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                      THEAYTOR~YEY               GENERAL

                                     OFTEXAS




              Honorable Weaver Moore, Chairman
              Committee on State Affairs
              Texas Senate
              Austin, Texas
              Dear Sir:               Opinion No. O-3310
                                      Re: Constitutlonalitg of S.B. 344
                                           authortzing commlssloners' courts
                                           to create airport districts and
                                           lev a special tax of five cents
                                           on % 100 valuation to establish
                                           and maintain airports.
                        We have received your requestfor our oplnlon on
              the constitutionality of Senate Bill No. 344 of the current
              session. This bill, exclusive of the title and enacting and
              emergency clauses, reads as follows:
                        "Section 1. The commissioners' court of
                  any county in this state is hereby authorized
                  to establish within the boundaries of such county
                  an airport district of such area as the commis-
                  sioners' court may determine to be necessary for
                  such purposes, and to levy and collect a special
                  tax for airport purposes upon property situated
                  within such district, such tax not to exceed for
                  any one year five cents (05#) on each one hundred
                  dollars ($100) valuation. The proceeds of such
                  tax shall be devoted to the purpose of establish-
                  ing, improving, operating, maintaining and con-
                  ducting any airport which the commissioners'
                  court may establish within such district, and for
                  the purpose of providing all suitable structures
                  and facilities in connection with the operation
                  of such airport.'
                        The only taxing districts, exclusive of counties
              and municipalities, authorized by the Texas Constitution are
              school districts provLded for by Article 7, Sectlon 3; dis-
              tricts for the conservation and development of natural re-
              sources authorized by Article 16, Section 59; and districts
              for navigation, irrigation, draInage and roads authorized by
              Article 3, Section 52 of the Constitution. There exists no
              constitutlonal authority for the creation of special districts
Honorable Weaver Moore, page 2          O-3310



and the levying of taxes thereby for the purpose of construct-
ing airports.
            Article 8, Section 9 of the Const1tutlon of Texas
provides:
         "Sec. 9. The State tax on property, ex-
   clusive of the tax necessary to pay the public
   debt, and of the taxes provided for the benefft
   of the public free schools, shall never exceed
   thirty-five cents on the one hundred dollars
   valuation; and no county, city or town shall
   levy more than twenty-five cents for city or
   county purposes, and not exceeding fifteen cents
   for roads and bridges, and not exceeding fifteen
   cents to pay jurors, on the one hundred dollars
   valuation, except for the payment of debts in-
   curred prior to the adoption of the amendment
   September 25th, 1883; and for the erectlon of
   public buildings, streets, sewers, water works
   and other permanent improvements, not to exceed
   twenty-five cents on the one hundred dollars
   valuation, in any one year, and except as Is ln
   this Constitution otherwise provided; and the
   Legislature may also authorize an additional an-
   nual ad valorem tax to be levied and collected
   for the further maintenance of the public roads:
   provided, that a majority of the qualified pro-
   perty tax-payLng voters of the county voting at
   an election to be held for that purpose shall
   vote such tax, not to exceed fifteen cents on the
   one hundred dollars valuation of the property
   subject to taxation in such county. And the
   Legislature may pass local laws for the maInten-
   ante of the public roads and highways, without
   the local notlce required for special or local laws."
          In construing Article 8, Section 9, above quoted,
the Supreme Court of Texas in Carroll v. Williams, 109 Tex.
155, 202 S.W. 504, declared at p. 509:

         '* * *, beginning in our Constitution of
    1876and running through the amendments of 1893,
   1890 and 1907, the specific designation in sec-
   tion 9 of article 8, supra, of general classes
   of purposes of county, city or town taxation,
   with a limited rate in each instance, was both
   a departure from the original plan and a pro-
   gressive growth. That change and that develop-
   ment, when considered together, disclose, we
Honorable Weaver Moore, page 3           O-3310



    think a settled determination upon the part of
    our people, not only to fix the maximum rates
    of taxation for the designated purposes, respec-
    tively, but, incidentally, to restrict to each
    such purpose ,theapplication and expenditure
    of all tax money levied, assessed, and collected
    declaredly for that purpose. Thus the whole
    matter has been placed beyond the Dower and
    authority of the commissioners' court. and even
    of the Legislature itself, by the embodlment of
    those far-reaching reauirements in our organic
    law." (Emphasis ours).
          The Texas Supreme Court in Mitchell County v. Bank,
91 Tex. 361, 43 S.W. 880, used the following language in con-
struing Article 8, Section 9 (which was quoted with approval
by the Commission of Appeals in 1921 in the case of,Houston
v. Gonzales Independent School District, 229 S.W. 467):
          ‘I*   *   Y .
                  Section 9 confers no authority
   upon any officer of a city or county to levy a
   tax for any purpose, but 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 upon the power of the legislature to
   authorize counties to impose tax for such purposes."
          In The City of Ft. Worth v. Davis, 57 Tex. 225, at
p. 232, the Supreme Court declared that a school district
must rely on express constitutional authority for its taxing
power:
         "So the 9th section of the article (VIII)
   on taxation carefully prescribes the limit to
   state, county and city taxation, except for the
   payment of debts then already incurred 'and ex-
   cept as in this constitution is otherwise pro-
   vided.' These repeated and guarded constitutional
   limitations of the taxing power are a orominent
   feature of that instrument, and are inconsistent
   with the existence of a lealslative power to
   authorize additional taxation by school districts,
   unless some affirmative grant of that Dower be
   found in the              itself. * * *.
                          constitution        Our
   conclusion is that the city of Ft. Worth, in its
   capacity as a school district, had no other power
   to levy taxes for the support of public schools
   than can be fcund expressly authorized in the
   constitution." (Emphasis ours).
Honorable Weaver   Moore,   page 4         O-3310



          For additional cases declarinn that Article 8. Sec-
tlon 9 limits the Legislature's power t; authorize political
subdivisions to levy taxes in excess of the amounts and for
the purposes therein prescribed, except as express authority
may be found elsewhere in the Constitution, see: city of
Henderson v. Fields, 258 S.W. 523; Gould v. City of Paris,
68, Tex. 511;  Commissioners' Court v. Pinkston, 295 S.W. 27,l,
Anderson v. Parsley, 37 S.W. (2d) 358; Seydler v. Border, 115
S.W. (2d) 703.
          In our Opinion No. O-3142 we held U-&Article 1269h,
Vernon's Annotated Civil Statutes, confers authority upon the
Commissioners' Court of a County to;establish and malntaln an
airport out of the permanent improvement fund of the county.
But we are unable to find any constitutlonal authority for the
levy of a tax in addition to that authorized by Article 8,
Section 9 for airport purposes, whether such tax be levied
by the county itself or by any subdivision thereof. Conse-
quently, it is our opinion that Senate Bill No. 344 of the
47th Legislature is unconstitutional in that It seeks to
suthorize a tax in excess of the limits prescribed by Article
8, Section 9 of the Texas Constitution.

                                     Yours very truly
                                ATTORNEY GENERAL OF TEXAS


                                     By sl Walter R. Koch
                                           Walter R. Koch
                                                Assistant
WRK:RS:wc

APPROVED APRIL 26, 1941
s/Grover Sellers
FIRST ASSISTANTS
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman
