-.
L --
THEAYTOR~YEY GENERAL
OFTEXAS
Honorable Weaver Moore, Chairman
Committee on State Affairs
Texas Senate
Austin, Texas
Dear Sir: Opinion No. O-3310
Re: Constitutlonalitg of S.B. 344
authortzing commlssloners' courts
to create airport districts and
lev a special tax of five cents
on % 100 valuation to establish
and maintain airports.
We have received your requestfor our oplnlon on
the constitutionality of Senate Bill No. 344 of the current
session. This bill, exclusive of the title and enacting and
emergency clauses, reads as follows:
"Section 1. The commissioners' court of
any county in this state is hereby authorized
to establish within the boundaries of such county
an airport district of such area as the commis-
sioners' court may determine to be necessary for
such purposes, and to levy and collect a special
tax for airport purposes upon property situated
within such district, such tax not to exceed for
any one year five cents (05#) on each one hundred
dollars ($100) valuation. The proceeds of such
tax shall be devoted to the purpose of establish-
ing, improving, operating, maintaining and con-
ducting any airport which the commissioners'
court may establish within such district, and for
the purpose of providing all suitable structures
and facilities in connection with the operation
of such airport.'
The only taxing districts, exclusive of counties
and municipalities, authorized by the Texas Constitution are
school districts provLded for by Article 7, Sectlon 3; dis-
tricts for the conservation and development of natural re-
sources authorized by Article 16, Section 59; and districts
for navigation, irrigation, draInage and roads authorized by
Article 3, Section 52 of the Constitution. There exists no
constitutlonal authority for the creation of special districts
Honorable Weaver Moore, page 2 O-3310
and the levying of taxes thereby for the purpose of construct-
ing airports.
Article 8, Section 9 of the Const1tutlon of Texas
provides:
"Sec. 9. The State tax on property, ex-
clusive of the tax necessary to pay the public
debt, and of the taxes provided for the benefft
of the public free schools, shall never exceed
thirty-five cents on the one hundred dollars
valuation; and no county, city or town shall
levy more than twenty-five cents for city or
county purposes, and not exceeding fifteen cents
for roads and bridges, and not exceeding fifteen
cents to pay jurors, on the one hundred dollars
valuation, except for the payment of debts in-
curred prior to the adoption of the amendment
September 25th, 1883; and for the erectlon of
public buildings, streets, sewers, water works
and other permanent improvements, not to exceed
twenty-five cents on the one hundred dollars
valuation, in any one year, and except as Is ln
this Constitution otherwise provided; and the
Legislature may also authorize an additional an-
nual ad valorem tax to be levied and collected
for the further maintenance of the public roads:
provided, that a majority of the qualified pro-
perty tax-payLng voters of the county voting at
an election to be held for that purpose shall
vote such tax, not to exceed fifteen cents on the
one hundred dollars valuation of the property
subject to taxation in such county. And the
Legislature may pass local laws for the maInten-
ante of the public roads and highways, without
the local notlce required for special or local laws."
In construing Article 8, Section 9, above quoted,
the Supreme Court of Texas in Carroll v. Williams, 109 Tex.
155, 202 S.W. 504, declared at p. 509:
'* * *, beginning in our Constitution of
1876and running through the amendments of 1893,
1890 and 1907, the specific designation in sec-
tion 9 of article 8, supra, of general classes
of purposes of county, city or town taxation,
with a limited rate in each instance, was both
a departure from the original plan and a pro-
gressive growth. That change and that develop-
ment, when considered together, disclose, we
Honorable Weaver Moore, page 3 O-3310
think a settled determination upon the part of
our people, not only to fix the maximum rates
of taxation for the designated purposes, respec-
tively, but, incidentally, to restrict to each
such purpose ,theapplication and expenditure
of all tax money levied, assessed, and collected
declaredly for that purpose. Thus the whole
matter has been placed beyond the Dower and
authority of the commissioners' court. and even
of the Legislature itself, by the embodlment of
those far-reaching reauirements in our organic
law." (Emphasis ours).
The Texas Supreme Court in Mitchell County v. Bank,
91 Tex. 361, 43 S.W. 880, used the following language in con-
struing Article 8, Section 9 (which was quoted with approval
by the Commission of Appeals in 1921 in the case of,Houston
v. Gonzales Independent School District, 229 S.W. 467):
‘I* * Y .
Section 9 confers no authority
upon any officer of a city or county to levy a
tax for any purpose, but the language 'no county,
city, or town shall levy more than one-half of
said state tax * * * and for the erection of
public buildings not to exceed fifty cents on the
one hundred dollars in any one year,' places a
prohibition upon the power of the legislature to
authorize counties to impose tax for such purposes."
In The City of Ft. Worth v. Davis, 57 Tex. 225, at
p. 232, the Supreme Court declared that a school district
must rely on express constitutional authority for its taxing
power:
"So the 9th section of the article (VIII)
on taxation carefully prescribes the limit to
state, county and city taxation, except for the
payment of debts then already incurred 'and ex-
cept as in this constitution is otherwise pro-
vided.' These repeated and guarded constitutional
limitations of the taxing power are a orominent
feature of that instrument, and are inconsistent
with the existence of a lealslative power to
authorize additional taxation by school districts,
unless some affirmative grant of that Dower be
found in the itself. * * *.
constitution Our
conclusion is that the city of Ft. Worth, in its
capacity as a school district, had no other power
to levy taxes for the support of public schools
than can be fcund expressly authorized in the
constitution." (Emphasis ours).
Honorable Weaver Moore, page 4 O-3310
For additional cases declarinn that Article 8. Sec-
tlon 9 limits the Legislature's power t; authorize political
subdivisions to levy taxes in excess of the amounts and for
the purposes therein prescribed, except as express authority
may be found elsewhere in the Constitution, see: city of
Henderson v. Fields, 258 S.W. 523; Gould v. City of Paris,
68, Tex. 511; Commissioners' Court v. Pinkston, 295 S.W. 27,l,
Anderson v. Parsley, 37 S.W. (2d) 358; Seydler v. Border, 115
S.W. (2d) 703.
In our Opinion No. O-3142 we held U-&Article 1269h,
Vernon's Annotated Civil Statutes, confers authority upon the
Commissioners' Court of a County to;establish and malntaln an
airport out of the permanent improvement fund of the county.
But we are unable to find any constitutlonal authority for the
levy of a tax in addition to that authorized by Article 8,
Section 9 for airport purposes, whether such tax be levied
by the county itself or by any subdivision thereof. Conse-
quently, it is our opinion that Senate Bill No. 344 of the
47th Legislature is unconstitutional in that It seeks to
suthorize a tax in excess of the limits prescribed by Article
8, Section 9 of the Texas Constitution.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By sl Walter R. Koch
Walter R. Koch
Assistant
WRK:RS:wc
APPROVED APRIL 26, 1941
s/Grover Sellers
FIRST ASSISTANTS
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman