Untitled Texas Attorney General Opinion ( 1949 )

Hon. Pearce Johnson, Chairman
Committee on State Affairs
House of Representatives
Fifty-first Legislature
Austin, Texas Opinion No. V-797
Re: Whether amendment of Sec.
l-a of Article VIII of the Con-
stitution is self-executing
and whether the provisions of
H.B. 107 comply with said
Dear Sir: section.
You have submitted a copy of House Bill 107 and re-
quested a ruling of the Attorney General on two questions, the first
of which reads as follows:
‘1. Is the enactment of the proposed law neccs-
sary to comply with H.J.R. No. 24 of the 50th Legiala-
ture ? ”
The pertinent provisions of H.J.R. 24, which was adopt-
ed by vote of the people in the 1948 General Election, are the follow-
ing:
“Section 1. That Section l-a of Article VIII of the
Constitution be amended so as to be and read as follows:
u ‘Section l-a. From and after January 1, 1951,
no State ad valorem tax shall be levied upon any prop-
erty within this State for general revenue purposes.
From and after January 1, 1951, the several count&a
of the State are authorized to levy ad valorem taxeo up-
on all property within their respective boundaries for
county purposes, . . . not to exceed thirty cents (3O$)
on each One Hundred Dollar ($100) valuation, in addi-
tion to all other ad valorem taxes authorized by the
Constitution of this State, provided the revenue derived
therefrom shall be used for construction and~mainte-
nance of Farm to Market Roads or for Flood Control,
except as herein otherwise provided.”
,
Hon. Pearce Johnson, Page 2 (V-797)
The proviso relates to the applicability of the amend-
ment to ” ‘counties or political subdivisions, or areas of the State
from which tax donations have heretofore been granted . . .’ ”
Section 1 of H.B. 107, embodies the exact language of
the first sentence above quoted prohibiting the levy of State ad va-
lorem taxes for general revenue purposes after January 1, 1951.
Since this sentence of H.J.R. 24 plainly states a positive constitu-
tional prohibition. no legislative act could abrogate or modify its
terms and it must, by its very nature, be self-executing. Cooley,
Constitutional Limitations, 8th Ed., Vol. 1, pp. 166-168, 170; Wat-
son v. Aiken, 55 Tex. 536, 542; Hemphill v, Watson, 60 Tex. b’T4F;
‘681. Mitchell County v. City National Bank, 91 T ex. 361, 43 S.W.
880: 883 ; and authoritres there crted. Section 1 of H.B. 107 is there-
fore in no wise necessary either to effectuate or to comply with the
opening mandate of H.J.R. 24.
Passing to a consideration of the remainder of H.J.R.
24, we may hold it self-executing “if it supplies a sufficient rule
by means of which the right given may be enjoyed and protected or
the duty imposed may be enforced; and it is not self-executing when
it merely indicates principles, without laying down rules by which
these principles may be given the force of law.”
This excerpt from Cooley on Constitutional Limitations
was quoted by the Supreme Court of Texas in Mitchell County v.
City National Bank, 91 Tex. 361, 371, 43 S.W. 880, 883, when the
court was determining whether or not the provisions of Section 7
of Article XI of the Texas Constitution were self-executing: i.e.,
said the court, whether “the source of authority for making the levy
and collecting the tax is the Constitution and not the act of the Leg-
islature.”
