            E        TTORNEY            GENERAL
                             TEXAS




                               November 6, '1950


Hon. Raymond E. Magee                    Opinion No. V-1115
County Attorney
Galveston County                         Rei   Legality   of'1evyi.n~
Galveston,  Texas                               tax for mosquito 'con-
                                               trol In addition to
                                               ,the maximum tax lim-
                                               itation   in Article
                                               VIII, Sectiong,      Con-
                                               stitution   of Texas,
Dear Sir:                                      and related questions;
               Yo@have. requested an opinion on the construc-
tion of Article      4477-2 of Vernon"s Civil Statutes.   Your'
questions read as ,follows:
                                   0
    ~.
     .,        "QUESTION1: The sixty days referred
        to in this Act now having past, does this Act
        require that the Commissioners" Court call then
        election,   orshall   the same be called by the
       County Judge without any action upon theapart
        of the Commissioners' Court?
            "QURSTION2: Does Section 2 of ArtLle
     4477-2 authorize the Commisslonerss Court to
     levy a tax.of five cents oneach One Hundred
     ~Dollar tax valuation in the Countg,assuming,
     of 'course, that the people authori~ze such levy
     by a vote in the establishment.of    a mosquito
     control district,   in addition to the constitu-
     ~tlonal.limitation  placed upon.the Commission-
     ers' Court by Article    8, Section 9; of the
     Constitution?
          "QUESTION3: ,Upon what fund should the
     levy authorized by .this ‘Statute be made?                        L
           'QURSTION4: 'Will the Cozzslssioners'
     Court be obligated  to Day the election  e$-
     penses for the holding of this election?
                Article   4477-2,   V.C.S.;    provides,   in parts’       r),
                                                                             _’
        Hon. Raymond E. Magee, page 2       (V,-1116)


                    “Section 1. In all counties of this
             State   which border on the Gulf of Mexico, the
             Commissioners    Court may call an election    with-
             in sixty (60) days after the effective       date
             of this Act, and at subsequent elections       when
             called by the County Jud e u on his being pe-
             titioned    by two hundred 7 200 P qualified  voters
             to call such election    to determine if the qual-
             ifled voters of such county desire the estab-
             lishment of a Mosquito Control District       to
             embrace all the territory     within said county,.
             for the purpose of eradicatfng      mosquitoes in
             said area.     0 0 0
                   “Sec. 2, The Commissioners Court in each
             county governed by the provisions      of this Act
             may call an election    within sixty (60) days af-
             ter the effective   date of this Act and at sub-
             sequent eledtions   when called by the County
             Judge upon his being petitioned     by two hundred
             (200) qualified   voters to call such election
             to determine if the qualified     property taxpay-
             ing voters of said county desire a levy of a
             tax not to exceed five cents (5&j on each one
             hundred dollar tax valuation to finance the
             program provided in this Act,      De e
                    “Set, 3* The elections  provided in Sec-
             tion 1 and Section 2 shall be combined in one
             election;   provided, hoWever, that only quali-
             fled property taxpaying voters shall be au-
             thorized to vote to create such district   and
             on the question of a tax levy as provided in
             Section 2,”
                    Under the provisions   above quoted, the commis-
        sioners 8 court upon its motion is only authorized to call
        an election   “within sixty (60) days after the effective
        date of this Act.’      You are therefore  advised in answer
        to your first   question that the sixty-day     period having
        elapsed,   the commisslonersD court cannot now call an
        election.    An election   may now be called only by the
        county judge “upon his being petitioned      by two hundred
        (200) qualified    voters” of the county.
                  Section    9 of Article   VIII   of the Constitution
” ‘,,   of Texas provides:
Hon. Raymond E. Magee, page 3       (V-1116)


            in no event shall the total of o /*,~
      tt
           0   0   .


