tax context is perhaps accidentally described with some accuracy by the majority itself:

By applying our decision prospectively, we allow the collection of a tax without voter approval, in derogation of this constitutional provision [article VII, section 3]. We also allow a levy of a state ad valorem tax in violation of article VIII, section 1-e.

Op. at 520.

In an attempt to justify the lack of remedy under today’s decision, the majority engages in a hasty analysis of the doctrine of non-retroactivity that combines omission with mischaracterization of the great debate currently raging on this subject in the United States Supreme Court.⁶⁷ In embracing Great Northern Ry. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932), while disregarding or dismissing more recent federal caselaw, the court has again demonstrated that it prefers law of the Great Depression era which has been substantially refined, modified or even rejected, over current caselaw when that ancient precedent is useful to its preconceived ends. See Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1, 12-13 (Tex.1991) (Doggett, J., dissenting) (discussing the court’s reviving a precedent from 1935 that had been overturned by a 1984 decision).

While providing limited approval for prospectivity⁶⁸ as determined by the states, see Chevron Oil, 404 U.S. at 364, 92 S.Ct. at 484, Sunburst is hardly the stopping point for analysis of this issue. Chevron Oil established a restrictive test for nonretroactivity which provided the basis for this court’s prior consideration of the three prerequisites for prospectivity. See Wessely, 736 S.W.2d at 628-29; Seg-rest, 649 S.W.2d at 612. Moreover, Sunburst ’s allowance of prospectivity provides only an exception to the general rule of retroactivity. The presumption remains that an unconstitutional statute may not be enforced at any time. See James B. Beam Distilling Co. v. Georgia, — U.S. —, 111 S.Ct. 2439, 2442-43, 115 L.Ed.2d 481 (1991) (Souter, J., plurality opinion); id. 111 S.Ct. at 2448 (White, J., concurring); id. 111 S.Ct. at 2449-50 (Blackmun, J., concurring).

Since the limitation of Sunburst in Chevron Oil, the United States Supreme Court has more recently readdressed the issue of prospective application of laws. A number of Justices on the high court appear to have returned to the concept that unconstitutional laws are void, prohibiting the prospective application of a holding of unconstitutionality. McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990), involved review of the Florida Supreme Court’s holding unconstitutional a state tax giving preference to in-state manufacturers using local produce, while denying the taxpayers any postpayment remedy. Rejecting the same argument urged today, that requiring the state to remedy the collection of unconstitutional taxes “would plainly cause serious economic and administrative dislocation for the State,” the United States Supreme Court reversed and remanded on due process grounds because “the State’s interest in financial stability does not justify a refusal to provide relief.” Id. 110 S.Ct. at 2257 (emphasis added). While allowing consideration of the Legislature’s good faith in enacting a tax, the court rejected the Florida Supreme Court’s reliance on “equitable considerations” as overriding constitutional rights. Id. at 2251.⁶⁹ After McKesson, “equitable considerations are of limited significance once a constitutional violation is found.” American Trucking, 110 S.Ct. at 2334.⁷⁰

Most recently, in 1991 several members of the Supreme Court continued their attack on the prospective application of law in James B. Beam Distilling Co. v. Georgia, 111 S.Ct. 2439, and may have further limited the deference to equity acknowledged in Chevron Oil.⁷¹ The possible shift on that Court towards a rejection of pros-pectivity,⁷² and its recent interest in this issue increases the possibility of federal examination of today’s decision. In the end, it is “difficult to predict” how the United States Supreme Court’s recent writings on the subject will be interpreted and applied “given the many options [it has] provided_” James M. Ervin & Katherine E. Giddings, The Supreme Court Distinguishes Remedy and Retroactivity Issues Affecting State Taxes, 73 J. Tax’n 296, 297 (Nov.1990) (hereinafter Retroac-tivity ). I offer no “prognosis,” Op. at 518 n. 33, because no certain outcome exists. While I agree that the federal courts have been unpredictable in this area that is no excuse for the majority’s willingness to throw us carelessly into the great unknown.

Curiously, after focusing solely on selective federal law, the majority concludes that a federal court will not review a decision reached on state grounds. This position is startling, considering that the signatory of today’s opinion, Justice Gonzalez, only a few weeks ago described the federal judiciary as “a 1000-pound gorilla” which “need[s] no excuse [for] what it may do in the future.” Terrazas v. Ramirez, 829 S.W.2d at 712, 756 (Tex.1992) (Gonzalez, J., concurring on motion for leave to file motion for rehearing). What is certain is that by disregarding the recent pronouncement of McKesson that a state’s view of equity cannot overcome a taxpayer’s due process rights, today’s writing presents a serious federal due process problem. As expressed by the nation’s high court:

Our precedents establish that if a State penalizes taxpayers for failure to remit their taxes in a timely fashion, thus requiring them to pay first and obtain review of the tax’s validity later in a refund action, the Due Process Clause requires the State to afford taxpayers a meaningful opportunity to secure post-payment relief for taxes already paid pursuant to a tax scheme ultimately found unconstitutional.

McKesson, 110 S.Ct. at 2242 (emphasis added). Due process is implicated because “exaction of a tax constitutes deprivation of property.” Id. at 2250. See also American Trucking, 110 S.Ct. at 2339. Not surprisingly, many state courts which have considered the issue of retroactivity after McKesson have required retroactivity with a tax refund.⁷³

Under today’s opinion, there can be no meaningful opportunity to contest the state’s collection of illegal taxes and its failure to refund those taxes. In Texas, the necessary remedy simply doesn’t exist: section 31.11 of the Tax Code allows a refund to be sought only when payment is made by mistake, such as an erroneous calculation by the taxpayer. See First Bank v. Deer Park Indep. Sch. Dist., 770 S.W.2d 849, 853 (Tex.App.—Texarkana 1989, writ denied). Because no genuine relief is available, the court’s result appears to violate the Fifth Amendment mandate that there be some “clear and certain remedy” to cure the unlawful tax collection. See McKesson, 110 S.Ct. at 2251. Under both federal and state law, the ability to obtain some real remedy is necessary to meet due process concerns. See Shaw v. Phillips Crane & Rigging, Inc., 636 S.W.2d 186, 188 (Tex.1982) (noting the constitutional protection of a taxpayer’s ability to enjoin collection of an unlawful or erroneous tax). McKesson indicates that foreclosing the possibility of a refund for unlawfully collected taxes presents a very real due process problem. See Case Comment, Unconstitutional State Taxes — Federal Standards for Remedies in State Courts, 104 Harv.L.Rev. 188, 190 (1990) (hereinafter Unconstitutional State Taxes ); Retroactivity at 298. The good faith of our Legislature and the “serious economic and administrative dislocation for the State” simply cannot outweigh constitutional due process rights. McKesson, 110 S.Ct. at 2257; see Unconstitutional State Taxes at 195-96.

The majority, ignoring these due process considerations, suggest only that because of language in Sunburst, there is no federal constitutional question raised. Op. at 516-517. While that 1932 case does not indicate that states have the final authority to determine prospectivity, the states are not free to apply their decisions so as to deprive citizens of their federal rights. State action, even in areas preserved for state concern, is still subject to constitutional limitations. Perhaps the most notable example is Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), which stated that “education is perhaps the most important function of state and local governments,” id. at 493, 74 S.Ct. at 691, and then nonetheless concluded that discriminatory state educational policies had violated the equal protection clause of the Fourteenth Amendment. Id. at 495, 74 S.Ct. at 692.

Similarly, the Supreme Court, although noting the constitutional delegation of authority to the states in controlling the election process for state office, held that “this authority does not extinguish the State's responsibility to observe the limits” set forth in the Constitution. Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217, 107 S.Ct. 544, 550, 93 L.Ed.2d 514 (1986) (considering the First Amendment). And in Texas, of course, with the generous assistance of a majority of this court, the federal courts recently reaffirmed control over state elections in overturning a legislatively approved redistricting plan. Terrazas v. Slagle, 789 F.Supp. 828 (W.D.Tex. 1991), application for stay denied, Richards v. Terrazas, — U.S. —, 112 S.Ct. 924, 116 L.Ed.2d 924 (1992).

