Bonoreble T. Y. Trimble, First Assistant
State Superintendent of Publio Iastruotioa
Austin, Texas

Dear Mr. Trimblea
                                 %%$k%!ty         of Sherman be author-
                                     iced by a charter amendment adopted
                                     by a majority of the qualified
                                     voters of said oity to levy taxes
                                     for muaioipal purposes noteexoeed-
                                     ing’#2.SO,and for sahoal purposes
                                     not exceeding #1.50? ‘~

         Ke aoknonledge~receipt of your opinion request of May 3rd, to-
gether nith,a letter from Mr. J.‘Tip Ikwell, President of the Board
of Trustees of the Sherman Independent Sohool Diatriat, and the opinions
of Meesrs. Gibaoa and Gibson and the Honorable George L. Hamilton,‘City
Attorney of Shennaa.

        We quote from Mr. Xewellta latter a8 followa:

        “The Board of Trustees of the Sherman Independent School
   Distriot has requested the City Commission of the City of
   Sherman to call elections for the purpose of amending the
   Charter of,the City of Sherman to,remove tha limitations on
   the amount of taxerrthat,may be levied for sohoolpurposels
   under the Charter as it now reads. and a separate eleotion :
   of the qualified property tai pyin,g voters for the purpose,
   of authorizing the levy of ‘a tax for school purposes not to
   exceed 41.50 per )lOO.OO of assessed valuation. I enclose
   herewith oopy of the aineadmentrproposed by the aohool board
   and a oopy of a draft of.a resolution presented to the Gity
   Commission 0r.1
                 April 22, 1946,and adopted by the commission
   in substance. Publication of ‘theform of notioe oontained
   in the resolution was started on April 24.

         “After the adaption ,of the resolutiok (in wbstance) 8
    question has oome up a8 to the legal effect of the procedure.-’
    In order to dlarif’ythis matter it is requested that you ob-
    tain from the Attorney ‘Genciralaamers: to the following questionsr

         “1. Can the City of Sherman by aliminating the limita-
    tions in its Barter and after approval of the proposed sohool
    tax by the qualified property tax paying voters levy and
Hon. T. M. Trimble. page 2



   a88e86 taxes for municipal purposes up to the two and one-
   half per oeat limit imposed by aeotion 5 of Artiole II of
   the Constitution of Texas, and in addition to that amount,
   taxes for aohaol purposes up to one and one-half per cent
   of the taxable property of the oity? In other words oan
   the City of Sherman a6 a munioipality oonstitutionally levy
   taxes at the rate of two and one-half per cent nhile at the
   8ame time as an Independent Sohool tintriot levying taxes
   at the rate of one and one-half per oent, making a total
   authorired tax limit for munloipal and sohool purposes of
   four per oent?

        “2. ail1 the proposed amendments to the Charter of the
   City of Sherman, taken in oonjunotion with a vote of the
   qualified property tax paying voters of Sherman authorizing
   a sohool tax rate not to exoeed one and one-half per oent be
   suffioient to authorize the City of Sherman to levy taxes for
   municipal purposes up to two and one-half per cent and in
   addition thereto taxes for school purposes up to one and ore-
   half per cent?

         “3. In the absenoe of an eleotion under Art. 2783b R .rI..
                                                                 5.
    for separating the schools from munioipal oontrol, who would
    have authority to call the election for determining the amount
    of sohool taxes, the City Comnisaion or the Sohool Board?

         *In oonneation with the foregoing questions you are
    furnished the following infonnations

         “The City of Sherman on Maroh 6, 1916 adopted a Home
    Rule Charter containing the following provisions, as now amended:

         “Seotion 166. *The City of Shennan ia oonatituted and
    shall oontinue to be a separate and independent 8ohool district,
    and the City Camnission is vested with power to maintain, regu-
    late, direot and govern all the publio free aohools now estab-
    lished or hereafter to be sntablished within the limits, and
    it is further authorized to pass suoh ordinanoes, rulea and reg-
    ulations, not inoonai8teatwith the Goartitution and laws of
    this State, a8 may be neoeessary to govern the same, establish
    new aehools, purahase building sites, oonstruot s,ohoolhouses.
    and generally to promote free publio education within its limits.’

