Untitled Texas Attorney General Opinion ( 1958 )

THE,LYTORNEY GENERAL
OF EXAS
A~STINII.TEXAS
WILL WII4sON
A1TOasNlcY GENEHAL
July 29, 1958
Hon. Fe&gin W. Windham Opinion NO. ``-480
District Attorney
Orange County Re: Is the Commissioners
Orange, Texas Court authorized to levy
an ad valorem tax upon
all taxable property
within Orange County for
the purpose of establlsh-
ing a general fund to be
used for the maintenance,
upkeep, repairs and addi-
tions to the Improvements
of the Orange County
Conservation and Reclama-
tion District without
first causing an election
to be held for the pur-
pose of establishing a
rate in accordance with
the provisions of Article
8013, Texas Revised Civil
Dear Mr. Wlndham: Statutes, 1925?
You request the opinion of this office upon the above
captioned matter.
The facts submitted by you may be thus summarized: In
1931, there was legally created, In compliance with Section
59 of Article XVI of the Constitution of Texas, and appro-
priate statutory provisions, the Orange County Conservation
and Reclamation District. Said district Is co-extensive with
the boundaries of Orange County. After the cre’ationand
establishment of said Conservation and Reclamation District,
bonds were voted and Issued by the district as provided by
statute. The Issuance of said bonds were submitted to and
voted by the requisite number of qualified voters of the
dfstrlct, and appropriate provisions were made for the levy,
assessment and collection of a tax to meet this bonded lndebted-
ness. There is not at this time nor has there heretofore been
any question of validity of the creation of said district or
the bonds.
The specific question now before us Is the validity of
. .
Hon. Feagln W. Windham, page 2, Opinion No. ``-480
the assessment and collection of a maintenance tax without
submitting the same to the voters of the district. You state
that there has never been an election by the voters of the
district for a maintenance tax, but that such a tax has been
levied and assessed for many years notwithstanding the absence
of an election.
We are quite reluctant at this late date to hold that
the district Is without authority to levy and assess a maln-
tenance tax In the absence of an election, but we have no
other alternative.
The Orange County Conservation and Reclamation District
was created pursuant to the statutes enacted under the
constitutional authority granted by Section 59 of Article
XVI of the Constitution. The questlon.you submit has been
answered by the Supreme Court in the case of Brown County
Water Improvement District No. 1 vs. Austin Mill and Grain
Company, 135 Tex. 140, 138 S.W.2d 523. We take the liberty
to quote f,romthis case rather fully because it bases the
ruling primarily upon the Constitution. In this case, the
Court said:
"The Court of Civil Appeals held that the
maintenance taxes In question were invalid, be-
cause not authorized by vote of the property
taxpaying voters of the district. 128 S.W.2d 829.
Writ of error was granted because of the constl-
tutlonal question Involved. Having reached the
conclusion that the holding of the Court of Civil
Appeals is correct, there is but little which can
be added to its opinion.
"For purposes of this discussion it Is assumed
that statutory authority existed for levying the
maintenance.taxes. Notwishstandlng this, however,
lf a vote of the taxpaying voters was an essential
prerequisite, the taxes were invalid. We are of
the opinion that the matter is determined by a
construction of the language of Subdivision (c)
of Section 59, of Article 16, of the Constitution,
and that the construction of this particular sec-
tion, as regards the question here Involved, has
not been directly passed upon by this court.
"As the controversy between the parties Is
waged largely around Subdivision (c) of Section 59
of Article 16, we are setting out same In full.
For convenience in arriving at the meaning of same
Hon. Feaglh W:,~Wlndham,page 3, OpinlonNo~. WW-480
we are setting it out In designated subdivisions,
retaining the original punctuation:
'(a) The Legislature shall authorize
all such Indebtedness as may be necessary
to provide all improvements and the maintenance
thereof requisite to the achievement of the
purposes of this amendment,
'(b) and all such indebtedness may be
evidenced by bonds of such conservation and
reclamation districts, to be Issued under
such regulations as may be prescribed by law
'(cl and shall also, authorize the levy
and collection within such districts of all
such taxes, equitably distributed, as may be
necessary for the payment of the interest and
the creation of a sinking fund for the pay-
ment of such bonds;
'(d) and also for the maintenance of such
districts and Improvements,
'(e) and such Indebtedness shall be a lien
upon the property assessed for the payment
thereof;
'(f) provided the Legislature shall not
authorize the Issuance of'any bonds or provide
for any indebtedness against any reclamation
district unless such proposition shall first be
submitted to the qualified property taxpaying
voters of such district and the proposition
adopted.'
"[g Looking at said constitutional provision
more in detail we find that Subdivision (a),empowers
the Legislature to authorlze,all such Indebtedness as
may be necessary to provide all improvements and the
maintenance thereof. Manifestly, the 'indebtedness'
which, under this provision, the Legislature may
authorize, means all enforceable obligations which
may be incurred, regardless of the conditions of their
payment or the time in which they may be payable. In
other words, 'indebtedness,' as here used, has no
technical or special meaning, but obviously has a
broad significance as covering all debts or obllga-
tions created for improvements or maintenance.
Hon. Feagin W. Windham, page 4, Opinion No. WW-480
"Subdivision (b) declares that 'such indebtedness'
may be evidenced by bonds. Obviously, the word 'ln-
debtedness' here has the same meaning as In the preced-
ing paragraph.
"Subdivision (d), when read in the light of the
preceding language, means that the Legislature shall
also authorize the levying and collection of such
taxes as may be~necessary 'for the maintenance of
such districts and Improvements,' and this is lmme-
diately followed by the language (Subdivision e) 'and
such indebtedness shall be a lien upon the property
assessed for the payment thereof.' Here again the
indebtedness mentioned is manifestly the same men-
tioned In the preceding paragraphs, and necessarily
means all debts or obligations Incurred In connection
with improvements and maintenance. The word still
has no special or technical meaning.
"Then follows the provision which is the subject
of debate. It is necessary to repeat same with em-
phasis upon the controlling words: 'Provided the
Legislature shall not authorize the issuance of any
bonds or provide for any Indebtedness against any
reclamation district unless such proposition shall
first be submitted to the qualified property tax-
paying voters of such district and the proposition
adopted.'
"p-q The words 'any indebtedness' are emphatic
and inclusive. We are called upon, however, to say
that the word 'indebtedness' in this provision does
not have the same broad meaning or significance which
it undoubtedly has in the preceding subdivisions
where it is used. The contention Is that as here
used It has the restricted meaning given to the word
'debts' in Section 5, Article 11, of the Constitution
pertainin to cities and towns. See McNeil1 v. City
of Waco, 89 Tex. 83, 33 S.W. 322. We perceive no
reason for giving this word this special meaning,
when its true meaning is clearly apparent from Its
own context. It is a general rule that words are
usually given a broad and liberal meaning, if neces-
sary, In order to effectuate the purpose of the
constitutional provision of which they are a part.
It may be safely said that one of the dominant pur-
poses of the constitutional provision in question
was to prevent the burdening of property with tax
liens, except with the approval of the taxpayers
Hon. Feagin W. Wlndham, pages5, Opinion No. ``-480
themselves, formally expressed in an election for
that purpose. So, In light of this ,manlfest pur-
pose, It 1s plain that the 'Indebtedness' mentioned
In this provision Is exact1 the same indebtedness
mentioned in Subdivision (eT , where It is said,
'such indebtedness shall be a lien upon the property
assessed for the payment thereof.'
"While the prohibition Is primarily against
indebtedness, yet It Is apparent that if the taxes
be assessed and a lien created against the property
without approval of the taxpayers, the prohibition
of the Constitution will be defeated, regardless of
how the money may be expended."
There Is no question of the authority of the district
to levy, assess and collect a maintenance tax provided it
Is authorized by a vote of the qualified electors of the
district, but until this Is done any tax levied, assessed
and collected would be invalid. The authority is found In
Article 8013, V.C.S., and It Is apparent from the opening
sentence of this statute that a levy, assessment and
collection of a maintenance tax may be voted by the quall-
fied electors of the district. It plainly says "When a
maintenance tax shall have been voted In any district en-
titled by the benefits of this Act." (Emphasis added.)
You are therefore .respectfullyadvised that the Orange
County Conservation and Reclamation District has no authority
to levy, assess and collect a maintenance tax without the
same being submitted and favorably voted by the required
number of qualified voters of the district.
The foregoing conclusion Is applicable only where a
maintenance tax is levied and assessed upon an ad valorem
basis. There are certain assessments and charges made by
water control and Improvement districts that do not require
submission to the voters of the district. An election is
only required for the Issuance of bonds and for a malnte-
nance tax that Is supported on an ad valorem basis. This
is made quite clear In the case of Moore vs. Maverick
County Water Control and Improvement Dist. No. 1, Clv.App.,
162 S.W.2d 1004, error refused. Certiorari denied 63 S. Ct.
993, 318 U.S. 790, 87 L. Ed. 1156. We quote from said case
as follows:
"We next consider appellant's attacks upon
the flat rate assessments and the assessments for
the amortization and emergency fund.
. -
Hon. Feagin W. Windham, page 6, Opinion No. ``-480
"These assessments are commonly referred to as
'service charges' and may be considered together.
"Appellant contends that these service charges
are invalid because they were not authorized by a
vote of the property tax-paying voters of the district.
As supporting this contention, he relies upon the
case of Austin Mill & Grain Co. v. Brown County
Water Improvement District No. 1, Tex.Civ.App.,
128 S.W.2d 829; Brown County Water Improvement
District v. Austin Mill & Grain Co., 135 Tex. 140,
138 S.W.2d 523.
"The Brown County case is not in point. It
deals with the validity of an ad valorem tax for
maintenance purposes and not with a flat rate
assessment, or with an amortization and emergency
fund assessment.
"The constitutional distinction between the
ad valorem tax and the assessments here Involved Is
clear and well defined. In Lower Colorado River
Authority v. McCraw, 125 Tex. 268, 83 S.W.2d 629,
633, it was directly held that the constitutional
vote required by Article 16, Sec. 59 Subd. (c),
was applicable only 'to * * * bonds and indebted-
ness to be paid out of tax funds.'
SUMMARY
The Orange County Conservation
and Reclamation District has no author-
ity to levy, assess and collect a maln-
tenance tax upon an ad valorem basis
without the same having been submitted
to the voters of the district and author-
ized by the requisite number of qualified
voters.
Very truly yours,
LPL/ba
APPROVED: WILL WILSON
OPINION COMMITTEE:,; Attorney General of Texas
Geo.P.Blackburn, Chairman
Jay Howell
J. Milton Richardson BY ga$g$tJ
Richard Wells
Wayland Rivers, Jr. Assistant
REVIEWED FOR THE ATTORNEY GENERAL
By: W. V. Geppert