The portion of the Constitution in question in the Mitchell
case provided:
*All counties and cities bordering on the coast
. . . are hereby authorized, upon a vote of two-thirds
of the tax payers therein (to be ascertained as may be
provided by law), to levy and collect such tax for con-
struction of seawalls, breakwaters, or sanitary pur-
poses, as may be authorized by law, and may create
a debt for such works . . .I(
The Court reached the conclusion that the provisions of
Section 7 of Article XI were not self-executing in the following analy-
sis:
Hon. Pearce Johnson, Page 3 (V-797)
“The only parts of the constitution which bear
upon this subject are section 9 of article 8, and sec-
tions 2 and 7 of article 11. Section 9 confers no au-
thority upon any officer of a city or county to levy a
tax for any purpose, but by the language, ‘No county,
city or town shall levy more than one-half of said
state tax. . . and for the erection of public buildings
not to exceed fifty cents on the one hundred dollars in
any one year,’ places a prohibition or limitation upon
the power of the legislature to authorize counties to
impose taxes for such purposes. Section 2 of article
11 expressly requires the enactment of a general law
to carry its mandates into effect; and section 7 of the
same article contains no grant of authority to levy a
tax nor designation of any official by whom the tax
specified is to be levied and collected, but is, in ef-
fect, a limitation upon the power of the legislature to
authoriae~ such corporations to create debts. In the
sense that all laws in conflict with these prohibitions
are void, section 9 of article 8 and section 7 of article
11 are self-executing; but, in so far as anything is re-
quired to be done to carry them into effect, they are
not so, because they prescribe no rules by which any
act could be done in the enforcement of their require-
ments.”
Although the provisions of section 7 of Article XI ex-
pressly required future action by the Legislature (the vote of the
~taxpayer, and the amount of the tax, were to be ascertained -as may
be provided by law”), we think that the language of the court above
quoted precludes our holding that the last part of H.J.R. 24 is self-
executing. There is no “designation of any official by whom the tax
specified is to be levied and collected”; nor is “anything . . . re-
quired to be done to carry . . . (it) into effect. . . because . . . no
rules . . . (are prescribed by) which any act could be done in the
enforcement of their requirements.” The Mitchell case at least
casts enough doubt on the matter to fully justify the enactment of
enabling legislation.
Even if the main provisions of H.J.R. 24 are self-exe-
cuting, legislation could still be deemed desirable for the purpose
of “providing convenient remedies for the protection of the right
secured, or of regulating the claim of the right so that its exact
limits may be known and understood; but all such legislation must
be subordinate to the Constitutional provision, and in furtherance
of its purposes, and must not in any particular attempt to narro
or embarrass it.” Cooley, Constitutional Limitations, 8th Ed., T 01.
1, pp. 170, 171. The power of the Legislature to implement the
~presant amendment is indisputable because, should it be regarded
.
Hon. Pearce Xohnson, Page 4 (V-797)
as self-executing, the machinery for its enforcement could only be
found in existing legislation which is, of course, in the main, sub-
ject to repeal or amendment at the pleasure of the presently con-
stituted legislati,ve body,
Question No. 2 reads as follows:
“If your answer to question number one is ‘yes,’
does the Bill properly comply with H.J.R. No. 24?*
The Constitutional Amendment in question (H.J.R. 24)
says that the tax funds raised “shall be used for (1) construction
and maintenance of Farm to Market Roads or (2) for Flood Control
. . . (Numbers m parenthesis added, and emphasis added through-
out this opinion.)
Sections 2-5 of H.B. 107 continue to embody the language
of H.J.R. 24 with a notable departure in providing that the tax reve-
nue s “shall be used as provided in this Act for the construction and
maintenance of Farm-to-Market and lateral roads
__- and for soil
-- and
water conservation and flood control.yThe amount orrevenue
which may, at the option of the county, be credited to a municipal
corporation within its limits and used for “water conservation and
flood control purposes” is limited to l/3 of the tax authorized.
