Honorable Gib Lewis                Opinion No. JM-835
Speaker
Texas House of Representatives     Re: Whether section 26.08
P. 0. Box 2910                     of the Tax Code, which
Austin, Texas 78769                permits a tax rate roll-
                                   back election to     limit
                                   school taxes, is unconsti-
                                   tutional (RQ-1286)

Dear Speaker Lewis:

     Section 26.08 of the Tax Code provides that if the
governing body of a school district adopts a tax rate that
exceeds the so-called   "effective tax rate" calculated
pursuant to either section 26.04 or section 26.042 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 l'effective rate" by no more than eight
percent. See Attorney    General Opinions JM-792    (1987);
JM-574 (1986). Section 26.085 of the Tax Code permits     a
tax rate rollback election, limiting the percentage of the
total tax levy of a school district dedicated      by the
governing body of the school district to a junior college
district under section 20.48(e) of the Education Code.

     In Attorney General Opinion JM-792, we concluded that
section 26.07 of the Tax Code, which authorizes such a tax
rate rollback election for taxing units other than school
districts, is unconstitutional  insofar as it applies   to
counties.  you ask whether sections 26.08 and 26.085 of
the Tax Code likewise are unconstitutional.   We conclude
that they are not.

     Section 26.08 of the Tax Code sets forth the       follow-
ing relevant provisions:

          (a) If the governing   body of a school
       district adopts a rate that exceeds the rate
       calculated as provided by Section 26.04 of



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Honorable Gib Lewis - Page 2   (m-835)




      this code by more than eight percent,    the
      qualified voters of the district by petition
      may require that an election be held to                ?
      determine whether or not to limit the tax
      rate the governing  body may adopt for the
      following year. . . .

          .   .   .   .

          (e) If a majority of the qualified voters
      voting on the question in the election favor
      the proposition, the governing body may not
      adopt a tax rate in the following year that
      exceeds the rate calculated as provided     by
      Section 26.04 of this code for that year by
      more than eight percent,     except than in
      making the calculation under Subsection    Cd)
      of Section 26.04 of this code, the assessor
      shall use the amount of taxes determined    as
      provided by Subsection (c) of Section   26.04
      of this code in the year in which the tax
      increase th~at initiated the       referendum
      occurred rather than the year in which    the
      calculation occurs.                                    ?

          (f) For purposes of this section,   local
       tax funds dedicated   to a junior college
       district under    Section 20.48(e),    Texas
       Education Code, shall be eliminated from the
       calculation of the tax rate adopted by the
       governing body of the school district.  How-
       ever, the funds dedicated    to the junior
       college district are subject to Section
       26.085 of this code.

     Section 26.085 of the Tax Code contains the following
relevant provisions:

           (a) If the percentage of the total tax
       levy of a school district dedicated by the
       governing body of the school district to a
       junior college    district   under   Section
       20.48(e), Texas Education Code, exceeds the
       percentage of the total tax levy of the
       school district   for the preceding      year
                                                             ?
       dedicated to the junior college district
       under that section, the qualified voters   of
       the school district by petition may require
       that an election be held to        determine
                                                             ?
       whether to limit the percentage of the total




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        Honorable Gib Lewis - Page 3     UM-835)



               tax levy dedicated   to the junior college
               district to the same percentage as the per-
               centage of the preceding   yearts total tax
               levy dedicated    to the    junior   college
               district.

                  .   .   .   .

                   (e) If a majority of the qualified voters
               voting on the question in the election favor
               the proposition, the percentage of the total
               tax levy of the school district for the year
               to which the election applies dedicated    to
               the junior college district    is reduced to
               the same percentage   of the total tax levy
               that was dedicated to the junior college
               district by the school district in the pre-
               ceding year. . . .

             In Attorney    General    Opinion JM-792   (1987),    we
        concluded that section 26.07 of the Tax Code, which
        authorizes a tax rate rollback election under certain
        circumstances  for    taxing    units other    than    school
P       districts, is unconstitutional    insofar as it applies    to
        counties. We based our decision upon specific language in
        article VIII,    sections    l-a   and 9,    of the     Texas
        Constitution   that    confers    explicit   authority     on
        commissioners courts to set tax rates and levy ad valorem
        taxes upon property in the counties.

