           THEATI-ORNEY                GENERAL
                        OF     TEXAS



                       March   16, 1961

Mr. R. L. Templeton      Opinion No. Wd-1009
County Attorney
Collingsworth County     Re:    Legality of an election levy-
Wellington, Texas               ing a 30 cent ad valorem tax,
                                when the notice provided for
                                the tax to be levied for the
                                years, 1957, 1958, 1959 and
                                1960, while the proposition
                                voted on was not restricted as
                                to certain years, and related
Dear Mr. Templeton:             questions.
     Thank you for your recent letter concerning an election
held In Collingsworth County on April 2, 1957, as provided
for in Section 7 of Article 7048a of Vernon's Civil Statutes.
You advise that the Commissioners Court called the election
so that the qualified voters could pass on the proposition'
as follows:
                       "PROPOSITION
    "To determine whether or not said County shall
     be authorized to levy, assess, and collect ad
     valorem taxes upon all taxable property with-
     in said County for the years of 1957, 1958,
     1959 and 1960, except the first $3,000.00 valua-
     tion of residential homesteads, not to exceed 30
     cents on each $100.00 valuation in addition to
     all other ad valorem taxes authorized by the Con-
     stitution of the State of Texas, provided the
     revenue therefrom shall be used for the construc-
     tion and maintenance of farm-to-market and lateral
     roads as provided in House Bill No. 107, Acts 51st
     Legislature, Regular Session, 1949."
     Your letter reflects that the wording appearing on the
ballots which were used in the election was as follows:
    "FOR THE TAX OF NO? EXCEEDING 30 CENTS ON EACH
     ONE HUNDRED DOLLARS (100.00) VALUATION"
Mr. R. L. Templeton, Page 2 (WW-1009)


    "AGAINST THE TAX OF NOT EXCEEDING 30 CENTS ON
     EACH ONE HUNDRED DOLLARS ($lOO.OO] VALUATION"
     Your letter further reflects that the tax carried by
a vote of 655 votes to 338 votes. In connection with the
election, you asked the following questions, which we have
taken the liberty of rephrasing:
     1.   May the duration of the ad valorem tax in
          question be limited to a specific number
          of years?
     2.   Did the fact that the ballots failed to
          show that the tax was only for the years
          1957,1958,1959 and 1960, invalidate the
          election?

     3.   Can the tax in question be collected for
          196.1
              without another election?
     Section 7 of Article 7048a of Vernon's Civil Statutes
reads as follows:
         "Before any county shall levy, assess and
    collect the tax provided for herein the question
    shall by the Commissioners Court of the county
    be submitted to a vote of the qualified property
    taxpaying voters of such county at an election
    called for that purpose, either on said Commis-
    sioners Court's own motion, or upon petition of
    ten per cent (10%) of the qualified property
    taxpaying voters of said county as shown by the
    returns of the last general election. Said
    election shall be ordered at a regular session
    of said Commissioners Court and such order shallows
    specify the rate of tax to be voted on, not to
    exceed thirty cents (304) on each One Hundred
    Dollars ($100) valuation of taxable property with-
    in such county, shall state the date when said
    election shall be held, and shall appoint officers
    to hold said election in accordance with the elec-
    tion laws of this State. Provided, however, that
    the proposition submitted to the qualified property
    taxpaying voters at said election may provide that
    the tax at a rate not to exceed thirty cents (30#)
    on each One Hundred Dollars ($100) valuation may be
.




    Mr.   R.   L.   Templeton, Page 3 (~-loog)~


           used for the construction and maintenance of
           Farm-to-Market and Lateral Roads or for Flood
           Control purposes, either,or both, as 'the Com-
           missioners Court may determine (In which event
           Ehe ballots shall have written or printed
           thereon, 'For the tax of not exceeding _
           cents on each vne Hunared Dollars (FlOuJ valua-
           tion,' and the contrary thereof, specifying the
           tax to be 'votedupon), or the proposition may
           Drovlde for a sneclfic maximum tax for Farm-to-
           ‘Marketand Lateral Roads purposes and a specific
           maximum tax for Flood Control purposes, the total
           of the two (2) specific maximum taxes not to ex-
           teed thlrt cents (304)on the One Hundred Dol-
           lars ($1007 valuation (In which event the ballots
           shall have written or printed thereon, 'For a
           Farm-to-Market and Lateral Roads tax of not ex-
           ceeding         cents and a Flood Control tax of
           not exceeding         cents, on the One Hundred
           Dollars- ($lOO)valuation,' and the contrary there-
           of, specifying the specific taxes to be voted upon).
           Provided, further, that elections may subsequently
           be called and held In the same manner for the pur-
           pose of changing the amount of the maximum tax with-
           in the limit of thirty cents (30d)on the One Hun-
           dred 'Dollars ($100) valuation, or for changing the
           amounts of the maximum specific tax voted for each
           purpose; provided, however, that such tax or taxes
           may not be reduced to an extent which would result
           In the Impairment of any bonds or warrants thereto-
           fore issued under the provisions of Section 10 of
           this Act." (Emphasis added)
         In connection with question number 1, by limiting the
    duration of the ad valorem tax in question the Commissioners
    Court of Collingsworth County used the power granted to it
    by Section 7 of Article 7048a In a limited way. We find
    nothing in the statute in question or In the Texas Constitution
    which makes this self-imposed restriction illegal. The effect
    of the four year limitation is the same as If the electorate
    had voted at the end of four years to repeal the tax. Section
    7 reserves ~to the electorate the right to reduce or repeal the
    tax in question, If such reduction or repeal does not impair
    any obligationin the form of bonds or warrants, as provided
Mr. R. L. Templeton, Page 4 (WW-1009)


