Hon. Pearce Johnson, Chairman
Committee   on State Affairs
House of Representatives
Fifty-first Legislature
Austin, Texas                          Opinion   No.   V-797

                                       Re:   Whether amendment of Sec.
                                             l-a of Article   VIII of the Con-
                                             stitution is self-executing
                                             and whether the provisions     of
                                             H.B. 107 comply with said
Dear   Sir:                                  section.

            You have submitted        a copy of House Bill 107 and re-
quested a ruling of the Attorney      General on two questions,  the first
of which reads as follows:

               ‘1. Is the enactment    of the proposed law neccs-
       sary   to comply with H.J.R.    No. 24 of the 50th Legiala-
       ture ? ”

            The pertinent provisions  of H.J.R. 24, which was adopt-
ed by vote of the people in the 1948 General Election, are the follow-
ing:

              “Section 1. That Section l-a of Article VIII of the
       Constitution   be amended so as to be and read as follows:

              u ‘Section l-a.      From and after January 1, 1951,
       no State ad valorem       tax shall be levied upon any prop-
       erty within this State for general revenue purposes.
       From and after January 1, 1951, the several           count&a
       of the State are authorized       to levy ad valorem     taxeo up-
       on all property within their respective        boundaries     for
       county purposes,      . . . not to exceed thirty cents (3O$)
       on each One Hundred Dollar ($100) valuation,            in addi-
       tion to all other ad valorem        taxes authorized   by the
       Constitution    of this State, provided the revenue derived
       therefrom    shall be used for construction       and~mainte-
       nance of Farm to Market Roads or for Flood Control,
       except as herein otherwise provided.”
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    Hon. Pearce    Johnson,   Page   2 (V-797)




                 The proviso relates to the applicability   of the amend-
    ment to ” ‘counties or political subdivisions,   or areas of the State
    from which tax donations have heretofore      been granted . . .’ ”

                   Section 1 of H.B. 107, embodies      the exact language of
    the first sentence above quoted prohibiting the levy of State ad va-
    lorem taxes for general revenue        purposes after January 1, 1951.
    Since this sentence of H.J.R. 24 plainly states a positive constitu-
    tional prohibition.   no legislative   act could abrogate or modify its
    terms and it must, by its very nature,        be self-executing.    Cooley,
    Constitutional    Limitations,   8th Ed.,  Vol.  1, pp.  166-168,  170; Wat-
     son v. Aiken, 55 Tex. 536, 542; Hemphill v, Watson, 60 Tex. b’T4F;
    ‘681. Mitchell County v. City National Bank, 91 T ex. 361, 43 S.W.
    880: 883 ; and authoritres there crted. Section 1 of H.B. 107 is there-
    fore in no wise necessary       either to effectuate    or to comply with the
    opening mandate of H.J.R. 24.

                 Passing to a consideration       of the remainder      of H.J.R.
    24, we may hold it self-executing    “if it    supplies a sufficient rule
    by means of which the right given may         be enjoyed and protected or
    the duty imposed may be enforced;      and     it is not self-executing    when
    it merely indicates principles,   without     laying down rules by which
    these principles   may be given the force       of law.”

                  This excerpt from Cooley on Constitutional        Limitations
    was quoted by the Supreme Court of Texas in Mitchell County v.
    City National Bank, 91 Tex. 361, 371, 43 S.W. 880, 883, when the
    court was determining      whether or not the provisions     of Section 7
    of Article XI of the Texas Constitution      were self-executing:     i.e.,
    said the court, whether “the source of authority for making the levy
    and collecting   the tax is the Constitution   and not the act of the Leg-
    islature.”

                  The portion   of the Constitution    in question   in the Mitchell
    case   provided:

                   *All counties and cities bordering    on the coast
           . . . are hereby authorized,    upon a vote of two-thirds
           of the tax payers therein (to be ascertained      as may be
           provided by law), to levy and collect such tax for con-
           struction   of seawalls, breakwaters,    or sanitary pur-
           poses, as may be authorized      by law, and may create
           a debt for such works . . .I(

                   The Court reached the conclusion       that the provisions of
    Section   7 of Article XI were not self-executing      in the following analy-
    sis:
Hon. Pearce     Johnson,   Page   3 (V-797)




