                EATiT           NEY      GENERAL
                                  EXAS




Hon. Jules Damlani, Jr.                Opinion No. M-50
Criminal District Attorney
Galveston,County                       Re.   Whether the County of Galve-
Galveston, Texas                             ston may expend flood con-
                                             trol funds derived from
                                             the collection of taxes
                                             under the revisions of
                                             Article 70 e 8a V.C.S.
                                             for the maintdnance o! seti-
                                             walls constructed ana flnan-
                                             ted under the provisions of
Dear Mr Damlani:                             Article 6830,  V.C.S.
          In a recent letter to this office you requested en opinion
in regard to the above captioned matter. We quote from your letter
as follows:
          "Galveston County constructed owns and
    maintains approximately ten miles oi Seawall
    on the Island of Galveston, Texas and Is In
    the process of constructing approximately
    seventeen miles of Seawall on the Mainland of
    Galveston, Texas. The seventeen miles being
    in various states of completion. Both the
    Island and Mainland Seawall projects were
    financed and constructed with bonds now being
    retired with ad valorem tax funds Provided by
    Article 6830 et seq. V.A.C.S. . *-. .
          M. . .

          "Galveston County has scheduled a 30# tax
     election for ri00a control and farm to market
     and lateral roads under the provisions Of
     Article 7048a V.A,C.S. said election set for
     the 18th of March, 1963. Assuming the tax
     election is successful may the County, pur-
     suant to Sec. 5 of Article 7048a, expend tax
     funds for the maintenance of Seawalls which
     were constructed under Article 6830 V.A.C.S.
     Attention Is called to the fact that Article
     6830 provides for a maintenance tax of such
     Seawalls and requires authorization from 2/3rds
     of the qualified voters who are resident tax
     payers in said County, whereas Article 'i'048a
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Hon. Jules Damlanl, Jr., Page 2 (M- 50    )




     et seq. requires authorization from a simple
     majority of the qualified property tax paying
     voters voting in said election in favor of
     said additional tax. Attention Is called to
     the fact that the benefits and additional tax
     revenue as provided in Article 6830 applies
     only to Gulf Coast Counties.
          "Your opinion as to whether Sec. 5 of
     Article 7048a will allow the County of Galveston
     to expend funds for the maintenance of the
     Mainland and Galveston Island Seawalls is re-
     spectfully requested."
            Section 7, Article XI of the Texas Constitution
provides:

         "All counties and cities bordering on the
    coast of the Gulf of Mexico are hereby authorized
    upon a vote of a two-thirds majority of the re-
    sident property tzxpayers voting thereon at an
    election called for such purpose to levy and
    collect such tax for construction of sea walls,
    breakwaters, or sanitary purposes, as may now
    or may hereafter be authorized by law, and may
    create a debt for such works and issue bonds in
    evidence thereof. But no debt for any purpose
    shall ever be incurred in any manner by any
    city or county unless provision is made, at
    the time of creating the same, for levying
    and collecting a sufficient tax to pay the in-
    terest thereon and provide at least two per
    cent (2%) as a sinking fund, and the condemna-
    tion of the right of way for the erection of
    such works shall be fully provided for."
          Article 6830, Vernon's Civil Statutes, pro-
vides as follows:

          "The county commlssioners~ court of all
     counties, and the municipal authorities of all
     cities, bordering on the coast of the Gulf of
     Mexico shall have the power and are authorized
     from time to time to establish, locate, erect,
     construct, extend, protect, strengthen, maintain
     and keep in repair and otherwise improve any
     sea wall or breakwater, levees, dikes, floodways
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Hon. Jules Damlanl, Jr ., Page 3 (M-50   )




    and drainways and to Improve maintain and
    beautify any boulevard erected in connection
    with such sea wall or breakwater levees, dikes,
    floodways and drainways, and to incur indebted-
    ness therefor the payment of which may be pro-
    vided for either with or without the issuance
    of bonds. And said commissioners’ courts and
    municipal authorities shall also have Dower and
    are hereby authorized to levy taxes not to cx-
    teed in any one year fifty cents on the one
    hundred dollars of taxable values of said county
    or city for the payment of said indebtedness,
    provided that when the taxes are levied as herein
    provided for, will not pay off said indebtedness
    within five years, then the payment of said in-
    debtedness shall be provided for by the issuance
    of bonds as hereinafter provided.”
          Additional provisions relatln to seawalls are
found in Article 6831, through Article z8399, Vernon’s
Civil Statutes. In relation to the issuance of bonds as pro-
vided for in Article 6830 Article 6834 et seq. provides that
a two-thirds majority of the qualified Gotera who are resid-
ent property taxpayers voting at an election cal.ledto app-
rove a levy of taxes under these statutes must vote in
favor of such levy of taxes.
          Section l-a, Article VIII of the Texas Cons-
titution provides, in part, as follows:
         “From and after January 1, 1951, no State
    ad valorem tax shall be levied upon any property
    within this State for general revenue purposes.
    From and after January 1, 1951, the several
    counties of the State are authorized to levy ad
    valorem taxes upon all property within their
    respective boundaries for county purposes, except
    the first Three Thousand Dollars ($3,000) value
    of resldentlal homesteads, not to exceed thirty
    cents (3Od) on each One Hundred Dollars ($100)
    valuation in addition to all other ad valorem
    taxes authorized by the Constitution of this
     tate provlded the revenue derived therefrom
    &b      e used for construction and maintenance
    of Farm to Market Roads or for Flood Control,
    except as herein otherwise provided. (Emphasis
    added. )
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Hon. Jules Damlanl, Jr., page 4 (M-50   )




