Untitled Texas Attorney General Opinion

EATiT NEY GENERAL EXAS Hon. Jules Damlani, Jr. Opinion No. M-50 Criminal District Attorney Galveston,County Re. Whether the County of Galve- Galveston, Texas ston may expend flood con- trol funds derived from the collection of taxes under the revisions of Article 70 e 8a V.C.S. for the maintdnance o! seti- walls constructed ana flnan- ted under the provisions of Dear Mr Damlani: Article 6830, V.C.S. In a recent letter to this office you requested en opinion in regard to the above captioned matter. We quote from your letter as follows: "Galveston County constructed owns and maintains approximately ten miles oi Seawall on the Island of Galveston, Texas and Is In the process of constructing approximately seventeen miles of Seawall on the Mainland of Galveston, Texas. The seventeen miles being in various states of completion. Both the Island and Mainland Seawall projects were financed and constructed with bonds now being retired with ad valorem tax funds Provided by Article 6830 et seq. V.A.C.S. . *-. . M. . . "Galveston County has scheduled a 30# tax election for ri00a control and farm to market and lateral roads under the provisions Of Article 7048a V.A,C.S. said election set for the 18th of March, 1963. Assuming the tax election is successful may the County, pur- suant to Sec. 5 of Article 7048a, expend tax funds for the maintenance of Seawalls which were constructed under Article 6830 V.A.C.S. Attention Is called to the fact that Article 6830 provides for a maintenance tax of such Seawalls and requires authorization from 2/3rds of the qualified voters who are resident tax payers in said County, whereas Article 'i'048a - 229 - Hon. Jules Damlanl, Jr., Page 2 (M- 50 ) et seq. requires authorization from a simple majority of the qualified property tax paying voters voting in said election in favor of said additional tax. Attention Is called to the fact that the benefits and additional tax revenue as provided in Article 6830 applies only to Gulf Coast Counties. "Your opinion as to whether Sec. 5 of Article 7048a will allow the County of Galveston to expend funds for the maintenance of the Mainland and Galveston Island Seawalls is re- spectfully requested." Section 7, Article XI of the Texas Constitution provides: "All counties and cities bordering on the coast of the Gulf of Mexico are hereby authorized upon a vote of a two-thirds majority of the re- sident property tzxpayers voting thereon at an election called for such purpose to levy and collect such tax for construction of sea walls, breakwaters, or sanitary purposes, as may now or may hereafter be authorized by law, and may create a debt for such works and issue bonds in evidence thereof. But no debt for any purpose shall ever be incurred in any manner by any city or county unless provision is made, at the time of creating the same, for levying and collecting a sufficient tax to pay the in- terest thereon and provide at least two per cent (2%) as a sinking fund, and the condemna- tion of the right of way for the erection of such works shall be fully provided for." Article 6830, Vernon's Civil Statutes, pro- vides as follows: "The county commlssioners~ court of all counties, and the municipal authorities of all cities, bordering on the coast of the Gulf of Mexico shall have the power and are authorized from time to time to establish, locate, erect, construct, extend, protect, strengthen, maintain and keep in repair and otherwise improve any sea wall or breakwater, levees, dikes, floodways - 230 - .. Hon. Jules Damlanl, Jr ., Page 3 (M-50 ) and drainways and to Improve maintain and beautify any boulevard erected in connection with such sea wall or breakwater levees, dikes, floodways and drainways, and to incur indebted- ness therefor the payment of which may be pro- vided for either with or without the issuance of bonds. And said commissioners’ courts and municipal authorities shall also have Dower and are hereby authorized to levy taxes not to cx- teed in any one year fifty cents on the one hundred dollars of taxable values of said county or city for the payment of said indebtedness, provided that when the taxes are levied as herein provided for, will not pay off said indebtedness within five years, then the payment of said in- debtedness shall be provided for by the issuance of bonds as hereinafter provided.” Additional provisions relatln to seawalls are found in Article 6831, through Article z8399, Vernon’s Civil Statutes. In relation to the issuance of bonds as pro- vided for in Article 6830 Article 6834 et seq. provides that a two-thirds majority of the qualified Gotera who are resid- ent property taxpayers voting at an election cal.ledto app- rove a levy of taxes under these statutes must vote in favor of such levy of taxes. Section l-a, Article VIII of the Texas Cons- titution provides, in part, as follows: “From and after January 1, 1951, no State ad valorem tax shall be levied upon any property within this State for general revenue purposes. 