                              September      8,   1966


Hon. Richard E. Rudeloff              Opinion      No.   C-753
County Attorney
Bee County                            Re :    Whether Bee County may
Beevllle,  Texas                              change its tax rate from
                                              the precedin       year’s    rate
                                              of $1000 to $ .95 notwlth-
                                              standing     the failure     to
                                              notify    the county tax
                                              assessor-collector        of such
                                              changed or adopted tax rate,
                                              where the 54 to be dropped
                                              represents     money formerly
                                              collected     for a county-
                                              wide road bond issue which
                                              can now be fully       retired
Dear Sir:                                     by funds on hand.

           By a recent letter you have requested                 an opinion
in regard to the above stated matter.   We quote                 from your
letter  as follows:



             “The tax rate adopted a number of years ago
      by Bee County, and in effect        during the year 1966,
      Is and has been $1.00,       of which amount .05# repre-
      sented monies collected       to retire   a road bond
      Issue.     Bee County now has on hand in such road
      bond fund sufficient     money to fully      retire    such
      bonds and the .05k portion       of said $1.00 tax rate
      Is no longer    needed for this purpose.          Accordingly,
      the Combsloners       Court of Bee County wishes to
      change the tax rate for 1967 to .95$, in compliance
      with Section    9 of Article    VIII,   Vernon’s    Texas
      Constitution.

              “Bee County is subject   to the provisions            of
      Article    7044a, Texas Revised Civil   Statutes.             Notice
      of the tax rate adopted was not given to the                 tax
      assessor-collector    prior   to July 20.”

            In addition     to the above facts we have learned
from your   office   that   the road bond tax in question  was
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Ron.   Richard   E. Rudeloff,     Page 2 (C-753)



levied as the result       of a county-wide      election  In 1946
for the construction       and Improvement      of the county-wide
road system.

              In a recent     opinion L-No. C-701 (1966)        7 this
office    ruled,   in effect,     that Article    70&4a,   VeriionIs   Civil
Statutes,     Is not unconstitutional         as violating   Section    9
of Article VIII of our Constitution,             nor Is It unconstltu-
tional    as violating     Section    16 of Article     I, Vernon’s
Texas Constitution.         The basis of the opinion        being that
Article    704&a does not attempt to deprive            the Commissioners
Court of the power to levy the county tax, which it must
do pursuant to Section         9 of Article     VIII,   nor does it
impair bond obligations          in violation    of Section    16 of
Article    I, but merely sets a time limit upon the counties
and other taxing authorities           to determine     and notify   the
tax assessor-collector         of the tax rate to be used for
the next year.

            The 5# tax levy Involved    in the instant    case
was levied   under the provisions    of Article  752a, Vernon’s
Civil  Statutes,  which was enacted pursuant to Section        52
of Article   III, of the Constitution     of Texas.   Article
752a Is quoted in part as follows:

              “Any county.      . .is hereby authorized        to
       Issue bonds for the purpose of the construc-
       tion,    maintenance    and operation      of macadamlzed,
       graveled     or paved roads.      . .in any amount not
       to exceed one-fourth         of the assessed    valuation
       of the real property         of such county.     . .and to
       levy and collect       ad valorem taxes to pay the
       interest     on such bonds and provide        a sinking
       fund for the redemption         thereof.     Such bonds
       shall be issued       in the manner hereinafter
       provided,      and as contemplated       and authorized
       by Seotlon      52, of Article     3, of the Constltu-
       tion of this State.          . . .    Provided when the
       principal      and all Interest      on said bonds are
       fully    paid,   In the event there is any surplus
       remaining      In the sinking    fund, said remaining
       surplus    not used In the full        payment of the
       principal      and Interest    on said bond or bonds
       may be used by the county.           . .for the purpose
        . . . .       (Eimphasls added)

          Prior to       the enactment of Article  752a, our
Supreme Court held       that funds from a tax levy authorized
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            Hon.   Richard   E. Rudeloff,   Page 3 (C-753)



            by Section   52 of Article    III, and Section   9 of Article
            VIII,  for construction    and maintenance    of public roads,
            mav not be diverted     to other uurnoses    than those for
            which voted.    Robblns v. Limestone    County, 114 Tex. 345,
            268 S.W. 915 (1925).

                        This office    has ruled in several     previous
            opinions   that the Commissioners      Court could expend the
            money raised    from an authorized     bond Issue only In the
            manner and for the purposes       prescribed   by law.    Attorney
            General’s   Opinions O-4621 (1942),       v-157 (194?),   v-684
            (lg48),   W-W-1162 (1961).

                         Article   752a provides      that the sinking     fund,
            established    to retire    the bonded Indebtedness        authorized
            by the bond election,       should first      be used to pay off
            the principal      and Interest    on the bonds,     then if a
            surplus    is left   It may be used for certain        purposes.
            However, the Act does not authorize            the counties    to
            perpetuate    the surplus,      by continuing     to put money into
            the sinking     fund after    the bonds have been paid In full.

                          In the case at hand, if Bee County Is permitted
            to levy the 5# tax for the sinking         fund to retire    the
            bonded Indebtedness,       It will be enlarging     the surplus,
            since   the fund Is already      large enough to retire     the bonds.
            It is our opinion      that such 5g? tax can no longer be
            validly    levied   for such purpose.     Section   9 of Article
            VIII,   of the Texas Constitution;       Section   52 of Article
            III of the Texas Constitution,         and Article   752a, Vernon’s
            Civil   Statutes.

                          Clearly the Commissioners     Court could not have
            continued     to levy the 5# tax for county-wide      road bond
            purposes    If It had decided     to do so prior   to July 20th;
            so, it cannot continue      the tax just because It failed       to
            notify   the tax assessor-collector      prior   to July 20th.

                                       SUMMARY
                                       -------
                         Bee County must change Its tax rate from
                   the preceding     year’s     rate of $1.00 to 95$! not-
                   withstanding     the failure      to notify  the county
                   tax assessor-collector          of such changed or adopted
                   tax rate,    where the 54 being dropped represents
                   money formerly      collected     for a road bond issue
                   which can be fully        retired    by funds on hand.

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            Hon.    Richard     E. Rudeloff,   Page 4 (C-753)



                                                     Very   truly   yours,

                                                     WAGGONER CARR
                                                     Attorney General




            JCMcC:sck

            APPROVED:
            OPINION COMMITTEE

            W. V.    Geppert,     Chairman

            Wade Anderson
            Malcolm Quick
            Bob Towery
            J. C. Davis

            APPROVEDFOR THE ATTORNEYGENERAL
            BY:  T. B. Wright




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