dissenting.
The Attorney General of Texas refused to approve the bonds and proceedings pertaining thereto for the following sound, and, in my opinion, unanswerable reasons. In this connection, the present Attorney General of Texas has filed a logical and convincing motion for rehearing in which he takes the same position as the former Attorney General. I am stating here and adopting as my own the reasons assigned by the Attorney General for disapproval of the bonds and bond record.
“1. On April 17, 1951, an election was held within Bexar County and a majority of the resident qualified property taxpaying voters who had duly rendered their property for taxation authorized the county to levy the additional ad valorem tax under the provisions of Article 8, Section 1 (a) of the Constitution of Texas. The laws in force and effect on that date became a part of the voted proposition and thereby a part of the contract between the county and the voters who were qualified to vote at the election. The county may not, by its unilateral action, vary the terms of that contract. San Saba County v. McCraw, 130 Texas 54, 108 S.W. 2d 200; Wilkerson v. Otto, et al., 289 S.W. 2d 411 (Texas Civ. App. 1956), writ dism.; David v. Timon, 183 S.W. 2d 89 (Texas Civ. App. 1916) ; Norton v. Tom Green County, 182 S.W. 2d 849 (1951), cert. den. 325 U.S. 861. In 1951, the law required the county to hold a bond election before the taxes could be pledged and provided a method of discontinuing the tax. These rights will be swept aside if the contemplated issue were to be approved.
“2. Bexar County having acquired the right to collect, hold, and expend certain moneys as a trust fund for special uses may not assign or delegate its duties under the trust. Cooley on Constitutional Limitations, 8th Edition, Volume 1, page 434.
“3. Bexar County, by virtue of its contract with the San Antonio River Authority, has granted and conveyed the pro*86ceeds of the county tax levy to the River Authority, who in turn pledges these taxes to the payment of its bonds. Such a grant or lending of credit is in direct contravention of the Constitution of Texas. I would call your attention to the case of Harris County Flood Control District v. Mann, 135 S.W. 2d 239, 148 S.W. 2d 1098 (1940). In that case, Harris County sought to pledge the proceeds of its tax collections to the payment of bonds to be issued by the Flood Control District, and the Supreme Court of Texas said (at page 1104) :
Tt follows that, under the plain terms of Section 52 of Article III, supra, no part of the funds of Harris County may be pledged or used to pay the bonds of this District.’ ”
On original hearing I did not register a dissent, although I entertained serious doubt as to the correctness of the holdings made and the interpretation of the powers of a Commissioners’ Court. Upon further consideration, it is my considered opinion that our former opinion violated every principle of public policy which demands that definite limitations be placed on the power of the county, a political subdivision of our government, to spend public money.
It is important that we particularly consider the provisions of Sections 5, 7, and 10 of Article 7048a, Vernon’s Annotated Civil Statutes, and Article 11, Section 7, of the Constitution of Texas. The latter reads, in part, as follows:
“* * * But no debt for any purpose shall ever be incurred in any manner by any * * * 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 provide at least two per cent (2%) as a sinking fund; * *
The original opinion has placed a construction upon the provisions of Section 5 of Article 7048a, supra, that forces it to contravene the provisions of Article 11, Section 7,1 of the *87Texas Constitution, supra. In order to get the full import of Section 5,1 set it out in footnote below.1a
In substance, Section 5 of Article 7048a only requires that the funds “shall be used” for flood control purposes and permits those moneys “be used in connection with the plans and programs of * * * Flood Control Districts * * * and such funds may be expensed by the Commissioners’ Court in accordance with this Act for flood control purposes.” (Emphasis added).
Section 5, of Article 7048a, supra, permits the use of current funds for specified purposes. The qualified voters of Bexar County have the valuable right under the clear and unequivocal language contained in Section 72 of Article 7048a to vote upon a *88change in the tax rate, and this reserved right can only be relinquished by the people themselves in the manner provided in Section 103 of said Article 7048a, Vernon’s Annotated Civil Statutes. Our original opinion expressly fails to pass upon the contention of the District that Section 1-a of Article 8 of the Constitution of Texas, is self-executing in impowering the Commissioners’ Court to levy this tax, and that, therefore, Section 7 of Article 7048a, supra, providing that the tax shall not be levied until approved in an election and providing for repeal thereof by an election is an unconstitutional restriction by the Legislature upon a power granted by the people in the Constitutional Amendment. The weakness of our original opinion on the question is the fact that it does pass upon one phase of this question by holding, in effect, that Section 1-a of Article 8, supra, is self-executing. The opinion finds it was not necessary to pass upon the question raised by the District that Section 7 of Article 7048a is unconstitutional. It is my contention that Article 7048a, supra, and particularly the several sections thereof under discussion is constitutional. This being true, and in view of the fact that Section 1-a4 of Article 8, supra, is not self-executing, and *89since the Legislature has determined by the enactment of Article 7048a that the authority for counties to levy taxes under Article 8, Section 1-a, supra, shall be by the vote of the people, I cannot reach any other conclusion than that the contract involved, in effect, contemplates the levy of taxes through the Commissioners’ Court and not through the vote of the governed, as expressly provided under the provisions of Section 7 of Article 7048a, supra. The adoption of Article 7048a is an express determination by the Legislature of the method for authorizing counties to levy taxes under Article' 8, Section 1-a, of the Constitution of Texas. Such determination is conclusive and constitutional. The Constitution does not prohibit such method. I agree with respondent in his statement that “Had it been intended that the Commissioners’ Court, the normal governing body of the County, should have the power to levy the tax without the consent of the local people, surely the Constitution would have so provided.”
