Untitled Texas Attorney General Opinion ( 1947 )

E NE
EXAS
August 13, 1947
Hon. Roy Sheridan, Jr., opinion No. v-338
cotlntyAttorney,
, Nolan county, Re: Authority to'levy
Sweetwater, Texas a t&u for Trent Road
District Ao. 1 under
5. B. 375, 50th Legis-
1*ture, 1947.
Dear Mr. Shoridanr
Your recant P'equestfer an opinion of thla ef-
flee relative to Senate Bill Ho. 375, Aats of the 5)th
Legislature, 1947, reads In part as follows:
"Au opluion is requested as to whother
or not a tax may be levied bF said Road Dis-
trict without first baviu a bond ismue e-
lection ae provided in Article XII, Section
52, of the Constitution of the Stat0 ef Texas. ,’
:
” .e,.. an opinion is requested as to
whether or not Art. VIII, Sec. 9 of the Con-
stitution limit8 the amount that may be lev-
ied to 154 without,,first having su election
for an addition&l 25 as provided in said por-
tim of the cclnstltu eMu.
"It is alse my opinion
Under the later-~
pmumm 0f ht. 52 slpd Art. vnI,
III, ~00.
Soa. 9 of and the holding of
the Constitution
the Court in Commissioners' Court of Flrvarro
Ceuuty v. Pinkston that the subject 5. B. 375
is unconstitutional on the ground that It pro-
vides for a method of taxation and finracing
sf the read distrlot contrary to the two cited
seotions of the constitution and contains RO
saving olaure that would permit the ignoring
cf See, 4 of said 5, B. 375.’
Soaata,Bill Ro. 375, Acts of the 50th Legisla-.
ture, 2947, reeds in part as fellows:
"5sction 1. There is hereby created and
68tablSshad, md made a political subdivlslen
.
1
Bon. Reg Sheridan, Jr. - Page 2 (v-338)
of this state under and by virtue of Article
III, Section 52 of the Constitution of the .. --
State of Texas, a defined road district to b'
be known and designated as the 'Trent Road
District No. 1 in Taylor, Jones, Fisher end
Nolan Counties,' composed of adjacent and
contiguous parts of Taylor, Jones, Fisher
and Nolan counties, within the State of Texas
. . .
"Sec. 2. The Commissioners Courts of
the four counties of which this District Is
a part shall constitute a Board of Directors
for managing the affairs of said Road Dis-
trict. . .
nSec. 3. It shall be the duty of said
Board. . . to levy taxes for said purposes
within the limits of the constitution and
laws of this state and of this Act.
"Sec. 4. Taxes within the limitations
’
provided by the constitution may be levied,
assessed and collected for the said road pur-
poses, provided that the taxes for such road
purposes shall be uniform throughout said Dis-
trict, and shall be levied in the following
manner:
'The said Commissioners Courts of said
four counties acting as the Board of Direc-
tors of said Road District shall fix the said
rate of taxation which said rate shall be
applied uniformly to the portions of said Dis-
trict lying in said respective counties, and
said rate shall never exceed in any of said
counties the maximum rate allowed by the con-
stitution and laws of this state. The Com-
missioners Courts of the said respective coun-
ties shall thereafter, levy said tax at the
rate so fixed upon all property situated with-
in said county and within that portion ;f said
Road District lying within such county.
The Bill contemplates that the Board of Direc-
tors of the Road District
. shall fix the rate of .taxation
. ..
and each Commissioners' Court OS the Sour counties wltnln
the Road District shall levy the tax without an election
upon all property within their respective counties, re-
gardless of whether such property Is located within the
. .
. *
Eon. Hey Sheridan, Jr. - Page 3 (V-338)
R o a d B istr ic t lr not.
Artiale III, Section 52 Constitution of the
Strte ~sfTexas, reeda in part as 6:0110~s:
" provided, however, that under
trlgt no* or hereafter to be described and
def&neQ :sthin t&e State of Texas, and which
towns, Pille#ea or
upon a vote of a two
thirds aa,jororlity
of the res$df@ propchrt
tax#ayors votkng there@ who Ar# qual%f,ed
9
ele&ors of such distr$# @r t(l)ritory&I b#
af&&ted @hereby, ‘Lnadd&&ion ta all oth@
may Sssue bondr a@ etherwise leda hts
in any amount not to exc&ed @no-
of the assessed vaguat-ionof the real
property #$ such &strict or territory, ox-
oept *hat.the tota% bonded indebtedness
a@ city or town shall fleverexceed the r.%zm-
its imposed by other
stltutlon,,and levy
to pay the interest thereranand provide a
sinking fund for the redemption thezeof, as
the Legislature may au#korlze . . .
