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                 %-HE    ,aTJ?ORNEY          GENERAL

                             OF       EXAS




                                  April 20, 1959

        Hon. R. H. Cory, Chairman            Opinion No. WW-599
        State Affairs Committee
        House of Representatives             Re:   Constitutionality of
        The State of Texas                         House Bill 102, 56th
        Austin, Texas                              Leg., The Texas Area
                                                   Planning Act.
        Dear Mr. Gory:
             We quote from your opinion request as follows:
             "As chairman of the State Affairs Committee of
             the House of Representatives, and in accordance
             with a motion of such committee duly made and
             passed on Monday evening, March 2nd, I am send-
             ing to your office House Bill 102 by Eckhardt,
             with a request that you favor us with an opinion
             as to the constitutionality of such bill. The
             motion passed in the committee authorized this
             action and in particular called your attention
             to the tax features and the voting features with
             respect to the different number of votes needed
             in incorporated and unincorporated areas."
             As we interpret your request, we are called upon to
        give our opinion as to the constitutionality of the follow-
        ing features of House Bill 102: (1) authorization of the
        creation of Joint Planning Areas and the establishment of
        Area Planning Commissions; (2) Voting requirements for
        elections to establish Joint Planning Areas; and (3) author-
        ization of an ad valorem tax levy within a Joint Planning
        Areas.
               ESTABLISHMENT OF AREA PLANNING COMMISSION
              The legislative department may exercise all legislative
        power not expressly or by implication withheld byethe State
        Constitution or the Constitution of the United States; if
        there is anv doubt as to the validity of a law the action of
        the Legislature should be upheld. Brown v. City of Galveston,
          ' Tex. 1, 75 S.W. 488 (1903). Nothingin the Constitution
        of the State of Texas nor in the Constitution of the United
        States prohibits the Legislature from authorizing the creation
        of Joint Planning Areas and the establishment of Area Planning
        Commissions.
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Hon. R. H. Cory, Chairman, Page 2 (Opinion No. 599)


                  VOTING REQUIREMENTS
     Section 3 of House Bill 102, provides that before a Joint
Planning Area may be established, the question must be sub-
mitted to the property tax paying voters within the county or
counties affected.
      Article VI, Section 2, of the Texas Constitution pre-
scribes the general voting requirements of electors, Under
this Article any person shall be deemed a qualified elector
who (1) shall have attained the age of twenty-one years; (2)
is a citizen of the United States; (3) shall have resided in
Texas one year next preceeding an election; and (4) have re-
sided within the district or county in which he offers to vote
six months immediately preceeding the time of holding the elec-
tion. Article VI, Section 3a, provides that when an election
is held by any county, or any number of counties, or any
political subdivision of the State, or any political subdivi-
sion of the county, or any other defined district within the
State, for the purpose of issuing bonds or otherwise lending
credit or expending money or assuming any debt, only qualified
electors who own taxable property in the State, county, polit-
ical subdivision, district, city, town or village where such
election is held, and who shall have duly rendered the same
for taxation, shall be permitted to vote. An election to es-
tablish a Joint Planning Area does not involve issuance of
bonds, lending- of credit, expending of money, or the assumotion
                       Carlton Independent School District,-295
"s'Wde~"d*408Se7T~        195b); and O'Brien v. Snelson, 82 S.W.
2d 679 (Tex.Civ.App. 1935). The Legislature is without power
to restrict or extend the constitutional qualifications of
legal voters. Texas Power and Light Co. v. Brownwood Public
Service Co., 111 S W 2d 1223 (T     Cl A     1937 erroFr?);
Ramsay v. Wilhelm,'52 S.W. 2d 75~XiTe~:C!~:App. i932, error
rer.); se als Attorney General's Opinion No. ~-16       There-
fore, to Ehe eztent Section 3 of H. B. 102 prescribes voting
qualifications in addition to the requirements of Article Vi,
Section 2, it is unconstitutional.
     VALIDITY OF TAX LEYY WITHIN JOINT PLANNING AREA
     Subsections (2) and (3)   of Section 8 of H. B. 102 provide
as follows:
     "(2) In the event that the Area Planning Commission
     shall deem it in the interests of the Area, it may
     recommend that funds be raised from ad valorem tax
     levies to meet the financial requirements for financ-
     ing the Area Planning Commission and its activities.
     In such event it shall submit to the property~tax
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        Hon. R. H. Cory, Chairman, Page 3 (Opinion No. 599)


