                     AYSTIN ~~.'l%xas
                       September 28, 1964


Honorable Joe Resweber           Opinion INo. C- 316
County Attorney
Harris County                    Re:   Construction of Article
Houston, Texas                         4477-2, V.C.S., relating
                                       to,the levying of a tax
Dear Mr. Resweber:                     for mosquito control,
      Your request for an opinion reads as follows:
            "The Commissioners Court has requested
      that this,office obtain an opinion from you
      on the follow~ingquestions.
           :i
            "1. Does Article 4477-2 V.C.S. author-
      ize the C.ommissionersCourt to levy a tax
      not to exceed'twenty-five cents on each One
      Hundred Dollar Tax valuation in the county
      (assuming that tihesame is authorized by an
      election pursuant to Section 2 of said Arti-
      cle) in addition to the constitutional limit
       laced on the Commissj.onersCourt by Article
      8 , Section 9, of the Texas Constitution?
           ,"2. In the event your answer to   the first
      question is in the negative, is there   any other
      authority for the Commissioners Court   to levy a
      tax above the 804 limit prescribed by   Article 8,
      Section 9, of the Texas Constitution,   for the
      purpose of Mosquito Control?
           "The local health authorities are of the
      opinion that Harris County has an epidemic of
      encephalitis, commonly known as 'sleeping sick-
      ness.' These health authorities are further of
      the opinion that the said disease is spread by
      the female Culex mosquito. In view of the said
      epidemic, the Commissioners Court feels that it
      is necessary to undertake a program of mosquito
      control within the county. However,.Harris County
      now has a tax rate of eighty cents (804) on the
      One Hundred Dollars ($100.00) valuation, none of


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Hon. Joe Resweber, page 2 (c-316)


       which funds is presently available for mos-
       quito control.
            "The Commissioners Court.is familiar
       with Opinion of the Attorney General No.
       v-1116, dated November 6, 1950. However,
       in view of the importance of the’ma,tter,,. they
       desire you to determine'whe,ther"o~not the
       amendments ~(subsequent'to the date of sa&d
       opinion) to Article 8; Section,g,,of the Texas
       Constitution and Article 4477-2 V.C.S., 'would
       have theneffect of permitting a tax for mos-
       quito control over and above the 804 limit
       provided.,
                in Article 8, Section 9, of the Texas
       Constitution.                       ,?
            "In our opinion, the amendment of Article
       8, Section 9, of the TexasConstitution did,not
       in any way modify the 804 limit.
            ."The amendment of Section 1 of Article 4477-
       2 V.C.S. only made the act applicable to all
       counties and portions.of'counties instead of
      'only entire'counti,es~bordering on the Gulf, as
       0riginaUy ~enacted. The~amendments of Sections
       2 and 4 oftArticle 4477-2 V.C.S. merely increas-
       ed the maximum amount the county could expend
       for mosquito control under said article from,54
       to 25# on each'$lOO.OO~tax valuation. Further-
       more, even if the amendmentsto Article 4477-2
       V.C.S. did~purport to author~izea tax over and,
       above the 80# constitutional limit, the amepd-
       ment would be unconstitutional and of no force
       and effect.
            "Passing to the second question, it will be
       noted-thatby Article 4418 f, V.C.S., the Commis-
       sioners Court is authorized to appropriate and
       expend money from the general~revenues oftits
       County for and in'behalf of public health and
       ,sanitationwithin its County. However, we find
       no authority for a tax over and above the 804
       constitutional limit for such~'purposes.
                       "CONquSION,
            "Harris County.is authorized to expend county
       funds for mosquito control. ,However, the,lev of
       taxes for such 'purposemust be a part of t,he5O$

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Hon. Joe Resweber, page 3 '(c-316)


      constitutional limit prescribed by Article
       8,Section 9, of the Texas'Constitution.
      In order to create a~mosquito control dis-
      trict with the power 'to levy taxes over
      and above the 804 constitutional limit or
      to authorize the county to ,levytaxes over
      and above said limit, a constitutional amend-
      ment would be necessary."
       Article 4477-2, Vernon's Civil Statutes, as amended by
House Bill 721 'Acts of the 57th Legislature, Regular Sess+on
1961, chapter 4?8, Rage 1105, provides in part as follows:

             "Sett&on 1 . In all counties ofthis
       State, the Commissioners.Court may call an
       election within sixty ‘(60) days after the
       effective date of this Act, and at subse-
       quent elections when called by the County
       Judge upon his being'petitioned.by two hun-.
       dred (200) qualified voters to call such elec-
       tion to,dstermine.if the qualified v,oters'of
       such county,desire the establishment of a,Mos-
       quito ,ControlDistrict to embrace all Or a por-
       tion of the territory within said county, for
       the purpose of'eradicating mosquitoes in 'sa'id
       area ."'The form of'the ballot shall be as fol-
       lows:.
            ",FORthe establishment of a Mosquito Con-
       trol,Distriet in             County.
                 /
            "AGAINST,the establishment of a Mosquito
       Control District in          County.
           "Sec. 2. The Commissioners Court in each
      county governed by the provisionsof this Act
      may call an election within~sixty.(60) days
      afte,r.theeffective date of this Act and at sub-
      sequent ekctions when called by the County
      Judge upon his being petitioned by two hundred
      (200) qualified,voters to call such election to
      determine if the qualified real property taxpay-
      ing voters of said county'or portion of said
      county desire a levy of a tax not to exceed
      twenty-five cents (25#) oneach one hundred dol-
      lar tax valuation to finance the program provided
      in this Act. The form of the ballot shall be as
      follow's:

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Hon. Joe Resweber,,page,~4 (c-316)


             "FOR the levy ,ofa tax of        cents on
        each one hundred'dollar tax-valmn
                                    .         .to f.i-
        nance the Mosquito'Control DUtrict   wltnln
                         County.
              "AGAINST the levy of a tax of      cents
        ,on each one hundred dollar'tax valus    to fi-
        nance the Mosquito Control District within
                          County.
             "Sec. 4. If the elections provided in Sec-
        tion 1 and Section 2 of this Act are in favor of
        the establishment of a Mosquito Control ,District
        and the levy~of a tax not to exceed ~twenty-five
        cents (254) on each one hundred dollar tax valua-
        tion, the Commissioners Court is authorized to
        levy a tax not to exceed the amount fixed by the
        election; provided, however, that the Commissioners
        Court is authorized .tolower the tax to any desig-
        nated sum it may determine, should the approximate
        revenue be in excess of the needed revenue to carry
        out the'provisions o,fthis Act. The taxes so levied
        shall be collected by the County Tax Assessor and
        Collector and shall be deposited in a separate fund
        and be used for the purposes of carrying,,outthe
        provisions of this Act and for no,other purposes."
        ,In Attorney General's Opinion ~-111.6   (1950), this office
held:
              "In view of the foregoing authorities, you are
        advised in answer to your second question that the
        tax levy authorized by Sections 2 and 4 of Article
        4477-P is not in addition to the constituti,onal
        limitation fixed by Section 9, Article VIII of the
        Constitution.
             "In answer to your third question, it is our
        opinion that the cost of operating a Mosquito Con-
        trol District created for public health purposes
        of the county must be paid out of the general fund.
        Attly Gen. Op. v-567 (1948).”
       The than es to Article 44~7-2, Vernon's Civil Statutes, pro-
vided in the 19t1 amendment, made the,provisions of the Act appli-
cable to all counties of the State rather than to the counties of
the State which border on the Gulf of>Mexic'o,,andraised the au-
thorized levy from not to exce'edfive cents eon each $100.00 valu-
ation, to an authorization of a,levy not to exceed twenty-five
cents on each $100.00 valuation. Therefore, the 1961 amendment
d&d not affect the condlusions reached in Attorney'General's Opinion
v-1116.                      -i5is-
^.   -




         Hon. Joe Resweber, page 5 (c-316)


                 In view of the,foregoing, we agree with your contilusion
         that Harris County is authorized to expend county funds for
         mosquito control; however, the levy of taxes for such purpose
         must be a part of the 804 constitutional limit prescribed in
         Secti,on9 of Article VIII of,the Constitution of Taxas. In
         order to create~a mosquito control district with the powerto
         ~'levytaxes over .and above the constitutional limit prescribed
         in Section 9 of Article VI.11of the Constitution of‘Texas,,a
         constitutional amendment would be necessary.
                                      SUMMARY
                      A county 1s au,thorizedto expend county
                 funds for mosquito control; however, the
                 levy of taxes for such purpose.must be a
                 part of,the 8054constitutional limit pre-
                 scribed by Section 9 of Article VIII of the
                 Constitution of Texas.

                                       Yours very truly,
                                       WAGGONER CARR
                                       Attorney General



                                             John Reeves
                                             Assistant
         JR:ms
         APPROVED:
         OPINIdN COMMITTEE
         W. V. Geppert, Chairman
         PatBailey
          Ivan Williams
         Brady Coleman
         Rob Richards
         APPROVED FOR THE ATTORNEY GENERAL
         By: Roger Tyler




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