Untitled Texas Attorney General Opinion ( 1963 )

THEA ORNEP ENE
OF TEXAS
February 28, 1963
Hon. Menton J. Murray, Chairman Opinion No. C- 23
Sub-Committee, Public Health
House of Representatives Re: Whether House Bill
Austin, Texas 167 is constitutional.
Dear Mr. Murray:
You have requested an opinion from this office as to
whether House Bill 167, presently pending in the House of Rep-
resentatives, is constitutional. You have advised us that the
Committee as a whole instructed you to request same.
You have stated in your letter that:
"The bill seeks to permit, through an elec-
ti.on,the establishment of a school for retarded
children. Some members of the committee are of
the opinion that in order to establish such a
retarded school district, we would have to amend
the Constitution similar to amendments required
when an area seeks to set up a hospital district."
House Bill 1.67authorizes the establishment of Rehabi-
li.tatTonDistrrcts, composed of a county or a combination of
counties, to provide education, training and special services
and guidance for mentally retarded and physically handicapped
persons over six (6) years cf age. House Bill 167 further pro-
vides that:
"AL1 powers relating to the acquisition of
land, the construction or acquisition of facilitieS
except the Issuance of bonds, and to taxation,
vested by law an Independent school districts, shall
be applicable ,toany Rehabilitation district, sub-
ject to a tax limitation of five cents (5#) on each
One Hundred Dollars ($100.00) valuation."
Hon. Menton J. Murray, page 2 (C- 23 )
Also, in Section 7(i) of House Bill 167, which deals with the
powers of a Rehabilitation District, there is granted to the
Board of Directors of the District the authority to:
"(3) Levy taxes and make such distribution
of such taxes as it may deem necessary for pro-
viding needed housing and facilities, and for the
support of the Rehabilitation program, except that
the total annual tax for all District purposes
shall not exceed the rate of five cents (59!) on
each One Hundred Dollars ($100.00) of assessed
valuation of taxable property located In such dis-
trict;"
The procedure set forth in House Bill 167 for the
formation of a Rehabilitation District requires that a petition
requesting an election upon the Issue of creating a Rehabilita-
tion District be filed with the Commissioners Court, and after
the filing of such petition the Commissioners Court is required
to order an election for the purpose of determining whether a
Rehabilitation District will be established.
It Is apparent from a reading of House Bill 167 that
the Rehabilitation Districts provided for therein are a form of
specialsschool districts with the purpose of providing educa-
tion, training and guidance for mentally retarded and physically
handicapped children of school age who could not safely or ade-
quately be educated in the existing public schools.
Section 1 of Article VII of the Constitution of Texas
provides that:
"A general diffusion of knowledge being essen-
tial to the preservation of the liberties and rights
of the people, it shall be the duty of the Legisla-
ture of the State to establish and make suitable
provision for the support and maintenance of an ef-
ficient system of public free schools."
Section 3 of Article VII of the Constitution of Texas
provides in part that:
11
.provided, however, that should the limit
of taxition herein named be insufficient the deficit
may be met by appropriation from the general funds of
the State and the Legislature may also provide for
the formation of school district by general laws; and
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I .
Hon. Menton J. Murray, Page 3(C- 23 )
all such school districts may embrace warts of two
or more counties, and the Legislature shall be au-
thorized to pass laws for the assessment and collec-
tion of taxes in all said districts and for the manag-
ement and control of the public school or schools of
such districts, whether such districts are composed
of territory wholly within a county or in warts of
two or more-counties, and the Legislature may authorize
an additional ad valorem tax to be levied and collected
within all school districts heretofore formed or here-
after formed, for the further maintenance of public
free schools, and for the erection and equipment of
school buildings therein;. . .' (Emphasis added)
Section 48 of Article III of the Constitution of Texas
provides in part that:
"The Legislature shall not have the right
to levy taxes or impose burdens upon people, ex-
cept to raise revenue sufficient for the economical
administration of the Government in which may be
included the following purposes:
tt
. . .
"The support of public schools, in which shall
be included colleges and universities established
by the State; and the maintenance and support of
the Agricultural and Mechanical College of Texas."
