September 8, 1966
Hon. Richard E. Rudeloff Opinion No. C-753
County Attorney
Bee County Re : Whether Bee County may
Beevllle, Texas change its tax rate from
the precedin year’s rate
of $1000 to $ .95 notwlth-
standing the failure to
notify the county tax
assessor-collector of such
changed or adopted tax rate,
where the 54 to be dropped
represents money formerly
collected for a county-
wide road bond issue which
can now be fully retired
Dear Sir: by funds on hand.
By a recent letter you have requested an opinion
in regard to the above stated matter. We quote from your
letter as follows:
“The tax rate adopted a number of years ago
by Bee County, and in effect during the year 1966,
Is and has been $1.00, of which amount .05# repre-
sented monies collected to retire a road bond
Issue. Bee County now has on hand in such road
bond fund sufficient money to fully retire such
bonds and the .05k portion of said $1.00 tax rate
Is no longer needed for this purpose. Accordingly,
the Combsloners Court of Bee County wishes to
change the tax rate for 1967 to .95$, in compliance
with Section 9 of Article VIII, Vernon’s Texas
Constitution.
“Bee County is subject to the provisions of
Article 7044a, Texas Revised Civil Statutes. Notice
of the tax rate adopted was not given to the tax
assessor-collector prior to July 20.”
In addition to the above facts we have learned
from your office that the road bond tax in question was
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Ron. Richard E. Rudeloff, Page 2 (C-753)
levied as the result of a county-wide election In 1946
for the construction and Improvement of the county-wide
road system.
In a recent opinion L-No. C-701 (1966) 7 this
office ruled, in effect, that Article 70&4a, VeriionIs Civil
Statutes, Is not unconstitutional as violating Section 9
of Article VIII of our Constitution, nor Is It unconstltu-
tional as violating Section 16 of Article I, Vernon’s
Texas Constitution. The basis of the opinion being that
Article 704&a does not attempt to deprive the Commissioners
Court of the power to levy the county tax, which it must
do pursuant to Section 9 of Article VIII, nor does it
impair bond obligations in violation of Section 16 of
Article I, but merely sets a time limit upon the counties
and other taxing authorities to determine and notify the
tax assessor-collector of the tax rate to be used for
the next year.
The 5# tax levy Involved in the instant case
was levied under the provisions of Article 752a, Vernon’s
Civil Statutes, which was enacted pursuant to Section 52
of Article III, of the Constitution of Texas. Article
752a Is quoted in part as follows:
“Any county. . .is hereby authorized to
Issue bonds for the purpose of the construc-
tion, maintenance and operation of macadamlzed,
graveled or paved roads. . .in any amount not
to exceed one-fourth of the assessed valuation
of the real property of such county. . .and to
levy and collect ad valorem taxes to pay the
interest on such bonds and provide a sinking
fund for the redemption thereof. Such bonds
shall be issued in the manner hereinafter
provided, and as contemplated and authorized
by Seotlon 52, of Article 3, of the Constltu-
tion of this State. . . . Provided when the
principal and all Interest on said bonds are
fully paid, In the event there is any surplus
remaining In the sinking fund, said remaining
surplus not used In the full payment of the
principal and Interest on said bond or bonds
may be used by the county. . .for the purpose
. . . . (Eimphasls added)
Prior to the enactment of Article 752a, our
Supreme Court held that funds from a tax levy authorized
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. .
1 ~. .
.
Hon. Richard E. Rudeloff, Page 3 (C-753)
by Section 52 of Article III, and Section 9 of Article
VIII, for construction and maintenance of public roads,
mav not be diverted to other uurnoses than those for
which voted. Robblns v. Limestone County, 114 Tex. 345,
268 S.W. 915 (1925).
This office has ruled in several previous
opinions that the Commissioners Court could expend the
money raised from an authorized bond Issue only In the
manner and for the purposes prescribed by law. Attorney
General’s Opinions O-4621 (1942), v-157 (194?), v-684
(lg48), W-W-1162 (1961).
Article 752a provides that the sinking fund,
established to retire the bonded Indebtedness authorized
by the bond election, should first be used to pay off
the principal and Interest on the bonds, then if a
surplus is left It may be used for certain purposes.
However, the Act does not authorize the counties to
perpetuate the surplus, by continuing to put money into
the sinking fund after the bonds have been paid In full.
In the case at hand, if Bee County Is permitted
to levy the 5# tax for the sinking fund to retire the
bonded Indebtedness, It will be enlarging the surplus,
since the fund Is already large enough to retire the bonds.
It is our opinion that such 5g? tax can no longer be
validly levied for such purpose. Section 9 of Article
VIII, of the Texas Constitution; Section 52 of Article
III of the Texas Constitution, and Article 752a, Vernon’s
Civil Statutes.
Clearly the Commissioners Court could not have
continued to levy the 5# tax for county-wide road bond
purposes If It had decided to do so prior to July 20th;
so, it cannot continue the tax just because It failed to
notify the tax assessor-collector prior to July 20th.
SUMMARY
-------
Bee County must change Its tax rate from
the preceding year’s rate of $1.00 to 95$! not-
withstanding the failure to notify the county
tax assessor-collector of such changed or adopted
tax rate, where the 54 being dropped represents
money formerly collected for a road bond issue
which can be fully retired by funds on hand.
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. . .
Hon. Richard E. Rudeloff, Page 4 (C-753)
Very truly yours,
WAGGONER CARR
Attorney General
JCMcC:sck
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Wade Anderson
Malcolm Quick
Bob Towery
J. C. Davis
APPROVEDFOR THE ATTORNEYGENERAL
BY: T. B. Wright
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