                              ATTORNEY GENERAL OF TEXAS
                                         GREG       ABBOTT


                                              March 24,2014



The Honorable Dan Patrick                              Opinion No. GA-1047
Chair, Committee on Education
Texas State Senate                                     Re: Whether Education Code section 11.301
Post Office Box 12068                                  authorizes the citizens of Harris County to use
Austin, Texas 78711-2068                               repealed chapter 18 of the Education Code to
                                                       increase the county equalization tax
                                                       (RQ-1152-GA)

Dear Senator Patrick:

        You ask whether section 11.301 of the Education Code authorizes the citizens of Harris
County to use repealed chapter 18 of the Education Code to increase the county equalization
tax.' Former chapter 18 provides for the creation and operation of a countywide school district
("CSD") "for the purpose of adopting a countywide equalization tax for the maintenance of the
public schools." TEX. EDUC. CODE ANN. § 18.01-App. (West 2012) (Title 2-Appendix).
Although former chapter 18 was repealed in 1995,2 section 11.301(a) of the Education code
provides that "[a] school district or county system operating under former Chapter 17, 18, [or
other specified chapters] on May 1, 1995, may continue to operate under the applicable chapter
as that chapter existed on that date and under state law generally applicable to school districts
that does not conflict with that chapter." TEX. EDuc. CODE ANN. § 11.301(a) (West 2012). We
have been informed that the citizens of Harris County created a CSD or county system, the
Harris County Department of Education ("HCDE"), which currently operates under former
chapters 17 and 18. 3 Thus, section 11.301 of the Education Code authorizes the HCDE to
continue to operate under former chapters 17 and 18.

        Former chapter 18 authorizes an election initiated by a "petition legally praying for the
authority to levy and collect an equalization tax," signed by the requisite number of voters. TEX.
EDUC. CODE ANN. § 18.07(a)-(b)-App. (West 2012) (Title 2-Appendix). The "petition may pray


        1
          See Letter from Honorable Dan Patrick, Senate Educ. Comm., to Honorable Greg Abbott, Tex. Att'y Gen.
at 1-3 (Sept. 23, 2013 ), http://www.texasattomeygeneral.gov/opin ("Request Letter").
        2
         See Act of June 2, 1969, 6lst Leg., R.S., ch. 889, § 18.01, 1969 Tex. Gen. Laws 2735,2849, repealed by
Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 58(a)(l), 1995 Tex. Gen. Laws 2207,2498.
        3
        Brief from Sarah W. Langlois, Harris Cnty. Dep't of Educ. at 1 (Oct. 16, 2013) (on file with the Op.
Comm.) ("HCDE Brief').
The Honorable Dan Patrick - Page 2                   (GA-1047)


for authority to levy and collect an equalization tax at any specified rate not in excess" of the
county's maximum statutory rate. /d.§ 18.07(c)-App. Former chapter 18 specifies the requisite
ballot language:

                 The form of the ballot shall be substantially as follows: If no
                 specific tax rate was set in the petition, the proposition shall read:
                 "For county tax" and "Against county tax." If a specific tax rate
                 was incorporated in the petition, the proposition shall read: "For
                 county tax not exceeding                 cents on the $100 valuation"
                 and "Against county tax not exceeding                    cents on the
                 $1 00 valuation."

/d.§ 18.09(c)-App.      We understand that in 1937, the voters of Harris County authorized and
established a county equalization tax rate that is less than the statutory maximum rate. 4 See id.
§ 18.12(b)-App. (providing that the voters may approve a rate less than the statutory maximum).
You wish to know if former chapter 18' s election provisions authorize an election initiated by
petition to increase the established county equalization tax rate. Request Letter at 1-2.

        The right to hold an election must be expressly authorized by the constitution or by
statute. See Countz v. Mitchell, 38 S.W.2d 770,774 (Tex. 1931). At one time, former chapter 18
authorized an election for certain districts "to increase the permissive rate of tax to be levied."
Act of May 26, 1971, 62nd Leg., R.S., ch. 994, § 5, 1971 Tex. Gen. Laws 3007, 3008 (former
section 18.31, Education Code, now repealed). The Legislature repealed this provision in 1993,
and therefore it is not available to those districts operating under former chapter 18 as it existed
on May 1, 1995. Act of May 28, 1993, 73rd Leg., R.S., ch. 347, § 1.02(b), 1993 Tex. Gen. Laws
1479, 1491 (repealing section 18.31); TEX. EDUC. CODE ANN. § 11.301(a) (West 2012) (savings
provision for chapter 18 as it existed on May 1, 1995). The remaining provisions of former
chapter 18 do not authorize an election to increase an established tax rate, even though the
chapter addresses subsequent elections for other purposes. TEX. EDUC. CODE ANN. §§ 18.10(e)-
App. (West 2012) (Title 2-Appendix) (authorizing a second election when a proposition fails),
18.11-App. (prescribing the time when an election to revoke the tax may be held).

       Tax statutes for other entities demonstrate that when the Le~islature wishes to authorize
subsequent elections to increase a tax rate, it knows how to do so. See FM Props. Operating
Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000) (relying on principle of statutory
construction that the Legislature knows how to enact laws effectuating its intent). Because the
Legislature has not authorized an election for the purpose of increasing a tax rate of a CSD, a


        4
         Brief from Vince Ryan, Harris Cnty. Att'y at 1 (Aug. 9, 2013) (attached to RQ-1144-GA),
http://www.texasattorneygeneral.gov/opn.
        5
           See e.g., TEX. HEALTH & SAFETY CODE ANN. § 283.122(b) (West 2010) (authorizing certain hospital
districts to call a tax rate increase election by order or voter petition); TEX. Loc. Gov'T CODE ANN. § 383 .104(a)
(West 2005) (authorizing county development district board to call an election to increase sales and use tax rate);
TEX. TAX CODE ANN. § 321.1 06(c) (West 2008) (authorizing a fire control district to call a tax increase election).
The Honorable Dan Patrick - Page 3                     (GA-1047)


court would likely conclude that section 11.301 and former chapter 18 of the Education Code do
not authorize a CSD to hold a petition-initiated election to increase the county equalization tax. 6
We do not address your remaining questions because they are conditioned on a determination
that the statutes authorize such an election.




         6
          0n similar analysis, this office previously determined that a statute authorizing an election to establish a
maximum tax rate did not authorize an election to increase the existing maximum tax rate. Tex. Att' y Gen. Op. No.
JC-0247 (2000) at 3-4 (determining that a hospital district that had established its maximum tax rate by a statutory
election was not authorized to hold a subsequent election to increase the maximum rate).
The Honorable Dan Patrick - Page 4           (GA-1047)


                                     SUMMARY

                      A court would likely conclude that section 11.301 and
              former chapter 18 of the Education Code do not authorize a
              countywide school district to hold a petition-initiated election to
              increase the county equalization tax.

                                            Very truly yours,




                                            Attorney General ofTexas


DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
