Honorable Jack Fields~                 Opinion No. C-319
County Attorney
Calhoun County                         Re:      Construction  of Article
Port Lavaca, Texas                              4477-2, V.C.S.,  relating
                                                to,the levying of a tax
Dear Mr. Fields:                                for mosquito control.
          Your request   for an opinion       poses   the following   ques-
tions :
                       "In checking the petition    flor the call-
          ing oi'an election      pursuant to ArtiFle 4477-27
          to determine the qualification       of the individual
          petitioners,    shall those who are not qualified      as
          y;;;;r;ty    tax paying voters be stricken, from the

                2.   “. . . is it mandatory on the Commis-
          sioners Court or the County Judge, if there'are
          200 qualified   petitioners,    that an election,be
          submitted to the voters,     even if no funds are sub-
          ject to allocation     under the 804 tax rate, with-
          out an increase of real property valuations?"
               3. n 6 . . if the election is submitted and
          is passed by a majority vote, is it mandatory that
          the Court appoint‘a  five-man commission, a mos-
          quito control engineer and special employes neces-
          sary for mosquito eradication,  or may~itdesignate
          the county health off.icer and the employees of the
          State Health Department or of the County hgricul-
          tural Department?"
                             is the opinion of 1950 No. 1116,
          by thz'deiartment   as rendered prior’ to ihe 1961
          amendatory act, still   an approved ruling as to
          whether the 25# per One Hundred Dollar valuation
          is to be a reallocation   of the 804 maximum tax
          rate under the Constitution,    or can-an additional
          tax above the 804 maximumbe levied to supply the
          necessary funds for mosquito extermination?"'



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Hon. Jack Fields,   page 2 (C-319)


             5. “. . , in view of the fact      that the
       marshes of our adjacent counties      (Aransas,
       Refugio, Victoria,    Jackson and Matagorda),
       which now have no mosquito control districts
       with which a Calhoun County District       could
       merge, although a study of the mosquito in-
       festation   indicates  that no effective    or suc-
       cessful   control can be achieved ~by a single
       county acting alone because the varying winds
       of each county transport mosquitoes from one to
       the other.     On such a finding of fact, can the
       Court in submitting the election      provide a con-
       dition that no tax will be levied unless like
       districts   are created in the adjoining counties
       and like taxes levied therein,     since our county
       can not expend funds to control the breeding
       grounds in adjacent counties?”
             6. ”         if increased valuations   are
       re uired to’makd available    the funds out :of the
       803 constitutional   levy, can a blanket percent-
       age increase be applied to all tax renditions
       or must each rendition    in the county be separate-
       ly considered with due notice of an increase to
       each person on the tax roll?”
             7. I’...      is there a possibility   that, if
        a rate increase is required to finance this dis-            ;
        trict,  can a county which does not levy the full
        30# flood control    tax, increase that levy for the
        purpose of mosquito control because it is flood
        water that produces mosquitoes?”
         Sections 1, 2 and 3 of Article    4477-2,   Vernon’s   Civil
Statutes,   provide:
               “Section 1.   In all counties of this State,
        the Commissioners Court may call an election       within
        sixty (60) days after the effective      date of this
        Act, and at subsequent elections      when called by the
        County Judge upon his being petitioned      by two hun-
        dred (200) qualified     voters to call such election    to
        determine if the qualified      voters of such county de-
        sire the establishment      of a Mosquito Control District
        to embrace all or a portion of the territory       within
        said county, for the purpose of eradicating       mosqui-
        toes in said area.      The form of the ballot   shall be
        as follows:
               “FOR the establi~shment of a Mosquito Control
        District    in               County.
                                 -1523-
      .




Hon. Jack Fields,      page 3 (C-319)


                "AGAINST the establishment     of a Mosquito
          Control District  in                  County.
                "Sec. 2. The Commissioners Court in each
          County   governed by the provisions      of this Act
          may call an election      within sixtyt(60)    days
          after the effective      date of this Act and at sub-
          sequent elections     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#) on each one hundred dol-
          lar tax valuation     to finance the program provid-
          ed in this Act.      The form of the ballot     shall
          be as follows:
               "FOR the levy of a tax of               cents on
          each one hundred dollar tax valm             to finance
          the Mosquito Control District  within
          County.
                "AGAINST the levy of a tax of
          cents on each one hundred dollar tax valuation
          to finance the Mosquito Control District  within
                             county.

                "Sec. 3. The elections   provided in Section
          1 and Section 2 shall be combined. in one election;
          provided,   however, that only qualified   property
          taxpaying voters shall be authorized     to vote to
          create such district   and on the question of a tax
          levy as provided in Section 2."
        It is noted that the petition.provided      for in Sections 1
and 2 may be signed by any qualified      voter of the County as dis-
tinguished from the qualification     contained in Section 3 which
limits those eligible    to vote at such an election    to qualified
property taxpaying voters.      In answer to your first   question,  you
are advised that the phrase "200 qualified      voters" contained in
Sections 1 and 2 is not limited to property taxpaying voters-,
but includes all qualified    voters of the county.     Therefore,
those qualified   voters who are not property taxpaying voters may
not be stricken   from the petition.
          In view of the provisions   of Sections 1 and 2 of Article
4477-2,    it is mandatory.that   the County Judge call the election


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Hon. Jack Fields,       page 4,,(C-319)


provided for therein' if he is petitioned      by 200 qualified    voters
of the county whether funds are subject to allocationunder
the 80# constitutional    limit or not for the reason-that       such an
election  is a prerequisite    to the authority     of the Commissioners
Court to create such Mosquito Control District         or to levy the
tax provlded therein.     In this connection,     it is noted that Se?-
tion 9 of.hrticle    VIII of the Constitut.ion,ofTexas      provides in
part:
              II
                . . . Once the Court has levied the annual
        tax rate, the same shall remaln,in force and ef-
        fect during that taxable year; . . ."
       While the above-quoted constitutional        provision   specifl-
tally requires that the annual tax rate levied by,the Commissioners
Court shall ,remain in force and effect     during that taxable year,
it does not preclude the Commissioners Court from making a dir-
ferent allocation    of the 804 constitutional    limit for a subsequent
tax year.    Thus, if taxes 'of subsequent years are to be levied
for mosquito control and the necessary allocation         of constitution-
al funds be made, prior authorization      by the property, taxpaying
voters of'the   county to levy such a tax'is     a prerequisite.     .* ',

        Sections       5 and 6 of Article     4477-2 provide:
               “Sec.  5.   There shall be appointed by the
        Commissioners Court in each county in which a
        Mosquito Control District      is creaked, an hd-
        visory Commission composed of five (5) members
        who shall be qualified     property taxpaying voters.
        of the county.      Each Commissioner of the Commis-
        sioners Court and the County Judge shall appoint
        one (1) member of the Advisory Commlssion.        %%i=
        hers of th C mmi i          hall          ithout com-
        pensation.e     Tge A%%-~     Comm~~F~ :hall make
        recommendations to the Commissioners Court as it
        deems are necessary to carry out the provisions
        of this Act and shall perform such other duties
        as the Commissioners Court may determine.        Each
        member of the Commission shall take an oath of
        office   prescribed   by the Commissioners Court.       .
        The Commissioners Court shall have the power to
        remove any member of the Advisory Commission
        at any time it deems necessary."        (Emphasis added).
               “Sec.   The Commissioners Court in each
                         6.
        countv which has established  a Mosauito Control
        District is hereby authorized to aGpoint a Mos-
        quito Control Engineer who shall be well qualified
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Hon. Jack Fields,     Page 5 (C-%9)


        in the field of mosquito control and who
        shall serve at a salary to be determined by
        the Commissioners Court in such county.        The
        powers and duties of the Mosquito Control
        Engineer shall be under the supervision      of
        the Commissioners Court.     The Engineer shall
        make recommendations to the Commissioners
        Court as to the number of assistants      and em-
        ployees as may be needed, and the Commis-
        sioners Court shall appoint such assistants
        and employees as it deems necessary for
        mosquito eradication    in said District.    The
        Engineer shall also make biannual reports to
        the Commissioners Court or as many reports
        as requested by the Court relative      to the
        work of mosquito eradication,     and of the ex-
        penses needed for the ensuing year.       The first
        report shall be made not later than June 30th
        subsequent to the establishmentof       the Mosquito
        Control District,    and the second report shall
        be made not later ‘than December 31st following
        the first   report."  (Emphasis added).
         A study of the provisions      of Section 5 reveals that the
Commissioners Court is required,to        appoint an Advisory Commis-
sion under the mandatory language of Section 5.            Section 6,
however, merely authorizes        the Commissioners Court ,to appoint
a mosquito control      engineer and leaves..to   the discretion    of
the Commissioners Court the determination         of the number of em-
ployees~,&o be appointed that the Commissioners Court deems neces-
sary for mosquito eradication.         In view of the foregoing,      you
are advised in answer to your third question that if a mosquito
control    district   is created,   pursuant: to the provisions    of hrti-
c’le 4477-2, Vernon’s~ Civil ,Statutes,      the provisions    of Section 5
of Article     4477-2 are mandatory and the Commissioners Court is
required to appoint an Advisory Commission as provided for there-
in.    The provisions    of Section 6 of Article    4477-2, Vernon's
Civil'Statutes,      are not mandatory and the Commissioners Court is
not required to appoint a mosquito control engineer or employ
other assistants      and employees for mosquito eradication.         On the
contrary,     such matters are left to the discretion       of the Commis-.
sioners Court.       There is no provision,    however, authorizing     the
Commissioners Court to designate some other officer            to carry
out the powers and duties of a mosquito control engineer.
        In Attorney    General's   Opinion v-1116   (1950),   this   office
held:



                                   -1526-
Hon. Jack Fields,      page 6 (C-319)


              "In view of the foreaoing authorities,
       you are advised in answer to your second
       question that the tax lev        authorized by Sec-
       tions 2 and 4 of Article      51
                                      477-2 is not in
       addition   to the constitutional      limitation
       fixed by Section 9, Article       VIII of the Con-
       stitution.
              "In answer to your third question, it
       is our opinion that the cost of operating a
       Mosquito Control District   created for public
       health purposes of the county,must be paid
       ou;6;f(;;;8kekeral   fund.  Att y. Gen. Op.