             Article VIII, section l-a, of the Texas      Constitution
        contains the following relevant language:

               Prom and after January 1, 1951, the    several
               counties of the State are authorized to levv
               ad valorem ws       unon all arovertv within
               their resvective      boundaries  for   countv
               purnoses . . . not to exceed thirtv cents
               (30C) on each One Hundred      Dollars   ($100)
               valuation,    in addition to all other ad
               valorem taxes   authorized bv 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
p
    .          provided.

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




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Honorable Gib Lewis - Page 4   (JM-835)




       [N]o county, city or town shall levy a E;t
       rate in excess of Eighty Cents (SOC) on
       One Hundred Dollars ($100) valuation in any
       one (1) year for general     fund, perman;;:
       improvement fund, road and bridge fund
       jury fund purposes: provided further that at
       the time the Commissioners    Court meets to
        ew the annual tax rate for each countv     it
       -1    lew whatever tax rate mav be needed
       for the four (4) constitutional     Durnoses;
       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 (8OC) on
       the One Hundred Dollars ($100) valuation    in
       any one (1) year.   (Emphasis added.)

     We concluded that both provisions confer    authority,
not on the voters, but on the commissioners court, and the
legislature by statute cannot remove governmental      power
conferred by the constitution.    Tex. Const. art. V, 518.
Se aenereJJy   BBgerson v. Wood,    152 S.W.2d  1084   (Tex.
19L) ; Dodson v. Marshall, 118 S.W.2d 621 (Tex. Civ. APP.
- Waco 1938, writ dism'd).    Because the legislature   does
not have the power to enact any law contrary           to a
provision of the constitution,     Citv of   ort Worth v.
Howerton, 236 S.W.2d 615 (Tex. 1951), we zoncluded      that
section 26.07 of the Tax Code is unconstitutional    insofar
as it applies to counties.

     In answering your question,  the first issue that we
must address   is whether the relevant      constitutional
provisions governing school districts  confer the sort of
authority on the school districts' trustees that sections
l-a and 9 of article VIII confer on county commissioners
courts.

     Article VII, section 1,       of the   Texas   Constitution
sets forth the following:

       Section 1. A general diffusion of knowledge
       being essential to the preservation of the
       liberties and rights of the people, it shall
       be the dutv of the leaislature of the State
       to establish and make suitable nrovision for
       the suuvort and maintenance of an efficient
       svstem  of DubliC free schools.     (Emphasis
       added.)



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    Honorable Gib Lewis - Page 5     Of-835)




    Article VII, section 3, of the Texas Constitution     contains
    the following language:


                                    *   .
           of taxes in all said districts and for the
           Iggnaaement and control of the nublic      school
           or schools of such districts, whether        such
           districts are composed of territory       wholly
           within a county or in parts of two or more
           counties, and the Legislature may authorize
           an additional ad valorem tax to be levied
           and collected within all school districts
           heretofore formed or hereafter formed,        for
           the further maintenance      of public       free
           schools, and for the erection and equipment
           of school buildings therein: provided that a
           majority of the qualified property taxpaying
           voters of the district voting at an election
           to be held for that purpose, shall vote such
           tax not to exceed in any one year one
            ($1.00) dollar on the one hundred dollars
           valuation   of    the property     subject     to
           taxation    in    such   district,     but    the
           limitation   upon    the amount     of     school
           district tax herein authorized       shall not
           apply to incorporated       cities or       towns
           constituting separate and independent school
           districts,   nor to independent      or common
           school districts     created by general        or
           special law.

         The underscored language of article VII, section      3
    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
    Indenendent School District,    34 S.W.2d 837 (Tex. 1931):
    Desdemona Indeoendent School District v. Howard, 34 S.W.Zd
    840 (Tex. 1931); Cain v. Lumsden, 204 S.W. 115 (Tex. Civ.
    App. - Amarillo    1918, no writ).     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.

