. .
AS
Honorable T. M. Trimble
First Assistant
Superintendent of Public Instruction
Austin, Texas
Dear Sir: Opinion No. O-6059
Re: Under the given facts can the
City Council of the City of Austin
levy a maintenance tax for the
support of the public free schools
of the Independent School District
of the City of Austin? And a re-
lated question.
We are in receipt of your letter of recent date in which you en-
close a letter from Mr. Carl T. Widen, President of the Board of Trustees
of the Austin Independent School District, which letter reads, in part, as
follows:
“The City of Austin assumed control of the public free
schools within its limits by an election held on August 16,
1880, under Act of April 3, 1879, Ch. 67, p. 76.
“All of the charters of the City of Austin since 1880,
including the Home Rule Charter that the City of Austin is
now operating under, have provided:
“‘The action of the City of Austin in taking ch&&&&$
public free schools within its limits by proceedings had in
the month of August, 1880, is hereby validated, and the City
is hereby constituted a se:parate and independent school dis-
t$ict under the Constitution and laws of the State. The action
taken in placing the control of the free schools and all prop-
erty pertaining thereto in a board of trustees is hereby con-
firmed, and all property, real and personal, heretofore ac-
quired and now being administered by said Board of Trustees
in connection with the management of said free schools is
hereby confirmed in said Board, and all levies of taxes
. .
Honorable T. M. Trimble, Page 2 O-6059
heretofore made for the support and maintenance of said public
free schools in said City and which remain uncollected are here-
by validated and declared legal and binding upon the persons and
property subject to taxation in said City, and the City Council
shall continue to levy and collect the rate of special taxation
adopted or which may be adopted by vote of the people for said
purpose, and deliver the same to said Board of Trustees, in ac-
cordance with the general laws of the State upon the subject.’
“Sec. 10 of Art. 12, pi 49 of the Home Rule Charter reads:
“‘All laws now in force, pertaining to the public free schools of
the City of Austin, are hereby retained in full force and effect,
and said schools shall be continued, managed and controlled as
heretofore, and the trustees of the said public free schools shall
be elected according to the provisions of the above mentioned
laws retained in force and effect.’
“The Charter of 1909, granted by the Legislature, Art. 12, Sec. 2,
p. 37 reads:
“‘The City Council shall have the power within the city by
ordinance to levy and collect an annual tax, not exceeding for
all purposes, including taxes levied for the support of public
schools, two and one-half per cent of property values within
the said city.’
““This provision was carried into the Home Rule Charter, under
which the City is now operating, and is now Sec. 2 of Art. 12, p. 38 of the
Home Rule Charter.
“Subdivision 2 of Sec. 2, Art. 12, p, 38 of the Charter of 1909 pro-
vided :
““How Increased--Limitati,on. To raise such further
amount as may be necessary for the maintenance of the pub-
lic schools of the city, not to exceed thirty-three and one-third
cents on the one hundred dollars’ worth of taxable property,
unless the qualified taxpaying voters of the ci,ty shall by a two-
thirds vote provide for an increase in such amount, and in no
event shall it exceed fifty cents on the one hundred dollars’
valuation.’
. .
Honorable T. M. Trimble, Page 3 O-6059
“In the Home Rule Charter, changing from the commission form of
government to the home rule form, this provision was amended to read as fol-
lows:
“‘To raise such further amount as may be necessary for the
maintenance of the public schools of the City, not to exceed sixty
cents on the one hundred dollars worth of taxable property in the
City. The Board of Trustees for said schools shall determine and
advise the City Council as to what amount of said tax shall be lev-
ied and collected each year, and the City Council shall levy&M%~
amount so determined, but if at any time said Board fails to do so,
the City Council shall levy such tax at the same rate as levied for
the last preceding year.’ Subdivision 2, Sec. 2, Art. 12, p. 36.
“This subdivision of the Home Rule Charter was furthdr amended
by an election held on May 10, 1940, to read as follows:
“‘To raise such further amount as may be necessary for the
maintenance of the public schools of the City, not to exceed seventy
cents on the one hundred dollars worth of taxable property in the
City. The Board of Trustees for said schools shall determine and
advise the City Council as to what amount of said tax shall be levied
and collected each year, and the City Council shall levy the amount
so determined, but if at any time said Board fails to do so, the City
Council shall levy such tax at the same rate as levied for the last
preceding year.’
“The Independent School District of the City of Austin does not coin-
cide with the city limits of the City of Austin, but includes additional territory
annexed for school purposes only under Art. 2803, Revised Statutes 1925.
“We wish the following questions answered by the Attorney General:
“1. Can the City Council of the City of Austin, by a vote of the
property taxpayers, levy a maintenance tax for the support of the
public free schools of the Independent School District of the City of
Austin for as much as one dollar on the one hundred dollar valuation
of taxable property in the school district and still be entitled to levy
a tax for municipal purposes of two dollars and fifty cents on the one
hundred dollar valuation of taxable property within the city limits,
under the Constitution and laws governing home rule cities 7 In other
words, can the City Council of the City of Austin levy a one dollar tax
on the one hundred dollar valuation of taxable property in the Independ-
ent School District of the City of Austin for the maintenance of public
. .
Honorable T. M. Trimble, Page 4 O-6059
free schools in the school district and still be entitled to levy
as much as a two doll&r and fifty cent tax on one hundred dol-
lar valuation of taxable property in the City of Austin for muni-
cipal purposes ?
“2. In an election held for the purpose of divorcing the public
free schools of the City of Austin from the control of the City of
Austin, under Acts of 41st Legislature, p. 674, Ch. 302, Vernon’s
Civil Statutes lg25, Art. 2783a, can there be submitted to the
voters the rate of maintenance tax for school purposes to be
levied and collected by the school district after its divorcement
from control of the City? * * *”
In dealing with schools which are under the control and management
of cities the courts have consistently held. that the rate of tax which may be lev-
ied for school purposes in such cities is limited by Article 7, Section 3 of the
Constitution of Texas, which relates to schools and is not controlled by Article
8, Section 9 of the Constitution, which limits the tax rate of counties, cities and
towns.
In other words, in this respect, the courts have treated schools under
the management and control of ci.ties as school districts rather than as a part of
the cities under whose control the schools are operated.
The first of these cases is Houston v. Gonzales Independent School
District, decided by the Commission of Appeals in 1921, 229 S. W. 467. The City
of Gonzales, while exercising control of its schools had issued bonds for the erec-
tion of school buildings which required a tax levy of 17$. Thereafter, the Legisla-
ture, by special Act, divested the City of Gonzales of control of its schools and
created the Gonzales Independent School District comprising the city and approxi-
mately 24,000 acres in addition thereto. The trustees of the new district then at-
tempted to levy a 40$ tax on the property bf the entire district. The court held
that the new tax was valid only to the extent of 33$ because at that time, Article
7, Section 3 of our Constitution, limited taxes for school purposes to 50$ so that
the school district could levy only 33$ in addition to the 17$ previously levied by
the City of Gonzales while in control of the schools.
The court held that the 17C tax originally levied by the city for school
purposes was a school tax authorized and limited by Article 7, Section 3 of the
Constitution, and not a city tax limited by Article 8, Section 9 (which limits
counties, ci.ties and towns to 25$ “for the erection of public buildings, sewers,
waterworks and other improvements.“). Spencer, J.. speaking for the court at
page 468, said:
. .
Honorable T. M. Trimble, Page 5 O-6059
“The beneficial title to the property of the Gonzales School
district as originally formed was in the people thereof - the
mayor merely holding the same in trust for the sole use of the
schools - and the Legislature could, without any wise disturbing
such title, change the trustees, as was done by the special ,act.”
And at page 469:
“The bonded indebtedness being for school purposes, the 17$
tax levy necessary to pay the interest thereon and provide a sink-
ing fund, to retire same at maturity, is a limitation upon the tax-
ing power of the district, but not a limitation upon the city of
Gonzales for building purposes.”
The leading case announcing the doctrine of the dual nature of a city
which has assumed control of its schools is City of Rockdale v. Cureton, decided
by the Texas Supreme Court in 1921, 111 Tex. 136, 229 S. W. 852. We quote from
the court’s statement of the facts in this case:
“Prior to 1918, the city of Rockdale, incorporated under the
general laws, had assumed the control of its public schools. The
effect of this action was to constitute it, for school purposes, an
independent school district. Article 2871.
“It has never extended its city boundaries for school purposes.”
This was an action to compel the Attorney General by mandamus to ap-
prove a $75,000 bond issue which he had refused to approve for the reason that
the tax necessary to pay the same would exceed the city’s 25$ tax limit for im-
provements, imposed by Article 8, Section 9 of the Constitution. The court granted
the mandamus for the reason that the tax of such a city for school purposes is not
limited by Article 8, Section 9, but by Article 7, Section 3 of the Constitution. We
quote from the opinion of Chief Justice Phillips:
“The Constitution (Section 10 of Article 11) has empowered
the Legislature to constitute any town or city an independent
school district. The Legislature, therefore, had the power to
say as it has done in Article 2871, that a city or town taking over
control of its public schools shall constitute such a district.
There may thus be conferred upon a city a dual character, and
which such character, dual powers. There could have been no
purpose in authorizing the creation of towns and cities as inde-
pendent school districts - a recogniaed separate class of munici-
pal corporations with individual powers, unless in that capacity
. .
Honorable T. M. Trimble, Page 6 O-6059
they were to have the powers of such districts.