               “The only parts of the constitution      which bear
       upon this subject are section 9 of article 8, and sec-
       tions 2 and 7 of article 11. Section 9 confers no au-
       thority upon any officer of a city or county to levy a
       tax for any purpose, but by 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 or limitation upon
       the power of the legislature      to authorize counties to
       impose taxes for such purposes.          Section 2 of article
       11 expressly    requires    the enactment of a general law
       to carry its mandates into effect; and section 7 of the
       same article contains no grant of authority to levy a
       tax nor designation     of any official by whom the tax
       specified is to be levied and collected,       but is, in ef-
       fect, a limitation upon the power of the legislature          to
       authoriae~ such corporations       to create debts.    In the
       sense that all laws in conflict with these prohibitions
       are void, section 9 of article 8 and section 7 of article
        11 are self-executing;    but, in so far as anything is re-
       quired to be done to carry them into effect, they are
       not so, because they prescribe        no rules by which any
       act could be done in the enforcement         of their require-
       ments.”

              Although the provisions    of section 7 of Article XI ex-
pressly   required future action by the Legislature       (the vote of the
~taxpayer, and the amount of the tax, were to be ascertained          -as may
be provided by law”), we think that the language of the court above
quoted precludes     our holding that the last part of H.J.R.     24 is self-
executing.    There is no “designation    of any official by whom the tax
specified is to be levied and collected”;     nor is “anything . . . re-
quired to be done to carry . . . (it) into effect.    . . because . . . no
rules . . . (are prescribed    by) which any act could be done in the
enforcement     of their requirements.”    The Mitchell case at least
casts enough doubt on the matter to fully justify the enactment of
enabling legislation.

               Even if the main provisions        of H.J.R. 24 are self-exe-
 cuting, legislation    could still be deemed desirable         for the purpose
 of “providing    convenient remedies       for the protection of the right
 secured,   or of regulating    the claim of the right so that its exact
 limits may be known and understood;           but all such legislation    must
 be subordinate     to the Constitutional     provision,   and in furtherance
 of its purposes,     and must not in any particular attempt to narro
 or embarrass      it.” Cooley,    Constitutional    Limitations,    8th Ed., T 01.
  1, pp. 170, 171. The power of the Legislature            to implement   the
~presant amendment        is indisputable because,       should it be regarded
.




Hon. Pearce    Xohnson,    Page 4 (V-797)




as self-executing,    the machinery  for its enforcement    could only be
found in existing legislation   which is, of course,  in the main, sub-
ject to repeal or amendment at the pleasure of the presently        con-
stituted legislati,ve body,

              Question    No. 2 reads   as follows:

            “If your answer      to question number   one is ‘yes,’
      does the Bill properly     comply with H.J.R.   No. 24?*

             The     Constitutional Amendment    in question (H.J.R. 24)
says that the tax     funds raised “shall be used for (1) construction
and maintenance       of Farm to Market Roads or (2) for Flood Control
. . .  (Numbers      m parenthesis   added, and emphasis added through-
out this opinion.)

             Sections 2-5 of H.B. 107 continue to embody the language
of H.J.R. 24 with a notable departure in providing that the tax reve-
nue s “shall be used as provided in this Act for the construction     and
maintenance   of Farm-to-Market     and lateral roads
                                                __-    and for  soil
                                                                --   and
water conservation   and flood control.yThe        amount orrevenue
which may, at the option of the county, be credited to a municipal
corporation  within its limits and used for “water conservation      and
flood control purposes”   is limited to l/3 of the tax authorized.

              Sections 6-8 provide for a Farm-to-Market        and Lateral
Road Fund and for a separate      Soil and Water Conservation      Fund to
which the County may credit such portion of the revenues as it sees
fit. Both funds are to be under the jurisdiction      of the Commission-
ers Court of the County.     But the Farm-to-Market       and Lateral Road
Fund is to be used solely in cooperation      with the State Highway De-
partment, and the “Soil and Water Conservation         and Flood Control
Fund” (“Flood Control” being added to the name mhisfunde.
fir    time in Section 8) is to be used “solely for Soil and Water Con-
 servation and Flood Control purposes,      su
                                            q$&yj&Y&2$!~&$-
nection with, plans and programs      of the
Service and State Soil Conservation      Districts, and the State Extea-
sion Service,   provided that that part of the County programs        for
Soil Conservation    on farms and ranches shall be handled according
to plans and with the personnel    of the local conservation    district,
where one exists in whole or in part within such county.”         Section
 8 further provides:

             “To this end, the Commissioners        Court may, in
      its discretion,   engage the services    of a Federal  or State
      Soil Conservation     engineer,  or of extention service per-
      sonnel, in devising and planning for farm and ranch own-
      ers and operators,     soil, water, erosion, drainage, and
      eradication    program coming within the purview of.this
Hon. Pearce      Johnson,    Page    5 (V-797)



       Act, and may acquire whatever machinery,         equipment
       and material  useful and necessary     in carrying out such
       soil, water, erosion,   drainage and eradication    conser-
       vation program,   provided such machinery       and equip-
       ment shall be made available     to farm and ranch owners
       and operators   on an out-of-pocket    expense basis, not
       including depreciation.”

                From this summary           it is first apparent that House Bill
107 fully complies        with the provision of the Constitutional             Amend-
ment only if the term “Flood Control” (one of the two purposes                        to
which expenditures         are confined by the amendment)              embraces      “Soil
Conservation.      ” We have been unable to find any authorities                  direct-
ly in point; but we have examined provisions                  of existing sections       of
our Constitution      and statutes which relate to controlling               or conserv-
ing natural resources,         with which provisions          the framers      of the
amendment must be deemed to have been familiar.                        Any discussion
or even a, summary         of these provisions       would extend this opinion
to voluminous       proportions.      Suffice it to say that the powers of coun-
ties and districts      in these matters are distinctly            specified    and enu-
merated under Article III, Section 52, but that the variety and pur-
poses for which districts          are created under statutes passed in pur-
suance to Section 59 of Article XVI are as varied as the aspects of
conservation      of natural resources         are numerous.         Nevertheless,
the districts    which have been organized            are generally       limited to the
accomplishment         of one particular      aspect or field of conservation
even though their work may incidentally               aid or embrace         other fields.
For example,       there are Drainage         Districts,     Flood Control Districts,
Reclamation      Districts,     Levee Improvement           Districts    and Soil Con-
servation Districts.         Soil Conservation       Districts     may be created
under the provisions         of Article   165a-4,     V.C.S.,    which expressly
states that it is carrying        out the mandate of Article           XVI, Section
59. Laws providing for the creation of Soil Conservation                      Districts
could not have been enacted under the provisions                    of Article III, Sec-
tion 52, as none of the three subdivisions               thereof are comprehen-
sive enough to embrace           the various methods of soil conservation;
yet a Flood Control District is plainly authorized by its provisions.
We are aware that many aspects of soil conservation                      do result in
controlling    floods; but many other methods of soil conservation                     have
no bearing upon flood control.           Moreover,        we are of the opinion that
H.J.R. 24 could easily have enumerated                soil conservation        purposes
as one of the uses to which the tax revenues could be applied had
use for such purposes been contemplated.                   It not only failed to do
 so, it specifically     requires    that the revenues shall be used for two
purposes (farm to market roads or flood control) “except as here-
 in otherwise provided.”          You are therefore         advised that H.B. 107
has exceeded the constitutional           limitations      in attempting to divert
 these revenues to “Soil Conservation”              purposes by requiring           that
 some of the revenues         ‘be used supplementary            to and in connection
with . . . State Soil Conservation           Districts.”
Hon. Pearce    Johnson,   Page   6 (V-797)




             We do not wish to be understood as saying that none of
the funds can be expended on soil conservation.        But funds may be
expended for soil conservation     purposes only if the particular   pur-
pose has a direct relationship    to flood control.   In other words, an
integral part of flood control under certain circumstances        may be
soil conservation.   But “soil conservation”     standing alone may have
nothing to do with flood control.    If so, expenditures   for such pur-
poses would be unconstitutional.      The same is true of *water con-
servation.”   Ordinarily  water conservation     expenditures   must be
incident to and a part of the “flood control.”