Sunburst indicates only that a state may make the initial decision of how to apply its laws. See 287 U.S. at 364, 53 S.Ct. at 148. That case was decided before the modern process of incorporating through the Fourteenth Amendment the liberty guarantees contained in the Bill of Rights to action taken by the states. See Beytagh at 1611. Sunburst was also decided well before the U.S. Supreme Court spelled out the requirements of pre- and post-deprivation procedural due process in such landmark cases as Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), and Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).⁷⁴ Sunburst simply did not involve consideration of when a state’s decision could violate federal due process rights. Forced to choose between law from 1932 and that which has evolved over the past several decades, the United States Supreme Court, unlike this one, may well choose the more recent precedent.⁷⁵ The majority simply fails to consider realistically the ramifications of its prospective ruling.

Under the majority’s antiquated reading of federal law, due process protection never becomes an issue when a state court applies its own law. In essence, the majority is arguing that the Due Process Clause of the United States Constitution does not and cannot apply to the states when the underlying issue is one of state or local concern. Quite aside from its regressive posture, this position conflicts with McKes-son ’s unequivocal mandate of a “clear and certain remedy” when a state tax is collected illegally. See Retroactivity at 302.

The majority invites federal intrusion. It is clear that “[tjhere will be ... inevitable appeals resulting ultimately in further guidance from the Supreme Court” in this area of the law. Retroactivity at 302. Unfortunately, the majority has created the possibility that those appeals will come from Texas. The same due process problems exist, of course, under our State Constitution. See Tex. Const, art. 1, § 19.

As a result of this court’s lack of concern for real due process protection, an aggrieved taxpayer can turn to a federal judge to seek an injunction against the eventual application of this court’s ruling. While eager to borrow federal law on prospectivity facilitating its erroneous conclusion, the court rejects federal due process principles that interfere with that conclusion. The result of this selective acceptance and rejection of federal law may doom this state to further complicated and prolonged litigation in federal court and the possibility of reversal by the U.S. Supreme Court. That Court can certainly review our opinion where deprivation of a federal right is involved. See McKesson, 110 S.Ct. at 2245 n. 9; see also Unconstitutional State Taxes at 188, 190. Our reliance on the Texas Constitution will not preclude such review. See Retroactivity at 298. The simple fact is that McKesson’s language clearly indicates an intent to prohibit all unconstitutional deprivations resulting from imposition of an illegal tax without remedy.

While the court implies that its only desire is to avoid chaos, one can only imagine the chaos resulting if Edgewood III were remanded by the U.S. Supreme Court in the same year that the inevitable Edgewood IV makes its way through our state courts.

VI. Response to Justice Cornyn’s Opinion

In a most misleading concurring and dissenting opinion, Justice Cornyn rejects the commitment to equal educational opportunity to which this court unanimously subscribed in Edgewood I. This is the same principle to which even the opponents of school finance reform have acceded. It is the same principle for which today’s majority continues to demonstrate at least a tepid commitment. In contrast with its sharp response to my dissent, the majority offers only deafening silence to Justice Cornyn’s bold adventure in revisionism of this court’s unanimous writing in Edgewood I. Accordingly, it is vital to provide a comprehensive analysis of this writing.

Justice Cornyn’s search “to discern how ‘equality of funding’ took center stage in this drama,” Op. at 528, leads him down a trail of criticism of Judges Harley Clark and Scott McCown, the district judges in the Edgewood cases. That criticism is more appropriately leveled at the other eight members of the Texas Supreme Court. Judge McCown is condemned for daring to suggest that Texas children have a constitutional right to “a substantially equal opportunity to have access to educational funds.” Id. at 497 (quoting McCown Slip. Op. at 8-9). These are not words Judge McCown originated. He may quote, but we wrote. Justice Cornyn is only citing the precise words of this court’s holding in Edgewood I:

Children who live in poor districts and children who live in rich districts must be afforded a substantially equal opportunity to have access to educational funds.

777 S.W.2d at 397. Indeed, this precise language is quoted from Edgewood I by the majority today “to reaffirm our earlier holdings.” Op. at 497, 493.

There is absolutely nothing “unfortunate” concerning this court’s “word choice” in Edgewood I, nor was “occasional] use of equal rights terminology” a mere accident in that opinion. Op. at 529. The concept of equality permeates the entire opinion; we “recognized the implicit link that the Texas Constitution establishes between efficiency and equality.” Edgewood I, 777 S.W.2d at 397.⁷⁶ True, we used the term “substantially” to modify equal opportunity in recognition that opportunity could never be absolutely or precisely equal. Indeed, some of those challenging the existing system acknowledged this rather obvious fact during oral argument in Edge-wood 7.⁷⁷ Likewise we recognized in 1989 “the reality” of differing costs among diverse districts that Justice Cornyn has discovered today:

This does not mean that the state may not recognize differences in area costs or in costs associated with providing an equalized educational opportunity to atypical students or disadvantaged students.

Edgewood I, 777 S.W.2d at 398 (emphasis added).

While resolution of that case under the “ ‘efficiency’ provision [made unnecessary our] consideration of] petitioners’ other constitutional arguments,” 777 S.W.2d at 398, the seemingly narrowed basis for the Edgewood I opinion was of far less significance than suggested by Justice Cornyn. This is because the court “recognized the implicit link that the Texas Constitution establishes between efficiency and equality.” Id. at 397. In no way did a majority of this court then or since then either approve or disapprove Judge Harley Clark’s conclusions of law concerning equal protection and equal rights deprivation. Nor is that question presented in the instant appeal. Justice Cornyn’s odd footnote, Op. at 529 n. 8, indicating that that the trial court’s adherence to this court’s decision in Edgewood I decides the equal protection challenge to every funding issue from education to abortion only provides an indication of his own prejudgment of those matters. The only “fundamental right” central to today’s debate is his fundamental right to ignore our unanimous writing on equal educational opportunity. He has fundamentally exercised this right with enthusiasm.

“It’s money that matters in the USA”— so the popular verse goes.⁷⁸ But Justice Cornyn says not to worry so much about money in education, because some educational experts have concluded that it does not have a substantial impact. Justice Cor-nyn makes highly selective use of the comment from Abbott v. Burke, 119 N.J. 287, 575 A.2d 359, 404 (1990), that “beyond doubt ... money alone has not worked.” Op. at 527. Nonetheless, that court ordered new legislation “to assure that poorer urban districts’ educational funding is substantially equal to that of property-rich districts.” 575 A.2d at 408. Despite development of an extensive record debating whether money constituted a critical factor in the quality of education, the New Jersey Supreme Court concluded:

Money can make a difference if effectively used, it can provide the students with an equal educational opportunity, a chance to succeed. They are entitled to that chance, constitutionally entitled. They have the right to the same educational opportunity that money buys for others.

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These children are ... entitled to a fair chance in the form of a greater equality of funding. They have already waited too long for a remedy, one that will give them the same level of opportunity, the same chance, as their colleagues who are lucky enough to be born in a rich suburban district.

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We ... adhere to the conventional wisdom that money is one of the many factors that counts.

Id. at 363, 405-06.

Justice Cornyn’s true message to the poor districts is capsulized in a portion of the title of an article upon which he relies: “Don’t Worry, Be Happy.”⁷⁹ He attacks as a “major, unwarranted leap of faith” with “no citation of authority,” Op. at 529-530, this court’s unanimous determination that

The amount of money spent on a student’s education has a real and meaningful impact on the educational opportunity offered that student.

Edgewood I, 777 S.W.2d at 393. Unfortunately, he omits the all too real experience of thousands of students to which this court referred in support of its well-justified conclusion that:

High-wealth districts are able to provide for their students broader educational experiences including more extensive curricula, more up-to-date technological equipment, better libraries and library personnel, teacher aides, counseling services, lower student-teacher ratios, better facilities, parental involvement programs, and dropout prevention programs. They are also better able to attract and retain experienced teachers and administrators.

The differences in the quality of educational programs offered are dramatic. For example, San Elizario I.S.D. offers no foreign language, no pre-kindergarten program, no chemistry, no physics, no calculus, and no college preparatory or honors program.

M⁸⁰ Even school district experience cited by the majority in support of its position⁸¹ is at variance with the view of Justice Cornyn.