“The city of Rockdale had lawfully acquired this dual
character. It had powers strictly as a municipality, to be
exercised for strictly municipal purposes; and it had its
powers as s duly constituted independent school district.
The two are not to be confused.”
In M. K. & T. R. R. Co. of Texas v. City of Whitesboro, (1926),
287 S. W. 904, the Texas Commission of Appeals again declared that the tax
rate for cities which have assumed control of their schools is controlled by
Article 7, Section 3 of the Constitution both before and after such city may
have extended its limits for school purposes only. Biship, J., at page 906,
said:
“The municipal corporation and the independent school
district are distinct, though they are both under the control
of the same officers.”
It may appear that City of Athens v. Moody’, (1926), 115 Tex. 247,
280 S. W. 514, by the Commission of Appeals, is in conflict with the doctrine
announced by the preceding cases which recognize the dual nature of cities
which have assumed control of their schools. A careful analysis of this case,
however, indicates that it does not disavow the dual nature of cities having
control of their schools, but merely recognizes the $1.50 limitation on the
tax rate of cities having a population of less than 5,000 for both school and
municipal purposes, pursuant to the express language of the statute there
under consideration. (Section 3 of Ch.ir}:ter 9, Acts 1929, 37th Legislature,
which is now codified as Articl,e 1027, R. C. S., 1925).
Again we fi,nd the courts declaring that those eligible fo-, ilote on s:n
increase in taxes for school purposes in cities which have assumed control
of their schools is to be governed by Article 7, Section 3 of the Constitution,
relating to school districts rather than to the provisions relating to cities.
In City of Fort Worth v. Zane-Cetti (19 25), 278 S. W. 183, the Texas
Commission of Appeals held that an election to increase the tax rate for school
purposes in Fort Worth (which has assumed control of its schools) must be by
the “qualified property tax paying voters” as provided by Article 7, Section 3
of the Constitution, instead of by the “qualified voters” as provided by Fort
Worth’s home rule charter. Sai,d Nichols, J., at page 184:
“The source of the legislative power to create, or define an
independent school district is to be found in Section 3, Article 7
Honorable T. M. Trimble, Page 7 O-6059
of the Constitution. Such a district is a municibal corporation, sui
generis. City of Rockdale v. Cureton, Attorney General, 111 Tex.
!36, 229 S. W. 852. The territory of a city and the territory of a
district may be exactly coincident, and for the distinctive purposes,
separate governments may be provided to operate separately, but
harmoniously, within the common orbit. Simmons v. Lightfoot,
Attorney General, 105 Tex. 212, 215, 146 S. W. 87l;Munson v.
Looney, Attorney General, 107 Tex. 263, 268, 172 S. W. 1102, 177
S. W. 1193. Or, in virtue of the terms of Section 10. Article 11,
of the Constitution, and for convenient administrative purposes,
‘the Legislature may constitute any city or town a separate and
independent school district.’ Such a combination of the two muni-
cipal corporations, each sui generis, does not take from either its
distinctive features.”
In Treaccar v. City of Galveston, (Galveston Court of Civil Appeals,
1930, writ of error refused), 28 S. W. (2d) 887, the court held that an additional
school tax in the City of Galveston was valid when based upon a vote of a “ma-
jority of the qualified tax paying voters of the district voting at an election” as
provided by Article 7, Section 3 of the Constitution, even though this election
did not satisfy the requirement of Article 11, Section 10 of the Constitution,
that “two-thirds of the tax payers of such city or town shall vote for such tax,”
thereby further indicating that city controlled schools are treated for election
purposes as “school districts”rather than as “cities.” We quote from the opin-
ion of Pleasants, C. J., at page 891:
“The City of Galveston is one of the school districts of the
State, created as such in the manner provided by our Constitution
and legislative acts , and in its capacity as a school district it can-
not be denied the rights and privileges given by the Constitution to
all other school districts in the state. It cannot be held that because
it is an incorporated city having a special municipal charter that its
constitutional powers as a free school district of the State are in
any way lessened or restricted. We think this question is settled
by the opinion of our Supreme Court in the case of Rockdale v.
Cureton, 111 Tex. 136, 229 S. W. 852.”
We wish to cite only a few additional cases which further indicate that
city controlled schools are to be treated as independent school districts rather
than as integral parts of the cities.
In City of Fort Worth V. Cureton;, (1920) 110 Tex. 590, 222 S. W. 531,
the Supreme Court construed the charter ok the city of Fort Worth which limited
Honorable T. M. Trimble, Page 8 O-6059
the tax rate for all purposes to $1.75 “inclusive of the school tax that may
be levied by the board of trustees of public schools as provided by this Act”
so as to authorize an increase in the combined tax rate when the, tax rate for
school purposes only was increased by charter amendment. The court al-
luded to the dual character of a city which has control of its schools and de-
clared that the charter should not be construed so as to reduce the authorized
tax rate for general municipal purposes in the event of an increase in the rate
for school purposes only.
