Untitled Texas Attorney General Opinion

EATiT NEY GENERAL
EXAS
Hon. Jules Damlani, Jr. Opinion No. M-50
Criminal District Attorney
Galveston,County Re. Whether the County of Galve-
Galveston, Texas ston may expend flood con-
trol funds derived from
the collection of taxes
under the revisions of
Article 70 e 8a V.C.S.
for the maintdnance o! seti-
walls constructed ana flnan-
ted under the provisions of
Dear Mr Damlani: Article 6830, V.C.S.
In a recent letter to this office you requested en opinion
in regard to the above captioned matter. We quote from your letter
as follows:
"Galveston County constructed owns and
maintains approximately ten miles oi Seawall
on the Island of Galveston, Texas and Is In
the process of constructing approximately
seventeen miles of Seawall on the Mainland of
Galveston, Texas. The seventeen miles being
in various states of completion. Both the
Island and Mainland Seawall projects were
financed and constructed with bonds now being
retired with ad valorem tax funds Provided by
Article 6830 et seq. V.A.C.S. . *-. .
M. . .
"Galveston County has scheduled a 30# tax
election for ri00a control and farm to market
and lateral roads under the provisions Of
Article 7048a V.A,C.S. said election set for
the 18th of March, 1963. Assuming the tax
election is successful may the County, pur-
suant to Sec. 5 of Article 7048a, expend tax
funds for the maintenance of Seawalls which
were constructed under Article 6830 V.A.C.S.
Attention Is called to the fact that Article
6830 provides for a maintenance tax of such
Seawalls and requires authorization from 2/3rds
of the qualified voters who are resident tax
payers in said County, whereas Article 'i'048a
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Hon. Jules Damlanl, Jr., Page 2 (M- 50 )
et seq. requires authorization from a simple
majority of the qualified property tax paying
voters voting in said election in favor of
said additional tax. Attention Is called to
the fact that the benefits and additional tax
revenue as provided in Article 6830 applies
only to Gulf Coast Counties.
"Your opinion as to whether Sec. 5 of
Article 7048a will allow the County of Galveston
to expend funds for the maintenance of the
Mainland and Galveston Island Seawalls is re-
spectfully requested."
Section 7, Article XI of the Texas Constitution
provides:
"All counties and cities bordering on the
coast of the Gulf of Mexico are hereby authorized
upon a vote of a two-thirds majority of the re-
sident property tzxpayers voting thereon at an
election called for such purpose to levy and
collect such tax for construction of sea walls,
breakwaters, or sanitary purposes, as may now
or may hereafter be authorized by law, and may
create a debt for such works and issue bonds in
evidence thereof. But no debt for any purpose
shall ever be incurred in any manner by any
city or county unless provision is made, at
the time of creating the same, for levying
and collecting a sufficient tax to pay the in-
terest thereon and provide at least two per
cent (2%) as a sinking fund, and the condemna-
tion of the right of way for the erection of
such works shall be fully provided for."
Article 6830, Vernon's Civil Statutes, pro-
vides as follows:
"The county commlssioners~ court of all
counties, and the municipal authorities of all
cities, bordering on the coast of the Gulf of
Mexico shall have the power and are authorized
from time to time to establish, locate, erect,
construct, extend, protect, strengthen, maintain
and keep in repair and otherwise improve any
sea wall or breakwater, levees, dikes, floodways
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..
Hon. Jules Damlanl, Jr ., Page 3 (M-50 )
and drainways and to Improve maintain and
beautify any boulevard erected in connection
with such sea wall or breakwater levees, dikes,
floodways and drainways, and to incur indebted-
ness therefor the payment of which may be pro-
vided for either with or without the issuance
of bonds. And said commissioners’ courts and
municipal authorities shall also have Dower and
are hereby authorized to levy taxes not to cx-
teed in any one year fifty cents on the one
hundred dollars of taxable values of said county
or city for the payment of said indebtedness,
provided that when the taxes are levied as herein
provided for, will not pay off said indebtedness
within five years, then the payment of said in-
debtedness shall be provided for by the issuance
of bonds as hereinafter provided.”
Additional provisions relatln to seawalls are
found in Article 6831, through Article z8399, Vernon’s
Civil Statutes. In relation to the issuance of bonds as pro-
vided for in Article 6830 Article 6834 et seq. provides that
a two-thirds majority of the qualified Gotera who are resid-
ent property taxpayers voting at an election cal.ledto app-
rove a levy of taxes under these statutes must vote in
favor of such levy of taxes.
Section l-a, Article VIII of the Texas Cons-
titution provides, in part, as follows:
“From and after January 1, 1951, no State
ad valorem tax shall be levied upon any property
within this State for general revenue purposes.
