   OFFICE   OF THE   ATTORNEY   GENERilL   STXiE   OF TEXAS

   JOHN CORNYN




                                                    March 1, 1999



The Honorable Ken Armbrister                                  Opinion No. E-0009
Chair, Committee on Criminal Justice
Texas State Senate                                            Re: Constitutionality of Tax Code section 26.05,
P.O. Box 12068                                                regarding notice and hearing requirements     for
Austin, Texas 78711                                           property tax increase (RQ-1188)


Dear Senator Armbrister:

         Your question involves an apparent conflict between article VIII, section 21 of the Texas
Constitution and section 26.05(d) of the Tax Code, both of which require public notice and hearing
of intended property tax increases by political subdivisions. You ask whether political subdivisions
must comply with the requirements of the Tax Code or the requirements of the constitution when
the two are not consistent. We conclude that Tax Code section 26.05(d) is not prohibited by the
constitution; therefore, political subdivisions may not avoid compliance with the statute on the
grounds that it is unconstitutional.

        Article VIII, section 21 of the constitution was described as a “truth-in-taxation” provision
when adopted by Texas voters in 1978 as part of a larger tax reform amendment. See HOUSESTUDY
GROW, SPECIALLEGISLAWE REPORT, ANALYSISOF HJR 1 (Aug. 16, 1978) at 24. It was designed
to prevent “hidden” tax increases, such as one that might occur when a local government keeps the
tax rate the same but raises property values. Id. Article VIII, section 21 provides:

                   Sec. 2 1. (a) Subject to any exceptions prescribed by general law, the
              total amount ofproperty taxes imposed by apolitical subdivision in anyyear
              may not exceed the total amount of property taxes imposed by that
              subdivision in the preceding year unless the governing body of the
              subdivision gives notice of its intent to consider an increase in taxes and
              holds a public hearing on the proposed increase before it increases those
              taxes. The legislature shall prescribe by law the form, content, timing, and
              methods of giving the notice and the rules for the conduct of the hearing.

                 (b) In calculating the total amount of taxes imposed in the current year
             for the purposes of Subsection (a) of this section, the taxes on property in
              territoouy added to the political subdivision since the preceding year and on
              new improvements that were not taxable in the preceding year are excluded.
              In calculating the total amount of taxes imposed in the preceding year for the
              purposes of Subsection (a) of this section, the taxes imposed on real property
              that is not taxable by the subdivision in the current year are excluded.
The Honorable   Ken Armbrister     - Page 2        (x-0009)




                (c) The legislature by general law shall require that, subject to reasonable
            exceptions, a property owner be given notice of a revaluation of his property
            and a reasonable estimate of the amount of taxes that would be imposed on
            his property if the total amount of taxes increased according to any law
            enacted pursuant to Subsection (a) of this section. The notice must be given
            before the procedures required in Subsection (a) are instituted.

TEX.CONST.art. VIII, 5 21 (emphasis added). Subsection       (a) thus requires public notice and hearing
when a political subdivision proposes to impose more taxes than it imposed the previous year.
Subsection (b) prescribes how the taxes for the current and preceding years are to be calculated for
this comparison. For the calculation of current year taxes, the taxes on property in new territory and
on new improvements        are excluded. For the preceding year calculation, taxes imposed on real
property that is exempt from taxation in the current year are excluded. These calculations result in
what is called an “effective” tax increase. In other words, the tax increase that triggers the notice and
hearing requirements of the constitution is not a simple total tax revenue increase, but an adjusted
or “effective” increase that does not include proposed revenue from new territory and new
improvements.

         Section 26.05 of the Tax Code is the statutory “truth-in-taxation” law. It requires each taxing
unit in the state to adopt a tax rate for the current tax year and provide notice of a tax rate increase
in certain circumstances.   TEX. TAX CODE ANN. 5 26.05(a)-(c) (V emon 1992). Section 26.05(d), as
amended by the legislature in 1997, provides:

                 (d) The governing body may not adopt a tax rate that if applied to the
            total taxable value would impose an amount of taxes that exceeds last year’s
            levy until it has held a public hearing on the proposed tax rate and has
            otherwise complied with Section 26.06.

