             THE   ATTORNEY          GENERAL
                       OF   TEXAS

                       February   18, 1988




Honorable   James W. Carr               Opinion   No. JM-859
Lavaca County Attorney
P. 0. BOX 579                           Re:    Whether hospital    dis-
2nd Floor, Courthouse                   trict taxes may be      "rolled
Halletsville,    Texas 77964            back"    by  election    called
                                        pursuant     to   petition    by
Honorable   William H. Cantrell         taxpayers   (RQ-1281)
Parker County Attorney
Parker County Courthouse
Weatherford,    Texas 76086

Gentlemen:

      Section 26.07 of the Tax       Code provides     that, if     the
governing   body   of   a taxing unit       other    than   a   school
district   adopts an    ad valorem tax      rate that exceeds       the
so-called   "effective     tax  rate"     calculated    pursuant     to
section 26.04 of the Tax Code by more than eight              percent,
the qualified    voters    of the taxing     unit by petition       may
require that an election be        held to determine      whether    or
not to reduce the tax rate adopted for the current year to
a rate that     exceeds the "effective        rate," in effect,      by
only eight percent.      See   Attorney General Opinion         JM-574
(1986).    you ask whether section 26.07 of the Tax Code             is
unconstitutional      insofar   as     it   applies    to     hospital
districts.    We conclude that it is constitutional.

      We note   at   the outset     that,  in passing   upon   the
constitutionality     of   any   statute,    we   begin  with     a
presumption   of validity.     Smith   v. Davis, 426 S.W.Zd    827
(Tex. 1968) : Texas National      Guard Amorv Board v.    McGraw,
126 S.W.2d 627     (Tex. 1939):     Kov v.  Schneider,  218   S.W.
479, (Tex. 1918).

        There    is  a     strong   presumption     that     a
        Legislature      understands      and      correctly
        appreciates    the   needs    of its   own   people,
        that its laws are directed to problems           made
        manifest    by     experience,    and    that     its
        discriminations      are   based   upon     adequate
        grounds.


                              p. 4159
Honorable James W. Carr
Honorable William H. Cantrell
Page 2 (JM-859)
                                                                           7

Texas National  Guard Armorv Board v. McGraw, sunra at  634
(quoting Middleton   v. Texas Power & Liaht Co., 249   U.S.
152 (1919)).                                                               ?

       The relevant provisions      of   section    26.07   of the   Tax
Code   state the following:

             (a) If the    governing     body of    a taxing
         unit other than a school district          adopts    a
         tax rate that exceeds the rollback tax           rate
         calculated    as provided    by Section 26.04      of
         this    code,   the   qualified     voters    of  the
         taxing unit by petition may require that           an
         election be held to determine        whether   or not
         to reduce     the   tax   rate    adopted    for  the
         current    year   to    the   rollback    tax    rate
         calculated    as provided    by Section 26.04      of
         this code.

             .   .   .   .

             (e) If a majority   of the qualified   voters
         voting on the question    in the election    favor
         the proposition,    the tax rate for the taxing
         unit for the    current year    is the   rollback
         tax rate calculated     as provided by    Section
         26.04 of this code; otherwise,     the tax    rate
         for the current year     is the one adopted     by
         the governing   body.

             .   .   .   .

             Text of subset.     (hl.  as amended bv    Acts
         1987. 70th   Lea..      ch. 457.  613.   effective
         until June 1. 1989

             (h) Notwithstanding        Subsection     (a)     of
         this section,     if the amount of 1987 or         1988
         property   taxes that the governing        body of     a
         taxing unit      other    than a    school    district
         determines    is   required     to   provide    health
         care services      that    the governing      body    is
         required to provide        to its residents       under
         the Indigent Health        Care and Treatment       Act
         (Article     4438f,       Vernon's      Texas     Civil
         Statutes)   exceeds the       amount of the     unit's
         property    taxes     for     the   preceding      year
         imposed to provide those required            services,
         the adopted tax rate        that allows voters        to
         seek to    reduce     the   tax    rate   under    this