         “Seotion 106. ‘The Commission shall have the power within
    the City to annually levy and oolleot taxes for the following
    purpose6*
         (1) For general purpores and ourrant expenses not exceed-
    ing 606 on the $100 aclclerred
                                 value of all real and pers~onal
    estate and property in the City not exempt from taxation by the
    Constitution and Lawa of the State.
Hon. T. M. Trimble, page 3            O-7060




        (2) For the maintenance and support of public free
   sohools not exceeding SQ! on the #lOO Assessed valuation
   of real and personal estate and property in the City not
   exempt fram taxation by the Constitution and lams of the State.
        (3) For the establishment, maintenanoe and,widening,
   extension and improvtient of its streets, alleys and bridges
   not exceeding 20# on the $100 assessed valuation.of all real
   and personal estate and property in the City not exempt from
   taxation by the Constitution and laws of the State.
        (4) For the purpose of paying the City's promissory
   notes, bonded indebtedness, public improvements, and for the
   purposes set out in Section 173 hereof, to include bonds now
   outstanding and bonds hereafter legally issued for the purposes
   named in this Charter, and.as the Conmission may deem necessary,
   and for the best interest of the City, not exceeding $1.60
   on the $100 assessed valuation of all real and personal estate
   and property in the City not exempt from taxation by the Con-
   stitution and laws of the State. Said amount shall be appor-
   tioned as the Cnmnission shall ordain and deem to be for the
   best interest of the City.'
        "Section 107. The taxes that may be levied for all pur-
   poses for any one.yeaf;'tfy
                             said City shall never exceed two and
   one-half per cent of the taxable property in said City, in-
   clusive of the tax to pay the bonded indebtedness of the Texas
   & Paoifio and the Houston ECTexas Central Railway Companies and
   no taxes exceeding said per cent shall ever be levied and collected.'

          "It is proposed to amend Section 106 either to read as
    followsr 'Section 106. The Commission shall have the power
    within the city to annually levy and collect taxes for the
    following purposesr
          (1) For general purposes and current expenses not exceeding
    504 on the $100 assessed value of all real and personal estate
    and property in the City not exempt from taxation by the Constitu-
    tion and laws of the State.
          (2) For the establishment, maintenance and widening,
    extension and improvement of Its street, allays and bridges
    not exceeding 20$ on the $100 assessed valuation of all real
    and personal estate and property in the City not exempt from
    taxation by the Constitution and laws of the State.
          (3) For the purpose of paying the City's promissory
    notes, bonded indebtedness, public improvements, and for the
    purposes set out in Section 173 hereof, to inolude bonds now
    outstanding and bonds hereafter legally issued for the purposes
    named in this charter. and as the Commission may deem necessary,
    and for the best interest of the City, not exceeding #l-60 on
    the $100 assessed valuation of all real and personal estate and
    property in the -City not exempt from taxation by the Constitution
    and laws of the Sta'te. Said amount shall be apportioned as the
     Commission shall ordain and deem to be for the best interest Of
    the City.'
Hon. T. M. Trimble, page 4            O-7060




    or to repeal paragraph 2 of Section 106

         ‘(2) Forthe maintenanoe and support of the public
   free schools not exceeding 65d on the $100 assessed valu-
   ation of real and personal estate and property in the
   City not exempt from taxation by the Conrtitutioa end
   Laws of the State.’

    It is proposed to amend Seotion 107 to read as followsr

         ‘Section 107. The taxes that may be levied for all
   purposes exoept school purposes for any one year by said
   oity shall never exceed two and one half per cent (2&)
   of the taxable property in said city, and no taxes ex-
   ceeding said per cent, exolusive of taxes levied for
   school purposes, shall ever be levied and oolleoted.’

         “The City of Sherman has never extended its bound-
   aries for sohool purposes, and no effort haa ever been
   made to separate the schools from munioipal oontrol.

         “It is not desired to separate the sohoole from
   municipal control if the necessary tax levies oan be
   legally authoriaed without taking that step.

         “Sinoe the notice for calling the elections for
   amending the Charter have already been published it will
   be greatly appreciated if you can obtain a ruling on the
   matter at your earliest convenienoe. Referenoe is made
   to the Attorney General’s Opinion No. O-6069, whiohne
   believe may be helpful in determining the matter.

          “Your aooperation in this matter will be greatly
    appreaiated.”

          After a oareful study of Mr. Newell’s letter, the Charter of
the City of Ghennan, the Constitution and Statutes and oases pertaining
to the question6 involved, we oonaur in the views expressed by Messrs.
Gibcxm and Gibeon, but we cannot agree nith the conolu6ion reaohed by
Mr. Hamilton.

          ,Wehavesdetermined that the City of 5herman is acting in a
dual oapaoity and hae dual powerr. It is a munioipl oorporation and it
is a separate and independent school dietriot. In like situations. the
courts of this State have consistently recognized the dual entities of
cities and sohool diatriots, and in every inetanoe the aourt has given
effect to the separate entitier involved.