Id. 5 26.05(d) (Vernon Supp. 1999).       Section 26.05(d) of the Tax Code, like the constitution,
requires public notice and hearing if this year’s proposed total taxes will exceed last year’s total
taxes by any amount. However, in contrast to the calculation requirements of article VIII, section
21(b), no provision is made in the Tax Code for the calculation of an effective tax increase. The
memorandum attached to your letter explains:

            This means that the quarter-page advertisements and public hearings are
            required if the total tax levy for 1998 exceeds the total tax levy for 1997 by
            one cent. The public notice and public hearings would be triggered under
            these provisions even if the proposed rate represented no increase in taxation
            for those who were on the tax roll the previous year and the levy is increased
            solely due to taxes on new improvements built in the district in the previous
            year or on new territory annexed in the previous year. This is the situation
            in which most municipal utility districts find themselves.     Similarly, many
             school districts, counties, and cities face the same dilemma.
The Honorable     Ken Armbrister    - Page 3         (.Ic-0009)




You ask us to determine whether Tax Code section 26.05(d) is valid and enforceable upon political
subdivisions in light of the calculation requirements of article VIII, section 21(b) of the constitution.

          Certainly, the legislature may not adopt any law that conflicts with the state constitution.
Cook v. State, 902 S.W.2d 471,478-79 (Tex. Crim. App. 1995). But in order to invalidate a statute
on the ground that it is unconstitutional,   we must be able to point to a specific provision in the
constitution that expressly or by necessary implication prohibits the legislature’s action. Shepherd
v. San Jacinto Jr. CollegeDist., 363 S.W.2d 742,743 (Tex. 1962). “‘Allpower which is not limited
by the Constitution inheres in the people, and an act of a state legislature is legal when the
Constitution contains no prohibition against it.“’ Watts v. Mann, 187 S.W.2d 917,923 (Tex. Civ.
App.-Austin       1945, writ refd) (quoting 11 AM. RJR. 5 18, at 619). Courts have said that this
presumption of validity is particularly strong with respect to statutes that relate to taxation, See
Vinson v. Burgess, 773 S.W.2d263,266(Tex.       1989); Statev. Texas City, 295 S.W,2d697,704(Tex.
Civ. App.-Galveston      1956), ufd, 303 S.W.2d 780 (Tex.), appeal dism’d, 355 U.S. 603 (1957).

         Because we find no express constitutional prohibition against the statute at issue, we consider
whether a prohibition must necessarily be implied. All doubts about a statute’s constitutionality
must be resolved in favorofthe statute. Blair v. Raziz, 926 S.W.2d 784,787 (Tex. App.-Tyler 1996,
no writ). The primary argument advanced in opposition to the statute is that because the constitution
requires notice and hearing for certain tax increases and prescribes the method for determining when
that requirement applies, it is implied that the legislature may not impose a different requirement.

        It is true that when the constitution grunts a power, and where the manner of exercising that
power is prescribed, it is implied that the prescribed manner excludes all others. See Walker v.
Baker, 196 S.W.2d 324,327-28 (Tex. 1946). Thus, for example, the Texas Supreme Court held that
because the constitution gives the state Senate the power to confirm or reject the Governor’s
appointments, and specifies the circumstances under which the Senate can defeat an appointment,
there is an implied prohibition against the Senate’s power to add to or alter those circumstances.
Although the legislature has plenary legislative powers, the court said, the confirmation or rejection
of the Governor’s appointments is an executive function normally reserved for the executive branch
and which depends upon a specific grant ofpower in the constitution, a grant that cannot be altered.
Id.