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, except the first Three Thousand Dollars ($3,000) value of resldentlal homesteads, not to exceed thirty cents (3Od) on each One Hundred Dollars ($100) valuation in addition to all other ad valorem taxes authorized by the Constitution of this tate provlded the revenue derived therefrom &b e used for construction and maintenance of Farm to Market Roads or for Flood Control, except as herein otherwise provided. (Emphasis added. ) -231 - . . Hon. Jules Damlanl, Jr., page 4 (M-50 ) Section 2, Article 7048a, Vernon's Civil Statutes, provides, in part, as follows: "From and after January 1 1951, the several counties of the State be and they are hereby authorized to levy, assess and collect ad valorem taxes upon all property within their respective boundaries for county purposes except the first Three Thousand Dollars ($3,000) value of reslden- tial homesteads, not to exceed thirty cents (3Oj) on each One Hundred Dollars ($100) valuation, in addition to all other ad valorem taxes authorized by the Constitution of the State, provided the revenue therefrom shall be used as provided in this Act for the construction and maintenance of Farm-to-Market and Lateral Roads or for Flood Control and for these two (2) purposes only, (Emphasis added.) ,! . . .II Section 5, Article 7048a, provides as follows: "The funds transferred to the Flood Control Funds shall be under the jurisdiction and control of the Commissioners Court of such county and shall be used solely for Flood Control purposes. All or part of said funds may be used in connec- tion with the plans and programs of the Federal Soil Conservation Service and the State Soil Con- servation Districts and the State Extension Serv- ice, Conservation and Reclamation Districts, Drainage Districts, Water Control and Improve- ment Districts, Navigation Districts Flood Control Districts, Levee Improvement Districts and Munici- pal Corporations, and such funds may be expended by the Commissioners Court in accordance with this Act for flood control purposes, including all soil conservation practices such as contouring, terrac- ing, tank building, and all other practices actually controlling and conserving moisture and water within any said county and political subdivision thereof for Flood Control and Soil Conservation programs, provided that such plans for improvement - 232 - Hon. Jules Damiani, Jr., page 5 (M-50’ ) are approved by such county and political sub- division." Section l-a of Article VIII of the Texas Constitution and Section 2 of Article 7048a, clearly provide,in identical words, that the tax authorized by their provisions shall be 'I* . . in addition t$ all other ad valorem taxes authorized by the Constitu- tion . Taxes collected pursuant to the provisions of Section 7 of ArtiEle XI of the Texas Constitution and Article 6830 through Article 683gg, which statutzs were enacted pursuant to Section 7 of Article XI, are clearly . . . other ad valorem taxes authorized by the Constitution . . ." Seawalls are constructed as an aid in keeping inland lands from becoming inundated by sea water, during storms at sea. If such inundation of water amounts to a flood then It is clear that the maintenance and improvement of sea walis are "for flood control" as that term Is used in Section l-a of Article VIII of the Constitu- tion and Section 2 of Article 7048a. A flood Is defined In Black's Law Dictionary (Fourth Edi- tion) as "an inundation of water over land not usually covered by it .” 36 C.J.S. 1028 In defining the word flood states: "a body of water rising, awefling and overflowing land n&t usually covered with water." Also see Long Motor Lines v. Home Fire & Marine Ins. Co., 67 S.E.2d 512 (1951); Roberts v. Union Insurance Society of Canton, 332 Pac. 600 (1958). It is therefore our opinion that a county may use flood control funds derived under the provisions of Section l-a of Article VIII of the Texas Constitution and Article 7048a, for the maintenance of seawalls constructed pursuant to the provisions of Artlcle,XI, Section 7 of the Constitution and Articles 6830 through 683gg, pro- vided that the use of such funds complies with the provisions of Article 7048a. SUMMARY ------- A county may use flood control funds derived under the provisions of Section l-a of Article VIII of the Texas Constitution and Article 7048a, Vernon's Civil Statutes, for the maintenance of seawalls constructed pursuant to the provisions of Section 7 Article XI of the Constitution and Articles 6830 through 683$?g,Vernonla Civil Statutes, provided that the use of such funds complies with - 233 - .. . Hon. Jules Damianl, Jr., page 6 (M-50 ) the provisions of Article 7048a, Vernon's Civil Statutes. Prepared by Lewis E. Berry, Jr. . Assistant Attorney General LEBjr:ea APPROVED: OPINION COMMITTEE Hawthorne Phillips, Chairman W. V. Geppert, Co-Chairman William J. Craig Arthur Sandlin J. C. Davis STAFF LEGAL ASSISTANT A. J. CARUBBI, JR. - 234 -