                THE,LYTORNEY                  GENERAL
                             OF      EXAS
                             A~STINII.TEXAS
  WILL    WII4sON
A1TOasNlcY GENEHAL
                                   July 29, 1958

    Hon. Fe&gin W. Windham            Opinion NO. ~~-480
    District Attorney
    Orange County                     Re: Is the Commissioners
    Orange, Texas                         Court authorized to levy
                                          an ad valorem tax upon
                                          all taxable property
                                          within Orange County for
                                          the purpose of establlsh-
                                          ing a general fund to be
                                          used for the maintenance,
                                          upkeep, repairs and addi-
                                          tions to the Improvements
                                          of the Orange County
                                          Conservation and Reclama-
                                          tion District without
                                          first causing an election
                                          to be held for the pur-
                                          pose of establishing a
                                          rate in accordance with
                                          the provisions of Article
                                          8013, Texas Revised Civil
    Dear Mr. Wlndham:                     Statutes, 1925?
         You request the opinion of this office upon the above
    captioned matter.
         The facts submitted by you may be thus summarized: In
    1931, there was legally created, In compliance with Section
    59 of Article XVI of the Constitution of Texas, and appro-
    priate statutory provisions, the Orange County Conservation
    and Reclamation District.   Said district Is co-extensive with
    the boundaries of Orange County.   After the cre’ationand
    establishment of said Conservation and Reclamation District,
    bonds were voted and Issued by the district as provided by
    statute. The Issuance of said bonds were submitted to and
    voted by the requisite number of qualified voters of the
    dfstrlct, and appropriate provisions were made for the levy,
    assessment and collection of a tax to meet this bonded lndebted-
    ness. There is not at this time nor has there heretofore been
    any question of validity of the creation of said district or
    the bonds.
          The specific question now before us Is the validity of
                                                               .   .




Hon. Feagln W. Windham, page 2,   Opinion No. ~~-480


the assessment and collection of a maintenance tax without
submitting the same to the voters of the district. You state
that there has never been an election by the voters of the
district for a maintenance tax, but that such a tax has been
levied and assessed for many years notwithstanding the absence
of an election.
     We are quite reluctant at this late date to hold that
the district Is without authority to levy and assess a maln-
tenance tax In the absence of an election, but we have no
other alternative.
     The Orange County Conservation and Reclamation District
was created pursuant to the statutes enacted under the
constitutional authority granted by Section 59 of Article
XVI of the Constitution. The questlon.you submit has been
answered by the Supreme Court in the case of Brown County
Water Improvement District No. 1 vs. Austin Mill and Grain
Company, 135 Tex. 140, 138 S.W.2d 523. We take the liberty
to quote f,romthis case rather fully because it bases the
ruling primarily upon the Constitution. In this case, the
Court said:
         "The Court of Civil Appeals held that the
    maintenance taxes In question were invalid, be-
    cause not authorized by vote of the property
    taxpaying voters of the district. 128 S.W.2d 829.
    Writ of error was granted because of the constl-
    tutlonal question Involved. Having reached the
    conclusion that the holding of the Court of Civil
    Appeals is correct, there is but little which can
    be added to its opinion.
         "For purposes of this discussion it Is assumed
    that statutory authority existed for levying the
    maintenance.taxes. Notwishstandlng this, however,
    lf a vote of the taxpaying voters was an essential
    prerequisite, the taxes were invalid. We are of
    the opinion that the matter is determined by a
    construction of the language of Subdivision (c)
    of Section 59, of Article 16, of the Constitution,
    and that the construction of this particular sec-
    tion, as regards the question here Involved, has
    not been directly passed upon by this court.
         "As the controversy between the parties Is
    waged largely around Subdivision (c) of Section 59
    of Article 16, we are setting out same In full.
    For convenience in arriving at the meaning of same
Hon. Feaglh W:,~Wlndham,page 3,   OpinlonNo~. WW-480


    we are setting it out In designated subdivisions,
    retaining the original punctuation:
              '(a) The Legislature shall authorize
         all such Indebtedness as may be necessary
         to provide all improvements and the maintenance
         thereof requisite to the achievement of the
         purposes of this amendment,

