Honorable Jules Damiani, Jr. Opinion No. C-274
Criminal District Attorney
Galveston, Texas Re: Whether a county is
authorized under Art.
6830, Vernon's Civil
Statutes, to levy a
tax for maintenance
of seawalls in
addition to'the tax
levy for service on
bonds issued for the
purpose of building
such seawalls so
long as the levy for
both purposes stays
Dear Mr. Damianl: within the 50# limit.
You have requested the official opinion of this office
on the above captioned matter.
Article 6830, Title 118, V.C.S., reads as follows:
"The county commIssionerat court of all
counties, and the munlclapl 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 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 indebtedness therefor,
the payment of which may be provided for either with
or without the issuance of bonds. And said
conunlssloners~courts and municipal authorities
shall also have power and are hereby authorized
to levy taxes not to exceed in any one year fifty
cents on the one hundred dollars of taxable values
of said county or city for the payment of said
Indebtednesg, provided that when the taxes are
levied as herein provided for, will not pay off
-1316-
Honorable,Jules Damiani, Jr., page 2 (C-274)
said indebtedness within five years then the'
payment of said Indebtedness shall 6e provided
for by the issuance of bonds as hereinafter
provided."
You have advised us that the county is presently levying
179!of the authorized 50# levy. You are of the opinion that
the county would be authorized under Article 6830 "to levy a
tax for maintenance in addition to the tax levied for indebted-
ness on bonds Issued for the purpose of building such seawtills
so'long~as the levy for both purposes stays within the 50‘cent
limit, and also said maintenance tax would be an additional~
tax to the 80 cent statutory levy for general operation purposes."
Article 6830 was enacted in pursuance to Section 7'of
Article 11 of the Texas Constitution. Section 7 reads as
follows:
"All counties and cities bordering on the coast
of the Gulf of Mexico are hereby authorized upon a
vote of a two-thIrda majority of the resident property
taxpayers voting thereon at an election called for
such purpose to levy and collect such tax for construc-
tion 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 interest thereon and pro-
vide at least two per cent (2%) as a sinking fund;
and the condemnation of the right of way for the
erection of such works shall be fully provided for."
It is settled that the above quoted provision of the
constitution is a limitation upon the power of the Legislature
to authorize the counties and cities specified therein to
create debts. Mitchell County v. Dank, 91 T. 371, ,43S.W. a80
(1898).
The 8Ogtstatutory levy is authorized and limited by Section
g of Article 8 of the Texas Constitution. The pertinent por-
tions of Section 9 are the following:
"The State tax on property, exclusive of the tax
necessary to pay the public debt, and of the taxes
provided for the benefit of the public free schools,
shall never exceed Thirty-five Cents (35q!)on the
-1317-
.. . -
Honorable Jules Damiani, Jr., page 3 (C-274)
One
.. Hundred Dollars
. .- - ($100) valuation;
. . and no county,
city or town anal1 levy a tax rate In excess of
Eighty Cents (804) on the One Hundred Dollars ($100)
valuation ln'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 oing tax levies does not exceed Ei hty Cents
(804 on the One Hundred Dollars ($100B valuation
in any one (1) year. Once the Court has 'leviedthe
annual tax rate, the same shall remain in force and
effect during that taxable year;...."
It is settled in this state that a tax levy for seawall
maintenance constitutes a permanent improvement within'the
meaning of the above quoted constitutional provision, and a
tax may be levied under Article 6830 for seawall maintenance
to the extent that the total authorized levy for county pur-
~~~~s~~~s not exceed 804. However, If the full 804 levy has
no additional tax levy for maintenance would be
authorized under the provisions of Article 6830, V.C.S. unless
authorized upon a vote of a two-thirds majority of the resident
property taxpayers voting thereon at an election for construc-
tion and maintenance as provided in Section 7 of Article 11
of the Texas Constitution. Holman v. Broadway Improvement
Company, 300 S.W. 15 (Comm..App. 1927).
SUMMARY
Where the full 80# constitutional levy has been
made by a county the county is not authorized under
Article 6830, V.b.S., to levy a tax for maintenance
of seawalls in addition to the tax levy for service
on bonds issued for the purpose of bullding such
seawalls even though said additional levy under
Article 6830 for both purposes would stay within the
50# limit, unless authorized upon a vote of a two-
thirds majority of the resident property taxpayers
voting thereon'at an election for construction and
maintenance as provided in Section 7 of Article 11
of the Texas Constitution.
-1318-
Honorable Jules Damlanl, Jr., page 4 (C-274)
Yours very truly,
WAGGONER CARR "
Attorney General
WOS:ml
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
James Strock
Pat Bailey
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone
-1319-