                 HEAITORNEY                  GENERAL
                           OFTEXA~
                           AU(~TIN,,.TEXAO
GROVER SELLERS




    Honorable Ottis E. Lock, Chairman
    Committee on Education
    House of Representatives
    Forty ninth Legislature
    Austin, Texas
    Dear Sir:               Opinion No. 0-6533
                            Re: Is the limit of the power of tax-
                                 ation of the school districts,
                                 as provided In the statute stated
                                 herein, valid in view of the
                                 language of the Constitution also
                                 referred to? And a related ques-
                                 tion.
               We are In receipt of your letter of recent date
     reading as follows:
               "A number of bills have been Introduced in
         this session of the Legislature proposing to in-
         crease the maxlmum tax rate that may be levied for
         the local support of public free schools in Texas.
         A number of measures are now on the statutes making
         exceptions to the statute fixing the limit.
               "Your attention is called to Article 2784,in
         which the following language is found:
               "IThe amount of maintanance tax, together
            with the amount of bond tax of any district,
            shall never exceed one dollar on the one
            hundred dollars valuation of taxable property;
            and if the rate of bond tax, together with the
            rate of maintenance tax voted in the district
            shall at any time exceed one dollar on the one
            hundred dollars valuation, such bond tax shall
            operate to reduce the maintenance tax to the
            difference between the rate of the bond tax
            and one dollar.'
                 "Your attention is further directed to Section
         3, Article 7, of the Constitution of Texas in which
         this language Fs found:
Honorable Ottis E. Lock, page 2         o-6533


          ("***** and the Legislature may authorize
       an additional ad valorem tax,to be levied
       and collected within all school districts
       heretofore formed or hereafter formed, for
       the further maintenance of public free
       schools, and for the erection and equipment
       of school buildings therein; provided that
       a majority of the qualified property tax-
       paying voters of the district voting at an
       election to be held for that purpose, shall
       vote such tax not to exceed In any one year
       one dollar ($1.00) on the one hundred dollars
       valuation of the property subject to taxation
       in such district, but the limitation upon the
       amount of school district tax herein author-
       ized shall not apply to incorporated cities
       or towns constituting separate and independent
       school districts, nor to independent or com-
       mon school districts created by general or
       special law.'
          "You will observe the specific exception for
    the various types of schools on the one dollar llmlta-
    tion in said Article of the Constitution. We, there-
    fore, would like to have a specific answer to the
    following questions:
          "1. Is the limit  of the power of taxa-
       tion of the school districts, as provided
       in the statute above referred to, valid
       in view of the language of the Constitution
       also above referred to?
          "2. If the answer is 'no,' then do the
       statutes enable school districts to collect
       such tax as the voters in said districts
       may have authorized, or may hereafter au-
       thorize, without regard to the one dollar
       limitation of the statutes?"
          "The people in framing the Constitution, "says
    Denio, Ch. J. committed to the legislature the whole
    law-making power of the State, which they did not ex-
    pressly or impliedly withhold. Plenary power Intie
    legislature, for all purposes of civil government, Is
    the rule. A prohibition to exercise a particular power
    is an exception. In Inquiring, therefore, whether a
    given statute is constitutional, it is for those whf
    question its validity to show that It is forbidden.
    Cooley's Constitutional Limitations, Vol. 1, pages
    176-77.
Honorable Ottis E. Lock, page 3          o-6533


          "The test of legislative power is constitutional
    restriction. What the people have not said in the
    organic,,lawtheir representatives shall not do, they
    may do.   60 Atl. 169; 105 Am. St. Rep. 825.
          "But it is as true of the politIca divisions
    of the State as it Is of the State at large, that
    $g;i:azive authority must be shown for every levy
            . The power to levy taxes by these divisions
    comes from the State. The State confers It, and at
    the same time exercises    a parental supervision by
    circumscribing it.      * * +   Cooley's Constitutional
    Limitations, Vol. 2, pages 1099-1100.
          "When, however, it is said to be essential to
    valid taxation that there be legislative authority
    for every tax that is laid, It Is not meant that
    the legislative department of the State must have
    passed upon the necessity and propriety of every
    particular tax; but those who assume to seize the
    property of the citizen for the satisfaction of the
    tax must be able to show that that particular tax is
    authorized either by general or specIa1 law. The
    power inherent in government to tax lies dormant until
    a constitutional law has been passed calling it into
    action, and is then vitalized only to the extent pro-
    vided by law. Those, therefore, who act under such
    a law should be careful to keep within its limits,
    lest they rern;vzf"om their acts the shield of %ts
    protection.          Cooleg's Constitutional Limita-
    tions, Vol. 2, page 1100-1102.
          The Constitution not only has not prohibited the
Legislature from passing any law authorizing school districts
to levy taxes, but in the very section referred to in your
letter, we find the following express authority:
         "And the Legislature may authorize an addi-
   tional ad valorem  tax to be levied and collected
   within all  school districts heretofore formed or
   hereafter formed, for the further maintenance of
   public free schools, and for the erection and
   equipment of school buildings therein;"
and further provides that such tax must be further authorized
by a vote of the property taxpayers of the district, and
fixes a limit of $1.00 on the $100 valuation of taxable pro-
perty, which limitation as to rate does not apply to any
school district, since the limitation as to rate was removed
by a proviso to that effect. Removing the limitation as to
Honorable Ottis E. Lock, page 4          O-6533


rate does not affect the authority of the Legislature to
provide for a tax at any rate it deems advisable.
          From the above authorities, you will see ?;hatno
tax is valid which is not authorized by law. The Constitu-
tion does not limit the rate nor does it prohibit the
Legislature from fixing the rate. Therefore, the L,gisla-
ture, by general law, may authorize a school tax at such
rate as it deems advisable. It is our opinion that Article
2784 is valid.
          In view of our answer to your first question, it
becomes unnecessary to answer your second.
                                  Yours very truly
                              ATTORNEY GENERAL OF TEXAS'


                                  By s/C. F. Gibson
                                       C. F. Gibson
                                          Assistant
CFG:EP:wc

APPROVED APRIL 23, 1945
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee B,y s/BWB Chairman