              '(b) and all such indebtedness may be
         evidenced by bonds of such conservation and
         reclamation districts, to be Issued under
         such regulations as may be prescribed by law

              '(cl and shall also, authorize the levy
         and collection within such districts of all
         such taxes, equitably distributed, as may be
         necessary for the payment of the interest and
         the creation of a sinking fund for the pay-
         ment of such bonds;

              '(d) and also for the maintenance of such
         districts and Improvements,

              '(e) and such Indebtedness shall be a lien
         upon the property assessed for the payment
         thereof;
              '(f) provided the Legislature shall not
         authorize the Issuance of'any bonds or provide
         for any indebtedness against any reclamation
         district unless such proposition shall first be
         submitted to the qualified property taxpaying
         voters of such district and the proposition
         adopted.'
         "[g    Looking at said constitutional provision
    more in detail we find that Subdivision (a),empowers
    the Legislature to authorlze,all such Indebtedness as
    may be necessary to provide all improvements and the
    maintenance thereof. Manifestly, the 'indebtedness'
    which, under this provision, the Legislature may
    authorize, means all enforceable obligations which
    may be incurred, regardless of the conditions of their
    payment or the time in which they may be payable. In
    other words, 'indebtedness,' as here used, has no
    technical or special meaning, but obviously has a
    broad significance as covering all debts or obllga-
    tions created for improvements or maintenance.
Hon. Feagin W. Windham, page 4,   Opinion No. WW-480


         "Subdivision (b) declares that 'such indebtedness'
    may be evidenced by bonds. Obviously, the word 'ln-
    debtedness' here has the same meaning as In the preced-
    ing paragraph.
         "Subdivision (d), when read in the light of the
    preceding language, means that the Legislature shall
    also authorize the levying and collection of such
    taxes as may be~necessary 'for the maintenance of
    such districts and Improvements,' and this is lmme-
    diately followed by the language (Subdivision e) 'and
    such indebtedness shall be a lien upon the property
    assessed for the payment thereof.' Here again the
    indebtedness mentioned is manifestly the same men-
    tioned In the preceding paragraphs, and necessarily
    means all debts or obligations Incurred In connection
    with improvements and maintenance. The word still
    has no special or technical meaning.
         "Then follows the provision which is the subject
    of debate. It is necessary to repeat same with em-
    phasis upon the controlling words: 'Provided the
    Legislature shall not authorize the issuance of any
    bonds or provide for any Indebtedness against any
    reclamation district unless such proposition shall
    first be submitted to the qualified property tax-
    paying voters of such district and the proposition
    adopted.'
         "p-q    The words 'any indebtedness' are emphatic
    and inclusive. We are called upon, however, to say
    that the word 'indebtedness' in this provision does
    not have the same broad meaning or significance which
    it undoubtedly has in the preceding subdivisions
    where it is used. The contention Is that as here
    used It has the restricted meaning given to the word
    'debts' in Section 5, Article 11, of the Constitution
    pertainin to cities and towns. See McNeil1 v. City
    of Waco, 89 Tex. 83, 33 S.W. 322. We perceive no
    reason for giving this word this special meaning,
    when its true meaning is clearly apparent from Its
    own context. It is a general rule that words are
    usually given a broad and liberal meaning, if neces-
    sary, In order to effectuate the purpose of the
    constitutional provision of which they are a part.
    It may be safely said that one of the dominant pur-
    poses of the constitutional provision in question
    was to prevent the burdening of property with tax
    liens, except with the approval of the taxpayers
Hon. Feagin W. Wlndham,   pages5,   Opinion No. ~~-480


