.   .




                                                      AS




    Honorable    T. M. Trimble
    First Assistant
    Superintendent   of Public    Instruction
    Austin,   Texas

    Dear   Sir:                                 Opinion No. O-6059
                                                Re:   Under the given facts can the
                                                      City Council of the City of Austin
                                                      levy a maintenance     tax for the
                                                      support of the public free schools
                                                      of the Independent   School District
                                                      of the City of Austin?     And a re-
                                                      lated question.

                 We are in receipt   of your letter of recent date in which you en-
    close a letter from Mr. Carl T. Widen, President        of the Board of Trustees
    of the Austin Independent    School District,  which letter reads, in part, as
    follows:

                 “The City of Austin      assumed   control    of the public   free
            schools within its limits     by an election    held on August     16,
            1880, under Act of April       3, 1879, Ch. 67, p. 76.

                  “All of the charters  of the City of Austin since 1880,
            including  the Home Rule Charter      that the City of Austin is
            now operating    under, have provided:

                  “‘The   action of the City of Austin in taking ch&&&&$
            public free schools within its limits by proceedings              had in
            the month of August, 1880, is hereby validated,            and the City
            is hereby constituted       a se:parate and independent       school dis-
            t$ict under the Constitution        and laws of the State.      The action
            taken in placing the control        of the free schools    and all prop-
            erty pertaining     thereto   in a board of trustees     is hereby con-
            firmed,    and all property,     real and personal,     heretofore    ac-
            quired and now being administered            by said Board of Trustees
            in connection     with the management        of said free schools     is
            hereby confirmed       in said Board, and all levies        of taxes
                                                                                                       .    .




Honorable         T. M. Trimble,       Page    2    O-6059




          heretofore   made for the support and maintenance      of said public
          free schools   in said City and which remain   uncollected    are here-
          by validated  and declared   legal and binding upon the persons    and
          property   subject to taxation    in said City, and the City Council
          shall continue to levy and collect      the rate of special taxation
          adopted or which may be adopted by vote of the people for said
          purpose,   and deliver  the same to said Board of Trustees,        in ac-
          cordance   with the general    laws of the State upon the subject.’

          “Sec.     10 of Art.     12, pi 49 of the Home      Rule   Charter     reads:

          “‘All  laws now in force,   pertaining   to the public free schools     of
          the City of Austin, are hereby retained       in full force and effect,
          and said schools shall be continued,       managed and controlled      as
          heretofore,   and the trustees   of the said public free schools     shall
          be elected  according   to the provisions    of the above mentioned
          laws retained   in force and effect.’

                  “The   Charter     of 1909, granted      by the Legislature,      Art.    12, Sec.   2,
p. 37 reads:

                “‘The    City Council shall        have the power within the city by
          ordinance     to levy and collect        an annual tax, not exceeding   for
          all purposes,      including taxes       levied for the support of public
          schools,    two and one-half    per       cent of property  values within
          the said city.’

               ““This provision  was           carried  into the Home Rule Charter,   under
which     the City is now operating,            and is now Sec. 2 of Art. 12, p. 38 of the
Home      Rule Charter.

                  “Subdivision     2 of Sec.    2, Art.   12, p, 38 of the Charter         of 1909 pro-
vided :

                ““How Increased--Limitati,on.         To raise such further
          amount as may be necessary          for the maintenance      of the pub-
          lic schools  of the city, not to exceed thirty-three         and one-third
          cents on the one hundred dollars’ worth of taxable property,
          unless the qualified    taxpaying    voters   of the ci,ty shall by a two-
          thirds vote provide    for an increase      in such amount, and in no
          event shall it exceed fifty cents on the one hundred dollars’
          valuation.’
.    .




    Honorable    T. M. Trimble,     Page    3     O-6059




                 “In the Home     Rule Charter,  changing from the commission   form of
    government     to the home    rule form, this provision  was amended to read as fol-
    lows:

                 “‘To raise such further amount as may be necessary            for the
           maintenance    of the public schools     of the City, not to exceed sixty
           cents on the one hundred dollars        worth of taxable property     in the
           City.    The Board of Trustees     for said schools    shall determine    and
           advise the City Council as to what amount of said tax shall be lev-
           ied and collected   each year, and the City Council shall levy&M%~
           amount so determined,       but if at any time said Board fails to do so,
           the City Council shall levy such tax at the same rate as levied for
           the last preceding   year.’    Subdivision    2, Sec. 2, Art. 12, p. 36.