Article VIII, Section 9, Constitution oT the
State of Texas, provides in part:
"
and no county . shall lev
more tia;ltwenty-five (25) ok& for
c@i$@typurposes, and not exceeding &3&
cents for roads and bridge% . , . Oa the ane
hundred dollars valuation.
As the Bill does not authorize an election for
the issuance of bonds, the counties cannot levy the tax
provided'forln Article III, Section 52 of the Constltu-
tlon. Nor is it believed that the counties can levy the
154 on the $100 valuation provided for in Article VIII,
Section g'af the Oonstltut$on, 6n all property within the
county to be used for the benefit of only a
county .&ndparts of three other oounties. Tir;O%~::
tlon authorizes counties to levy:this 156 a*sossment en
.
Hen. Hey Sheridan, Jr, - rage 4 (V-338)
the $100 valuation for roads and bridgtm and it is 0~
lntezq.metstloathat this maaas for reads end bridges
Within the *atIre a4untg antlis net an authorleation
for tha Qounty to make suoh assessment and then 0~10~
the mm to be oallected and used by a Road blatriot
coapoued of gmts of four counties. Nor can the Le -
islature validly give such authority to a aounty. &
Carroll v. Wil’llaaS,109 Tex. 155, 202 S.W. 504, Jnd@a
ZUs, speaking for the Supreme Court of this State,
:
‘By neoessarg lmpll4atlon said provl-
slons-of seotlon 9, artlole 8, were designed,
n@t merely to llmlt the tax rate for certain
t&r&a designated purposes, but to require
that urf and a&l money raised by taxation
for any such purpose ‘shal.1begapplied, falth-
fully, to that particular purpose, as needed
therefor, anc¶not to any other purpose or use
vhataoevsr.”
Section 4 of the Bill authorlses only those
taxes to be levied, assessed and collected as are vithin
the limitations provided by the Constitution. Au there
are no taxes which can be oonatitutlonally levied In the
manner set out In the Bill within the llmltations pro-
vided by the Constitution, no taxes may be levied, assess-
ed or collected. It Is therefore the opinion of this De-
partment that the manner of taxation set out In Section 4
of said BllZ Is void.
In answer to your request for an opinion as to
whether or not Article VIII, Section 9 of the %onstitutlon
limits the amount that may be assessed upon the $100 valu-
ation for road and bridge purposes without first having
an election, you are advised that an assessment of taxes
by a county for road and bridge purposes greater than 154
on the $100 valuation without an election as provided for
therein is not authorized by said Section and Article of
the Constitution and would therefore be void.
It has 4ome to our attention that the argument
has been advanced that since 9. B. 375 was prepared by
this office, the same la oonstltutional. Our office put
this leglslatlv4 proposal in legal form just as it did
hundreds of bills during the 50th Legislature. This was
done with the specific understanding that this office did
not thereby pass upon or approve the merits or constltu-
tlonality of such measures. In this case, as in all others
Ron. Rey Sheridan,Jr. - Page 5 (v-338)
requiring the writing of bills, the requesting legls-
later signifiedhis understandingof the following rule
at the time OS making the request:
"It is understood that preparation of
this proposed draft is no indicationwhat-
ever that its substance,policy or consti-
tutionalityIs approved orvpassed on by the
Attorney General's office.
SUMMARY
1. 3. B. No. 375, Acts of the 20th
Leg.9 1947, purporting to establish Treat
Road District No. 1 in Taylor, Jones, Fisher
and Nolan Counties" does not provide a valid
method to levy taxes to support such dis-
trict under Article III, Sec. 52, of the
Constitutionof the State of Texas.
2. Under Article VIII, Sec. 9, Constl-
tution of the State of Texas, a county Can-
not legally assess a tsx greater than 15q!
on the $100.00 valuation for road and bridge
purposes without first having an election as
provided for therein.
Yours very truly
OF TEXAS
ATTOFSRX GIfSIERAL
Burnell Waldrep
BW:wb;jt;djx Assistant
Y1Jl.J
ATTORNEY GEXERAL