         It has been suggested     that article VII, section 3-b
    of the Texas Constitution      confers upon school trustees




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Honorable Gib Lewis - Page 6          (JM-835)

                                                                      ?


authority which cannot be circumscribed          by section   26.08
of the Tax Code. We disagree.
                                                                      ?
     Article VII, section 3-b,         of the Texas   Constitution
provides the following:

          Sec. 3-b. No tax for the maintenance        of
       public free schools voted in any independent
       school district       and   no tax     for    the
       maintenance of a junior college voted by a
       junior college district, nor any bonds voted
       in any such district, but unissued, shall be
       abrogated,    cancelled        invalidated     by
       change of any        kind Ti the      boundaries
       thereof. After any change       in boundaries,
       the governing    body of any such district,
       without   the necessity     of an     additional
       election, shall have the power to assess,
       levy and collect ad valorem taxes on all
       taxable property within the boundaries         of
       the district      as    changed, . . . in     the
       amount, at the rate, or not to exceed the
       rate, and in the manner authorized in the
       district prior to the change in its bound-                     1
       aries, and further in accordance with the
       laws    under    which     all   such      bonds,
       respectively, were voted. . . .

     By its very terms, article VII, section 3-b, applies
only in those instances in which there has been a change
in a school district's boundaries.     The amendment,   as
originally adopted in 1962, was intended to validate bonds
issued by school districts      in Dallas County     whose
boundaries had been changed. Acts 1961, 57th Leg., S.J.R.
No. 6, at 1301. Section 3-b was amended in 1966 to apply
to all counties and to include specifically         junior
colleges. Acts 1965, 59th Leg., H.J.R. No. 65, at 2230.

     In the only supreme court case construing      article
VII, section 3-b, the Texas Supreme Court declared:

       This constitutional provision  was added   in
       1966 to eliminate the need for new voter
       approval of bonds and taxes when authorized
       changes are made in the boundaries of school                   ?
       districts.    Once    taxation   h       b
       authorized. a chancre in the school dyzn
       trict's
       power to tax.




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    Honorable Gib Lewis - Page 7    (JM-835)




              . . . .

P              Article VII,     section 3-b    authorizes
           independent    school districts   to tax for
           school purposes in those instances in which
           the subject district was formed wholly by
           disannexation from an existing     independent
           school district that possessed the power to
           tax.    (Emphasis added.)
              . .
    Fr                               001 Di   ic        naes, 677
    S.z?2d y88 at 490 (Tex. li84).      In other words,   article
    VII, section 3-b, authorizes taxation without the holding
    of an election to authorize    such taxation as required   by
    article VII, section 1, in those instances in which taxa-
    tion has alreadv been authorized by the requisite      number
    of voters.   It does not transfer to school districts     any
    power conferred    upon the legislature    by article VII,
    section 3. We conclude that section 26.08 of the Tax Code
    is not inconsistent with article VII, sections 3 and 3-b,
    of the Texas Constitution.

         It is also urged that section 26.08 of the Tax Code
P   unconstitutionally 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.
    It is urged that section 26.08 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 taxing units to adopt a tax rate.
    We now turn to these constitutional provisions.

         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. fI1 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
    delegated  by that department     to any other body       or
    authority.  *
                Te s a 'o                                Mccraw,
    126 S.W.2d 627 (Tex. 1939); Brown v. Humble Oil h Refininq
    co., 83 S.W.2d 935     (Tex. 1935), r eh earina denied    87
    S.W.2d 1069 (Tex. 1935). The principle of non-delegition
    has certain   important qualifications.      See   aenerally
    Annot., "Permissible limits of delegation of legislative




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Honorable Gib Lewis - Page 8   (JM-835)




power," 79 L. Ed. 474  (1935). For example, the legisla-
ture may delegate   to municipalities   local 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 legis-
       lativs power, but rather as the grant of the
       authority to prescribe    local regulations,
       according to immemorial practice,    subject,
       of course, to the interposition       of the
       superior in cases of necessity.