                               p. 4160
Honorable James W. Carr
Honorable William H. Cantrell
Page 3 (JM-859)



         section    must    exceed     the    rate    calculated
         under Section 26.04        of this      code by     eight
         percent plus the rate         that, applied to         Ez
         total    taxable      value    submitted        to
         governing    body,    would    impose taxes        in   an
         amount equal to the amount of property              taxes
         to be imposed for the current year that                the
         governing    body    determines      is    required     to
         provide services       required by       the    Indigent
         Health    Care    and    Treatment      Act    less    the
         amount of the unit's property taxes for                the
         preceding     year    imposed     to    provide     those
         required     services.       For    purpose     of    this
         section, the amount        of taxes determined          to
         be required to       provide the required          health
         care services or        imposed for the        preceding
         year to     provide     those    services      does    not
         include taxes for        which the governing          body
         receives     or     expects    to      receive      state
         reimbursement       pursuant     to    Subtitle     D    of
         Title 2 of       the Indigent       Health     Care    and
         Treatment    Act.

              .   .   .   .

      It is suggested,     first, that   section 26.07     circum-
scribes   authority    conferred   on  hospital     districts    by
article IX,    section 9,    of  the Texas    Constitution.      We
disagree.

        The relevant provisions        of article    IX,       section   9, set
forth    the following:

          The Legislature      may by    law provide for        the
          creation,     establishment,       maintenance        and
          operation    of hospital districts        composed     of
          one or more counties or         all or any part        of
          one or    more counties       with power      to    issue
          bonds    for     the     purchase,      construction,
          acquisition,        repair     or     renovation       of
          buildings     and    improvements      and    equipping
          same, for hospital purposes;          . . . providinq
          for the lew      of annual     taxes at a rate        not
          f   exceed    seventv-five     cents     f75CI on     the
          OEe Hundred Dollar valuation          of all     taxable
          pronertv     within     such    district      for     the
          p r-nose of meetina       the recuirements       of   the
          d?strict#s    bonds.     the indebtedness        assumed
          bv it    and    its   maintenance      and    oneratinq
          exnenses,    providing    that such district        shall




                                   p. 4161                 i
Honorable      James W. Carr
Honorable      William H. Cantrell
page   4    (m-859)



           not be created or such tax authorized      unless
           approved by    a majority     of the    qualified
           property  taxpaying    electors thereof    voting
           at an election   called for the purpose.     . . .
           (Emphasis added.)

               . . . .

      In Attorney    General    Opinion JM-792     (1987), we      were
asked whether section 26.07 of the Tax Code             circumscribed
authority   conferred     on county    commissioners     by   sections
l-a and 9 of article       VIII of the Texas Constitution          and,
accordingly,   was unconstitutional       insofar as it applied to
counties.     Article     VIII,   section     l-a,   of   the     Texas
Constitution    contains the following      relevant    language:

           From and after January 1, 1951, the            several
           counties   of the state gre authorized         to lew
           ad Valorem      taxes UD       all or aertv     within
           their    resnective       %ndaries"      for     county
           Pm       s .        not to    exceed    thirtv    cents
           fYOG%7        ' . One Hundred
                        each                    Dollars     ($100)
           valuation,      in   addition    to    all   other    ad
           valorem taxes authorized        by the Constitution
           of this State, provided the revenue            derived
           therefrom    shall be used for construction          and
           maintenance     of Farm to     Market Roads or       for
           Flood Control,       except as     herein    otherwise
           provided.      (Emphasis added.)

Article VIII, section    9, of the  Texas             Constitution      sets
forth the following  relevant provisions:

           [N]o county, city or       town shall levy a tax
           rate in excess of Eighty Cents (80C) on              the
           One Hundred Dollars      ($100) valuation     in     any
           one (1) year      for general      fund,   permanent
           improvement    fund, road    and bridge fund         and
           jury fund purposes:     provided    further that at
           1
           levv the annual tax rate for each countv                it
           shall lew    whatever   tax    rate may be     needed
           for the    four f4) constitutional         ournoses:
           namely, general fund, permanent          improvement
           fund, road and bridge fund and jury fund                so
           long as the court      does not impair any         out-
           standing bonds or      other obligations      and       so
           long as   the    total    of   the   foregoing       tax
           levies does     not exceed     Eighty Cents      (‘3’=)




                                   p. 4162
Honorable  James W. Carr
Honorable  William H. Cantrell
Page 5    Of-8591



         one the One Hundred Dollars   ($100) valuation
         in any one (1) year.   (Emphasis added.)

