                           September 22, 1987




Eonorable Robert W. Post              Opinion No.   .lM-792
County Attorney
Dewitt County                         Re: Whether sections l-a and 9 of
P. 0. Box 110                         article VIII of the Texas Consti-
Cuero, Texas 77594                    tution permit the application of
                                      section 26.07 of the Property Tax
                                      Code to county taxes

Dear Mr. Post:

     Section 26.07 of the Tax Code provides that, if the governing
body of a taxing unit other than a school district adopts a tax rate
that exceeds the so-called "effective tax rate" calculated pursuant to
section 26.04 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 "effective
rate" by only eight percent. See Attorney General Opinion .I&574
(1986). Generally, the total county tax ratelwill result from the tax
rates for three different property taxes.        See Attorney General
Opinion Ski-677(1987). Article VIII, sections 1-Gnd    9, of the Texas
Constitution impose a tax rate ceiling on each Individual rate and
provide that the total rate cannot exceed $1.25/$100 valuation. The
three individual taxes are: (1) the fund for farm-to-market/flood
control (lateral road fund), with a tax rate ceiling of $.30/$100
valuation (section l-a); (2) the general fund, the permanent
improvement fund, the road and bridge fund, and the jury fund, with a
tax rate ceiling of $.EO/$lOO valuation (section 9); and (3) the fund
for the further maintenance of public roads, with a rate ceiling of
$.lS/$lOO valuation (section 9).


     1
      We note that other statutory and constitutional provisions
permit counties to levy additional property taxes in certain
instances, e.g., for jails, courthouses, sea wall construction. fire
fighting, and other special purposes. This opinion is limited to a
discussion of only the two constitutional provisions about which you
inquire.




                                  p. 3746
Honorable Robert W. Post - Page 2   (.lM-792)




     You ask us the following question: "May section 26.07 of the
Property Tax Code be applied to county taxes in view of article VIII,
sections l-a and 9, of the Texas Constitution?" We understand you to
ask whether section 26.07 of the Tax Code as applied to county taxes
is constitutional. You construe article VIII, sections l-a and 9. of
the Texas Constitution as doing more than merely setting tax rate
ceilings; you construe both provisions as conferring affirmative
authority to county conrmissionercourts to levy whatever tax rates the
commissioners choose, subject to the tax rate ceilings set forth
therein. We agree; We conclude that, with respect to the county
taxes about which you inquire, section 26.07 of the Tax Code is
unconstitutional.

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

          From and after January 1. 1951, the several
          counties of the State are authorized to levy ad
          valorem taxes upon all property within their
          respective boundaries for county purposes . . .
          not to exceed thirty cents (30~) on each One
          Hundred Dollars ($100) valuation, in addition to
          all other ad' valorem taxes authorized by 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
          provided.

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

          [N]o county, city or town shall levy a tax rate in
          excess of Eighty Cents (80~) on the One Hundred
          Dollars ($100) valuation in any one (1) year for
          general fund, permanent improvement fund, road and
          bridge fund and jury fund purposes; provided
          further 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 fore-
          going tax levies does not exceed Eighty Cents
          (80~) on the One Rundred Dollars ($100) valuation
          in any one (1) year. (Emphasis added.)




                                p. 3747
Honorable Robert W. ?ost - Page 3     (J-M-792)




Both provisions confer authority, not on the voters, but on the
conrmissioners court, and the legislature by statute cannot remove
governmental power conferred by the constitution. Tex. Const. art. V,
518. See generally Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941);
Dodson v. Marshall, 118 S.W.2d 621 (Tex. Civ. App. - Waco 1938, writ
diem'd).ear            that the underscored language in article VIII,
section 9, does confer authority on the commissioners court to "levy
whatever tax rate may be needed" for the specified article VIII,
section 9 funds, subject, of course to the rate ceilings. It is
equally clear that article VIII, section l-a, of the Texas
Constitution also confers authority on the county commissioners court
to levy taxes, again subject to the tax rate ceiling contained
therein. Section 26.07 of the Tax Code, on the other hand, purports
to authorize the qualified voters of a county to rollback,the adopted
county tax rate, in certain instances.

     In passing upon the constitutionality of any statute, we begin
with a presumption of validity. Smith v. Davis, 426 S.W.2d 827 (Tex.
1968); Texas National Guard Armory Board v. McGraw, 126 S.W.2d 627
(Tex. 1939).

             The legislative department of the state
          government may make any law not prohibited by the
          constitution of the state or that of the United
          States. Therefore the rule is that, in order for
          the courts. to hold an act of the legislature
          unconstitutional, they must be able to point out
          the   specific provision which      inhibits the
          legislation. If the limitation be not express,
          then it should be clearly implied.

Shepherd v. San Jacinto Junior College, 363 S.W.2d 742, 743 (Tex.
1962); (quoting State v. Brownson, 61 S.W. 114 (Tex. 1901)). We
construe article VIII, sections l-a and 9, of the Texas Constitution
as affirmative grants of power to county cowmissioners courts, power
that section 26.07 of the Tax Code circumscribes. Both constitutional
provisions act to limit the authority of the legislature to authorize
a county tax rate rollback election. A statute cannot override the
constitution. Cramer v. Sheppard, 167 S.W.2d 147 (Tex. 1943). The
legislature does not have the power to enact any law contrary to a
provision of the constitution. City of Fort Worth v. Rowerton, 236
S.W.2d 615 (Tex. 1951). Section 26.07 of the Tax Code, to the extent
that it acts to circumvent the authority of a commissioners court
conferred by article VIII, sections l-a and 9, is unconstitutional.




                                    p. 3748
Ronorable Robert W. Post.- Page 4    (J&792)




                              SUMMARY

             Section 26.07 of the Tax Code, which authorizes
          a tax rate rollback election, is unconstitutional
          to the extent that it circumscribes the authority
          of a county commissioners court conferred by
          article VIII, sections l-a and 9, of the Texas
          Constitution to set the tax rates for the four
          constitutional funds set out therein.




                                         JIM     MATTOX
                                         Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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