Stoutenbauah v. l?ennic&, 129 U.S. 141 (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 County v. Martin, 471 S.W.2d 100 (Tex. Civ. App. -
Amarillo 1971, writ ref'd n.r.e.); Gerst v. Jefferson
Countv Savinas and I~$oanAss'n,  390 S.W.2d 318 (Tex. Civ.
APP. - Austin 1965, writ ref'd n.r.e.).        The rights,
duties, privileges, or obligations granted or imposed must
be definitely fixed or determined,   or the rules by which
they are to be fixed and determined must be clearly      and
definitely established, when the act is pass-d. &L      The
test is whether the legislature has prescribed   sufficient
standards to guide the discretion conferred.    commission-
ers Court of Lubbock Countv v. Martin,     sunra; Moodv v.
Citv of UnG'    itv.&?&, 278 S.W.Zd 912 (Tex. Civ. App.    -
Dallas 1955, writ ref'd n.r.e.).

     Section 26.09 clearly sets forth sufficient standards
                                                               ?
both with regard to the calling of an election and with
regard to the consequences if an election were successful:
whatever discretion is set forth in the section    relates
only to its execution.   Texas courts have upheld,   under
article VII, section 3, of the Texas Constitution,     the     ?




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Honorable Gib Lewis - Page 9    (JM-835)




authority of the legislature   to create school districts,
Frass v.-Darrouzett I.&l                 is ict, 277 S.W.
751 ITex. Civ. ADD. - Amarillo 1926, no writ): to chanae
their boundaries;-Tad      Citv of Houston,   i76 S.W. 419
(Tex. 1925); to enactV curative statutes      validating   a
                      vf o
district's existence, L           ee
V. illamar Indenendent School District, 34 S.W.2d 854
(Te:. 1931) ; and to delegate to boards of trustees      the
authority to maintain public schools.      Weaarael  County
Line Indeoendent School District v. Blewett, 278 S.W. 516
(Tex. Civ. App. - Fort Worth 1926), m,        285 S.W. 271
(Tex. 1926). We see no reason why the legislature     could
not also delegate to voters the authority to compel the
boards of trustees of school districts to reduce adopted
tax rates upon a successful rollback election.

     While the results of early Texas cases are inconsis-
tent, see, e.a., State     Swisher   17 Tex. 441 (1856) and
Stanfield v .    tate 18v.S.W. 577' (Tex. 1892), at least
since 1920, Texas &urts have upheld delegations of auth-
ority 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.     @S Trimmier v. Carlton,   296
S.W. 1070 (Tex. 1927); SDears,                           223
S.W. 166 (Tex. 1920); D  c e at'0 of
Aaencies Othe Than State Administrative Bodies, 16 Tex.
L. Rev. 494r (1937).      Analogously,   we conclude    that
sections   26.08    and 26.085    effect no    impermissible
delegation   of legislative    authority  in violation     of
article III, section 1, of the Texas Constitution.

     The prohibition   in article I, section 28, of the
suspension of laws unless it is done by the legislature is
frequently invoked when analyzing     delegations   of this
sort. See, e.a., Attorney General Opinion H-1080     (1977);
16 Tex. L. Rev. 494, sunra. It is urged that sections
26.08 and 26.085 of the Tax Code effectively         suspend
section 26.05, which authorizes the governing bodies      of
taxing units to adopt tax rates.     If sections 26.08 and
26.085   actually    provided   that   section    26.05   be
inapplicable in those taxing units in which a successful
rollback election occurred, perhaps an article I, section
28, argument could be made. But sections 26.08 and 26.085
do not so operate. The relevant provisions 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




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Honorable Gib Lewis - Page 10' (JM-835)




       ado&  a tax rate in the following year QI&
                         calculated as provided  by
       -          .         P-J  mor   t an   eiaht             -3
       percent. . . . *(&hasis   addzd.jh

Section 26.085 also contains the underscored     language.
Section 26.08 and 26.085 do not effect any suspension   of
the governing body‘s authority to adopt a tax rate; they
merely place a one-year ceiling or limitation on the rate
that a governing  body may adopt. The power to adopt a
rate is still reposed with the governing body of a taxing
unit, even in the event that a rollback       election  is
successful.  We conclude that sections 26.08 and 26.085 do
not violate article I, section 28.

                        SUMMARY
          Sections 26.08 and 26.085 of the Tax
       Code, which authorize ad valorem tax rate
       rollback elections for school taxes, are
       constitutional.




                                    L/ )rl.JGc
                                    Very truly yo   ,
                                                                ?
                                        n;,
                                    JIM     MATTOX
                                    Attorney General of Texas

MARYKELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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