        But article VIII, section 21 is not a grant of power; it is a limitation of power, as we shall
explain. The power of the state to impose taxes is an inherent attribute of sovereignty, and is not
dependent upon any grant of authority in the constitution.       See City of Beaumont v. Fertittu, 415
S.W.2d 902,909-10 (Tex. 1967); Tex. Att’y Gen. Op. No. V-33 (1947) at 1. While the constitution
contains various provisions authorizing state taxation, it has been said that they are unnecessary and
redundant, since taxation authority is inherent in the legislature’s plenary powers. See 2 GEORGED.
 BRADEN, THE CONSTITUTIONOF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE
 .kNALYsls 562, 567 (1977). Courts have thus construed these provisions as limitations on the
 legislature’s   taxing authority, not as grants of power which may not be enlarged and not as
 preemptions     on the legislature’s authority to regulate taxation in a manner not inconsistent with the
The Honorable      Ken Armbrister        - Page 4           (JC-0009)




constitution.   See Fertitta, 415 S.W.2d at 909-l 1. The constitution itself provides that the
specification of certain objects and subjects of taxation in the constitution does not prevent the
legislature from requiring other subjects or objects to be taxed, unless there is an express
constitutional prohibition.’

          The taxation power of political subdivisions, unlike that of the legislature, is not inherent;
it must be derived from grants or delegations of taxing authority in the state constitution or by
statute. See Tri-CityFresh Water SupplyDist. No. 2~. Mann, 142 S.W,2d945,948-49               (Tex. 1940);
Texas & P. Ry. Co. v. City of El Paso, 85 S.W.2d 245, 247 (Tex. 1935). Where a political
subdivision’s authority to tax comes from the legislature, it is certainly within the legislature’s power
to limit that authority. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717,739 (Tex. 1995). It
is argued that where the constitution authorizes taxation by a political subdivision, the legislature
may not limit that authority. But we know of no political subdivision with apparent constitutional
taxation authority whose authority may not be limited or regulated by the legislature in a manner not
inconsistent with the constitution.* Even home-rule cities, which have plenary powers subject only
to the limitations of their own charters and ordinances, and of the constitution and statutes, are not
free from legislative tax limitations. For example, article XI, section 5, allows cities of more than
5,000 population to “levy, assess and collect such taxes as may be authorized by law or by their
charters,” but at the same time provides that “[tlhe adoption or amendment of charters is subject to
any limitations as may be prescribed by the Legislature, and no charter or any ordinance passed
under said charter shall contain any provision inconsistent with the Constitution of the State, or of
the general laws enacted by the Legislature of this State.” See City of Sweetwater v. Geron, 380
 S.W.2d 550,552 (Tex. 1964) (stating that legislature may limit powers granted to home-rule cities
by constitution     if it does so with unmistakable     clarity).    Courts have found that apparent
 constitutional grants of taxation power to political subdivisions are actually limitations on taxation


           ‘Article VIII, section 17 provides: “The specification of the objects and subjects of taxation shall not deprive
the legislature of the power to require other subjects or objects to be taxed in such manner as may be consistent with
the principles of taxation fixed in this Constitution.”  Of this provision, one treatise observes:

              This is either a” unnecessary or a” indispensable provision. It is unecessary        if everyone
              understands that a legislature has plenary taxing power except for such limitations as are
              contained in the constitition.   It is indispensable if some people think that taxing power has
              to be granted to the legislature. If, as is the case in the Texas Constitution, fuzzy drafting
              produces a mixtwe of granting words and limiting words, a Section 17 helps to knock down
              arguments against a new fornl of taxation.

2 GEORGE D. BRAWN, THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS
562,644 (1977).

           ‘See BRADEN, supra note 1, at 626 (“The Legislature can impose limits on the taxing power of counties, cities,
towns, school districts, and other special districts.“); Stevenson v. Blake, 113 S.W.2d 525, 527 (Tcx. 1938) (“Subject
to the limitation as to rate        the Legislature, under its general lawmaking power, has the authority to regulate all
matters pertaining to the levying and assessing of the annual ad valorem taxes for general county purposes       .“); Tex.
Att’y Gen. Op. V-33 (1947) at 3 (holding that legislature may impose limits on ad valorem taxation by cities, school
districts, and irrigation districts where no limit is fixed in constitution).
The Honorable      Ken Armbrister       - Page 5           (JC-0009)




authority, not grants of authority. See Vinson, 773 S.W.2d at 267 (holding that article VIII, section
1-a, authorizing counties to levy ad valorem taxes except for first $3,000 value ofhomesteads, is not
grant of taxation power but limitation as to amount that counties may levy); Mitchell County v. City
Nat ‘IBank, 43 S.W. 880,883 (Tex. 1898) (holding that former article XI, section 7, allowing coastal
counties to levy tax for seawalls as may be authorized by legislature, but prohibiting debt without
sinking fund, was not grant of power to counties but limitation on power of legislature to authorize
counties to create debt without sinking fund). Thus the legislaturemay impose limits on the taxation
authority of political subdivisions pursuant to its plenary legislative powers, and in fact imposed
public notice and hearing requirements for tax increases even before the constitution required them.3