It is my opinion that the execution of the contract was without legal authority. The law in force and effect at the time of the holding of the election on April 17, 1951, became an integral part of the voted proposition and thus forms a part of the contract between the participants at the election and Bexar County. The Relator seems to recognize this concept but seeks to deny its applicability to our own case upon the theory that the Commissioners’ Court — at the time of the election — had general authority to enter into the contract with the Relator and pledge the revenues from its tax collection. It presents an alternate ground that Sections 7, 8, 9, and 10 of Article 7048a, supra, are unconstitutional. Some of these sections have heretofore been held constitutional by the courts. See Burke v. Thomas, Texas Civ. App. 285 S.W. 2d 315, er. ref. n.r.e. This is the first time *90the constitutionality of Section 7 has been questioned. The constitutionality of this section should be not only upheld, but its provisions should not be ignored. Article 7048a carefully provides the manner for the issuance of obligations payable from future revenues in Section 10.
Our original opinion holds that Section 5 of Article 7048a grants authority to the Commissioners’ Court to enter into a contract with the Relator for the performance of work in accordance with certain specifications, and that the provisions of Section 7, Article 7048, which reads:
“* * * * Provided, further, that elections may subsequently be called and held in the same manner for the purpose of changing the amount of the maximum tax within the limit of thirty cents (30c) on the One Hundred Dollars ($100) valuation, or for changing the amounts of the maximum specific tax voted for each purpose; provided, however, that such tax or taxes may not be reduced to an extent which would result in the impairment of any bonds or warrants theretofore issued under the provisions of Section 10 of this Act.”
This holding is contrary to the holdings in past decisions, and not only places a different interpretation upon the constitutional powers of a Commissioners’ Court, but permits the Commissioners’ Court by contract to pledge the future revenues of the county and lend its credit for the benefit of and in aid of the Relator. The contract is in violation of Article 3, Section 52, of the Constitution of Texas. Not only that, the contract by its very terms constitutes a complete abdication of constitutional legislative powers by the Commissioners’ Court, and completely ignores the provisions of Sections 3 and 5 of Article 7048a which requires the flood control tax shall be set apart in a separate fund to be used only for flood control purposes and that such funds “shall be under the jurisdiction and control of the Commissioners’ Court.” (Emphasis added). Section II of the contract, if upheld, is in violation of this requirement of the statute, and is an “irrevocable and uncontrollable grant” of the use of public moneys. The contract goes even further and grants unto the Relator full governmental powers and functions incident to the use and control of such funds for a period that may exceed thirty years. To allow this contract to stand is to permit the Commissioners Court to act in violation of Article 1, Section 17, of our Constitution, and will render the Commissioners Court unable to perform its nublic duties. I grant there is strong support for the argument that our Constitution should be rewritten, but I *91take the position that this Court does not have the power to change the Constitution. This power rests with the people. The Legislature has adopted the method of procedure, and its Act takes into account the voters of Bexar County. The Constitution of Texas and the several Acts of the Legislature have set up definite road blocks in the path of the course sought to be taken under the terms of the contract before us. Under the provisions of Article 8280-119, Vernon’s Annotated Civil Statutes, the Relator is required to pursue a program of flood control work. This does not mean that the county can violate the Constitution, and the applicable statutes to better enable the Relator to perform its statutory duties. See Harris County Flood Control District v. Mann, 135 Texas 239, 140 S.W. 2d 1098. Here we have a contract between two political subdivisions wherein the county agrees to pay over to Relator all of the proceeds of the fifteen cent (15c) flood control tax levy for a period of thirty years, or until the amount of $12,000,000.00, plus interest paid on any moneys borrowed, has been paid. The Relator on the other hand only agrees to do what is already bound by law to do. Therefore, I ask — what consideration is there for the contract so far as the county is concerned? The county cannot and does not have the right to pledge either its current or future revenues without express statutory authority. See Citizens State Bank v. Terrell, 78 Texas 450, 14 S.W. 1003. The power to levy the tax and to vote upon a change in the tax rate has been granted to the people, and the Commissioners Court is without power to contract away those rights. See San Saba County v. McCraw, 130 Texas 54, 108 S.W. 2d 200.
Our original opinion attempts to draw a distinction between the San Saba County case, supra, and ours by stating that in that case the Constitution required approval of the tax by the voters of the county. I submit that such holding is erroneous. As heretofore stated, Article 8, Section 1-a does not expressly grant to the Commissioners Court the power to levy taxes without the consent of the local people; therefore, it is my contention that there are two methods for authorizing counties to levy taxes under Article 8, Section 1-a, as follows: (1) through the Commissioners Court, (2) through the vote of the governed. The Legislature has chosen the latter method, and since the Constitution permits and does not prohibit the levy of the tax by those qualified to vote under the provisions of Article 6, Sec. tion 3-a of the Constitution, we must hold that the method provided by the Legislature by the adoption of Article 7048a is the only applicable method.