    themselves, formally expressed in an election for
    that purpose. So, In light of this ,manlfest pur-
    pose, It 1s plain that the 'Indebtedness' mentioned
    In this provision Is exact1 the same indebtedness
    mentioned in Subdivision (eT , where It is said,
    'such indebtedness shall be a lien upon the property
    assessed for the payment thereof.'
          "While the prohibition Is primarily against
     indebtedness, yet It Is apparent that if the taxes
     be assessed and a lien created against the property
     without approval of the taxpayers, the prohibition
     of the Constitution will be defeated, regardless of
     how the money may be expended."
     There Is no question of the authority of the district
to levy, assess and collect a maintenance tax provided it
Is authorized by a vote of the qualified electors of the
district, but until this Is done any tax levied, assessed
and collected would be invalid. The authority is found In
Article 8013, V.C.S., and It Is apparent from the opening
sentence of this statute that a levy, assessment and
collection of a maintenance tax may be voted by the quall-
fied electors of the district. It plainly says "When a
maintenance tax shall have been voted In any district en-
titled by the benefits of this Act." (Emphasis added.)
     You are therefore .respectfullyadvised that the Orange
County Conservation and Reclamation District has no authority
to levy, assess and collect a maintenance tax without the
same being submitted and favorably voted by the required
number of qualified voters of the district.
     The foregoing conclusion Is applicable only where a
maintenance tax is levied and assessed upon an ad valorem
basis. There are certain assessments and charges made by
water control and Improvement districts that do not require
submission to the voters of the district. An election is
only required for the Issuance of bonds and for a malnte-
nance tax that Is supported on an ad valorem basis. This
is made quite clear In the case of Moore vs. Maverick
County Water Control and Improvement Dist. No. 1, Clv.App.,
162 S.W.2d 1004, error refused. Certiorari denied 63 S.Ct.
993, 318 U.S. 790, 87 L.Ed. 1156. We quote from said case
as follows:
          "We next consider appellant's attacks upon
     the flat rate assessments and the assessments for
     the amortization and emergency fund.
                                                           .   -




Hon. Feagin W. Windham,   page 6,    Opinion No. ~~-480


          "These assessments are commonly referred to as
     'service charges' and may be considered together.
         "Appellant contends that these service charges
    are invalid because they were not authorized by a
    vote of the property tax-paying voters of the district.
    As supporting this contention, he relies upon the
    case of Austin Mill & Grain Co. v. Brown County
    Water Improvement District No. 1, Tex.Civ.App.,
    128 S.W.2d 829; Brown County Water Improvement
    District v. Austin Mill & Grain Co., 135 Tex. 140,
    138 S.W.2d 523.
         "The Brown County case is not in point. It
    deals with the validity of an ad valorem tax for
    maintenance purposes and not with a flat rate
    assessment, or with an amortization and emergency
    fund assessment.
         "The constitutional distinction between the
    ad valorem tax and the assessments here Involved Is
    clear and well defined. In Lower Colorado River
    Authority v. McCraw, 125 Tex. 268, 83 S.W.2d 629,
    633, it was directly held that the constitutional
    vote required by Article 16, Sec. 59 Subd. (c),
    was applicable only 'to * * * bonds and indebted-
    ness to be paid out of tax funds.'
                           SUMMARY
              The Orange County Conservation
         and Reclamation District has no author-
         ity to levy, assess and collect a maln-
         tenance tax upon an ad valorem basis
         without the same having been submitted
         to the voters of the district and author-
         ized by the requisite number of qualified
         voters.
                           Very truly yours,
LPL/ba
APPROVED:                   WILL WILSON
OPINION COMMITTEE:,;        Attorney General of Texas
Geo.P.Blackburn, Chairman
Jay Howell
J. Milton Richardson        BY ga$g$tJ
Richard Wells
Wayland Rivers, Jr.             Assistant
REVIEWED FOR THE ATTORNEY GENERAL
By:   W. V. Geppert