In City of Belton v. Harris Tr,ust & Savings Bank, 273 S. W. 914,
(affirmed by the Texas Commission of Appeals, 283 S. W. 164) the Austin
Court of Civil Appeals held that a charter provision authorizing a $1.50 tax
rate without stating its purpose, had reference to taxation for general muni-
cipal purposes under the home-rule amendment, and had no relation whatever
to the city’s taxing power as an independent school district.
The Austin Court of Civil Appeals, in Temple Independent School
District v. Proctor, (1936) 97 S. W. (2d) 1047, (writ of error refused), held
that the validity of a contract between the Superintendent of Schools in Temple
and the school board (which was appointed by the city council; Temple having
assumed control of its schools) was to be governed not by the city charter but
by the statutes relating to school affairs. In this case Judge Baugh declared,
at page 1053:
“It is now settled, however, that, where such city does as-
sume control of its schools, such control so far as the schools
are concerned, does not become merged into and become a part
of the municipal government as such. And where the city com-
missioners or city,council retains control of its public schools
it acts in a dual capacity - one as a governing body of the city
in its status ss a municipality, and the other as the controlling
or governing board of its schools. The two capacities are not
to be confused. City of Rockdale v. Cureton, 111 Texas 136, 139,
229 S. W. 852; City of Fort Worth v. Zane-Cetti, (Tex. Comm.
App.) 278 S. W. 183; in so far as it acts in its strictly municipal
governmental capacity, its powers are referable to Article 11 of
the Cons+itution and title 28 of the R. S. (Article 961, et seq., as
amended (Vernon’s Annotated Civil Statutes, Article 961, et seq.)).
Whereas, in the management and control of its schools, its powers
are referable to Article 7 of the Constitution and Title 49 of the
R. S. (Article 2584, et seq., as amended (Vernon’s Annotated Civil
Statutes, Article 2584, et seq.)).“’
The separate and distinct character of a city school district and the
city under whose control it is operated is most forcefully illustrated by the case
Honorable T. M. Trimble, Page 9 O-6059
of City of El Paso v, Carroll, (writ of error refused) wherein it was held that
the City of El Paso was not authorized to take $54,000 out of the general fund
for municipal purposes and loan this money to the school district which was
under the control of the city, for the reason that the school district so consti-
tuted and the city were two separate governmental entities and their respective
finances should be kept distinct and separate.
In answer to your first question, you are advised that in our opinion
the Austin Independent School District may, by a vote of the property taxpaying
voters, authorize the levy and collection of a tax of $1.00 on the one hundred
dollars valuation of taxable property in the district; the tax authorized for
school purposes3 however, would include the rate of tax required to pay the
school bonds of the district. Houston v. Gonzales Independent School District,
supra. Since it appears that the charter of the City of Austin contains provisions
limiting the rate of tax which may be imposed to a maximum of $2.50 for school
and municipal purposes combined it follows that if the rate of school tax is in-
creased, the rate for municipal purposes must be limited to the difference between
the levy for school purposes (both for bonds and maintenance) and the maximum
overall rate of $2.50 fixed by charter.
Section 5 of Article 11 of the Constitution, provides that Home Rule
cities “may levy, assess and collect such taxes as may be authorized by law or
by their charters, but no tax for any purpose shall ever be lawful for any one
year, which shall exceed two and one-half per cent of the taxable property of
such city * * *.” This limitation applies to the tax for municipal purpeses and
if it were not for the limitation above quoted from the charter of the City of
Austin, the city could levy $2.50 on the $100 of taxable property for municipal
purposes, in addition to the school tax.
The City could, therefore, by charter amendment, increase its rate
for municipal purpcses to as much as $2,50,on the‘$lOO valuation in addition to
the school tax.
In answer to Mr. Widen’s second question, you are advised that the
question of a maintenance tax for school purposes may not be submitted in the
election held for the purpose of divorcing the public free schools from the con-
trol of the City of Austin. Chapter 302, Acts 41st Legislature, Vernon’s Civil
Statutes, 1925, Article 2783a, authorizes the Mayor to order an election upon
proper petition. The Mayor is not authorized to order an election for a main-
tenance tax for school purposes; this election must be ordered by the govern-
ing body of the independent school district. Another reason is that an election
held for the purpose of divorcing the public free schools from the City of Austin,
. . .
Honorable T. M. Trimble, Page 10 O-6059
any qualified voter may vote, whereas in an election for a maintenance tax,
only qualified voters who are property taxpayers may vote.
Yours very truly
ATTORNEY GENERAL OF TEXAS
BY
C. F. Gibson
Assistant
CFG:EP
APPROVED
OPINION
OF TEXAS ?Tizlzr
Chairman