Although accompanied by an intimidating but misleading chart correlating spending on education with SAT scores, Op. at 583-535, the opinion engages in no analysis of its underlying data. Justice Cornyn ignores reservations of even its source that “[tjhere are reasons ... for quibbling about these specific statistics for both achievement and spending,” in no small part because of the debatable merit of measuring performance with SAT scores. Eric A. Hanushek, When School Finance “Reform” May Not Be Good Policy, 28 Harv.J. on Legis. 423, 428 (1991). Even Hanushek recognizes that when properly used, money can affect performance. See id. at 425, 442. Overlooked by Justice Cor-nyn, moreover, is the opening statement of the next article in the same publication that “it is simply indefensible to use the results of quantitative studies of the relationship between school resources and student achievement as a basis for concluding that additional funds cannot help public school districts,” Richard J. Murnane, Interpreting the Evidence on “Does Money Matter?”, 28 Harv.J. on Legis. 457, 457 (1991), and its conclusion that “increased funding can improve the quality of public education.” Id. at 488.

Considering this same argument “concerning the effect of spending variations on educational achievement,” Justice Thur-good Marshall two decades ago provided the best answer:

We sit ... not to resolve disputes over educational theory but to enforce our Constitution. It is an inescapable fact that if one district has more funds available per pupil than another district, the former will have greater choice in educational planning than will the latter.... [We must look] to what the State provides its children, not to what the children are able to do with what they receive. That a child forced to attend an underfunded school with poorer physical facilities, less experienced teachers, larger classes, and a narrower range of courses than a school with substantially more funds — and thus with greater choice in educational planning — may nevertheless excel is to the credit of the child, not the State. Indeed, who can ever measure for such a child the opportunities lost and the talents wasted for want of a broader, more enriched education?

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Likewise, it is difficult to believe that if the children of Texas had a free choice, they would choose to be educated in districts with fewer resources, and hence with more antiquated plants, less experienced teachers and a less diversified curriculum. In fact, if financing variations are so insignificant to educational quality, it is difficult to understand why a number of our country’s wealthiest school districts, which have no legal obligation to argue in support of the constitutionality of the Texas legislation, have nevertheless zealously pursued its cause before this Court.

Rodriguez, 411 U.S. at 83-85, 93 S.Ct. at 1322-23 (Marshall, J., dissenting) (citation and footnote omitted).⁸²

Money is not the be all and end all in education.⁸³ But without equal access to funds, as mandated in Edgewood I and unanimously reaffirmed in Edgewood II, equal educational opportunity will never be achieved.

Next Justice Cornyn asserts more candidly the concern additionally underlying so much of the majority’s writing — the bogeyman of “local control.” We rejected that same claim in Edgewood I:

Some have argued that reform in school finance will eliminate local control, but this argument has no merit. An efficient system does not preclude the ability of communities to exercise local control over the education of their children. It requires only that the funds available for education be distributed equitably and evenly. An efficient system will actually allow for more local control, not less. It will provide property-poor districts with economic alternatives that are not now available to them. Only if alternatives are indeed available can a community exercise the control of making choices.

777 S.W.2d at 398. Repackaging the same worn argument⁸⁴ has not improved its validity. Inequities in the current school finance system continue to deny too many school districts an opportunity to exercise meaningful local control. As one commentator has astutely noted:

If [a local school board] has very little money, it has almost no control; or rather it has only negative control. Its freedom is to choose which of the children’s needs should be denied.

Jonathan Kozol, Savage Inequalities at 213. Rather than deny local authority, the effect of Edgewood I is for “each district to have the same flexibility, the same local control.”⁸⁵

Though money allegedly does not matter so much, Justice Cornyn’s principle objective is to ensure the right of wealthy school districts to unlimited spending in the form of “local enrichment.” Again Edgewood I recognized that a commitment to equal educational opportunity does not

mean that local communities would be precluded from supplementing an efficient system established by the legislature; however any local enrichment must derive solely from local tax effort.

777 S.W.2d at 398 (emphasis added).

While the majority tried desperately to weaken this commitment in Edgewood II-, even an attorney representing many of the districts challenging Senate Bill 351 conceded that unlimited local enrichment would produce the same type of disparities among districts that were rejected in Edge-wood I.⁸⁶ Districts with ample wealth and unlimited enrichment capability have no incentive to encourage the State to fully fund a realistically adequate level of educational services.⁸⁷ That is why we insisted that enrichment “derive solely from local tax effort,” Edgewood I, 777 S.W.2d at 398, not from the happenstance of a superior tax base.

Finally, Justice Cornyn tells us that the poor district plaintiffs in this case brought the wrong lawsuit. They should have complained about “outputs” not “inputs.” Since he is not satisfied with the litigation presented for decision today, Justice Cor-nyn in an amazing display of judicial activism decides the case he thinks should have been presented. This is the natural progression of writing the type of improper advisory opinion upon which Justice Cor-nyn and his majority colleagues insisted in Edgewood II-. See 804 S.W.2d at 503 (Dog-gett, J. concurring) (regarding the danger of this court deciding a case without a pending appeal “solely on its own initiative”).

It may eventually be necessary to consider “outputs” in evaluating the “efficiency” of the school finance system, but let us at least wait until the issue has been presented to a trial court. To preclude Justice Comyn’s writing from unduly prejudicing the public debate on the matter, I must note my personal concern that judicial involvement in measuring the “outputs” of the educational system is even more likely to produce prolonged judicial intrusion than the task on which we have already embarked. How strange that we should broaden the scope of this action beyond that asserted by the parties before we get resolved properly the issues they have raised.

If the true objective is to avoid “having yet another generation of school children [being] denied the benefits of their constitutional rights,” Op. at 534, the solution will be found in less judicial doubletalk and more consistent application of the Constitution. While proclaiming concern for education with pleasant platitudes, this concurrence only serves as an obstacle to reform.

VII. Any Glimmer of Hope?

Those on this court who have regularly supported altering the public’s right to vote in the selection of judges have now rediscovered the sacred right of elections and proclaim, as if anyone argued otherwise, the axiom “that the votes cast by all persons, regardless of their circumstances, count equally.” Op. at 507. But all of this discussion, it turns out, is only a diversion.

The voters, of course, have already had an opportunity to vote once on section 3-b of article VII, and again regarding the tax authorization for their individual districts, but if an additional third vote would make the CEDs constitutional, the Legislature could promptly call for 188 local elections. Yes, this would require a special session and the waste of millions of tax dollars, but would even that step remove the majority’s latest roadblock to reform? Apparently not; apparently the majority’s new found interest in participatory democracy is an excuse, not a reason.

If the lack of a vote were the only obstacle, the election procedure could be structured to avoid the veto by the privileged of which the majority is so desirous.⁸⁸ Since the Legislature has the unquestioned authority to require complete consolidation of school districts, there is no reason that it could not provide for contingent consolidation. Theoretically, to accomplish complete control over the expenditure of locally-generated tax dollars, citizens in some areas might prefer complete consolidation. The Legislature could accord a choice: for any of the 188 CEDs whose voters have not approved tax base consolidation by a given date, complete consolidation of all school districts within the CED would be automatically accomplished. Such contingency legislation would differ little from previous enactments that were contingent upon the outcome of a vote on a constitutional amendment. See, e.g., Tex.Rev.Civ.Stat. Ann. art. 6252-9d.l (Vernon 1992) (concerning Texas Ethics Commission). This would assure that by the next academic year the school districts in every CED in the State would be merged either in whole or in part for tax base purposes.

The majority rejects this approach because it presents voters with only two choices — complete and partial consolidation. If these two choices sound familiar, they are: they represent the only choices approved by the majority in Edgewood II-.⁸⁹ Most revealing is the majority’s conclusion that “voter approval alone would not avoid the obstacle presented by [the statewide property tax bar of] article VIII, section 1-e.” Op. at 524 n. 43. Even if local CED elections were conducted, the statewide property tax prohibition would still preclude utilization of CEDs. Similarly, this constitutional bar would even prevent use of tax base consolidation under former Chapter 18 of the Education Code, referenced in the newly significant footnote 14 of Edgewood II to which the majority now so proudly points. The majority’s writing is indicative of a Houdini-like attempt to escape the confines of its improper writing in Edgewood 77-:

Tax base consolidation and its possible problems were discussed simply as one alternative the Legislature might consider. We said only that it is possible to consolidate school district tax bases without violating the Constitution. In that very limited context, we obviously contemplated tax authorization elections and said so. But we were not asked by any party to decide, and we did not hold that voter approval either would or would not be required....