The above quoted provisions of the Constitution of
Texas clearly establish that it is the duty of the Legislature
to provide for an efficient system of public schools in this
State. The same provisions of the Constitution also clearly
show that the Legislature is authorized to create school dis-
tricts as well 83 to provide for the assessment and collection
of taxes in such school districts. While the type of special
school districts proposed in House Bill 167 tends to fall out-
side of the generally recognized types of school districts, it
is also well recogn,izedby the courts of this State that the
Legislature has broad discretion in enacting laws which it deems
necessarv and exwedient in organizing, operating, and maintain-
ing the public school system of this-State. Mumke v. Marrs,
120 %e.x.383, 40 S.W.2d 31 (1931); El Dorauo Independent School
Distrfct 3 S.W.2d 420 (Comm.App. 1928); and Wilson
v. Abflene Independent School District, 190 S.W.2d 406 (Tex.
Civ.App. 1945, error ref. w.o.m.). In addition, it is stated
in 37 Tex.Jur. 847, Schools, Sec. 5, that:
.
Hon. Menton J. Murray, page 4 (C- 23 )
"Under the Constitution public education is
a division or department of the government the
affairs of which are administered by public of-
ficers, and in the conduct of which the Legislature
has all legislative power not denied it by the
fundamental law. In ascertaining the power which
the Legislature may constitutionally exercise with
reference to the school system, the courts will
not limit or restrict that power unless they find
in the Constitution itself a specific limitation
or one which arises by necessary implication from
the language used. Consequently the Legislature
may pass such laws as in its discretion appear
necessary and expedient for effectuating the
declared policy, subject only to the general
limitations imposed in the organic law. It is
the judge of what means are necessary and appro-
priate for the purpose, and its determination will
not be reviewed by the courts if the act has a
real relation to the subject and the object of the
Constitution."
The courts in this State have held that liberal rules
for construction of the Constitution of Texas should apply in
determining the power of the Legislature in organizing the pub-
lic school programs of this State. Mumme V. Marrs, supra. In
the case of c cCraw 132 Tex.
613, 126 S.W.2d b27 (1939), the Court said that:
"This Court has repeatedly held that no
act of the Legislature will be declared uncons-
titutional unless some provision of the Constitu-
tion can be cited which clearly shows the invalidity
of such act. Brown v. City of Galveston, 97 Tex.
1, 75 s.w. 488; g Tex.Jur., sec. 59, pp. 477, 478,
and cases cited in footnotes. The burden is on him
who attacks a law for unconstitutionality and courts
need not exert their ingenuity to find reasons for
holding the law invalid. As was said by the Supreme
Court of the United States in the case of Middleton
V. Texas Power & Light Co., 249 U.S. 152, at page
157: 39 S. Ct. 227, at page 229, 63 L. Ed. 527:
'There is a strong presumption that a Legislature
understands and correctly appreciates the needs
of its own people, that its laws are directed to
problems made manifest by experience, and that
its discriminations are based upon adequate
grounds.!
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Hon. Menton J. Murray, page 5 (C- 23 )
"If doubt should be raised as to the validity
of a statute, such statute should be held valid un-
less it clearly violates some provision of the Con-
stitution."
In view of the foregoing authorities we are of
the opinion that the creation of Rehabilitation Districts
as proposed by House Bill 167 would be a valid enactment of
the Legislature pursuant to Section 1 and Section 3 of Article
VII of the Constitution of Texas, and would not require the
submission of a constitutional amendment authorizing the creation
of this type cf district.
SUMMARY
The creation of Rehabilitation Districts as
proposed by House Bill 167 would be a valid enactment
of the Legislature pursuant to Section 1 and Section
3 of Article VII of the Constitution of Texas, and
would no,trequire the submission of a constitutional
amendment authorizing the creation of this type of
district.
Yours very truly,
WAGGONER CARR
Attornev General of Texas
PB:mkh: wb Assistant
APPROVED:
OPINION COMMITTEE
W, V. Geppert, Chairman
J. C. Davis
W. 0. Shultz
Ernest Fortenberry
Grady Chandler
APPROVED F3R T'HEATTORNEY GENERAL
BY: Stanton Stone
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