          Thus, as we have said, article VIII, section 21, is a limitation on the legislature’s plenary
power to levy and to authorize the levy of property taxes, and a limitation on the taxation authority
of political subdivisions.      It prohibits political subdivisions from increasing taxes, unless they
comply with public notice and hearing requirements, and it prohibits the legislature from allowing
them to do so. Certainly, the legislature may not act beyond that limitation; it could not allow a
political subdivision to impose taxes without complying with the constitution’s requirements. See
 Travelers Ins. Co. v. Marshall, 76 S.W.2d 1007, 1009 (Tex. 1934) (“Neither the Legislature,
executive officers, nor the judiciary can lawfully act beyond the limitations of the Constitution.“);
 Crabb v. Celeste Indep. Sch. D&t., 146 S.W.2d 528, 529 (Tex. 1912) (holding that where
constitution required tax to be approved by voters, school district could not impose taxes in newly
 annexed territory without vote of new residents). But where the constitution limits a power, the
 legislature is not prohibited from enacting laws that provide additional limitations on that power.
 Statutes may be more protective than a state constitution, although they may not be less protective,
just as state constitutions and statutes, which may not conflict with the federal constitution, may be
 more protective than the federal constitution. See Graham v. Texas Bd. of Pardons & Paroles, 9 13
 S.W.2d 745, 750 (Tex. App.-Austin 1996, writ dism’d); Robbins v. State, 696 S.W.2d 689, 690
 (Tex. App.-Dallas 1985,pet. refd);seealsoDarttv.         Browning-Ferris Indus., 691 N.E,2d526,531,
 532 (Mass. 1998) (“A statute may provide greater protection than a constitutional counterpart.“);
 Forquer v. State, 677 P.2d 1236, 1242 (Alaska 1984) (“A statute can certainly create greater
 procedural protections than those constitutionally mandated.“). Tax Code section 26.05(d) limits
  local taxation power and requires public notice and hearing of a political subdivision’s tax increase
  of any amount, without regard to whether the increase includes new improvements or new territory.
  In practice, it will require notice and hearing in more instances than would the constitution, and thus
  it is more protective of taxpayers than the constitution.

          We recognize that article VIII, section 21(b) can also be viewed as a command for action,
 in that it prescribes the method by which political subdivisions shall determine when the
 constitutional limitation on their taxing power is triggered. It is true that when the constitution



            ‘A statnte in effect prior to the amendment of the constitution in 1978 required school districts to give public
 notice of effective tax increases. Section 21 of article VIII, criticized by opponents as unnecessary, constitntionalized
 the statutory requirement and applied it to all political subdivisions.   See HOUSE STUDY GROW, SPECIAL LEGNLATWE
 REPORT, ANALYSIS OF HJR 1 (Aug. 16,1978) at 24.
The Honorable      Ken Armbrister        - Page 6            (JC-0009)




commands that a thing shall be done, the matter must be done as directed, and the legislature has no
authority to set aside the mandate. Alvarudo v. State, 202 S.W. 322,323 (Tex. Crim. App. 1918).
But we view the calculation requirement of section 21(b) as operative only in reference to section
21(a). It does not prohibit the legislature from imposing a different calculation or no calculation at
all as part of a more strict statutory notice and hearing requirement adopted pursuant to the
legislature’s plenary powers.