      We concluded   that the    specific language of        sections
l-a and   9 of     Article VIII    of   the    Texas    Constitution
confers explicit authority     on commissioners      courts, rather
than on the voters, to set      tax rates and levy ad          valorem
taxes upon property     in the counties.     Because the legisla-
ture by statute cannot remove governmental          power conferred
by the constitution,     see aenerally     Anderson   v. Wood,      152
S.W.Zd 1084 (Tex.      1941); Dodson v:     Marshall     118    S.W.2d
621 (Tex. Civ. App. - Waco 1938, writ dism'dj and               cannot
enact any law contrarv to a provision        of the constitution,
Citv of -Fort    Worth v.    How&ton,      236 S.W.2d      615    (Tex.
1951), we concluded     that section 26.07 of the Tax Code           is
unconstitutional    insofar asit     applies to counties.

      In Attorney General        Opinion JM-835         (1987), we     were
asked   whether     section     26.08     of   the    Tax    Code,    which
authorizes   a tax      rate rollback        election     under     certain
circumstances     for   school    district       taxes,     circumscribes
authority   conferred    on school district trustees by article
VII, sections    3 and 3-b, of the Texas Constitution,               and is
therefore   unconstitutional.        Section 3 of article VII does
not directly    authorize    school     districts     to set tax      rates
and   levy     property      taxes.       Instead,       the     provision
authorizes    "the    Legislature    . . . to      pass laws      for    the
assessment     and     collection       of    taxes      in     all     said
districts.    . . .I'      See.     e. a.      Brown      V.      Truscott
Indeoendent    School District,        34'S.W.2d      837 (Tex.      Comm'n
App. 1931, judgm't adopted);         Desdemona     Indenendent       School
District v. Howard, 34 S.W.2d           840 (Tex. Comm'n App.           1931
judgm't adotped).       A school    district's     taxing authority       is
subject to the legislature's           power to enact laws          setting
tax rates and providing        for the assessment        and    collection
of taxes.     Section 26.08      of the Tax Code         is such a      law.
We concluded    that section 26.08 does not circumscribe                 any
authority     conferred     by   article      VII,    section     3,    and,
therefore,    does not violate      it.

      Article IX,     section 9,   of the    Texas    Constitution,
like article VII, section 3, confers authority,          not on the
governing    bodies of hospital districts,     but rather on       the
legislature.      It is empowered  to create hospital      districts
and to "provid[e]     for the levy    of annual taxes at a       rate
of not    to   exceed seventy-five     cents    (75C) on    the    One
Hundred Dollar valuation       of all   taxable property       within
such district     for the purpose of meeting the       requirements
of the district's      bonds, the indebtedness      assumed by      it
and its maintenance     and operating   expenses.    . . .'I Article




                                 p. 4163
Honorable    James W. Carr
Honorable    William H. Cantrell
Page 6      W-859)



IX, section    9,    does    I&   confer    any    authority     on    the
governing    bodies     of   hospital     districts.       The     phrase
beginning   "provid[e]     for   the levy     of annual     taxes.    . .I1
serves merely to set        a ceiling or      limitation    on the     tax
rate that the legislature        is authorized     to permit hospital
districts   to adopt and confers on the legislature             the same
broad   authority.    regarding      taxation    conferred      on     the
legislature   by article       7, section     3. m       section 2 of
art.   4494n,    V.T.C.S.       Accordingly,     we    conclude      that
section 26.07, insofar as it applies to hospital               districts
created pursuant     to    article IX, section       9, of the      Texas
Constitution,     does      not     circumscribe       any     authority
conferred   on the governing      body of a hospital       district     by
article IX, section 9.