                 Turning to the disposition     of the revenues which are to
 be used for “water conservation         and flood control” purposes,      the
 act contemplates      the transfer of such revenues to “municipal         cor-
 porations within the county” (Section 5), specifically          providing in
 Section 6 for “crediting     to the municipal corporations       whatever
 funds as may be decided upon by the county.            . .- These provisions
 are in violation of Article III, Section 52 of the Constitution.         The
 new Constitutional      amendment authorizes       only counties to levy the
 prescribed     taxes on property within their bound-r                county
 purposes.     The taxes which are to be collected         are therefore  coun-
 ty taxes; the revenues are therefore         county funds; and Sectionr
 ‘iir Article III “prohibits   the Legislature    from authorizing    any coun-
 ty to lend its credit, or to grant public money or thing of value, in
 aid of any corporation      whatsoever.   * Harris County flood Control
.Dist. v. Mann, 140 S.W.2d 1098. 1104.

            We find no fault with Sections 9, IO, 11 and 12 of the Bill
except such portion of Section 12 as requir~es the revenues    to be used
for purposes which we have hereinabove    held unconstitutional.

               Section 13 provides for the issuance        of bonds by the coun-
ty. In so far as it purports to authorize        the issuance of bonds and the
use of the proceeds      of their sale for purposes which we have here
held without the provisions       of the Constitutional    amendment,    it is un-   6
constitutional.    In this connection,    although we have no desire to at-
tempt an improper invasion of fields of policy, we would like to call
to your attention the fact that the provisions        relating to authoriza-
tion, issuance,    sale, etc., are rather vague.      Moreover,    it is not en-
tirely clear whether the Act authoriaes         more than one issue.

               Section 14 provides that “Any city or town within such
county may likewise issue bonds,” etc.         We have already pointed out
that H.J.R. 24 relates on1 to count&s and authorizes         a tax levy for
county purposes only. -v? e held that Article III, Section 52 precluded
the donation to and control of these funds by municipal corporations.
It necessarily    follows that H.J.R. 24 neither contemplates     nor au-
thorizes legislation     enabling cities to issue bonds for any purpose.
     .



.,       .




             Hon. Pearce   Johnson,   Page    7 (V-797)




                          The caption of H.B. 107 will, of course, have to be
             amended   to conform to the changes suggested herein.

                                             SUMMARY

                          No legislation     is necessary    to effectuate that
                   portion of the recently adopted Section l-a of Article
                   VIII of the Texas Constitution       (H.J.R. 24). which pro-
                   vides that from and after January 1, 1951, no Sta,te ad
                   valorem     tax shall be levied upon any property within
                   this State for general revenue purposes.            The remain-
                   ing portions of H.J.R. 24 are not self-executing.          Mitch-
                   ell County v. City National Bank, 91 Tex. 361, 43m
                        ,    .    . . R . 24 specifies  that the tax money shall
                   be used for farm to market roads or flood control.            H.
                   B. 107 has exceeded the limitations          of H.J.R. 24 in pro-
                   viding that some of the tax revenues shall be used for
                   ‘Soil Conservation”       and for “Water Conservation.”
                   Such purposes,      as evidenced by the detailed provisions
                   of the Bill, are not embraced        within either of the two
                   purposes to which H.J.R. 24 limits the use of said revc-
                   nues unless the soil conservation         or water conservation
                   is an integral part of flood control.

                         The provisions    of H.B. 107 which authorize the
                  transfer of some of these county tax revenues to munic-
                  ipal corporations    within the county are violative of the
                  provisions   of Article  III, Section 52 of the Texas Consti-.
                  &tion.   Harris County Flood Control Dist. v. Mann, 140
                  S.W.2d   1098. 1104.    Sections 9-13. inclusive.   of H.B. 107
                  comply with-the provisions       of H.J;R. 24 except for those
                  portions which relate to the use of the tax revenues or
                  the issuance of bonds for “Soil Conservation”        and “Water
                  Conservation”     purposes.    Section 14, authorizing   the is-
                  suance of bonds by cities,     was neither contemplated     nor
                  authorked.by    H.J.R. 24.

                                                                Yours   very   truly

                                                ATTORNEYGENERALOFTEXAS


                                                By     s/   Marietta McGregor          Creel
                                                     Mrs.   MariettaMcGregor           Creel
                                                                   Assistant           ’

             MMC/mwb
                                                 APPROVED
                                                  sj   PRICE    DANIEL
                                                 ATTORNEYGENERAL