Sections 6-8 provide for a Farm-to-Market and Lateral
Road Fund and for a separate Soil and Water Conservation Fund to
which the County may credit such portion of the revenues as it sees
fit. Both funds are to be under the jurisdiction of the Commission-
ers Court of the County. But the Farm-to-Market and Lateral Road
Fund is to be used solely in cooperation with the State Highway De-
partment, and the “Soil and Water Conservation and Flood Control
Fund” (“Flood Control” being added to the name mhisfunde.
fir time in Section 8) is to be used “solely for Soil and Water Con-
servation and Flood Control purposes, su
q$&yj&Y&2$!~&$-
nection with, plans and programs of the
Service and State Soil Conservation Districts, and the State Extea-
sion Service, provided that that part of the County programs for
Soil Conservation on farms and ranches shall be handled according
to plans and with the personnel of the local conservation district,
where one exists in whole or in part within such county.” Section
8 further provides:
“To this end, the Commissioners Court may, in
its discretion, engage the services of a Federal or State
Soil Conservation engineer, or of extention service per-
sonnel, in devising and planning for farm and ranch own-
ers and operators, soil, water, erosion, drainage, and
eradication program coming within the purview of.this
Hon. Pearce Johnson, Page 5 (V-797)
Act, and may acquire whatever machinery, equipment
and material useful and necessary in carrying out such
soil, water, erosion, drainage and eradication conser-
vation program, provided such machinery and equip-
ment shall be made available to farm and ranch owners
and operators on an out-of-pocket expense basis, not
including depreciation.”
From this summary it is first apparent that House Bill
107 fully complies with the provision of the Constitutional Amend-
ment only if the term “Flood Control” (one of the two purposes to
which expenditures are confined by the amendment) embraces “Soil
Conservation. ” We have been unable to find any authorities direct-
ly in point; but we have examined provisions of existing sections of
our Constitution and statutes which relate to controlling or conserv-
ing natural resources, with which provisions the framers of the
amendment must be deemed to have been familiar. Any discussion
or even a, summary of these provisions would extend this opinion
to voluminous proportions. Suffice it to say that the powers of coun-
ties and districts in these matters are distinctly specified and enu-
merated under Article III, Section 52, but that the variety and pur-
poses for which districts are created under statutes passed in pur-
suance to Section 59 of Article XVI are as varied as the aspects of
conservation of natural resources are numerous. Nevertheless,
the districts which have been organized are generally limited to the
accomplishment of one particular aspect or field of conservation
even though their work may incidentally aid or embrace other fields.
For example, there are Drainage Districts, Flood Control Districts,
Reclamation Districts, Levee Improvement Districts and Soil Con-
servation Districts. Soil Conservation Districts may be created
under the provisions of Article 165a-4, V.C.S., which expressly
states that it is carrying out the mandate of Article XVI, Section
59. Laws providing for the creation of Soil Conservation Districts
could not have been enacted under the provisions of Article III, Sec-
tion 52, as none of the three subdivisions thereof are comprehen-
sive enough to embrace the various methods of soil conservation;
yet a Flood Control District is plainly authorized by its provisions.
We are aware that many aspects of soil conservation do result in
controlling floods; but many other methods of soil conservation have
no bearing upon flood control. Moreover, we are of the opinion that
H.J.R. 24 could easily have enumerated soil conservation purposes
as one of the uses to which the tax revenues could be applied had
use for such purposes been contemplated. It not only failed to do
so, it specifically requires that the revenues shall be used for two
purposes (farm to market roads or flood control) “except as here-
in otherwise provided.” You are therefore advised that H.B. 107
has exceeded the constitutional limitations in attempting to divert
these revenues to “Soil Conservation” purposes by requiring that
some of the revenues ‘be used supplementary to and in connection
with . . . State Soil Conservation Districts.”
Hon. Pearce Johnson, Page 6 (V-797)
We do not wish to be understood as saying that none of
the funds can be expended on soil conservation. But funds may be
expended for soil conservation purposes only if the particular pur-
pose has a direct relationship to flood control. In other words, an
integral part of flood control under certain circumstances may be
soil conservation. But “soil conservation” standing alone may have
nothing to do with flood control. If so, expenditures for such pur-
poses would be unconstitutional. The same is true of *water con-
servation.” Ordinarily water conservation expenditures must be
incident to and a part of the “flood control.”