From and after January 1, 1951, the several
counties of the State are authorized to levy ad
valorem taxes upon all property within their
respective boundaries for county purposes, except
the first Three Thousand Dollars ($3,000) value
of resldentlal homesteads, not to exceed thirty
cents (3Od) on each One Hundred Dollars ($100)
valuation in addition to all other ad valorem
taxes authorized by the Constitution of this
tate provlded the revenue derived therefrom
&b e used for construction and maintenance
of Farm to Market Roads or for Flood Control,
except as herein otherwise provided. (Emphasis
added. )
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. .
Hon. Jules Damlanl, Jr., page 4 (M-50 )
Section 2, Article 7048a, Vernon's Civil Statutes,
provides, in part, as follows:
"From and after January 1 1951, the several
counties of the State be and they are hereby
authorized to levy, assess and collect ad valorem
taxes upon all property within their respective
boundaries for county purposes except the first
Three Thousand Dollars ($3,000) value of reslden-
tial homesteads, not to exceed thirty cents (3Oj)
on each One Hundred Dollars ($100) valuation, in
addition to all other ad valorem taxes authorized
by the Constitution of the State, provided the
revenue therefrom shall be used as provided in
this Act for the construction and maintenance of
Farm-to-Market and Lateral Roads or for Flood
Control and for these two (2) purposes only,
(Emphasis added.)
,!
. . .II
Section 5, Article 7048a, provides as follows:
"The funds transferred to the Flood Control
Funds shall be under the jurisdiction and control
of the Commissioners Court of such county and
shall be used solely for Flood Control purposes.
All or part of said funds may be used in connec-
tion with the plans and programs of the Federal
Soil Conservation Service and the State Soil Con-
servation Districts and the State Extension Serv-
ice, Conservation and Reclamation Districts,
Drainage Districts, Water Control and Improve-
ment Districts, Navigation Districts Flood Control
Districts, Levee Improvement Districts and Munici-
pal Corporations, and such funds may be expended
by the Commissioners Court in accordance with this
Act for flood control purposes, including all soil
conservation practices such as contouring, terrac-
ing, tank building, and all other practices actually
controlling and conserving moisture and water
within any said county and political subdivision
thereof for Flood Control and Soil Conservation
programs, provided that such plans for improvement
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Hon. Jules Damiani, Jr., page 5 (M-50’ )
are approved by such county and political sub-
division."
Section l-a of Article VIII of the Texas Constitution
and Section 2 of Article 7048a, clearly provide,in identical words,
that the tax authorized by their provisions shall be 'I* . . in
addition t$ all other ad valorem taxes authorized by the Constitu-
tion . Taxes collected pursuant to the provisions of Section
7 of ArtiEle XI of the Texas Constitution and Article 6830 through
Article 683gg, which statutzs were enacted pursuant to Section 7
of Article XI, are clearly . . . other ad valorem taxes authorized
by the Constitution . . ."
Seawalls are constructed as an aid in keeping inland lands
from becoming inundated by sea water, during storms at sea. If such
inundation of water amounts to a flood then It is clear that the
maintenance and improvement of sea walis are "for flood control"
as that term Is used in Section l-a of Article VIII of the Constitu-
tion and Section 2 of Article 7048a.
A flood Is defined In Black's Law Dictionary (Fourth Edi-
tion) as "an inundation of water over land not usually covered by
it .” 36 C.J.S. 1028 In defining the word flood states: "a body
of water rising, awefling and overflowing land n&t usually covered
with water." Also see Long Motor Lines v. Home Fire & Marine Ins.
Co., 67 S.E.2d 512 (1951); Roberts v. Union Insurance Society of
Canton, 332 P. 600 (1958).
It is therefore our opinion that a county may use flood
control funds derived under the provisions of Section l-a of Article
VIII of the Texas Constitution and Article 7048a, for the maintenance
of seawalls constructed pursuant to the provisions of Artlcle,XI,
Section 7 of the Constitution and Articles 6830 through 683gg, pro-
vided that the use of such funds complies with the provisions of
Article 7048a.
SUMMARY
-------
A county may use flood control funds derived
under the provisions of Section l-a of Article
VIII of the Texas Constitution and Article 7048a,
Vernon's Civil Statutes, for the maintenance of
seawalls constructed pursuant to the provisions of
Section 7 Article XI of the Constitution and
Articles 6830 through 683$?g,Vernonla Civil Statutes,
provided that the use of such funds complies with
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.. .
Hon. Jules Damianl, Jr., page 6 (M-50 )
the provisions of Article 7048a, Vernon's Civil Statutes.
Prepared by Lewis E. Berry, Jr. .
Assistant Attorney General
LEBjr:ea
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
William J. Craig
Arthur Sandlin
J. C. Davis
STAFF LEGAL ASSISTANT
A. J. CARUBBI, JR.
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