Hon. Pearce Johnson, Chairman Committee on State Affairs House ofRepresentatives Fifty-first Legislature Austin, Texas Opinion No. V-797
Re: Whether amendment of Sec. l-a ofArticle VIII ofthe Constitution is self-executing andwhether the provisions of H.B. 107 comply with said Dear Sir: section.

You have submitted a copy of House Bill 107 and requested aruling of theAttorney General on two questions, the first of which reads as follows:

‘1. Is the enactment ofthe proposed law neccssary to comply with H.J.R. No. 24 ofthe 50th Legiala**ture ?** **”** The pertinent provisions ofH.J.R. 24, which was adopted byvote ofthe people inthe 1948 General Election, are the following:

“Section 1. That Section l-a ofArticle VIII of the Constitution be amended so as tobe and read as **follows:**

u‘Section l-a. From and after January 1, 1951, noState advalorem tax shall **be** levied upon any property within this State for general revenue purposes. From and after January 1, 1951, the several count&a ofthe State are authorized to levy advalorem taxeo uponall property within their respective boundaries for county purposes, . . . not to exceed thirty cents (3O$) oneach One Hundred Dollar ($100) valuation, inaddition to all other advalorem 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.”,

Hon. Pearce Johnson, Page 2 (V-797)

The proviso relates to the applicability of the amendment to ”‘counties or political subdivisions, or areas ofthe State from which tax donations have heretofore been granted

. . .’ ”

Section 1ofH.B. 107,embodies the exact language of the first sentence above quoted prohibiting the levy ofState ad valorem taxes for general **revenue** purposes after January 1, 1951. Since this sentence of H.J.R. 24 plainly states a positive constitutional prohibition. no legislative act could abrogate or modify its terms and it must, by its very **nature,** be self-executing. Cooley, Constitutional Limitations, 8th Ed., Vol. 1, pp. 166-168, 170; Watson v. Aiken, 55Tex. 536, 542; Hemphill v, Watson, 60Tex. b’T4F;

‘681. Mitchell County v. City National Bank, 91 T 880: 883 ex. 361, 43 S.W.

;and authoritres there crted. Section 1ofH.B. 107 is therefore innowise necessary either to effectuate or to comply with the opening mandate ofH.J.R. 24.

Passing to a consideration ofthe remainder of H.J.R. 24, we may hold it self-executing “if it supplies a sufficient rule by means ofwhich the right given may be enjoyed and protected or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down **rules** by which these principles may be given the force of law.”

This excerpt from Cooley on Constitutional Limitations was quoted by the Supreme **Court** of Texas inMitchell County v. City National Bank, 91 Tex. 361, 371, 43 S.W. 880, 883, when the **court was**  determining whether or not the provisions of Section 7 ofArticle XI ofthe Texas Constitution were self-executing: i.e., said the **court,** whether “the **source** ofauthority for making the levy and collecting the tax is the Constitution and not the act ofthe Legislature.” The portion of the Constitution inquestion in the Mitchell case provided:

*All counties and cities bordering onthe coast

. . .are hereby authorized, upon avote oftwo-thirds of the tax payers therein (tobe ascertained as may be provided by law), to levy and collect such tax for **con struction**  ofseawalls, breakwaters, or sanitary purposes, as may be authorized by law, and may create adebt for such works

. . .I( The Court reached the conclusion that the provisions of Section 7ofArticle XI were not self-executing in the following analysis:Hon. Pearce Johnson, Page 3 (V-797)

“The only parts ofthe constitution which bear upon this subject are section 9ofarticle 8, and sections 2and 7of article 11. Section 9confers no **au** thority upon any officer ofa city or county to levy a tax for any purpose, but by the language, ‘No county, city or town shall levy more than one-half of said state tax.

. .and for the erection ofpublic buildings not toexceed fifty cents on the one hundred dollars in any one year,’ places a prohibition or limitation upon the power of the legislature toauthorize counties to impose taxes for such purposes. Section 2ofarticle 11 expressly requires the enactment ofa general law to carry its mandates into effect; and section 7of the same article contains no grant ofauthority to levy a tax nor designation ofany official bywhom the tax specified is to be levied and collected, but is, ineffect, a limitation upon the power ofthe legislature to authoriae~ such corporations to create debts. Inthe sense that all laws in conflict with these prohibitions are void, section 9ofarticle 8and section 7ofarticle 11 **are** self-executing; but, in so far as anything is required tobe done to carry them into effect, they are not so, because they prescribe no rules bywhich any act could be done in the enforcement of their requirements.” Although the provisions of section 7of Article XI expressly required future action by the Legislature (the vote of the ~taxpayer, and the amount of the tax, were tobe ascertained -as may be provided by law”), we think that the language of the court above quoted precludes **our** holding that the last part of H.J.R. 24 is selfexecuting. There is no “designation of any official bywhom the tax specified is tobe levied and collected”; nor is “anything

. . . required tobe done to carry . . . (it) into effect.