          Thue in Love v. The City of Dallas, 40 6. W. (Zd) 2.0~Chief
Justioe Cureton deolared,
Hon. T. M. Trimble, page 5             O-7060




          "The City of Dallas is a municipal corporation,
    chartered under the laws of the State, has assumed control
    of its public schools,'and as such is to be regarded as an
    independent sohool district."

          In dealing with schools which are under the control and manage-
ment of oities, the courts have consistently held that the rate of tax
whioh may be levied for sohccl purposes in suoh oities is limited by
Article 7, Seotion 3 of the Constitution of Texas, which relates to
schools, and is not oontrolled by constitutional provision relating to
cities and towns. In other words, in this respect the courts have
treated schools under the management and control of cities as school
districts rather than as a part of the,oities under whose control the
sohools are operated.

          The leading case announcing the dootrine of the dual nature of
suoh a ciQ is City of Rockdale v. Cureton (Sup. Ct.) 229 S. HI.852.
See also Houston v. Gonzales Independent School District (Comm. of Appeals),
229 S.W. 467; M.K. & T. Ry. Co. of Texas v. City of Whitesboro (Ccmn. of
Appeals), 267 S. 1. 9043 City of Ft. Worth v. Zane-Cetti (Ccmm. of Appeals),
278 S.W. 1633 Treacoar v. City of Galvestion (Galveston Ct. of Civ. App.),
28 S.W. (2d) 887; City of Fort North v. Cureton (Sup.Ct.), 222 S.W. 631:
City of Belton v. Rarris Trust & Savings Bank, 27s S.W. 194 (affirmed by
the Texas Ccmm. of App.), 263 S. W. 164; Temple Ind. Sch. Dist. v.
Procter, 97 S.W. (2d) 1047 (writ of error refused)1 City of El Paso v.
Carroll, 106 S.W. (2d) 251 (writ of errcr refused).

          Taxation for municipal purposes in the City of Sherman is
governed by Article 11, Section 6, of the Constitution of Texas and
Article 1165 of Vernon's Anno. Civil Statutes. Said article and statute
read in part as follows:

          "Said cities may levy, asssss, and colleot such taxes
    as have been authorized by law or by their charters, but no
    tax for any purposes shall ever be lawful for any one year
    which shall exceed two and one-half per cent of the taxable
    property of such oity."

          Taxation for the management and control of public schools of
school distriots is governed by Article 7, Section S of the Constitution
of Texas. This Section authorizes a tax of $1 on the $100 valuation,
but has a proviso that said limitation "upon ths mount  of school dis-
trict tax herein authorieed shall not apply to incorporated cities or
towna, constituting separate and independent school districts, nor to
independent or ccmmon school distriots ,createdby general or special law".
Thus it is seen that all school districts ar exempted from the consti-
tutional limit of $1 on the $100 valuation, and the Legislature is left
free to fix such limit as it deems advisable.

          Article 2784-e, Vernon's Annotated,Civil Statutes (Acts of
1945, 49th Legislature. page 486, Chapter 304. Section 1) authorizes
Hon. T. M. Trimble, pge   6           O-7060



$1.50 tax on the $100 valuation in all school districts except cities
and towns which oonstitute separate and independent school districts.
~A$ to these districts, the Legislature has left the rate to be fixed
by the property taxpaying voters. Article 2799, Vernon's Annotated
Civil Statutes, reads as follows:

         "Article 2799. The governing body of any city or
   town whioh is a separate and independent school district,
   whether incorporated under any act of the Congress of the
   Republic or the Legislature of Texas, or under any act or
   incorporation whatever, shall have power by ordinance to
   annually levy and collect ad valorem taxes for the support
   and maintenanoe of public free schools and for the erection
   and equipment of public free school buildings in the city
   or town. The proposition suhnitted may be for such a rate
   of ad valcrem tax not exceeding such per cent, as may be
   voted by a majority vote of all votes oast at any such
   eleotion. If the proposition is carried, the school tax shall
   be continued to be annually levied and collected for at least
   two years, and thereafter, unless it be discontinued at an
   election held to determine whether the tax shall bs continued
   or disoontinued at the request of fifty property taxpayers
   of such independent district. Ylhanthe tax is continued no
   eleoticn to disccntinue it shall be held for two years;
   when the tax is discontinued no election to levy a tax shall
   be held during the same year."

