Untitled Texas Attorney General Opinion ( 2015 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
July 13, 2015
The Honorable Bob Wortham Opinion No. KP-0028
Jefferson County Criminal District Attorney
1085 Pearl Street, 3rd floor Re: Whether a Type C municipality may
Beaumont, Texas 77701 levy an ad valorem property tax
(RQ-0006-KP)
Dear Mr. Wortham:
On behalf of the mayor of the City of Taylor Landing, Texas (the "City"), you ask whether
a Type C general-law municipality may levy an ad valorem property tax. 1 In a letter attached to
your request, the mayor states that the City has a population of 272 and provides various municipal
services. Durkay Letter at 1.2 The mayor asks whether the City may impose "a traditional
ad valorem tax," but he is uncertain whether the City has that authority under the principles
discussed in Attorney General Opinion JC-0291. Id. at 1-2. That opinion advises that the power
to tax, which belongs to the state, can be exercised by a political subdivision only when the
constitution or the Legislature has expressly granted taxing authority to the political subdivision.
Tex. Att'y Gen. Op. No. JC-0291 (2000) at 4 (determining that a political subdivision may levy
an ad valorem tax only if the constitution or the Legislature has "plainly and unmistakably
conferred" such authority). While that opinion concerned a county development district, the same
principles govern the taxing authority of a Type C general-law municipality. See Tex. City v. JL..
Martin Inv. Co., 222 S.W.2d 139, 141 (Tex. Civ. App.-Galveston 1949, writ refd) (stating that
"municipalities are strictly limited in the exercising of their taxing power to the powers expressly
granted them by the constitution or by statute, either expressly or by necessary implication");
Vance v. Town of Pleasanton, 261 S.W. 457, 458 (Tex. Civ. App.-San Antonio 1924) (stating
that general-law municipalities "have no ·power to levy or collect taxes upon property within their
1
See Letter from Honorable Bob Wortham, Jefferson Cnty. Crim. Dist. Att'y, to Office of the Tex. Att'y Gen.
at I (Jan. 20, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter");
Letter from Honorable John J. Durkay, Mayor, City of Taylor Landing, to Honorable Bob Wortham (Jan. 13, 2015)
("Durkay Letter") (attached to Request Letter).
2
The 2010 decennial census lists the population of the City of Taylor Landing, Texas as 228. See U.S. Census
Bureau, U.S. Dep't of Commerce, 2010 Census of Population, http://factfinder.census.gov.
The Honorable Bob Wortham - Page 2 (KP-0028)
territorial limits, except such power as may be expressly delegated to them by the Constitution or
statutes"), aff'd, 277 S.W. 89 (Tex. Comm. App. 1925).
Under article XI, section 4 of the Texas Constitution, the Legislature may authorize
municipalities with a population of 5,000 or less to levy an ad valorem tax. TEX. CONST. art. XI,
§ 4. Section 302.001 of the Tax Code grants ad valorem taxing authority to home-rule
municipalities and Type A and Type B general-law municipalities without addressing the authority
of Type C municipalities. TEX. TAX CODE ANN.§ 302.001 (West 2015). But section 51.051 of
the Local Government Code gives Type C municipalities the same authority as a Type A or Type
B municipality, depending on population. TEX. Loe. Gov'T CODE ANN. § 51.051 (West 2008). 3
Subsection 51.051(b) of the Local Government Code provides: "The governing body of a Type C
general-law municipality with 201 to 500 inhabitants has the same authority as a Type B general-
law municipality unless the authority conflicts with a provision of [the Local Government Code]
relating specifically to a Type C general-law municipality." Id.§ 51.05l(b). No provision of the
Local Government Code that relates specifically to a Type C general-law municipality conflicts
with the taxing authority that a Type C municipality may possess under section 302.001 of the Tax
Code. As a revisor's note to section 302.001 of the Tax Code explains, it is not necessary for that
section to specify the taxing powers of Type C municipalities because of the authority granted in
the borrowing provision of Local Government Code section 51.051. See TEX. TAX CODE ANN.
§ 302.001 revisor's note (West 2015). Accordingly, section 302.001 of the Tax Code and section
51.051 of the Local Government Code expressly authorize a Type C general-law municipality to
levy an ad valorem tax on property within its city limits.
3 See also TEX. Loe. Gov'r CODE ANN. § 51.052 (West 2008) (authorizing certain Type C municipalities to
adopt the power of a Type A municipality based in part on assessed valuation).
The Honorable Bob Wortham - Page 3 (KP-0028)
SUMMARY
Section 302.001 of the Tax Code and section 51.051 of the
Local Government Code expressly authorize a Type C general-law
municipality to levy an ad valorem tax on property within its city
limits.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
Assistant Attorney General, Opinion Committee