                 “This subdivision of the Home Rule Charter             was furthdr      amended
    by an election   held on May 10, 1940, to read as follows:

                 “‘To raise such further      amount as may be necessary       for the
           maintenance      of the public schools   of the City, not to exceed seventy
           cents on the one hundred dollars        worth of taxable property     in the
           City.    The Board of Trustees      for said schools   shall determine     and
           advise the City Council as to what amount of said tax shall be levied
           and collected     each year, and the City Council shall levy the amount
           so determined,      but if at any time said Board fails to do so, the City
           Council    shall levy such tax at the same rate as levied for the last
           preceding    year.’

                “The Independent   School District  of the City of Austin does not coin-
    cide with the city limits of the City of Austin, but includes additional  territory
    annexed for school purposes    only under Art. 2803, Revised    Statutes 1925.

                 “We wish   the following       questions   answered   by the Attorney     General:

                “1. Can the City Council of the City of Austin,        by a vote of the
          property   taxpayers,   levy a maintenance     tax for the support of the
          public free schools    of the Independent   School District    of the City of
          Austin for as much as one dollar on the one hundred dollar valuation
          of taxable property    in the school district    and still be entitled  to levy
          a tax for municipal    purposes   of two dollars    and fifty cents on the one
          hundred dollar valuation     of taxable property     within the city limits,
          under the Constitution     and laws governing     home rule cities 7 In other
          words,   can the City Council of the City of Austin levy a one dollar tax
          on the one hundred dollar valuation      of taxable property     in the Independ-
          ent School District   of the City of Austin for the maintenance        of public
                                                                                            .      .




Honorable    T. M. Trimble,      Page   4   O-6059




        free schools  in the school district   and still be entitled to levy
        as much as a two doll&r and fifty cent tax on one hundred dol-
        lar valuation  of taxable property   in the City of Austin for muni-
        cipal purposes ?

              “2. In an election    held for the purpose of divorcing       the public
       free schools     of the City of Austin from the control       of the City of
       Austin,    under Acts of 41st Legislature,       p. 674, Ch. 302, Vernon’s
       Civil Statutes lg25, Art. 2783a, can there be submitted            to the
       voters the rate of maintenance         tax for school purposes     to be
       levied    and collected   by the school district    after its divorcement
       from control      of the City?   * * *”

             In dealing with schools which are under the control and management
of cities the courts have consistently     held. that the rate of tax which may be lev-
ied for school purposes     in such cities is limited   by Article  7, Section 3 of the
Constitution   of Texas, which relates    to schools   and is not controlled  by Article
8, Section 9 of the Constitution,   which limits the tax rate of counties,     cities and
towns.

            In other words,    in this respect,   the courts have treated schools  under
the management     and control   of ci.ties as school districts  rather than as a part of
the cities under whose control      the schools are operated.

               The first of these cases is Houston v. Gonzales            Independent   School
District,    decided by the Commission         of Appeals   in 1921, 229 S. W. 467. The City
of Gonzales,      while exercising   control    of its schools    had issued bonds for the erec-
tion of school buildings      which required      a tax levy of 17$. Thereafter,       the Legisla-
ture, by special Act, divested       the City of Gonzales       of control   of its schools    and
created    the Gonzales    Independent    School District     comprising     the city and approxi-
mately    24,000 acres in addition thereto.          The trustees    of the new district    then at-
tempted to levy a 40$ tax on the property            bf the entire district.     The court    held
that the new tax was valid only to the extent of 33$ because at that time, Article
7, Section 3 of our Constitution,       limited    taxes for school purposes       to 50$ so that
the school district     could levy only 33$ in addition to the 17$ previously            levied by
the City of Gonzales      while in control     of the schools.

              The court   held that the 17C tax originally       levied by the city for school
purposes    was a school tax authorized      and limited     by Article   7, Section 3 of the
Constitution,     and not a city tax limited  by Article     8, Section 9 (which limits
counties,   ci.ties and towns to 25$ “for the erection        of public buildings,   sewers,
waterworks      and other improvements.“).      Spencer,      J.. speaking   for the court at
page 468, said:
.     .




    Honorable   T. M. Trimble,         Page   5     O-6059




                  “The beneficial    title to the property   of the Gonzales   School
           district   as originally    formed was in the people thereof      - the
           mayor merely       holding the same in trust for the sole use of the
           schools    - and the Legislature      could, without any wise disturbing
           such title, change the trustees,        as was done by the special ,act.”