     county taxes exceed eighty (80) cents.on the
     one hundred,,dollars valuation, in any one
     year; e s o
          In construing Section 9 of Article  VIII, It was
held in Anderson v. Parsley,  37 S.W.26 358, 363 (Tex.Civ.'
App. 1931, error per.):
           ~"The power of the county commission-
     ers under the Constitution,    art. 8,8 9, as
     amended December 19, 1890, to levy a tax of
     23 cents on'$lOO valuation to construct build-
     ings, sewers, and other permanent buildings,
     being limited to that.levy   for all such pur-
     poses, a levy can be made for a courthouse
    .and jail only so far as the limit has not al-
     ready been reached for ,the other purposes.
     Stratton ve Commissionersv Court of Kinney
     County (Tox,Civ.App.)   137 S.W. 117J."
             The construction of this section of the Consti-
tution in the Anderson gase has not been disturbed by the
"reallocation    amendment adopted in 1944;   In a letter     to
Hon. William Ii. Hensley, Criminal District   Attorney,    .twar
County, Texas, dated December 6, 1948, this office      stated:
            "There is now no statute authorizing
     the CommissionersE Court of Bexar County to
     create a hospital    or health district     with
     taxing power* Such a district        could be au-
     thorized by the Legislature      by the passage
     of a general law but the taxes which such a
     district   could levy must be part of the 804
     limit fixed by Article    VIII, Section 9, Texas
     Constitution.     In order to create a hospital
     01" health district   having power to levy taxes
     for operation and maintenance in addition to
     the maximumrate available       under Article    VIII,
     Section 9 of the Constitution      for the General
     Fund, a constitutional    amendment would be nec-
     essary. 'The Robert B. Green Memorial Hospital
     now has available    for operation and maintenance
     the taxes received from a levy of 20 cents on
     the One Hundred Dollar valuation        ($100) as au-
     thorized by Art. 4437a, V.C.S.,       plus income de-
     rived from pay patients.       The Legislature    could
     amend this law and authorize a larger levy,
     but whatever additional     levy was authorized
Ron, Rcymond E. Xagee,    page 4   (V-1116)


      would have to come out of the 80 cent per’ one               .
      hundred dollar ($100) maximum levy fixed fop
      counties by Article    VIII, Section 9 of the
      ConstiDution.     That section ppoviUes that ‘in
      no event shall the total of ,, . . county taxes
      exceed (80) cents on the one hundpeed dollars
      valuation,    in any one yearo”b
             In view of the foregoiri a~uthopities, you are
ar’~~i:~cdin answer to you second question that the tax
1.:~;; a.uthorised by Sections 2 and 4 of Article   4477-2 is
not in addition to the constitutional    limitation   fixed
by Section 9, Article    VIII of the Constitution,
             In answer to your third question, it is our
opinion   that the cost of operating a Mosquito Control
District   created fop public health purposes of t,he coun-
               aid out of the genepal funds AttPy Gene Op.
~:ggs~l;~8p,

            In regard to your fourth question,      you are ad-
vised that the holdlnil, of an election     is a county purpose
to be paid fop by the countya      Bexar County ~.a,         138
?J;;Je,9zi 157 S.W.2d 134 (1941).     Therefore,  txe commis-
           court is obligated  to pay the expenses of hold-
ing an election    under the provisions   of Article   4477-2*


            After sixty days from the effect.Lve
      date of Article    4477-2, V.C.S,, an election
      for the establishment     of a Mosquito Control
      District   can be called only by the county
      judge upon being petitioned     by two huntied
      qualified   voters of the county.
             The tax levy authorized by Sections 2 and
      4 of .!zticle   4477-2 is not in addition to the
      limik;,ttion fixed by Section 9, Article   VIII of
      the Constitution.      It must be included Pitbin
      the’levg    authorized by the Constitution  for
      general fund pwposeso
          ‘, The commissioners D court is obligated
      to pay the expenses of holding an election
      under the provisions    of Article 4477-2, V.C.S.,
    Eon. Raymond E. I&gee,   page 5   (V&1116)


                    "county purpose ' Bexar County
         tz E?f   &58 Texs 9g9,157    i.W&& 134 (1941).

    APPROVED:                            Yaws    VePy   tlwly,

    Jo Cs Davis, Jr.                       PRICE DANIEL
    Cduntg Affairs Division              Attorney General.
    Everett Hutchinson
    Executive Assistant
    Charles Da Mathews
    First Assistant                              Assistant
    JR:mw




,