for in Section 10, Article 7048a, or in the form of claims
arising out of the extension of the County's general credit
by the Commissioners Court for the purpose of constructing
and maintaining the farm-to-market and lateral roads in
question, San Antonio River Authority v. Shepperd, 157 Tex.
73, 299 S.W.2d 920 (1957).
     The underlined portion of Section 7 has a direct bear-
ing on this situation. Here the proposition did provide
that the tax at a rate not to exceed thirty cents (304) on
each One Hundred Dollars ($100) was to be used for the con-
struction and maintenance of farm-to-market roads, and
therefore the provision contained in the first parentheses
in Section 7 was applicable. Such wording did appear on
t;heballots used In the election. In view of the language
 . . . In which event the ballots shall have written there-
        II a strong argument could be made that the language
i: q&&n     is mandatory and that the ballots had to read as
thev In fact did read In order for the election to be valid.
Jones v. Threet, 117 S.W.2d 560 (WV. App. 1938). Even assum-
ing that it was not essential to the validity of the election
that the ballots contain the wording set out-in the statute,
it Is clear that it is not essential to the validity of an
election that the ballots contain the exact wordina of the
proposition passed upon by the Commissioners Court. In the
opinion in    nolds Land & Cattle Co. v. McCabe, 72 Tex. 57,
12 S.W. 165   WtS), it is said:
    ,I
         . . . When a statute which authorizes a special
         election for the imposition of a tax prescribes
         the form In which the question shall be submitted
         to the popular vote, we are of opinion that the
         statute should be strictly complied with; but if
         the form Is not prescribed, then we are of opinion
         that the language of the proposition submitted is
         not material, provided it substantially submits
         the question which the law authorizes with such
         definiteness and certainty that the voters are not
         misled. . . ."
     In England v. McCoy, 269 S.W.2d 813 ,(Clv.App. 1954, error
dlsm.), a ballot submitting the question Do you favor the pro-
posed charter?" was held to be sufficient to fairly Inform the
voters of the question submitted. In the En land case, su ra
the Court placed emphasis on the fact that+---
                                             e contents 0
                                                        .-ATlii
.   .




        Mr. R. L. Templeton, Page 5 (WW-1009)


        proposed charter had been publicized In the notice of the
        election. In the instant case, it seems obvious that no
        voter who previously read the Commissioners Court's order
        or the notice of the election, which was posted and pub-
        lished in compliance with Section 8 of Article 7048a of
        Vernon's Civil Statutes, could have been misled by the
        wording of the ballot. In our opinion, the wording used
        onthe ballots in question did not invalidate the elec-
        tion.
             In Section 7 it Is stated that before any county shall
        levy, assess and collect this ad valorem tax, the question
        shall be submitted to the qualified property taxpaying voters
        of such county at an election called for that purpose, either
        on the Commissioners Court's own motion, or upon petition of
        ten per cent (10%) of the qualified property taxpaying voters
        of such county. In the Instant case, the Commissioners
        Court's order calling the election was the authority upon
        which the election was based. Therefore, since such order
        concerned an ad valorem tax limited to four years duration,
        the .electoratecould vote only upon such limited tax. The
        fact that the ballots did not reflect such limitation did
        not have the effect of eliminating the limitation. Your
        first question is answered in the affirmative and questions
        2 and 3 are answered in the negative.

                              SUMMARY
             It was legal for the Commissioners Court of
             Colllngsworth County to limit the duration of
             the tax in question to the years of 1957-1960,
             inclusive, and the fact that the ballots used
             in the election failed to show the limited
             duration of the tax did not invalidate the
             election. Such tax should not be collected for
             1961 without another election as provided for
             in Section 7 of Article 7048a of Vernon's Civil
             Statutes.
                                        Yours very truly,
                                        WILL WILSON



                                        ,,wz-
                                        Attorney General of Texas



        JBM:mm                               Assistant
Mr. R. L. Templeton, Page 6 (WW-1009)



APPROVED:-
OPINION COMMITTEE
W. V. Geppert, Chairman
w. Ray scruggs
J. Arthur Sandlin
Iola B. Wilcox
REVIEWED FOR THE ATTORNEY GENERAL
BY:   Morgan Nesbitt