         In Watts v. Mann, 187 S.W.2d 917 (Tex. Civ. App.-Austin            1945, writ ref d), the court
considered the constitutionality of a statute prohibiting usury. At issue was article XVI, section 11,
which then provided      “All contracts for a greater rate of interest than ten per centum per annum,
shall be deemed usurious, and the first Legislature after this amendment is adopted, shall provide
appropriatepains   andpenalties to prevent the same.” Id. at 922 (emphasis added). It was argued
that the Loan Shark Act was unconstitutional because it was enforceable by an injunction, which was
not a “pain or penalty,” and because the injunction remedy applied only to certain contracts, not to
“all” contracts.  The court said: “If we were dealing with a constitutional grant of power the
argument might be apropos. But such clearly is not the case.” Id. at 923. Instead, the court
reasoned, the provision was an expression of constitutional intent that the legislature shall pass
certain laws, and did not prohibit the legislature from passing other laws on the same subject, stating:

              A command in the constitution to the legislature to pass laws on a given
              subject cannot be understood to operate as a prohibition to enact laws on
              another, and, in the absence of some prohibition in the constitution of the
              state or ofthe United States, it is understood that a state legislature has power
              to pass all such laws as may be deemed necessary for public welfare, or the
              protection of private right.

Id. (quoting Sun Antonio & A.P. Ry. Co. v. State, 14 S.W. 1063, 1064 (Tex. 1891)).

        In sum, in light ofthe strong presumption ofvalidity, and in view ofthe requirement that we
find an express or necessarily implied prohibition on legislative action, we conclude that section
26.05(d) is valid.4


           “We also considered the effect of the language that opens article VIII, section 21: “Subject to any exceptions
prescribed by general law, the total amount of property taxes imposed by a political subdivision in any year may not
exceed the total amount of property taxes imposed by that subdivision in the preceding year             .” TEX. CONT. art.
VIII, 5 21 (emphasis added). This provision in subsection (a) allows the legislature to make exceptions to the notice
and hearings requirements.       The next paragraph, subsection (b), sets out the calculation requirements applicable to
subsection (a), but contains no statement authorizing exceptions.           Your letter suggests that the “subject to any
exceptions” language of subsection (a) applies only to the notice and hearing requirements of subsection (a) and not to
the calculation requirements in subsection (b), and therefore the legislature may not enact a law that does not require
such calculations.    A plain reading of the provision supports your view. Subsection(c),     like subsection (a), states that
it is “subject to reasonable exceptions.”   If the legislature had intended to allow exceptions to subsection (b), it would
have included similar language. Furthermore, if section 26.05(d) is an exception to the calculation requirement, it is
an exception that swallows the rule.
                                                                                                               (continued...)
The Honorable     Ken Armbrister       - Page 7           (.Jc-0009)




        Finally, we recognize that the statute may be burdensome upon certain political subdivisions,
as you point out in your letter. However, a court will not find unconstitutional a statute merely
becauseitis harsh. Stutev. Wynne, 133 S.W,2d951,959(Tex.         1939),uppeuldism’d,    310U.S. 610
(1940); All Valley Acceptance Co. v. Durfey, 800 S.W.2d 672,677 (Tex. App.-Austin 1990, writ
denied). As one court said of a seemingly harsh but valid tax statute: “If [the] same is unjust and
needs amending, the power rests exclusively with the Legislature.” Wynne, 133 S.W.2d at 959.




          ‘(...continued)
          On the other hand, in Attorney General Opinion MW-495, we stated that a Tax Code provision excluding
currently exempt property from the calculation of the preceding year’s taxes, even if inconsistent with the calculation
formula set out in the constihrtion, was permissible. “[S]ection 26.04, to the extent that it departs from any calculation
formula set forth in article VIII, section 21, constihltes an ‘exception prescribed by general law.“’ Tex. Att’y Gen. Gp.
No. MW-495 (1982) at 4. We thus concluded that the exceptions language in subsection (a) applies to the calculation
requirements in subsection (b) also. But we need not decide this question, because for the seasons stated above we do
not believe that Tax Code section 26.OS(d) is prohibited.
The Honorable   Ken Artnbrister    - Page 8      (JC-0009)




                                       SUMMARY

                Tax Code section 26.05(d), which requires public notice and hearing of
           intended property tax increases by political subdivisions, is not prohibited by
           article VIII, section 21 of the Texas Constitution.




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Barbara Griffin
Assistant Attorney General