In the case of City of Rcokdale v. Cur&on, supra, the following lan-
guage is uaed:

         "When these bonds were voted, the section concluded with
   this alauser 'But the limitaticn upon the amount of school
   district tax herein authorized shall not apply to incorporated
   cities or tovms. constituting separate and independent school
   districts,' This provision explicitly relieved independent
   school distriots oonstituted by cities or town6 of the tax
   limitation imposed upon school districts otherwise constituted,
   and left the Legislature unrestrained by ocnstituticnal pro-
   vision in that particular. In keeping with it, the Legislature
   by the Aot of October 10, 1917 (Chapter 14, Aots of Third
   Called Session of Thirty-fifth "egislature) amended Article 925
   sc as to provide that cities and towns constituting separate
   and independent aohool districts may levy and collect such ad
   valorsm tax for the support and maintenance of their public
   free schools and for the ereotion and equipment of school
   buildings therefor as their electors may determine."

          There is no constitutional or statutory limit on the rate a
school district suoh as the Shennan &strict may levy and collect, so
long as the tax is authorized by a majority vote of the property taxpay-
ing voters.
i:on.'I'.
        1.'.
           1rimhl.e, page 7             O-7060



          A city to constitute "a separate and independent school dis-
triat" must have boundaries identical with the school district. YIhen
the boundaries are extended to take in lands outside of the City, the
ci~tyno longor constitutes a sap&rate and independent school distr<~ct,
o~ldthe tnx limit fixed by g,aneral!lawis nppliccble.

              rn view of the foregoing, your first question is answered i~rl
tho aff’innativu.

          In reply to your second question, we have a serious doubt RS
to the sufficiency of the proposed cmendments quoted in Mr. ii'eaoll's
letter to accomplish the intended purpose. 'Iheproposed ameodmont to
Sdctjon 107 clearly authorizes the City to levy $2.50 for city purposes,
exclusive of taxes levied for sohool purposes, but leaves some doubt es
to whether the City aould have a sohool tax should the subsequent schcol
tax election fail. 'Thereis also some doubt ss to the authority of the
'3ty Commission to call such an election where the Charter is silent
0onncrnj~nE;same. It may be that the power is granted under the gonorc1
law, but we would suggest that you include in your proposed amend,:~~l~:1-:;
an amendment in'substantially the following lan~uago:

           '?or the maintenance and support of public free schools
    not cxoceding eighty-five cents on the $!.OO,assessedvnluo of
    all real and personal estate and property ih the City not 8.~
    ompt from taxation by the Constitution and laws of the State,
    such limi~tationas to rate to apply until such ti~mosas tf:e
    nunlif"ed property tax payers shsY.1vote to incronse same.'



             ‘Y:hon nuthori,zedby the qusljfiod uroperty tax pnyi.np;
    voters, the City !:ommiss.i  on shallly ordiranoe a:nnuallyl.cvy
    aridcolleqt a tax of not exceeding l-l/Z par cent of all.tho
    t:axshlo    property of said City not exempted from tax by tho
    I'onstitutionand laws of the State of 'Texris   for the suoport,
    naintennnoe, and operation of the free schools     and provide
    an interestand sinking fund sufficient to pay nt maturity
    all bonds heretofore or hereafter issued for the erection and
    nquipment of public free schools within the City of Sherman."
        ,i
          If the oharter is amended in aooordance with our first suggos-
tion, the City could still maintain the eighty-five oent tax OS now pro-
vided in the charter until after the election to incrense same.

          In reply to your third question, you are respectfully advised
that it is our opinion that the school tax election shoul,dbe called IV
the City Commission,   said Commission having the power under the City
Charter "to annually levy and oollsct11the authorized taxes, and also
being "vested with the power to maintain, regulate, direct and govern
all the publia free sohools now established or hereafter to be established
.within              and it is further authorized to pass such ordinances,
  ">i the limits,
Hon. T. M. Trimble, page 8                 O-7060



rules and regulations, not inconsistent with the Constitution and laws
of this State, 88 may be necessary to govern the same, establish new
sohools, purchase buildings sites, construct school houses, and generally
to promote free public education within its limits."

            Trusting that this answers   your questions, we 81'8

                                                Yours very truly

                                             ATTORNEY GENiZAL OF TEXAS



                                                 Hy s/Claud 0. noothman
                                                              Assistant

c3!3:v:wo


APPROWD MAY 9, 1946
 s/Carlos C. Ashley
FIRST ASSISTANT
I1'TTORNEY
         GENERAL

Approved Opinion Committee By~-GWB Chairman
