                 THE    ATTORNEY               GEXERAL
                             OF    %‘EXAS




Honorable Joe Carroll                 Opinion No. M-1245
County Attorney
Bell County Courthouse                Re :    Status of maintenance     tax in
Belton, Texas 76513                           Bell County.

Dear Mr. Carroll:
               Your recent opinion request        provided    us with the fol-
lowing     information   and questions:
           “In 1921, Commissioner Precinct #l of Bell
     County, Texas by Precinct-wide    election,     imposed
     a maintenance tax upon itself.     Thereafter,      by in-
     dividual Commissioner Precinct-wide      elections,
     Precincts  X2, (3 and U4 also imposed upon them-
     selves a maintenance tax.     In at least two of the
     precincts,  the maintenance tax so imposed was 25$
     on the $100.00 evaluation.
           “The last election  was held in Commissioner
     Precinct W3 in 1966, at which time a tax of 1st
     per $100.09 evaluation   was imposed.
                “Although the Commissioners’ Precinct lines
         have changed since the various elections,       at one
         time or another, every citizen      of Bell County has
         had an opportunity      to express his opinion on this
         issue.     By action   of the Commissioners’ Court in
         1968, effective      in 1969, the tax was equalized    in
         all precincts     to a maximum of 151 per $100.00 evalua-
         tion.    This tax has been collected    by precincts    and
         spent in the precinct      from which it was collected.
                 “The time to challenge      an election     has long
         since    expired.”
              Question 1.  “Does the Commissioners’ Court
         of Bell County have the.power to cause substantial
         compliance with the election  statutes by making
         the maintenance fund, one fund, collected  and spent


                                  -6094-
Hon. Joe Carroll,     page 2        (M-1245)



     County-wide     without   regard. to precinct   lines?”
                         “Must the Commissioners’ Court of
     Bell wounty exercise   its power to combine these
     funds, if it has such power?”
           The answer to Question l,is         no, and as a result     it
is unnecessary to answer Question 2.
           Article 2352, Vernon’s Civil Statutes,  authorizes  the
county commissioners  court to levy taxes for various purposes
by providing:
             “Said court shall have the power to levy and
     collect     a tax for county purposes, not to exceed
     twenty-five     cents on the one hundred dollars         valua-
     tion, and a tax not to exceed fifteen          cents on the
     one hundred dollars       valuation to’supplement      the jury
     fund of the county, and not to exceed fifteen             cents
     for roads and bridges on the one hundred dollars
     valuation,     except for the payment of debts incurred
     prior to the adoption of the amendment to the Consti-
     tution,     September 25, A.D. 1883, and for the erection
     of public buildings,        streets,  sewers, water works and
     other permanent improvements, not to exceed twenty-
     five cents on the one hundred dollars valuation              in
     any one year, and except as in the Constitution              other-
     wise provided.       They may levy an additional        tax for
     road purposes not to exceed fifteen          cents on the one
     hundred dollar      valuation    of the property subject to
     taxation,     under the limitations     and in the manner
     provided for in Article         8, Sec. 9, of the Constitution
     and in pursuance of the laws relating           thereto.”
          However, as Article  2352 states, such tax levies are
subject to Article 8, Section 9 of the Texas Constitution   and
statutes enacted pursuant thereto.
           Article    8, Section    9 of the Texas Constitution        reads:
           “Sec. 9.   The State tax on property,    exclusive
      of the tax necessary  to pay the public debt, and
      of the taxes provided for the benefit of the public
      free schools,  shall never exceed Thirty-five     Cents
      (351) on the One Hundred Dollars ($100) valuation;
      and no county, city or town shall levy a tax rate
      in excess of Eighty Cents (80$) on the One Hundred
                              -6095-
Hon. Joe Carroll,   page 3          (M-1245)