Op. at 520 n. 37 (emphasis added).⁹⁰ In truth the majority has no interest in more elections; it has lost its once zealous interest in tax base consolidation; it now prefers “choosing another path altogether.” Id. at 503.

VIII. Conclusion

Today’s opinion concedes that Senate Bill 351 represents progress in securing a school finance system that would assure Texas students equal educational opportunity. This legislation works to diminish inequities, the majority must admit; it has “reduced the geographical disparities in the availability of revenue for education.” Op. at 500.

Nevertheless, Senate Bill 351 is condemned for utilizing the very method of taxation which the majority contemplated in Edgewood 77-. With this alternative eliminated, counsel for the Appellant school districts have recognized that the only broad-based revenue source remaining under the present Constitution is an income tax.⁹¹ A further indication of the majority’s determination to nudge the Legislature toward an income tax is the rather clear indication that any attempt to revise property tax financing must be charted through a judicial minefield, with no map provided.⁹² Fully aware that its action today leaves only the option of an income tax as a major funding source, the majority then washes its hands of any personal responsibility for this result, effectively telling the Legislature: choose any method you desire excepting that which we last urged upon you. The majority is absolutely correct that “an income tax is not the only remedy,” Op. at 524; rather it is the only remedy the majority has left available to the Legislature.

Finally the majority seeks one more bit of protective covering — it discovers “eliminating gross wastes in the bureaucratic administration of the [educational] system” as an alternative source of revenues for achieving efficiency. Id. at 524. Throughout Edgewood I, Edgewood II, and Edge-wood II-, no record has been made in support of this claim. But that does not constrain the majority. It is good camouflage and bad law, as is the balance of the majority’s writing.

What will happen after today is a prolonged battle timed to coincide with an election year. Moreover, as I concluded in Edgewood II-, “today’s opinion ensures that this litigation which [seemed to] be finally nearing an end will go on indefinitely” because no one “can act with any assurance concerning what this court will do in the future.” 804 S.W.2d at 506 (Doggett, J., concurring). Having entrapped the Legislature, they further invite Texas to be ensnared by the federal judiciary.⁹³

The majority's remarkable willingness to abandon precedent so recently announced demonstrates not only disregard for the law and indifference to the taxpayer, but also abandonment of the children of this state. Our school children have long suffered from the failure of the school finance system. Today they suffer anew from the failure of the justice system to deliver on the promise of the Texas Constitution. The majority offers our children only delay, and they have already had plenty of that. A child who began the first grade when this cause was originally filed in state court is already in high school and will probably have graduated before any new finance plan becomes effective.

Frankly it takes the greatest audacity to cite delays in Edgewood I in 1989 — delays which represented part of the price paid for unanimity at this court — as an excuse for having still more delay in 1992 in Edge-wood III. In 1989, implementation of this court’s ruling required cooperation from Governor William Clements. He had repeatedly voiced a dual response to the Edgewood litigation: castigate the messenger — any judge involved — and change the Constitution to lower the standard for the school system. Like other torchbearers of inequality, he urged a simple solution— what Texas needs is not greater equality of educational opportunity, but a weaker Constitution. To cope with this ardent opponent of reform, the court extended the period for a solution.

With more enlightened leadership thankfully in place at the time of Edgewood II and with a determination to avoid another disrupted school year, we limited the time for action to about two months. Moreover, we criticized the delay that the trial court had already permitted and declared that it had “clearly abused its discretion in refusing to enforce the mandate of this Court issued in Edgewood I.” Edgewood II, 804 S.W.2d at 498.

Today the majority offers more unjustified delay as an alternative to a solution. After purposefully delaying release of this very opinion, the majority’s suggestion that the Legislature move forward “without unnecessary delay,” Op. at 524, rings hollow. The majority’s vague pronouncements sound more like the Oracle at Delphi than a provider of justice. Its attempt to shift responsibility to the Governor to act more promptly is nothing but a diversion. The delay that will now ensue is attributable not only to the lengthy time frame provided for a legislative response, but in the unresolvable ambiguities created by today’s opinion. If there was ever a case to prove the old maxim “justice delayed is justice denied,” this is it.

It was for the benefit of our children that the Constitution commanded that education be efficient. It was for their benefit that Demetrio Rodriguez sought relief. It was for their benefit that we decided Edge-wood I and II. But now, for the benefit of the privileged, the court turns a deaf ear both to the commanding voice of the law and to the whispered pleas of the children.

MAUZY, J., joins in this dissent.

1 . Not even a plea from the Governor concerning the adverse effect of the court’s inaction on current property tax collections was sufficient to move the majority to a timely announcement. Letter Amicus Brief for Governor Ann Richards (Dec. 13, 1991). With this needless delay, several thousand taxpayers, including many of the state's major corporations, have delayed payment of school taxes and filed numerous lawsuits to preserve their right to a refund of taxes paid before the January 31 due date. See, e.g., Bandera Land & Cattle Co. v. Travis Co. Educ. Dist., No. 92-00860 (Dist.Ct. of Travis County, 331st Judicial Dist. of Texas, filed Jan. 23, 1992); Keahey v. Travis Co. Educ. Dist., No. 92-00936 (Dist.Ct. of Travis County, 200th Judicial Dist. of Texas, filed Jan. 23, 1992); Halliburton Co. v. Central Educ. Agency, No. 92-00996 (Dist.Ct. of Travis County, 331st Judicial District of Texas, filed Jan. 28, 1992); NCB v. Morales, No. 92-01104 (Dist.Ct. of Travis County, 98th Judicial Dist. of Texas, filed Jan. 28, 1992); American Gas Storage, L.P. v. Morales, No. 92-01050 (Dist. Ct. of Travis County, 98th Judicial Dist. of Texas, filed Jan. 28, 1992); Beta Mu Bldg. Co. v. Morales, No. 92-01060 (Dist.Co. of Travis County, 250th Judicial Dist. of Texas, filed Jan. 28, 1992).

Nor is it merely coincidental that this preconceived plan has finally been announced after the Legislature has come and gone from its special session and after the filing deadline for three seats on this court has expired.

2 . See Terrazas v. Ramirez, 829 S.W.2d 712, 739 (Tex. 1991, orig. proceeding) (Mauzy, J., dissenting) (addressing the majority’s rejection of long-followed legal principles to afford Republicans preferential treatment in the 1992 legislative elections).

3 . At the same time that federal relief was narrowly rejected, Justice Marshall appropriately noted the availability of state constitutional remedies for inequitable school finance systems. See Rodriguez, 411 U.S. at 133, n. 100, 93 S.Ct. at 1348, n. 100 (Marshall, J., dissenting).

4 . See Transcription of Oral Argument (November 19, 1991) (Responses by R. James George, Earl Luna, Toni Hunter, David Richards, and Deborah G. Hankensen to questions from Justice Doggett). Further, with the exception of Mr. Luna, all counsel now specifically concede that unlimited local supplementation or enrichment financed through reliance on widely disparate property tax bases would also result in an unconstitutionally inefficient system. It is for this reason that we said in Edgewood I that “any local enrichment must derive solely from local tax effort.” 777 S.W.2d at 398. See also infra discussion following note 85.

5 . Mr. Rodriguez, who was introduced to the court at oral argument in this cause, when originally told of our previous decision in Edgewood I, stated:

I cried this morning because this is something that has been in my heart.... My children will not benefit from it_ Twenty-one years is a long time to wait.

Jonathan Kozol, Savage Inequalities 226 (1991).

6 . See Transcription of Oral Argument in Edge-wood I (July 5, 1989) (Responses by Kevin T. O’Hanlon to questions from Justice Doggett).

7 . Act of June 6, 1990, 71st Leg., 6th C.S., ch. 1, 1990 Tex.Gen.Laws 1.

8 . This tax base consolidation plan was encompassed in Tex.S.B. 9, 71st Leg., 3d C.S. (1990), authored by Senator Hector Uribe, and Tex.H.B. 34, 71st Leg., 3d C.S. (1990), authored by Representative Greg Luna.

9 . Transcript at 545, Edgewood Indep. Sch. Dist. v. Kirby, 804 S.W.2d 491 (Tex.1991) {Edgewood II).

10 . Id. at 589.

11 . The majority’s contention that ”[n]o Texas court has previously addressed a challenge brought under article VIII, section 1-e,” Op. at 520, is contradicted by the citation of this provision by both Judge McCown and the majority on rehearing in Edgewood I, 804 S.W.2d at 499.