Turning to the disposition of the revenues which are to
be used for “water conservation and flood control” purposes, the
act contemplates the transfer of such revenues to “municipal cor-
porations within the county” (Section 5), specifically providing in
Section 6 for “crediting to the municipal corporations whatever
funds as may be decided upon by the county. . .- These provisions
are in violation of Article III, Section 52 of the Constitution. The
new Constitutional amendment authorizes only counties to levy the
prescribed taxes on property within their bound-r county
purposes. The taxes which are to be collected are therefore coun-
ty taxes; the revenues are therefore county funds; and Sectionr
‘iir Article III “prohibits the Legislature from authorizing any coun-
ty to lend its credit, or to grant public money or thing of value, in
aid of any corporation whatsoever. * Harris County flood Control
.Dist. v. Mann, 140 S.W.2d 1098. 1104.
We find no fault with Sections 9, IO, 11 and 12 of the Bill
except such portion of Section 12 as requir~es the revenues to be used
for purposes which we have hereinabove held unconstitutional.
Section 13 provides for the issuance of bonds by the coun-
ty. In so far as it purports to authorize the issuance of bonds and the
use of the proceeds of their sale for purposes which we have here
held without the provisions of the Constitutional amendment, it is un- 6
constitutional. In this connection, although we have no desire to at-
tempt an improper invasion of fields of policy, we would like to call
to your attention the fact that the provisions relating to authoriza-
tion, issuance, sale, etc., are rather vague. Moreover, it is not en-
tirely clear whether the Act authoriaes more than one issue.
Section 14 provides that “Any city or town within such
county may likewise issue bonds,” etc. We have already pointed out
that H.J.R. 24 relates on1 to count&s and authorizes a tax levy for
county purposes only. -v? e held that Article III, Section 52 precluded
the donation to and control of these funds by municipal corporations.
It necessarily follows that H.J.R. 24 neither contemplates nor au-
thorizes legislation enabling cities to issue bonds for any purpose.
.
., .
Hon. Pearce Johnson, Page 7 (V-797)
The caption of H.B. 107 will, of course, have to be
amended to conform to the changes suggested herein.
SUMMARY
No legislation is necessary to effectuate that
portion of the recently adopted Section l-a of Article
VIII of the Texas Constitution (H.J.R. 24). which pro-
vides that from and after January 1, 1951, no Sta,te ad
valorem tax shall be levied upon any property within
this State for general revenue purposes. The remain-
ing portions of H.J.R. 24 are not self-executing. Mitch-
ell County v. City National Bank, 91 Tex. 361, 43m
, . . . R . 24 specifies that the tax money shall
be used for farm to market roads or flood control. H.
B. 107 has exceeded the limitations of H.J.R. 24 in pro-
viding that some of the tax revenues shall be used for
‘Soil Conservation” and for “Water Conservation.”
Such purposes, as evidenced by the detailed provisions
of the Bill, are not embraced within either of the two
purposes to which H.J.R. 24 limits the use of said revc-
nues unless the soil conservation or water conservation
is an integral part of flood control.
The provisions of H.B. 107 which authorize the
transfer of some of these county tax revenues to munic-
ipal corporations within the county are violative of the
provisions of Article III, Section 52 of the Texas Consti-.
&tion. Harris County Flood Control Dist. v. Mann, 140
S.W.2d 1098. 1104. Sections 9-13. inclusive. of H.B. 107
comply with-the provisions of H.J;R. 24 except for those
portions which relate to the use of the tax revenues or
the issuance of bonds for “Soil Conservation” and “Water
Conservation” purposes. Section 14, authorizing the is-
suance of bonds by cities, was neither contemplated nor
authorked.by H.J.R. 24.
Yours very truly
ATTORNEYGENERALOFTEXAS
By s/ Marietta McGregor Creel
Mrs. MariettaMcGregor Creel
Assistant ’
MMC/mwb
APPROVED
sj PRICE DANIEL
ATTORNEYGENERAL