                And at page     469:

                “The bonded indebtedness       being for school purposes,     the 17$
           tax levy necessary     to pay the interest   thereon and provide    a sink-
           ing fund, to retire   same at maturity,    is a limitation  upon the tax-
           ing power of the district,    but not a limitation   upon the city of
           Gonzales   for building purposes.”

                The leading case announcing     the doctrine  of the dual nature of a city
    which has assumed control    of its schools   is City of Rockdale   v. Cureton, decided
    by the Texas Supreme Court in 1921, 111 Tex. 136, 229 S. W. 852. We quote from
    the court’s  statement of the facts in this case:

                 “Prior   to 1918, the city of Rockdale,       incorporated   under          the
           general    laws, had assumed     the control     of its public schools.           The
           effect of this action was to constitute       it, for school purposes,            an
           independent     school district.   Article   2871.

                “It has never    extended         its city   boundaries   for   school   purposes.”

                This was an action to compel the Attorney         General   by mandamus                to ap-
    prove a $75,000 bond issue which he had refused          to approve   for the reason              that
    the tax necessary     to pay the same would exceed the city’s       25$ tax limit for             im-
    provements,    imposed by Article     8, Section 9 of the Constitution.     The court              granted
    the mandamus      for the reason that the tax of such a city for school purposes                   is not
    limited  by Article    8, Section 9, but by Article  7, Section 3 of the Constitution.                 We
    quote from the opinion of Chief Justice Phillips:

                 “The Constitution     (Section    10 of Article    11) has empowered
           the Legislature     to constitute    any town or city an independent
           school district.     The Legislature,      therefore,    had the power to
           say as it has done in Article        2871, that a city or town taking over
           control   of its public schools shall constitute        such a district.
           There may thus be conferred           upon a city a dual character,      and
           which such character,       dual powers.      There could have been no
           purpose    in authorizing    the creation    of towns and cities as inde-
           pendent school districts       - a recogniaed     separate    class of munici-
           pal corporations      with individual    powers,    unless in that capacity
                                                                                           .       .




Honorable      T. M. Trimble,     Page   6   O-6059




       they were      to have   the powers   of such districts.

             “The city of Rockdale      had lawfully    acquired   this dual
       character.      It had powers   strictly   as a municipality,    to be
       exercised     for strictly municipal     purposes;   and it had its
       powers     as s duly constituted    independent    school district.
       The two are not to be confused.”

             In M. K. & T. R. R. Co. of Texas v. City of Whitesboro,           (1926),
287 S. W. 904, the Texas Commission         of Appeals    again declared    that the tax
rate for cities which have assumed       control  of their schools    is controlled    by
Article  7, Section 3 of the Constitution    both before and after such city may
have extended     its limits for school purposes    only.   Biship,  J., at page 906,
said:

              “The municipal    corporation  and the independent school
       district   are distinct,  though they are both under the control
       of the same officers.”

              It may appear that City of Athens v. Moody’, (1926), 115 Tex. 247,
280 S. W. 514, by the Commission           of Appeals,    is in conflict   with the doctrine
announced by the preceding        cases which recognize        the dual nature of cities
which have assumed       control   of their schools.      A careful    analysis  of this case,
however,    indicates  that it does not disavow       the dual nature of cities having
control   of their schools,   but merely     recognizes     the $1.50 limitation     on the
tax rate of cities having a population        of less than 5,000 for both school and
municipal    purposes,   pursuant to the express        language    of the statute there
under consideration.      (Section    3 of Ch.ir}:ter 9, Acts 1929, 37th Legislature,
which is now codified     as Articl,e    1027, R. C. S., 1925).

               Again we fi,nd the courts declaring     that those eligible  fo-, ilote on s:n
increase     in taxes for school purposes    in cities which have assumed control
of their    schools  is to be governed   by Article   7, Section 3 of the Constitution,
relating    to school districts   rather than to the provisions    relating   to cities.

