i



               THE     ATTORNEY         GENERAL
                          OF TEXAS

                            December23, 1987



    Honorable  Ii. Tati Santiesteban         Opinion   No.   m-836
    Chairman
    Natural Resources    Committee           Re:    Whether taxes on a
    Texas State Senate                       defined area     or  desig-
    P. 0. Box 12068                          nated   property    to  pay
    Austin, Texas      78711                 for improvements    are, by
                                             their nature, authorized
                                             by article    XVI, section
                                             59, of the Texas Consti-
                                             tution    (RQ-1245)

    Dear   Senator   Santiesteban:

          You ask our     opinion about      the constitutionality       of
    House Bill No. 2571, Acts 1987,          70th Legislature,     chapter
    600, at 4700, which authorizes        municipal   utility districts
    operating   under    chapter 54     of the   Water    Code to     issue
    "defined area     bonds" to    provide     for facilities      serving
    only a defined area or designated         real property within the
    district.    You note that the legislation         requires that the
    bonds be approved      by voters     within the     defined area     or
    designated   property,     and that    &       property   within    the
    area is to    be subject     to an    ad valorem     tax to pay     the
    interest and principal      due on the bonds issued         to pay for
    improvements.      (The property     within the defined       area, of
    course,    remains    subject    to   taxes    levied    to   pay   for
    improvements     benefitting     the     entire    district.)       See
    generally   Water Code §§54.801-54.812.

          Specifically,    you ask   whether taxes     levied &        on
    certain property within a district to repay           bonds issued
    to finance     improvements    benefitting   &      that    property
    are, by    their nature,    "equally    distributed"    within    the
    meaning of article XVI,      section 59, of      the constitution.
    We conclude     that such   taxes are     equally distributed      as
    required by the constitution.

          In Dallas Countv Levee District No. 2 v. Loonev        207
    S.W. 310 (Tex. 1918), the Supreme Court provided what'must
    be considered  a classic    explanation   of the nature  of the
    "equal distribution"   requirement     of article XVI,  section
    59:



                                 p. 4023
Honorable    H. Tati          Santiesteban    - Page   2   LM-836)




              The declaration     [in article XVI,     section
          591 that the     taxes shall     be 'equally     dis-
          tributed'   simply    means    that they    must   be
          fairly proportioned      according   to benefit    to
          the property taxed. . . .          In a word,    they
          must fairly     represent     the benefit    to   the
          property.   . . .

              The measure of     benefit that will      accrue
          to property    from a    local improvement    is   at
          best an approximation,      and hence there is no
          general principal     of constitutional     law that
          in the imposition     of   such taxes limits      the
          legislative   power    to   the exact    amount    of
          pecuniary    benefit      which   the    particular
          property   derives.    While    in some    instances
          the benefit     may   be   generally    distributed
          throughout   the district,     in others it may be
          more confined.     . . .

              .   .   .   .

          The effect    of   [article   XVI,  section    591
          simply is that [a tax] shall be justly        laid
          in fair proportion    to the benefit.     If it is
          so   proportioned,    then   there  can    be   no
          question but that an 'equal distribution'       of
          the taxes    will be   accomplished   within   the
          full meaning of the term.

207   S.W.   at 312-13.

      All that House Bill No.       2571 does, then, is      to make
plain a constitutional     principal    which has     long governed
the execution   by a district    of its constitutional      mandate.
Accordingly,   House Bill No.     2571,   Acts  1987,   70th  Legis-
lature, chapter     600,  at    4700  and   Water    Code   sections
54.801-54.812,   provides   for   the equal     distribution    of   a
defined area    or designated    property     tax   as required    by
article XVI. section 59, of the Texas Constitution.




      .                                         JIM      MATTOX
                                                Attorney  General    of Texas




                                    p. 4024
Honorable    H. Tati     Santiesteban     - Page   3   UM-836)




MARYKELLeR
Executive    Assistant     Attorney     General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney           General

RICK GILPIN
Chairman,  Opinion       Committee

Prepared by Karen C. Gladney
Assistant Attorney General




                              p. 4025