12 . Brief of Appellants Edgewood I.S.D. at 33, Edgewood II.

13 . Id. at 38.

14 . See Transcription of Oral Argument in Edge-wood II (November 28, 1990) (Response by Kevin T. O’Hanlon to questions from Justice Mau-zy).

15 . This opinion by five members of the court is referred to hereinafter as Edgewood II-, or Two Minus, since it represented the majority's effort to subtract from the holdings of Edgewood I and II while improperly detailing to the Legislature a preferred school funding solution.

16 . A race is precisely what occurred as the inappropriate desire of the majority for maximum political influence was almost thwarted by a responsive legislative process with new leadership from both Governor Richards and Lieutenant Governor Bullock. The majority was fully aware that during the week preceding its opinion, Senate Bill 351 had been approved 20-7 by the Senate and a very similar version had passed by a vote of 8-1 in the House Public Education Committee. Only by rushing its advisory comments after hours to the Clerk of the Supreme Court on the evening of February 25 was the majority able to interfere prior to the expected vote on the House floor on February 27. See Supplementary Response of Plaintiffs-Appellants to Motion for Rehearing and Amicus Curiae Briefs in Edgewood II- (Feb. 25, 1991) (informing court of status of pending litigation and urging noninterference in process).

17 .See infra text discussing Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172 (1975), this section.

18 . Transcript in the three consolidated appeals from the 250th District Court in Travis County, Texas — Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., Cause No. D-1469; Andrews Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., Cause No. D-1477; and Highland Park Indep. Sch. Dist., Cause No. D-1560— at 724 (hereinafter Tr.). See abo Gail F. Levine, Meeting the Third Wave, Legblative Approaches to Recent Judicial School Finance Rulings, 28 Harv.J. on Legis. 507, 512 (1991) ("The court so strongly emphasized [tax base] consolidation that many lawmakers assumed it too was mandated.”). Even the aggressive critique of the trial court’s decision upon which the majority frequently relies notes "the apparent dictum of the Texas Supreme Court that tax base consolidation be effected." Billy D. Walker, The Db-trict Court and Edgewood III: Promethean Interpretation or Procrustean Bed? 27 (unpublished monograph attached as Appendix O to Consolidated Brief of Eliodoro Reyes) (hereinafter The Dbtrict Court and Edgewood III).

19 . See infra section V discussing prospectivity and the denial of a tax refund.

20 . This ill-advised abuse follows the majority’s previous rejection of Senator Parker’s most appropriate plea that this court avoid unsolicited and disruptive judicial interference in the legislative process. See Edgewood II-, 804 S.W.2d at 501 (Doggett, J., concurring).

21 .Hearings on Conference Committee on Senate Bill 351, Tex.S.B. 351, 72nd Leg., R.S. (March 7, 1991) (Tr. 349).

22 . Id. at 338 (exchange between Chairman Parker and AI Kauffman).

23 . See supra notes 6 & 14 and accompanying text.

24 . Mr. O’Hanlon testified that:

The notion of tax base consolidation which is what we’re talking about when we talk about recapture is, is pretty much a new critter in the State of Texas that arose uniquely out of the, the Supreme Court deliberations in the Edge-wood opinion_ Edgewood two says specifically [that another way of achieving] efficiency is tax base consolidation.... and the court ... disagree[s] with the [trial] court’s finding that tax base consolidation appeared to run [into] a problem with the constitution. ... That tax base consolidation can be done is, is clear as a matter of constitutional law [from] Article 7, Section 3 B. It gives the legislature express authority to consolidate districts and to provide for the continuation of the taxing effort to those districts without a reauthorization.... [This is] [s]pecifically contemplate[d] and sets [sic] forth in Article 7, Section 3B. The question then becomes ... can you ... partially consolidate [district’s] tax bases. And we think that the Supreme Court clearly signals that, that the legislature has that authority.

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The other question that comes with respect to recapture is not whether you can do it, but ... the collateral question of, of the necessity of the re-authorization election. Again Article 7, Section 3 B gives us some guidance here. Article 7, Section 3 B says that no re-authorization election is necessary in the event that you have consolidated districts and, there is a pre-existing [authorization] as there is in every school district.... So that again if you can, if you can flat consolidate school districts ... you can do something less than consolidate, we can consolidate the tax base.... [W]hat you are doing in essence is splitting the original authorizations....

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... The problem here is that we appear to be in a situation ...of being led down the road by the Texas Supreme Court, that which, that no one has yet fought. The notion of tax base consolidation is not something that you’ve done before, that's why we can't tell you, we cannot predict the outcome of the, a challenge to the mechanics of how we set, set about doing it. We have never done a limited purpose consolidation which is what the Supreme Court has said over and over and over again is the way to fix the problem. They’re directing us into the, into an area where, where there are no answers. But they have, on each occasion in which they have chosen to write on this, endorsed the concept of tax base consolidation, they have .. called it ... base-tax sharing and appear to be leading us down this road. I will reiterate that every time they mention Love ... and they talk about it in terms of statewide recapture. Love prohibits statewide recapture of funds. And they go on to say in Edgewood [II-] that we can still do tax base consolidations through the creation [of] school districts. That’s what we’re doing. The question then becomes is, is this recaptured district ... some kind of sham because it’s not a school district. I refer you to Chapter 18. Chapter 18 is not a school district as we know it either. Chapter 18 is an entity that exists solely for the purposes of collecting, levying taxes when they refer to that levy in that footnote 14.... They said it was one method that the legislature provided that it’s constitutionally appropriate. They didn’t say that was the exclusive method. And I take again that their choice of language in that regard to be significant. If they’d a said that was the only method that you had to provide for only collection of taxes by the local levy of this now larger unit, they could have told us that and they chose not to. So in sum, this is a bit of a chancy prospect. There’s no question about. Ah, but there is no guidance.

Hearings of Conference Committee on Senate Bill 351, Tex.S.B. 351, 72nd Leg., R.S. (March 7, 1991) (Tr. 330-334) (emphasis added).

25 . Further statements quoted are similarly skewed by their failure to identify the witness and to review the entire transcript. One of the quoted witnesses, Op. at 513-514, an Austin lawyer, also opined that “the Supreme Court [doesn’t] know all the ins and outs of school finance,” Tr. at 349-50, that a lawsuit challenging the CEDs is “dead on arrival” at the Supreme Court "because the language, the clear language of Edgewood [II-J it says tax base consolidation can be achieved through the creation of a new school district,” id. at 346, and "I understand that [these alternatives] will work legally.” Id. at 350. Other testimony, expressing unqualified opinions of constitutionality of the Legislature's course, is omitted. See, e.g., Testimony of A1 Kauffman, id. at 335 ("So I think you have very clear authority to do it.... [These] concepts are consistent with ... the general constitutional law.") ■ (emphasis added).

26 . The majority reasons that clause three, conditioning school taxes upon an election, is sur-plusage if districts can impose a tax under the 1909 amendment without a vote. It queries why a district would bother holding an authorization election if it need not. One apparent reason is that the 1909 amendment does not give this power directly to the districts but instead empowers the Legislature to authorize school districts to tax without a vote. Prior to Senate Bill 351, the Legislature had never given school districts this option.

27 . Because section 3-b, as originally adopted in 1962, was limited to Dallas County school districts, amendment in 1966 was necessary to provide statewide applicability.

28 . Urging that there remains "much to be done” in consolidating districts, Hankerson asserted that "a school district with insufficient scholastic population or financial resources cannot give, at a cost that is reasonable, an education program that really meets modern needs.” 35 Tex.L.Rev. at 1005.

29 . See Testimony of Kevin O’Hanlon, supra note 24; The District Court and Edgewood III, supra note 18, at 9.

30 . Judge McCown’s order states that: "If the Texas Supreme Court is of the opinion that the previously-voted tax authority is crucial to the constitutionality of S.B. 351, then the court is prepared to hold a hearing on the question of previously-vote tax authority upon remand.” Tr. 794.

31 . In Reyes v. Mitchell County Educ. Dist., No. D-1544, the plaintiffs presented the testimony of two witnesses, the tax collector and the superintendent of the Westbrook Independent School District. Neither testified that the taxes levied pursuant to Senate Bill 351 exceeded the authorized rate. The record in McCarty v. County Educ. Dist. No. 21, No. D-1493, is similarly deficient.