      It is also urged that        section 26.08 of the Tax          Code
violates    article      III,     section       1,    of     the    Texas
Constitution,      by   effecting     an    improper     delegation     of
legislative    authority,    and article      I, section 28, of       the
Texas Constitution,      by effecting     a suspension     of the laws.
Specifically,     it is   urged that      section 26.07       improperly
delegates   to the voters the authority          to set tax rates and
improperly    suspends section 26.05         of the Tax Code,       which
authorizes   the governing     body of a taxing unit to adopt            a
tax rate.     In Attorney     General Opinion JM-835         (1987),    we
concluded   that    section    26.08     of   the    Tax   Code,    which
governs tax rate rollback elections           for school taxes, does
not contravene     either of these constitutional            provisions.
We so conclude      regarding    section 26.07       of the Tax     Code.
It is to these constitutional         provisions     that we now turn.

      Article III,    section 1,     of the   Texas   Constitution
provides:    "The Legislative    power   of this state shall      be
vested in    a Senate   and House     of Representatives,     which
together   shall be styled 'The Legislature       of the State    of
Texas."'    Article  I, section 28, of the Texas Constitution
provides   the following:    "No   power of suspending     laws   in
this State shall be exercised      except by the Legislature."

      It is a maxim of constitutional             law that the       power
conferred   upon the legislature        to make the laws cannot          be
delecfated    by    that    department    to    any    other   body      or
authority.     Texas National Guard         Armor? Board v.       I&Craw,
126 S.W.2d 627 (Tex. 1939); ma           n v. Humble Oil & Refininq
&,    83   S.W.2d     935    (Tex. 193:)      rehearino      denied,     87
S.W.2d 1069 (Tex. 1935).          The pri;ciple     of   non-delegation
has   certain     important      qualifications.        See    aeneralle
Annot.,   "Permissible      limits    of delegation     of   legislative
power,"    79    L.     Ed.                       For    example,      the
legislature       may         474
                          delegate   '1g5:' - municipalities         local




                                  p. 4164
Honorable James W. Carr
Honorable Wil1iam.H. Cantrell
Page 7 (JM-859)



legislative   power   that   is adequate    to  carry     out   the
purposes    for  which   they   were   created.     See,      e.a
Stanfield   v. State, 18 S.W.   577 (Tex. 1892).      The   United
States Supreme Court declared almost a century ago:

            It is a cardinal principle        of our     system
        of government,    that     local affairs shall        be
        managed by     local authorities,        and   general
        affairs by the central authority,           and hence,
        while the rule is also fundamental           that   the
        power to make laws cannot be delegated,             the
        creation of municipalities         exercising     local
        self-government       has   never    been    held     to
        trench upon that rule.         Such legislation       is
        not   regarded     as   a transfer       of    general
        legislative    power, but      rather as the      grant
        of the authority      to prescribe     local   regula-
        tions,    according     to    immemorial     practice,
        subject of     course to     the interposition        of
        the superior    in cases of necessity.

Stoutenburah    V.    ennick,   129 U.S.    141,   147   (1889).

      Article III,      section 1,      of the' Texas       Constitution
requires that a law must          be so    complete     in   all of     its
terms and provisions      when it leaves the legislative            branch
that nothing is left to        the judgment of the recipient             of
the delegated    power.      See. e-a.       Commissioners      Court    of
Lubbock Countv v. Martin, 471 S.W.2d 100 (Tex. Civ. App. -
Amarillo   1971, writ     ref*d n.r.e.).         The rights,      duties,
privileges,   or    obligations     granted or       imposed     must    be
definitely   fixed    and determined,        or the     rules by     which
they are to be      f.ixed and determined        must be clearly        and
definitely   established,     when the act is passed.          Id.      The
law must be final       and decisive     in all     of its parts:       any
discretion    that     is given       must    relate     only    to     its
execution.    I   re Johnson      554 S.W.Zd 775 (Tex. Civ.            APP.
- Corpus Chriiti 1977), w&it ref'd n.r.e., 569 S.W.2d                   882
 (Tex. 1978);    McCombs v.      Dallas    County, 136       S.W.2d     975
 (Tex. Civ. App.     - Dallas     1940), writ       ref'd, 140      S.W.2d
1109 (Tex.     1940).     The    test that      courts     invoke    under
article III,     section 1,      is whether      the legislature        has
prescribed   sufficient      standards    to    guide the     discretion
conferred.      C mmissioners      Court     of   Lubbock     Countv
Martin, sunra;O Moodv             Citv of     Universitv      P ark,    2%
S.W.2d 912     (Tex.    Civ.vApp.     - Dallas      1955,    writ    ref'd
n.r.e.).    Section 26.08 of the Tax Code clearly sets forth
sufficient   standards    both with regard to the calling of an
election    and   with    regard     to   the    consequences       if   an