               In City of Fort Worth v. Zane-Cetti         (19 25), 278 S. W. 183, the Texas
Commission        of Appeals    held that an election    to increase     the tax rate for school
purposes     in Fort Worth (which has assumed control              of its schools)   must be by
the “qualified     property    tax paying voters”    as provided      by Article   7, Section 3
of the Constitution,      instead of by the “qualified      voters”    as provided    by Fort
Worth’s   home rule charter.         Sai,d Nichols,   J., at page 184:

                “The source of the legislative   power to create,       or define    an
           independent  school district  is to be found in Section      3, Article    7
Honorable     T. M. Trimble,       Page   7     O-6059




        of the Constitution.        Such a district    is a municibal     corporation,       sui
        generis.     City of Rockdale       v. Cureton,   Attorney    General,     111 Tex.
         !36, 229 S. W. 852. The territory           of a city and the territory         of a
        district    may be exactly      coincident,   and for the distinctive       purposes,
        separate     governments       may be provided     to operate     separately,      but
        harmoniously,       within the common orbit.         Simmons      v. Lightfoot,
        Attorney     General,     105 Tex. 212, 215, 146 S. W. 87l;Munson             v.
        Looney,     Attorney    General,     107 Tex. 263, 268, 172 S. W. 1102, 177
        S. W. 1193. Or, in virtue of the terms of Section               10. Article      11,
        of the Constitution,       and for convenient     administrative      purposes,
        ‘the Legislature      may constitute      any city or town a separate         and
        independent      school district.’     Such a combination       of the two muni-
        cipal corporations,        each sui generis,     does not take from either          its
        distinctive    features.”

              In Treaccar       v. City of Galveston,       (Galveston     Court of Civil Appeals,
 1930, writ of error      refused),     28 S. W. (2d) 887, the court         held that an additional
school tax in the City of Galveston            was valid when based upon a vote of a “ma-
jority  of the qualified     tax paying voters        of the district    voting at an election”   as
provided    by Article     7, Section 3 of the Constitution,          even though this election
did not satisfy    the requirement         of Article    11, Section    10 of the Constitution,
that “two-thirds      of the tax payers of such city or town shall vote for such tax,”
thereby further      indicating     that city controlled      schools are treated for election
purposes    as “school      districts”rather       than as “cities.”      We quote from the opin-
ion of Pleasants,      C. J., at page 891:

             “The City of Galveston       is one of the school districts    of the
       State, created   as such in the manner provided         by our Constitution
       and legislative   acts , and in its capacity    as a school district    it can-
       not be denied the rights and privileges        given by the Constitution      to
       all other school districts      in the state.  It cannot be held that because
       it is an incorporated     city having a special    municipal   charter    that its
       constitutional   powers as a free school district       of the State are in
       any way lessened      or restricted.     We think this question   is settled
       by the opinion of our Supreme         Court in the case of Rockdale      v.
       Cureton,    111 Tex. 136, 229 S. W. 852.”

              We wish to cite only a few additional  cases which further    indicate   that
city controlled   schools  are to be treated as independent  school districts    rather
than as integral   parts of the cities.

              In City of Fort Worth V. Cureton;,     (1920)  110 Tex. 590, 222 S. W. 531,
the Supreme      Court construed  the charter    ok the city of Fort Worth which limited
Honorable      T. M. Trimble,       Page   8     O-6059




the tax rate for all purposes     to $1.75 “inclusive    of the school tax that may
be levied by the board of trustees      of public schools    as provided   by this Act”
so as to authorize   an increase    in the combined    tax rate when the, tax rate for
school purposes    only was increased      by charter   amendment.      The court al-
luded to the dual character     of a city which has control     of its schools   and de-
clared that the charter    should not be construed      so as to reduce the authorized
tax rate for general   municipal    purposes    in the event of an increase    in the rate
for school purposes    only.

              In City of Belton v. Harris    Tr,ust & Savings Bank, 273 S. W. 914,
(affirmed    by the Texas Commission      of Appeals,     283 S. W. 164) the Austin
Court of Civil Appeals      held that a charter   provision   authorizing   a $1.50 tax
rate without stating its purpose,     had reference     to taxation for general   muni-
cipal purposes      under the home-rule   amendment,       and had no relation   whatever
to the city’s   taxing power as an independent      school district.