32 .The majority’s willingness to sap the vitality from the relevant language is at odds with the view Justice Gonzalez recently expressed that "legal definitions frequently achieve their meaning from the context in which they are applied rather than from generic understanding. A term's applicable definition for a particular area of law should be shaped by constitutional and statutory policies that the state seeks to promote in that area.” Gifford-Hill & Co. v. Wise County Appraisal Dist., 827 S.W.2d 811, 820 (Tex.1991) (Gonzalez, J., dissenting).

33 . As the Mitchell County Education District persuasively states:

The evidence showed that the taxes were local taxes only. They were assessed locally (only in Mitchell County), were to be collected locally, and were to be allocated only to the local Mitchell County school districts. Not one dime would ever leave Mitchell County. They were local taxes, not a state ad valorem tax. Mitchell County taxpayers will not write checks payable to the State of Texas. None of their money will be sent to Austin; it will remain in Mitchell County.

Reply Brief of Appellees Mitchell County Education District at 8.

34 . In concluding that this discretion to set the rate is of no consequence in classifying the tax as state or local, the majority relies solely upon extensive quotation from an "unpublished monograph.”

35 . Fla. Const, art. VII, § 1(a) ("No state ad valo-rem taxes shall be levied upon real estate or tangible personal property."). Although one commentator identifies two other states as barring a state property tax, neither is similar to Texas. See 2 Braden at 594.

36 . Other state statutes carry similarly weighty burdens, ordinarily without any accompanying funding. See, e.g., R. Fritz, Texas Local Government Finance, supra, at 122 (the cost of implementing Tex.Educ.Code § 16.054 establishing ratio of teachers to students and §§ 16.055-.057 setting teacher salaries exceeds $800 million); see also e.g., Tex.Loc.Gov't Code § 84.002 (requiring county to pay salary of county auditor appointed by district judges).

37 . In formulating the test for distinguishing between a state tax and a local one, the trial court was better informed than the majority as to the workings of intergovernmental relations: "[A] county raises revenue almost exclusively from the local ad valorem tax.” Tr. 740 (emphasis added).

38 . On January 25, 1949, the committee concluded its work and released The Final Report of Gilmer-Aikin Committee, 51st Leg., R.S. (separate pamphlet) (1949), which contained recommendations to reform the condition and financing of the Texas education system. In 1949, the Legislature adopted almost every proposal verbatim when it enacted the Gilmer-Aikin Bill, S.B. 116. Act of June 1, 1949, 51st Leg., R.S., ch. 334, 1949 Tex.Gen.Laws 626. This landmark legislation established minimum standards for education and a financing plan intended to equalize school funding by redistributing local property tax money from wealthier school districts to poorer ones.

39 . In considering whether use of local taxes to finid junior colleges was an impermissible state ad valorem tax, the Florida Supreme Court reviewed the history of the funding of such colleges. Finding no constitutional bar, the court observed: ‘This is particularly true when as a matter of contemporary history we know that the junior colleges were being supported in part by local funds when the constitution was adopted." Board of Public Instruction v. State Treasurer, 231 So.2d at 3.

40 . This result discourages suits by those with valid claims, since such parties cannot know that they will reap the benefits of their victory. See Note, Limitation of Judicial Decisions to Prospective Operation, 46 Iowa L.Rev. 600, 614 (1961) (hereinafter Limitation of Judicial Decisions ).

41 . This result conflicts with prior rulings by this court which have regularly allowed the parties to the suit to enjoy the fruits of their victory. See, e.g., Whittlesey v. Miller, 572 S.W.2d 665, 669 (Tex.1978).

42 . The choices of remedy are not, as the majority presumes, limited to complete, immediate refund or denial. Making the taxpayers whole can take a variety of forms, including tax credits and refunds in installments. It is thus the majority, and not the dissent, who fail to consider middle grounds between "two extreme positions.” See Op. at 520 n. 37.

43 . See infra at Section II.

44 . See infra note 55.

45 . In correctly determining that the unconstitutional tax should not be endured for the 1992 tax year, Justice Cornyn announces that:

We either have a constitution which is the fundamental law of our state or we do not. Out of due regard for the rule of law the constitution must be enforced or it must be amended — the law simply cannot be ignored or its enforcement delayed for reasons of expediency.

Op. at 525. Inexplicably, however, he concludes that there is no reason not to allow collection and non-refund of those same unconstitutional taxes in 1991, precisely because any other approach would be inexpedient. For some unknown reason, the very same conduct that is wrongfully inexpedient in 1992 is deemed by Justice Cornyn as rightfully expedient in 1991. This is an irreconcilable contradiction.

46 .To avoid application of this rule and forfeiture of their taxes, thousands of taxpayers have filed suit to establish payment under duress. See supra note 1. Little could they expect the court to both hold the tax unconstitutional and deny them a refund of their involuntary tender of taxes.

47 . See Tex.Tax Code § 32.01 (tax lien attaches to property to secure payment); § 33.01(a) (penalty imposed on delinquent taxes); § 33.21(a) (property subject to seizure for delinquent taxes); and § 33.48 (recovery by taxing unit of costs and expenses of bringing suit to collect delinquent taxes).

48 . The view that payment to avoid penalties may constitute payment made under duress has received support in McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, 496 U.S. 18, 110 S.Ct. 2238, 2258, 110 L.Ed.2d 17 (1990). See James M. Ervin, Jr., and Katherine E. Giddings, Supreme Court Distinguishes Remedy and Re-troactivity Issues Affecting State, 73 J.Tax’n 296, 302 (Nov.1990) (hereinafter Retroactivity ).

49 .The cost of ignoring precedent is a high one. Justice Blackmun recently emphasized that when the courts fail to demonstrate respect for precedent, the bar and the public lose trust in the judiciary. James B. Beam Distilling Co. v. Georgia, — U.S. —, 111 S.Ct. 2439, 2450, 115 L.Ed.2d 481 (1991) (plurality opinion) (Black-mun, J., concurring).

50 . Wessely thus did not simply interpret Chevron Oil because federal constitutional questions were raised, as the majority remarkably suggests. Op. at 521. If this court in Wessely were simply parroting the federal law, we would not have rephrased and reshaped each part of Chevron Oits three elements.

51 . The choice to ignore relevant Texas law in favor of federal law of questionable relevance is consistent with the court’s increased propensity to act as a mere drone, blindly following federal courts. See Caller-Times Publishing Co. v. Triad Communications, Inc., 826 S.W.2d 576, 595-596 (Tex.1991) (Doggett, J., dissenting) ("Disregarding our State’s unique statute, the court looks to federal precedent....”); Bexar County Sheriffs Civil Serv. Comm'n v. Davis, 802 S.W.2d 659, 666-69 (Tex.1990) (Doggett, J., dissenting).

52 . Even if one is to look at how federal courts have recently utilized the Chevron Oil test, it is best to look to the source of that rule, the U.S. Supreme Court, which recently applied equally all three parts. See American Trucking, 110 S.Ct. at 2331-33.

53 . The majority curiously cites Reagan v. Vaughn in a footnote, Op. at 515 n. 29, yet ignores the rule of that case.

54 . It is untrue that this dissent “would afford no relief at all, prospective or otherwise.” Op. at 521 n. 38. No relief is required from an act of the Legislature not in conflict with the Constitution. If this statute were unconstitutional, I would enforce Texas law.

55 . Private Truck Council, Inc. v. Oklahoma Tax Comm’n, 806 P.2d 598 (Okla.), cert, granted and judgment vacated, — U.S.-, 111 S.Ct. 2882, 115 L.Ed.2d 1048 (1991) (remanding the case on other grounds in light of a new Supreme Court decision but not addressing the prospectivity issue); Strickland v. Newton County, 244 Ga. 54, 258 S.E.2d 132, 133 (1979) (prospective application from the date of the trial court judgment); Kansas City Millwright Co. v. Kalb, 221 Kan. 658, 562 P.2d 65 (1977); Gottlieb v. City of Milwaukee, 33 Wis.2d 408, 147 N.W.2d 633, 646 (1967).

56 . Kansas City Millwright, 562 P.2d at 74 (ordering refund of all taxes received after date of decision).