                                p. 4165
Honorable James W. Carr
Honorable William H. Cantrell
Page 8 (JIG859)



election is successful:         whatever  discretion        is set     forth
in the section relates         only to its execution.

      Early on, the Texas Supreme Court recognized   the dis-                  -.
tinction between a delegation    of power to make a law   and
the discretionary   exercise of a power conferred  by a  law.
In Citv of San    Antonio v. Jones, 28   Tex. 19 (1866),  the
Texas Supreme Court declared:

          The legislature    may grant authority    as   well
          as give commands,     and acts    done under     its
          authority   are as valid    as if done in     obed-
          ience to its    commands.    Nor   is a statute,
          whose comvlete execution     and annlication      to
          the subiect    matter is.    bv its   nrovisions.
          m de to denend on     the assent of some      other
          b:dv. a   deleaation    of   legislative     Dower.
          The discretion   aoes to    the e ercise of      the
          power conferred    bv the law, b:t not to      make
          the law itself, .

              The law. in      such cases.     mav denend       for
          Ats nractical     efficiencv     on the act of       some
          other bodv or individual:          still. it is       not
          derived   from such act. but from the leaisla-
          tive     author&y    .      Legislation       of     this
          character    is   of    familiar use,      and    occurs
          whenever   rights or privileges        are    conferred
          upon individuals        or   bodies, which       may   be
          exercised    or not     in their discretion.          And
           .    *
                    mav    be    left   to   the    iudoment     of
          individuals     or nrivate cornorations-         whether
          thev will     avail     themselves     of   nrivileaes
          conferred     bv    the    leaislature.     there       is
          certainlv    no valid reason        hv the same       may
          not be    done    with     citizen: of     a town      or
          district.     who,     as   a class.      are
          affected bv      the    nronosed    act.      (EkEhas?:
          added.)

28 Tex.    at 32-33.

      While the    results of     early Texas    cases are     incon-
sistent, see. e.a., State v.        Swishey,   17 Tex. 441      (1856)
and Stanfield   v. State, 18 S.W. 577 (Tex. 1892), at            least
since    1920,  Texas    courts    have   upheld    delegations     of         1
authority   to voters    or some    other body     in instances      in
which a statute whose       complete execution     and   application
to the subject matter was made to depend on the assent               of
those   voters   or    some   other    body,   when    such   matters          ->




                                   p. 4166
Honorable James W. Carr
Honorable William H. Cantrell
Page 9 (JM-859)



concerned   local administration    and control.    See  Trimmier
v, Carlton,   296 S.W. 1070    (Tex. 1927); SD     rs v. Citv    of
San AntOnlQ,    223 S.W. 166 (Tex. 1920);     RaG: Deleaation    of
Power in Texa     to Aaencies Other    han State Administrative
Bodies, 16 Tet.     L. Rev. 494    (1957).   Courts have    upheld
numerous   statutes granting political     subdivisions  power to
be exercised    only upon a   favorable vote of the     governing
body or the people.