             paying voters within every county encompassed or
             partly encompassed within the Area the question
             of whether the said commission and its program be
             supported by a levy fixed by the commission not
             exceeding five cents ($.05) on each one hundred
             dollars ($100.00) of assessed valuation of all tax-
             able property in the area, or such maximum may be
             a smaller figure if the commission shall deem such
             advisable.
             "(3) In the event that said tax paying voters of
             the county or counties affected approve the said
             levy, then, after adoption of the budget by the
             commission each year, and not later than July 1,
             the commission may put into effect the following
             procedure, and only in such event shall the said
             levy of ad valorem taxes be applicable:
              "(a) The secretary of the commission shall cer-
            tify to the Commission's court of each county within
            the Joint Planning Area, the counties share of such
            tax, which shall be an amount bearing the same pro-
            portion to the total levy, fixed by the commission
            as the assessed valuation of the county bears to the
            assessed valuation of the Joint Planning Area.
              "(b) The maximum amount of any levy made for the
            purposes of this Act shall not exceed five cents
            ($.05) on each one hundred dollars ($100.00) of
            assessed valuation of all taxable property~,or any
            lesser maximum figure which the commission may have
            submitted for voter approval.
               "(c) The Commissioner's court of each county in
             a Joint Planning Area shall add the amount of any
             levy made by the commission to other tax levies of
             the county for collection by the county tax assessor
             and collector and shall fix the tax rate necessary
             therefor.
               "(d) The maximum amount of any levy made for the
             urposes of this Act shall not exceed five cents
            7 8.05) on each one hundred dollars ($100.00) of
            assessed valuation of all taxable property, or any
            lesser maximum figure which the commission may have
            submitted for voter approval.
               "(e) When collected, the county shall make settle-
             ment of such taxes with the commission in the same
Hon. R. H. Cory, Chairman; Page 4 (Opinion No. WW-599)


    manner as other taxes are distributed to political
    subdivisions.
       "(f) The levy authorized herein shall be in
     addition to any other county taxes authorized by
     law."
The foregoing provisions authorize an Area Planning Commis-
sion, after approval by the property tax paying voters, to
make an ad valorem tax levy.
     The Texas Constitution of 1876 recognized only three
entities which could collect taxes and expend public money:
State, counties, cities and towns. See interpretive commen-
tary under Article XVI, Section 59, of Texas Annotated Con-
stitution. The Constitution has now extended the power of
taxation to school districts (Article VII, Sections 3, 3a),
fire prevention districts (Article III, Section 48-d), con-
servation and reclamation districts (Article XVI, Section
59) and districts falling within the purview of Article III,
Section 52. The Legislature is not authorized to grant the
power of taxation to a research and advisory body such as an
Area Planning Commission. In this regard see the case of
Bexar--Medina--Atascosa Counties Water Improvement District
Ember
--     1 v. State, 21 S W 2d 747, (Tex.Civ.App. lgresr
ref.).more           hoid'that H. B. 102 is inoperative in
so far as it authorizes a tax levy by an Area Planning
Commission.
     Although we believe the foregoing to be the correct
construction of the above quoted provisions, another con-
struction is possible, I.e. that the county concerned is
directed to levy an ad valorem tax not to exceed five cents
($.05) per one hundred dollar ($100) valuation pursuant to
the recommendation of an Area Planning Commission and after
approval by the property tax paying voters in such county.
Such a levy would'be within a county's power to tax for
general administrative purposes and would be valid provided
it did not exceed the maximum tax rate prescribed in Arti-
cle VIII, Section 9, of the Texas Constitution. However,
Subsection (3)(f) of Section 8 of H. B. 102 states that the
levy authorized shall be in addition to any other county
taxes authorized by law; therefore, even under this con-
struction, a Constitutional amendment would be required in
order to authorize the assessment and collection of the tax.
See Attorney General's Opinion No. 0-5842.
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        Hon. R. H. Cory, Chairman, Page 5 (Opinion No. WW-599)


                                  SUMMARY
                       The Legislature may establish a Joint
                  Planning Area Commission for the purposes
                  enumerated in House Bill 102. The voting
                  requirements for establishing a Joint Plan-
                  ning Area are void to the estent that addi-
                  tional qualifications are imposed on legal
                  voters in excess to Article VI, Section 2,
                  of the Texas Constitution. The Legisla-
                  ture cannot delegate to the Joint Area
                  Planning Commission the power to levy a tax
                  unless specifically authorized to do so by
                  the Constitution; the Legislature cannot
                  direct a tax levy byea county in excess to
                  the maximum tax allowable of such county
                  under the Texas Constitution.

                                    WILL WILSON
                                    Attorney General



                                     mm
                                      Assistant

        JNP:bct
        APPROVED:
        OPINION COMMITTEE:
        Geo. P. Blackburn, Chairman
        C. K. Richards
        John Reeves
        Fred Werkenthin
        REVIEWED FOR THE ATTORNEY GENERAL
        By:   W. V. Geppert