     Dollars   ($100) valuation    in any one (1) year for
     general fund, permanent fmprovement fund, road and
     bridge fund and jury fund purposes;        provided
                                                     -     fur-
     ther that at the time the Commissioners Court meets
     to levy the annual tax rate for each county it shall
     levy whatever tax rate may be needed for the four
      (4) constitutional    purposes; namely, general fund,
     permanent improvement fund, road and bridge fund and
     jury fund so long as the Court does not impair any
     outstanding     bonds or other obligations     and so long
     as the total of the foregoing      tax levies does not
     exceed Eighty Cents (80$) on the One Hundred Dollars
      ($100) valuation    in any one (1) year.      Once the
     Court has levied the annual tax rate, the same shall
     remain in force and effect      during that taxable year;
     and the Legislature     may also authorize     an additional
     annual ad valorem tax to be levied and collected           for
     the further maintenance of the public roads; pro-
     vided, that a majority of the qualified         property
     taxpaying voters of the county voting at an election
     to be held for that purpose shall vote such tax,
     not to exceed Fifteen Cents (154.) on the One Hundred
     Dollars    ($100) valuation of the property subject
     to taxation     in such county.   Any county may put all
     tax money collected     by the county into one general
      fund, without regard to the purpose or source of
     each tax.     And the Legislature    may pass local laws
      for the maintenance of the public roads and high-
     ways, without the local notice required for special
     or local laws.      This Section shall not be construed
      as a limitation    of powers delegated to counties,
     cities   or towns by any other Section or Sections
     of this Constitution.”
           Your questions are particularly     concerned with those
provisions  relating  to the maintenance or road and bridge tax.
Pursuant to Article   8, Section 9 of the Constitution,    the Legis-
lature enacted Article   6790, Vernon’s Civil Statutes,    which pro-
vides the procedure to determine whether such maintenance or road
tax shall be levied.    Article  6790 states:’
             “The commissioners court shall order an
      election   upon presentation    to it at any regular
      session of a petition     signed by two hundred      _
      qualified   voters and property tax payers of
      the county, or a petition      of fifty persons so


                                  -6096-
Hon.   Joe Carroll,   page 4            (M-1245)’


         ualified in any political      subdivision or de-
       8 i&d district     of the county, requesting said
       court to order an election to determine whether
       said court shall levy upon the property within
       said territory     a road tax not to exceed fifteen
       cents on the one hundred dollars worth of property,
       under the provisions of the amendmentof 1889 to
       ;FLz;;stitution      of the State of Texas, adopted
                    Said court may act on such petition
       without’notice,     and may make an order for such
       election     fixing the amount to be levied, not to
       exceed fifteen cents on the one hundred dollars,
       the election to take place at any time thereafter,
       not less than twent nor more than ninety days
       from the date of maz ing the order thare,for.       Upon
       a petition signed by a majority of the qualified         .
       tax paying voters of any portion of any county
       or of any political     subdivision of any county, to
       said court requesting that such portion of said
       county or political     subdivision shall be created
       as a defined district,      the said court shall de-
       clare such territory      a defined district   and spread
       the order for same upon the minutes of said court;
       provided the petition aforesaid shall define by
       metes and bounds the territory        desired to be so
        incorporated in such defined district.”
           It is the settled law of this State that commissioners
courts are courts of limited jurisdiction,   having only such power
duties and authority as the Constitution or Legislature may con-
fer *upon them.  In the absence of such conferred authority or
power, the commissioners court has none. El Paso v. Elam, 106
S.W.Zd 393 Tex.Civ.App. 1937); Howard v, Renderson County 116
S.W.Zd 479 tTex.Civ.App. 1938).   Article 6790 authorizes t+e com-
m+sioners court to hold an election to determine whether the
court shall levy a road tax on ,the property within the count
or the political  subidvision requesting the election.   No ot Ket
procedure may be used to determine whether a maintenance tax
will be levied and the amount of the tax not to exceed fifteen
cents (154) on the one hundred dollars ($100) valuation.    You
are adivsed that the Bell County Commissioners Court does not
have the power at the present time to combine the various
maintenance tax funds, and its action in doing so would be void.
                            SUMMARY

             The Commissioners Court of Bell County does

                                      -6097-
Hon. Joe Carroll,     ~page 5       (M-1245)


     not have the power to cause substantial     compliance
     with the election statutes by making the maintenance
     fund, one fund, to be collected     and spent countywide
     without regard to precinct   lines.




Prepared by Linda Neeley
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
               .
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
John Reeves
Gordon Cass
Bob Davis
Gerald Ivey
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFREDWALKER
Executive Assistant
NOLAWHITE
First Assistant




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