      A   statute      leaving      it discretionary          with      the
commissioners      court    to   order    the   election      of   public
weighers   was    upheld in Johnson            Martin,    12   S.W.     321
(Tex. 1889), while Stanfield         v.   gtate, 18 S.W. 577         (Tex.
1892) approved a       statute authorizing        counties to      create
and abolish the office of county superintendent               of   public
instruction.      A statute authorizing        cities, on a vote          of
the people, to       improve streets and       assess costs       against
abutting    property      did   not   unconstitutionally         delegate
legislative    power.     Soears v. Citv of San Antonio,            sunra;
see also Revnolds v.        a     s County, 203 S.W.2d 320            (Tex.
Civ. App. - Amarillo        1947, writ     denied, 207 S.W.2d          362)
 (statute   upheld     authorizing       counties      to  use     voting
machines   on    local    option    basis): Sullivan       v.    Roach     -
Maniaan Pavina Co. of Te a           220 S.W. 444 (Tex. Civ.           APP.
- San    Antonio     1920,    wzis' dism'd)      (street     improvement
statute authorizing       acceptance    by a city does not        violate
article III, section 1, or article I, section 28 of                  Texas
Constitution).

      It cannot be gainsaid      that the legislature        properly
may delegate to the governing       body of a hospital       district
the authority    to adopt     a tax   rate.    m     Moore v.      Edna
Ifosnital District,   449 S.W.2d 508 (Tex. Civ. App. - Corpus
Christi 1969, writ      ref'd n.r.e.).     We    see no reason      why
the legislature     could not    also    delegate to     voters     the
authority  to   compel    the   governing     bodies    of   hospital
districts  to reduce     adopted tax rates       upon a    successful
rollback election.     Accordingly,     we conclude that       section
26.07 of the Tax Code effects no impermissible             delegation
of legislative    authority     in violation      of  article      III,
section 1, of the Texas Constitution.

      Article I,   section 28,     of the   Texas    Constitution,
which prohibits  the suspension     of   laws unless it is      done
by the legislature,    frequently     is invoked when     analyzing
delegations   of this sort.       See. e.a.,    Attorney    General
Opinions JM-483   (1986), H-1080     (1977); Ray, peleaation      of
Power m Texas,     16 Tex. L.     Rev. 484.    It   is urged    that
section 26.07 of the Tax Code in effect authorizes           voters




                                   p. 4167
Honorable James W. Carr
Honorable William H. Cantrell
Page 10 (JM-859)



to suspend section 26.05 of the Tax Code, which authorizes
the governing bodies of taxing units to adopt tax rates.
                                                                          ---.
      This issue was addressed,    in Attorney  General Opinion
JW-835   (1987), wherein we upheld as constitutional     section
26.08   of   the   Tax    Code.   The  relevant   language     of
subsection    (e) of section 26.08 provides:

        If a majority    of the qualified     voters voting
        on the question      in the    election   favor    the
        proposition,     the   aovernina     bodv    mav   not
        am                   in the following     year    that
        exceeds the rollback tax rate calculated             as
        provided   by   Section 26.04,      except that      in
        calculating     the   rollback      tax   rate     the
        assessor   shall    use the    following     formula:
        ROLLBACK   TAX RATE + [(EFFECTIVE        MAINTENANCE
        MD   OPERATIONS   RATE FOR ELECTION YEAR x 1.08
        + CURRENT       DEBT    RATE. . . .         (Emphasis
        added.)

We noted that section 26.08 does not effect any suspension
of a board of trustees'     authority    to adopt a tax rate:        it
merely places a one-year ceiling or limitation           on the    tax    ?
rate that a board of       trustees may adopt.         The power     to
adopt a tax     rate is    still    reposed with     the   board     of
trustees,  even   in   the   event of     a   successful     rollback
election.   But   section     26.07   of    the  Tax    Code,    which
governs taxing units other than school districts,            does not
operate in the same fashion that section 26.08 does.               The
relevant  language of     subsection    (e) of    section 26.07      of
the Tax Code provides:

        If a majority      of the qualified     voters voting
        on the question        in the    election   favor    the
        proposition,      the   tax   rate for     the   taxinq
        unit for the       curent    vear    is th     rollback
        tax   rate calculated       as nrovided Ev      Section
          6 .04 of this code: otherwise.        the tax     rate
        for   the CUrrent     vear   is the one adopted       bv
        the aovernina      body.    (Emphasis added.)