          Section 2, Article 7048a, Vernon's Civil Statutes,
provides, in part, as follows:
         "From and after January 1 1951, the several
    counties of the State be and they are hereby
    authorized to levy, assess and collect ad valorem
    taxes upon all property within their respective
    boundaries for county purposes except the first
    Three Thousand Dollars ($3,000) value of reslden-
    tial homesteads, not to exceed thirty cents (3Oj)
    on each One Hundred Dollars ($100) valuation, in
    addition to all other ad valorem taxes authorized
    by the Constitution of the State, provided the
    revenue therefrom shall be used as provided in
    this Act for the construction and maintenance of
    Farm-to-Market and Lateral Roads or for Flood
    Control and for these two (2) purposes only,
    (Emphasis added.)
          ,!
           . . .II
         Section 5, Article 7048a, provides as follows:
         "The funds transferred to the Flood Control
    Funds shall be under the jurisdiction and control
    of the Commissioners Court of such county and
    shall be used solely for Flood Control purposes.
    All or part of said funds may be used in connec-
    tion with the plans and programs of the Federal
    Soil Conservation Service and the State Soil Con-
    servation Districts and the State Extension Serv-
    ice, Conservation and Reclamation Districts,
    Drainage Districts, Water Control and Improve-
    ment Districts, Navigation Districts Flood Control
    Districts, Levee Improvement Districts and Munici-
    pal Corporations, and such funds may be expended
    by the Commissioners Court in accordance with this
    Act for flood control purposes, including all soil
    conservation practices such as contouring, terrac-
    ing, tank building, and all other practices actually
    controlling and conserving moisture and water
    within any said county and political subdivision
    thereof for Flood Control and Soil Conservation
    programs, provided that such plans for improvement
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Hon. Jules Damiani, Jr., page 5 (M-50’   )




     are approved by such county and political sub-
     division."
          Section l-a of Article VIII of the Texas Constitution
and Section 2 of Article 7048a, clearly provide,in identical words,
that the tax authorized by their provisions shall be 'I* . . in
addition t$ all other ad valorem taxes authorized by the Constitu-
tion .       Taxes collected pursuant to the provisions of Section
7 of ArtiEle XI of the Texas Constitution and Article 6830 through
Article 683gg, which statutzs were enacted pursuant to Section 7
of Article XI, are clearly . . . other ad valorem taxes authorized
by the Constitution . . ."
          Seawalls are constructed as an aid in keeping inland lands
from becoming inundated by sea water, during storms at sea. If such
inundation of water amounts to a flood then It is clear that the
maintenance and improvement of sea walis are "for flood control"
as that term Is used in Section l-a of Article VIII of the Constitu-
tion and Section 2 of Article 7048a.
           A flood Is defined In Black's Law Dictionary (Fourth Edi-
tion) as  "an inundation of water over land not usually covered by
it .”  36 C.J.S. 1028 In defining the word flood states: "a body
of water rising, awefling and overflowing land n&t usually covered
with water." Also see Long Motor Lines v. Home Fire & Marine Ins.
Co., 67 S.E.2d 512 (1951); Roberts v. Union Insurance Society of
Canton, 332 Pac. 600 (1958).
          It is therefore our opinion that a county may use flood
control funds derived under the provisions of Section l-a of Article
VIII of the Texas Constitution and Article 7048a, for the maintenance
of seawalls constructed pursuant to the provisions of Artlcle,XI,
Section 7 of the Constitution and Articles 6830 through 683gg, pro-
vided that the use of such funds complies with the provisions of
Article 7048a.
                         SUMMARY
                         -------
          A county may use flood control funds derived
     under the provisions of Section l-a of Article
     VIII of the Texas Constitution and Article 7048a,
     Vernon's Civil Statutes, for the maintenance of
     seawalls constructed pursuant to the provisions of
     Section 7 Article XI of the Constitution and
     Articles 6830 through 683$?g,Vernonla Civil Statutes,
     provided that the use of such funds complies with
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                                                        ..   .




Hon. Jules Damianl, Jr., page 6 (M-50        )




     the provisions of Article 7048a,       Vernon's Civil Statutes.




Prepared by Lewis E. Berry, Jr.         .
Assistant Attorney General
LEBjr:ea
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
William J. Craig
Arthur Sandlin
J. C. Davis
STAFF LEGAL ASSISTANT
A. J. CARUBBI, JR.




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