       In   Attorney    General's   Opinion    c-316        (1964),     it   was held:
             "The. changes to Article    4477-2, Vernon's
       Civil Statutes,   provided in the 1961 amend-
       ment, made the provisions     of the Act appli-
       cable toall   counties of the State rather than
       to the counties of the State which border on
       the Gulf of'Mexico,    and raised the authorized
       levy from not to exceed five cents on each
       $100.00 valuation,    to an authorization    of a
       levy not to exceed twenty-five      cents on each
       $100.00 valuation.     Therefore,   the 1961 amend-
       mend did not affect    the conclusions    reached in
       Attorney General's Opinion v-1116.
              "In view of the foregoing,   we agree with
        your conclusion   that Harris County is author-
        ized to expend county funds for mosquito~con-
        trol;  however, the levy of taxes for such pur-
        pose must be a part of the 804 constitutional
        limit prescribed    In Section 9 of Article   VIII
        of the Constitution    of Texas.  In order to cre-
        ate a mosquito control district    with the power
        to levy taxes over and above the constitutional
        limit prescribed    in Section 9 of Article   VIII
        of the Constitution    of Texas, a constitutional
        amendment would be necessary."
         In answer to your fourth question,   the conclusions  reach-
ed in Attorney General’s   Opinion v-1116 (1950) are equally
applicable   to the 1961 amendatory act.    Attorney General's Opin-
ion c-316 (1964).
        In answer to your fifth         ques,tiori,    Article        4477-2 prescribes

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                                                                                   0.
        I     .   .
                                           .   .,,a




Hon. Jack Fields,         page 7 (C-319)


the form of the ballot and the Commissioners Court is not au-
thorized  to change the wording that is to appear on the ballot.
It is to be noted, however, that this election   is for the pur-
pose of granting authorization   to the Commissioners Court and
d,oes not in and of itself  levy a tax for such a purpose, but
merely grant.s the Commissioners Court the authority to levy such
tax.,
             In answer tc a si.rilar question as that posed in your
sixth       question, it was held ins Attorney General's Opinion O-&885:
                    "The Commissioners' Court as such, has no
             authority,    as you correctly   state,   to instruct
             the Tax Assessor to assess all property 5% high-
             er than rendered by a blanket increase of 5$,
             or at any other valuation..      Indeed, there is no
             tionstitutional   or statutory   authority authoriz-
             ing the Commissioners'      Court to give any instruc-
             tions to the Tax Assessor by blanket order or
             otherwise to raise or lower valuations.
                   "If the rendition   fixed by the taxpayer, or
            by the Assessor,   where, under the conditions      pre-
             scribed by statute,    the Assessor is ,authorized
             to fix the value and make the assessment, it is
             proposed by the Board of Equalization      to raise the
             value of such rendition     and assessment, it can
            ,only be done after due notice      to the taxpayer or
             property owner as provided in Section 5 of Arti-
             cle 7206 noted above."
             Likewise,   it   was, held in Attorney   General's   Opinion V-194
(1947) :
                    "The Cotiissioners'  Court {Board of Equali-
             zation) has the power to raise property valu-
             ation for taxation without its jurisdiction     beings
             first   invoked by the .Tax Assessor.   It may act
             upon.its    own initiatiue.  If the valuation is in-'           '
             creaseri, however, n&ice must be given to the tax-
             payer.
        In view cf the foregoing,    you are advised in answer to
your sixth question that a blanket percentage increase to be
applied to all tax renditions     is not authdrized; however, the
Commissioners Court has the power to raise property.valuation
for taxation on its own initiative.     If valuation is increased,
however, notice must be given to the taxpayer.


                                      -1528-
Hon. Jack Fields,   page 8 (C-319)


        In answer to your seventh question, you are advised that
the cost of operating a mosquito control district  created for
public health purposes of the county must be paid out of the
 eneral fund.   Attorney General's Opinions v-567 (1948), v-1116
 1950) *


              If petitioned    by 200 qualified    voters of
        the county pursuant to Sections 1 and 2 of Arti-
        cle 4477-2, Vernon's Civil St.atutes, the county
        judge Is required to call an election         for the
        purpose of creating     a mosquito control district
        and'authorizing     the levying of a-tax for mosquito
        control.    Any tax levied for mosquito c,ontrol must
        be within the 80# constitutional        limit provided
        for in Section 9 of Article     VIII of the Constitu-
        tion of Texas.
                                     Yours very truly,
                                     WAGGONER CARR
                                     Attorney General



                                         John Reeves
                                         Assistant
JT:bk:dl:ms
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Ivan Williams
Brady Coleman
Bob Richards
APPROVEDFOR THEATTORIVEY
                       GENERAL
By: Roger Tyler




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