             The Austin Court of Civil Appeals,         in Temple   Independent      School
District  v. Proctor,      (1936) 97 S. W. (2d) 1047, (writ of error     refused),    held
that the validity   of a contract     between the Superintendent     of Schools    in Temple
and the school board (which was appointed by the city council;              Temple     having
assumed    control    of its schools)    was to be governed   not by the city charter       but
by the statutes relating       to school affairs.  In this case Judge Baugh declared,
at page 1053:

              “It is now settled,     however,      that, where such city does as-
         sume control     of its schools,     such control     so far as the schools
        are concerned,      does not become         merged    into and become         a part
        of the municipal      government       as such. And where the city com-
        missioners     or city,council      retains control      of its public schools
        it acts in a dual capacity        - one as a governing        body of the city
        in its status ss a municipality,          and the other as the controlling
        or governing     board of its schools.         The two capacities       are not
        to be confused.      City of Rockdale        v. Cureton,    111 Texas      136, 139,
        229 S. W. 852; City of Fort Worth v. Zane-Cetti,                  (Tex. Comm.
        App.) 278 S. W. 183; in so far as it acts in its strictly               municipal
        governmental      capacity,    its powers      are referable     to Article     11 of
        the Cons+itution     and title 28 of the R. S. (Article         961, et seq., as
        amended     (Vernon’s    Annotated      Civil Statutes, Article       961, et seq.)).
        Whereas,     in the management         and control    of its schools,      its powers
        are referable     to Article    7 of the Constitution       and Title 49 of the
        R. S. (Article    2584, et seq., as amended (Vernon’s              Annotated      Civil
        Statutes, Article     2584, et seq.)).“’

               The separate     and distinct character  of a city school district   and the
city   under   whose control     it is operated is most forcefully  illustrated   by the case
Honorable    T. M. Trimble,      Page   9    O-6059




of City of El Paso v, Carroll,    (writ of error   refused)    wherein   it was held that
the City of El Paso was not authorized      to take $54,000 out of the general       fund
for municipal   purposes   and loan this money to the school district        which was
under the control   of the city, for the reason that the school district       so consti-
tuted and the city were two separate     governmental       entities  and their respective
finances  should be kept distinct   and separate.

             In answer to your first question,          you are advised    that in our opinion
the Austin Independent      School District       may, by a vote of the property      taxpaying
voters,  authorize    the levy and collection       of a tax of $1.00 on the one hundred
dollars  valuation   of taxable   property     in the district;   the tax authorized    for
school purposes3 however,        would include the rate of tax required          to pay the
school bonds of the district.        Houston v. Gonzales        Independent    School District,
supra.   Since it appears     that the charter      of the City of Austin contains      provisions
limiting  the rate of tax which may be imposed             to a maximum      of $2.50 for school
and municipal     purposes    combined     it follows   that if the rate of school tax is in-
creased,   the rate for municipal      purposes      must be limited    to the difference     between
the levy for school purposes       (both for bonds and maintenance)           and the maximum
overall  rate of $2.50 fixed by charter.

              Section   5 of Article  11 of the Constitution,   provides   that Home Rule
cities  “may levy, assess       and collect   such taxes as may be authorized       by law or
by their charters,     but no tax for any purpose      shall ever be lawful for any one
year, which shall exceed two and one-half           per cent of the taxable property     of
such city * * *.” This limitation         applies to the tax for municipal     purpeses   and
if it were not for the limitation      above quoted from the charter      of the City of
Austin,   the city could levy $2.50 on the $100 of taxable property           for municipal
purposes,    in addition to the school tax.

            The City could, therefore, by charter amendment,    increase    its rate
for municipal   purpcses to as much as $2,50,on the‘$lOO  valuation    in addition to
the school tax.

             In answer to Mr. Widen’s       second question,      you are advised   that the
question  of a maintenance    tax for school purposes         may not be submitted     in the
election  held for the purpose    of divorcing     the public free schools    from the con-
trol of the City of Austin.    Chapter    302, Acts 41st Legislature,      Vernon’s     Civil
Statutes,  1925, Article  2783a, authorizes       the Mayor    to order an election    upon
proper petition.    The Mayor    is not authorized      to order an election    for a main-
tenance tax for school purposes;       this election    must be ordered    by the govern-
ing body of the independent     school district.      Another   reason is that an election
held for the purpose of divorcing       the public free schools      from the City of Austin,
                                                                                        .   .   .




Honorable    T. M. Trimble,    Page   10    O-6059




any qualified    voter may vote, whereas     in an election  for a maintenance       tax,
only qualified    voters who are property     taxpayers   may vote.

                                                      Yours   very    truly


                                                 ATTORNEY      GENERAL        OF TEXAS



                                                 BY

                                                                     C. F. Gibson
                                                                      Assistant

CFG:EP



                                                                     APPROVED
                                                                     OPINION

                                      OF TEXAS                       ?Tizlzr
                                                                          Chairman