*92Respondent’s motion for rehearing should be granted and the writ of Mandamus prayed for by Relator should be refused.
Opinion delivered March 27, 1957.
“Art. 11, Section 7. All counties and oities bordering on the coast of the Gulf of Mexico are hereby authorized upon a vote of a two-thirds majority of the resident property taxpayers voting thereon at an election called for such purpose to levy and collect such tax for construction of seawalls, 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 provide 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. As amended Nov. 8, 1932.”
“Sec. 5. 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 connection with the plans and programs of the Federal Soil Conservation Service and the State Soil Conservation Districts and the State Extension Service, Conservation and Reclamation District, Drainage Districts, Water Control and Improvement District, Navigation Districts, Flood Control Districts, Levee Improvement Districts and Municipal 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, terracing, tank building, and all ther 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 are approved by such county and political subdivision.
“Sec. 7. Before any county shall levy, assess and collect the tax provided for herein the question shall by the Commissioners Court of the county be submitted to a vote of the qualified property taxpaying voters of such county at an election called for that purpose, either on said Commissioners Court’s own motion, or upon petition of ten per cent (10%) of the qualified property taxpaying voters of said county as shown by the returns of the last general election. Said election shall be ordered at a regular session of said Commissioners Court and such order shall specify the rate of tax to be voted on, not to exceed thirty cents (30c) on each One Hundred Dollars ($100) valuation of taxable property within such county, shall state the date when said election shall be held, and shall appoint officers to hold said election in accordance with the election laws of this State. Provided, however, that the proposition submitted to the qualified property taxpaying voters at said election may provide that the tax at a rate not to exceed thirty cents (30c) on each One Hundred Dollars ($100) valuation may be used for the construction and maintenance of Farm-to-Market and Lateral Roads or for Flood Control purposes, either or both, as the Commissioners Court may determine (in which event the ballots shall have written or printed thereon, ‘For the tax of not exceeding ________cents on each One Hundred Dollars ($100) valuation,’ and the contrary thereof, specifying the tax to be voted upon), or the proposition may provide for a specific maximum tax for Farm-to-Market and Lateral Roads purposes and a specific maximum tax for Flood Control purposes, the total of the two (2) specific maximum taxes not to exceed thirty cents (30c) on the One Hundred Dollars ($100) valuation (in which event the ballots shall have written or printed thereon, ‘For a Farm-to-Market and Lateral Roads tax of not exceeding____cents and a
“Sec. 10. After an election has been held under the provisions of Sections 7 and 8 of this Act, at which election a majority of the qualified, property taxpaying voters, voting at said election, voted in favor of the tax, the Commissioners Court may issue either negotiable county bonds or county time warrants for the purpose of the construction and/or improvement of Farm-to-Market and Lateral Roads, or for the purpose of constructing permanent improvements for Flood Control purposes: provided, however, that any such bonds or warrants must have been authorized by a majority of the qualified property taxpaying voters who have duly rendered the same for taxation voting at an election duly called by the Commissioners Court, such bonds and warrants to be issued and the taxes to be levied and collected in payment thereof in accordance with the provisions of Chapter 1, Title 22, Revised Civil Statutes of Texas, and provided further that each proposition shall be separately submitted to the voters at such election.”
“Sec. 1-a. 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 Flood Control tax of not exceeding ___________ cents, on the One Hundred Dollars ($100) valuation,’ and the contrary thereof, specifying the specific taxes to be voted upon). Provided, further, that elections may subsequently be called and held in the same manner for the purpose of changing the amount of the maximum tax within the limit of thirty cents (30c) on the One Hundred Dollars ($100) valuation, or for changing the amounts of the maximum specific tax voted for each purpose; provided, however, that such tax or taxes may not be reduced to an extent which would result in the impairment of any bonds or warrants theretofore issued under the provisions of Section 10 of this Act.” *89ad valorem taxes upon all property within their respective boundaries for county purposes, except the first Three Thousand Dollars ($3,000) value of residential homesteads, not to exceed thirty cents (30c) on each One Hundred Dollars $100) valuation, in addition to all other ad valorem taxes authorized by the Constitution of this State, provided the revenue derived therefrom shall be used for construction and maintenance of Farm-to-Market Roads or for Flood Control, except as herein otherwise provided.
“Provided that in those counties or political subdivisions or areas of the State from which donations have heretofore been granted, the State Automatic Tax Board shall continue to levy the full amount of the State ad valorem tax for the duration of such donation, or until all legal obligations heretofore authorized by the law granting such donation or donations shall have been fully discharged, whichever shall first occur; provided that if such donation to any such county or political subdivision is for less than the full amount of State ad valorem taxes so levied, the portion of such taxes remaining over and above such donation shall be retained by said county or subdivision. Added Nov. 8, 1932, as amended Aug. 26, 1933; Nov. 2, 1948.”