57 . Rio Algom Corp. v. San Juan County, 681 P.2d 184, 196 (Utah 1984) (requiring a refund to six plaintiff taxpayers to avoid issuing an advisory opinion and to give the plaintiffs “the fruits of their victory.”); Strickland, 258 S.E.2d at 134; Kansas City Millwright, 562 P.2d at 74.

58 . Forward v. Webster Cent. Sch. Dist., 133 Misc.2d 480, 506 N.Y.S.2d 528, 532 (1986) (noting that other plaintiffs would be allowed recovery because they commenced their action prior to the tax levy and preserved their right to a refund); Ostemdorf v. Turner, 426 So.2d 539, 545 (Fla.1982) (retroactive application "for those taxpayers who have timely judicially challenged" the tax); Kansas City Millwright, 562 P.2d at 74 (allowing relief to anyone who paid under protest and with an action pending). See also Hurd v. City of Buffalo, 41 A.D.2d 402, 343 N.Y.S.2d 950, 954 (1973) (leaving open the possibility of recovery of taxes paid under protest); Perkins v. County of Albemarle, 214 Va. 416, 200 S.E.2d 566, 569 (1973) (explicitly leaving open the ability of any taxpayer to seek a refund).

59 . Forward, 506 N.Y.S.2d at 532 (a refund is allowed where the action is brought prior to the tax levy); Salorio v. Glaser, 93 NJ. 447, 461 A.2d 1100, 1110, cert, denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983) (no one challenged the tax until fifteen years after its inception).

60 . Salorio, 461 A.2d at 1110 (tax had been collected for twenty years); Soo Line R.R. Co. v. State, 286 N.W.2d 459, 465 (N.D.1979) (tax had been collected from 1974-76).

61 . Bond v. Burrows, 103 Wash.2d 153, 690 P.2d 1168, 1174 (1984); Strickland, 258 S.E.2d 132, 134 (both sales tax cases).

62 . If, in the alternative, the question of the constitutionality of Senate Bill 351 is an extremely close one, the majority has failed to presume the constitutionality of a statute and to rely on an available interpretation that upholds that constitutionality. See supra Section IV.

63 . The majority does not deign to respond to the dissent on this critical point. Instead, they accuse the dissent of being “logically inconsistent” for arguing that the majority misled the Legislature and yet Chevron Oil’s first requirement is not met. Op. at 520 n. 37. It is my position that the majority entrapped the Legislature, and that the majority has no valid basis for declaring Senate Bill 351 unconstitutional. Once they improperly do so, however, they are bound by Texas law to apply their rule retroactively under their own theory of this case. Shifting the onus of inconsistency will not let the majority escape their own. The majority’s contorted explanation of the dissent's flawed “fallacy of the excluded middle,” id., is simply another attempt to shift the issues away from the tax in question today. It is ironic that the majority shows this sudden professed concern for a "middle" position between extremes when they rush today past any point of moderation to reach the conclusion that Senate Bill 351 is unquestionably unconstitutional.

64 .Compare today’s opinion, which denies that Edgewood II- may have misled the Legislature, with Justice Mauzy’s opinion in Huston v. FDIC, 800 S.W.2d 845, 849 (Tex.1990) (holding that a rule would apply prospectively "because litigants and trial courts have understandably misconstrued the somewhat cryptic holdings of the cases relied upon herein.”). See also Jacobs v. Lexington-Fayette Urban City Govt., 560 S.W.2d 10, 14 (Ky.1978).

* Editor’s Note — The court’s original opinion, filed November 13, 1991 was ordered withdrawn on motion for rehearing February 26, 1992; see 826 S.W.2d 576. Justice Doggett did not withdraw his November 13, 1991 dissenting opinion; it is published preceding his dissent on motion for rehearing at 603.

65 . The majority contends that "[ajlthough this issue [in Caller-Times ] was one of first impression for us,” it was not necessary to remand the case because they “were not writing on a clean state,” the issue had been "addressed by dozens of courts and commentators,” and the state antitrust statute allows harmonization with federal law. Op. at 520 n. 37. Aside from the fact that no federal court had ever adopted the test this court threw together, surely the majority does not contend that the presence of commentary both for and against a position is enough to signal the adoption of that position. Even if that were true, today’s ruling would apply retroactively because, as the sources cited both by the majority and the dissent indicate, the questions raised today have been previously discussed. Furthermore, it is necessary once again to correct the majority's misreading of the state antitrust law. While harmonization with federal law is permissible, it is precluded when that federal law is contrary to the purpose of the Texas legislation. See Caller-Times, 826 S.W.2d at 595 (Doggett, J., dissenting). The majority has not indicated a true distinction, rather it has demonstrated its error in each of these cases.

66 . "[T]he constitution is the constitution all the time and should be enforced all the time and we shouldn’t say King’s X because it is inconvenient.” Transcription of Oral Argument (Nov. 19, 1991) (Response by R. James George to question from Justice Gonzalez).

67 . This debate has in fact gone on for decades. See Francis X. Beytagh, Ten Years of Non-Re-troactivity: A Critique and a Proposal, 61 Va. L.Rev. 1557, 1570-96 (1975).

68 .Full Sunburst nonretroactivity is not automatically applied in all cases. See generally Walter V. Schaefer, The Control of "Sunbursts": Techniques of Prospective Overruling, 42 N.Y.U.L.Rev. 631 (1967) (discussing variations in application of Sunburst prospectivity); Limitation of Judicial Decisions at 613.

69 . The entirety of the majority’s response to the grave concerns raised by McKesson is that the issue in that case "was not retroactivity but the failure of Florida to follow [U.S. Supreme] Court precedent in fashioning its tax laws.” Op. at n. 33. The only support cited for this conclusion is the plurality opinion in American Trucking that McKesson did not "consider the equities of retroactive application of a new law.” Id. As usual, the majority stops reading a page too soon. In the same paragraph, continued on the next page, the plurality clarifies what it is that they are concerned with: “At this initial stage, the question is not whether equitable considerations outweigh the obligation to provide relief for a constitutional violation,” but whether such a violation exists. American Trucking, 110 S.Ct. at 2333 (emphasis added). To the extent that these four members of the Court may have been attempting to distinguish remedy from retroac-tivity, it may be enough to note, as has one commentary, that "[i]n reality ... although these retroactive and remedy determinations well may be distinct, their close interrelationship is obvious in each case." Retroactivity at 297. In the end, it matters little whether McKesson is classified as about prospectivity, remedies, or due process — its mandate cannot be ignored.

70 . In American Trucking, a plurality opinion decided the same day as McKesson, four Justices straightforwardly applied the Chevron Oil test. See 110 S.Ct. at 2325. The dissent, however, written by Justice Stevens and joined by Justices Brennan, Marshall and Blackmun, took the position that: “Petitioners are entitled to an adjudication of the constitutionality of the [state tax statute] under our best current understanding of federal law regardless of the good faith of the [state] legislators.” Id. at 2346. Most significantly, Justice Scalia, the swing vote, although concurring with the result of the plurality, agreed with the dissent’s rejection of prospectivity. He announced that "prospective decision-making” is always impermissible. Id. at 2343. This opinion thus seems to reflect five votes for the position that a declaration of unconstitutionality should always be applied retroactively. See Retroactivity at 298. Indeed, in Ashland Oil, Inc. v. Caryl, — U.S.-, 110 S.Ct. 3202, 111 L.Ed.2d 734 (1990) (per curiam), the Court concluded that a state supreme court decision which prospectively held a tax statute unconstitutional necessarily had to be reversed under either the dissent or the plurality in American Trucking. Id. 110 S.Ct. at 3204.

71 .The court denies that James B. Beam has any real impact because of its limited holding. It is actually impossible to conclude exactly what James B. Beam did to Chevron Oil other than to note the continuing chaos in this area of U.S. Supreme Court jurisdiction. In this plurality opinion, Justice Souter was joined by Justice Stevens; Justice White concurred in the judgment; Justice Blackmun wrote a concurrence which Justices Marshall and Scalia joined expressing a view in favor of retroactivity in all cases; Justice Scalia, joined by Justices Marshall and Blackmun, concurred; and Justice O’Connor, joined by Justices Rehnquist and Kennedy, dissented. The six Justices not dissenting agreed only on a retroactive application in that case. One observer has gone as far as saying that James B. Beam may actually have abandoned the Chevron Oil test altogether. Swanson v. North Carolina, 329 N.C. 576, 407 S.E.2d 791, 797 (1991) (Mitchell, J., dissenting). Justice Souter criticized the cases on which the court today relies, including Chevron Oil and Lemon v. Kurtzman, 411 U.S. 192, 198, 93 S.Ct. 1463, 1468, 36 L.Ed.2d 151 (1973), for applying rulings prospectively in light of equitable considerations. James Beam, 111 S.Ct. at 2444. He wrote that "this equitable method has its own drawback: it tends to relax the force of precedent, by minimizing the costs of overruling, and thereby allows the courts to act with a freedom comparable to that of the legislatures.” Id.

72 . See also Ashland Oil, 110 S.Ct. at 3205 (reversing a state court decision which allowed prospective application of a tax ruling); Davis v. Michigan Dept, of Treasury, 489 U.S. 803, 817, 109 S.Ct. 1500, 1508-1509, 103 L.Ed.2d 891 (1989) (noting the appropriateness of retroactivity to the extent of allowing a tax refund under the circumstances of that case).

73 . E.g., Automobile Trade Ass'n v. City of Philadelphia, 528 Pa. 233, 596 A.2d 794 (1991) (remanding case to appellate court because of failure to consider and meet due process concerns of McKesson); Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286, 293 (1991), petition for certiora-ri filed, 60 U.S.L.W. 3173 (U.S. Sept. 3, 1991) (No. 91-375) (requiring a tax refund because inequity of denying the refund overrides third prong of Chevron); Bohn v. Waddell, 167 Ariz. 344, 348, 807 P.2d 1, 5 (1991) (allowing partial refund); Private Truck Council, 806 P.2d 598 (allowing refund retroactively to date of U.S. Supreme Court opinion on which unconstitutionality of tax statute is based). Citing two cases which did allow a purely prospective decision to stand, the majority makes the erroneous claim that these alone are “the most recent” precedent. Op. at 519. Swanson v. State, 329 N.C. 576, 407 S.E.2d 791 (1991), on rehearing, 330 N.C. 390, 410 S.E.2d 490 (1991), was written with a strident three-judge dissent, and gave McKesson even less consideration than does the majority today. Likewise, Stroh Brewery Co. v. Department of Alcoholic Beverages Control, 112 N.M. 468, 816 P.2d 1090 (1991), petition for certiorari filed, — U.S.L.W. - (Dec. 12, 1991), with its own lengthy two-judge dissent, failed to even mention McKesson. The Supreme Court will soon have an opportunity to address the approaches taken by these courts in light of the petitions for certiorari which have been filed.

74 . The position that federal courts may review state courts for due process violations is not, however, entirely new. Indeed, writing over half a century ago, one scholar explained that:

The federal courts may ... enjoin the collection of state taxes.... [i]f no refund law is applicable, and even if one is applicable, it must be adequate.... States wishing to avoid the interference of federal injunction in the state tax field must, therefore, provide a really adequate system of tax refunds or recovery.

Oliver P. Field, The Effect of an Unconstitutional Statute 243 (1935, reprinted in 1971) (citations omitted). In fact, the federal courts have required a remedy in tax cases above and beyond that required in other constitutional litigation. Fallon & Meltzer at 1826.

75 . The majority misses the point in concluding that "forc[ing] taxpayers to pay an illegal tax” is not a "violation of their due process rights under the federal constitution” because its decision “is prospective only.” Op. at 521 n. 38. Certainly Sunburst sixty years ago left the initial consideration of whether to apply law prospectively to the states. Whether it may do so without allowing the taxpayers to seek a refund is a separate and distinct due process question affected by the Supreme Court’s writing of two years ago in McKesson.

76 . See Edgewood I, 777 S.W.2d at 397 ("[D]is-tricts must have substantially equal access to similar revenues per pupil at similar levels of tax effort_ Children who live in poor districts and children who live in rich districts must be afforded a substantially equal opportunity to have access to educational funds.”); id. at 397-98 ("[E]qualizing educational opportunity cannot be relegated to an ‘if funds are left over’ basis."); id. at 398 ("An efficient system ... requires only that the funds available for education be distributed equitably and evenly.”). See also Edgewood II, 804 S.W.2d at 496 (“Even if the approach of Senate Bill 1 produces a more equitable utilization of state educational dollars, it does not remedy the major causes of the wide opportunity gaps between rich and poor districts.”); id. (criticizing Senate Bill 1 for “mak[ing] no attempt to equalize access to funds among all districts.”).

77 . See Transcription of Oral Argument in Edge-wood I (July 5, 1989) (Responses of Richard E. Gray to questions from Justice Spears).

78 . Randy Newman, It’s Money That Matters, on Land of Dreams (Reprise Records 1988).

79 . Mark G. Yudof, School Finance Reform: Don’t Worry, Be Happy, 10 Rev.Litig. 585 (1991). Interestingly, a thorough review of this article reveals the author does not share this elitist view but rather believes that Senate Bill 351 represents a realistic solution to school finance inequities.

80 . Accord. Abbott v. Burke, 575 A.2d at 395-97 (discussing disparities between rich and poor districts in the availability of equipment, such as computers and science laboratories, as well as differences in the extent of curricula offerings).

81 . See Op. at 507 n. 24 (testimony correlating increase in tax base with educational results).

82 . Justice Marshall went on to say that in light of the existing disparities proven by Demetrio Rodriquez and others, "the burden of proving that these disparities do not in fact affect the quality of children’s education must fall upon [the wealthier school districts who oppose correcting the disparities].” Id. at 86, 93 S.Ct. at 1324.

83 . We recognized this truism in Edgewood II:

Nor do we suggest that an efficient funding system will, by itself, solve all of the many challenges facing public education in Texas today.

804 S.W.2d at 498.

84 . Indeed, this argument was long ago rejected as "a myth for many of the local school districts in Texas.” Rodriguez, 411 U.S. at 129, 93 S.Ct. at 1346 (Marshall, J., dissenting). Justice Marshall recognized that "striking down interdis-trict disparities in taxable local wealth, ... is most likely to make true local control over educational decisionmaking a reality for all Texas school districts.” Id. at 130, 93 S.Ct. at 1346 (emphasis in original). He observed that unconstitutional inequities could be eliminated while "leav[ing] in local hands the entire gamut of local educational policymaking — teachers, curriculum, school sites, the whole process of allocating resources among alternative educational objectives." Id. at 131 n. 98, 93 S.Ct. at 1347 n. 98.

85 . See Transcript of Oral Argument in Edge-wood I (July 5, 1989) (Responses of A1 Kaufman).

86 . See Transcription of Oral Argument (Nov. 19, 1991) (Responses by R. James George to questions from Justice Gonzalez):

There is a constitutional prohibition against uncontrolled local supplementation_ [L]o-cal supplement [cannot be allowed] to distort the equity that this court required in Edge-wood. It cannot provide a system that allows this voluntary supplement to distort the equity that was the fundamental problem addressed in Edgewood I.

87 .“To a real degree, what is considered ‘adequate’ or ‘necessary’ or 'sufficient' for the poor in Texas is determined by the rich or relatively rich; it is decided in accord with their opinion of what children of the poor are fitted to become, and what their social role should be. This role has always been equated with their usefulness to us; and this consideration seems to be at stake in almost all reflections on the matter of the ‘minimal’ foundation offered to schoolchildren, which, in a sense, is only a metaphor for ‘minimal’ existence.”

Savage Inequalities at 216 (quoting Professor O.Z. White of Trinity University).

88 . Certainly it is within the proper purview of a dissent to define the scope of a majority opinion, as I do here. Rather than attempting to explain the contradiction central to its faulty analysis, the majority prefers to discount this discussion as “speculation." Op. at 524 n. 43.

89 . See supra text following note 16.

90 . Additionally, this convoluted statement is an admission that this court’s opinion in Edgewood II- was advisory, since the majority "obviously contemplated” an issue which they were "not asked by any party to decide.” Op. at 503.

91 . See Transcript of Oral Argument (November 19, 1991) (Response by R. James George to questions from Justices Doggett and Mauzy and Response of Earl Luna to questions from Justice Gammage).

92 . See supra text following note 37.

93 . This encouragement of intrusion by the federal judiciary echoes that most recently worked in Terrazas v. Ramirez, 829 S.W.2d 712 (Tex. 1991, orig. proceeding). See supra note 2.