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
-1524-
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
-1525-
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:
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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
- 1529,