Unlike subsection     (e) of section 26.08, subsection        (e) of
section 26.07 of the Tax Code does D&         continue   to    repose
in the governing    body of taxing units the authority         to set     -\
the tax rate for the year in which the successful           tax rate
rollback   election    is held.    It   is urged    that,    because
subsection     (e)  of   section   26.07   has    the   effect      of
suspending   section 26.05, it violates       article I,     section
28, of the Texas Constitution.        We disagree.                        ?




                                p. 4168
        Honorable    James W. Carr
.       Honorable    William H. Cantrell
        page 11     (JM-859)
.-


              Section 26.07        of the    Tax Code     does not     act on      or
        affect section 26.05 in the same manner in which                  statutes
    -   enacted    by   the     legislature,      ordinances      enacted      by   a
        municipality,     or injunctions      issued by a court have           acted
        on statutes     and     have been     held    to violate      article      I,
        section 28.     See. e.a,        State v. Allstate       Insurance      co.,
        654 S.W.Zd 45 (Tex. AD;). - Austin 1983, writ ref*d n.r.e.)
        (only legislature       has-power    to suspend.the      laws, but to do
        so it must effect a general suspension;               i.e., it may        not
        suspend a statute for an individual            case): Brown Cracker &
        Candv Co.     v. Citv       f    11
         (Dallas city ordinanze       ~~,~~;in~'~r~.~Itu~4~n(T~.ce:~~~I,
        designated    areas     was in violation       of    penal act      of    the
        legislature      forbidding      prostitution;       ordinance      thereby
        violated   article I,       section 28); State        v. Ferouson,        125
        S.W.2d 272 (Tex. 1939) (courts            may not suspend any          valid
        statute, nor supervise         and direct the manner and method of
        its enforcement      by appropriate       officers    of the     executive
        department).       In a typical article I, section 28, case,~ a
        statute is made inoperative          in all possible      future      appli-
        cations in a given area by means of an ordinance                 or    court
        injunction.      S   . e ar     Brown Cracker & Candv Co. v.            Citv
          f Dallas    SUD:~; A;to;ney General Opinions JM-483                (1986)
        i-1080   (1477).     Section     26.07 of     the Tax     Code does       noC
        make    inoperative       section    26.05:     in   every    year,       the
        governing    body of a taxing unit adopts a tax rate pursuant
        to section 26.05.          Only if the      rate adopted exceeds          the
        effective    rate    by    eight percent      or   more, only       if the
        requisite    number     of voters     validly signs       a petition       to
        call an election,       and only if a majority        of voters       voting
        at the election passes the proposition,              will the tax        rate
         for that year      by law     be set    at, in     effect, only       eight
        percent over the effective           rate.    The following      year     the
        governing    body    of the     affected     taxing unit      will     again
        adopt a tax rate pursuant           to section 26.05.        At no     point
         is section 26.05 l%uspended;ll rather, it confers upon                   the
        governing    bodies      of taxing     units authority       that may      be
         limited    contingently,       upon    the   happening      of.    certain
         events.

              Accordingly, we conclude  that section  26.07 of   the
        Tax Code does not act to suspend section 26.05 of the    Tax
        Code in violation  of article  I, section 28, of the   Texas
        Constitution.

                                       SUMMARY

                      Section 26.07    of   the   Tax   Code,   which
                  authorizes    ad  valorem     tax   rate   rollback
                  elections   for taxing units other than school




                                           p. 4169
Honorable    James W. Carr
Honorable    William H. Cantrell
Page 12     (JB-859)



        districts, is constitutional             insofar   as   it
        applies to hospital districts.

                                         gxyti                              -



                                                     MATTOX
                                          Attorney    General    of Texas

MARY KELLER
First Assistant    Attorney    General

LOU MCCREARY
Executive  Assistant     Attorney     General

JUDGE ZOLLIE STEAXLSY
Special Assistant  Attorney         General

RICX GILPIN
Chairman,  Opinion     Committee

Prepared by Jim Moellinger
Assistant Attorney  General




                               p. 4170