. .because

. . . no rules

. . . (are prescribed by) which any act could be done in the enforcement of their requirements.” The Mitchell case at least casts enough doubt on the matter to fully justify the enactment of enabling legislation.

Even if the main provisions of H.J.R. 24 are self-executing, legislation could still be deemed desirable for the purpose of “providing convenient remedies for the protection ofthe right secured, or of regulating the claim ofthe right so that its exact limits may be known and understood; but all such legislation must be subordinate to the Constitutional provision, and infurtherance ofits purposes, and must not inany particular attempt tonarro or embarrass it.” Cooley, Constitutional Limitations, 8th Ed., T01. 1, pp. 170, 171. The power ofthe Legislature to implement the ~presant amendment is indisputable because, should itbe regarded.

Hon. Pearce Xohnson, Page 4 (V-797)

as self-executing, the machinery for its enforcement could only be found inexisting legislation which is, of course, inthe main, subject to repeal or amendment at the pleasure ofthe presently constituted legislati,ve body,

Question No. 2reads as follows:

“Ifyour answer toquestion number one is ‘yes,’ does the Bill properly comply with H.J.R. No. 24?* The Constitutional Amendment inquestion (H.J.R. 24) says that the tax funds raised “shall be used for (1) construction and maintenance ofFarm to Market Roads or (2) for Flood Control

. . . (Numbers m parenthesis added, and emphasis added throughout this opinion.)

Sections 2-5 of H.B. 107 continue to embody the language of H.J.R. 24with a notable departure in providing that the tax revenues “shall be used as provided inthis Act for the construction and maintenance ofFarm-to-Market and lateral roads and for soil and __- -- water conservation and flood control.yThe amount orrevenue which may, at the option of the **county,** be credited to a municipal corporation within its limits and used for “water conservation and flood control purposes” is limited to l/3 of the tax authorized.

Sections 6-8 provide for aFarm-to-Market and Lateral Road Fund and for aseparate Soil andWater Conservation Fund to which the County may credit such portion ofthe revenues as it sees fit. Both funds are to be under thejurisdiction ofthe Commission**ers Court**  ofthe **County. But**  the Farm-to-Market and Lateral Road Fund is to be used solely in cooperation with the State Highway Department, and the “Soil and Water Conservation and Flood Control Fund” (“Flood Control” being added to the name mhisfunde. fir time in Section 8) is tobe used “solely for Soil andWater Conservation and Flood Control purposes, su q$&yj&Y&2$!~&$- nection with, plans and programs of the Service and State Soil Conservation Districts, and the State Exteasion Service, provided that that part ofthe **County** programs for Soil Conservation on farms and ranches shall be handled according to plans andwith the personnel ofthe local conservation district, where one exists inwhole or in part within such **county. ”**  Section 8further provides:

“To this end, the Commissioners Court may, in its discretion, engage the services ofaFederal or State Soil Conservation engineer, or ofextention service personnel, indevising and planning for farm and ranch owners and operators, soil, water, erosion, drainage, and eradication program coming within the purview of.thisHon. Pearce Johnson, Page 5 (V-797)

Act, and may acquire whatever machinery, equipment and material useful and necessary in carrying **out such**  soil, water, erosion, drainage and eradication conservation program, provided such machinery and equipment shall be made available tofarm and ranch owners and operators on an out-of-pocket expense basis, not including depreciation.”
From this summary it is first apparent that House Bill 107 fully complies with the provision ofthe Constitutional Amendment only if the term “Flood Control” (one of the two purposes to which expenditures are confined by the amendment) embraces “Soil Conservation. ” We have been unable to find any authorities directly in point; but we have examined provisions ofexisting sections of **our** Constitution and **statutes** which relate to controlling or conserving natural **resources,** with which provisions the framers of the amendment must be deemed tohave been familiar. Any discussion or even a,summary of these provisions would extend this opinion tovoluminous proportions. Suffice it to say that the powers of counties and districts in these matters are distinctly specified and enumerated **under** Article III, Section 52, but that the variety and purposes for which districts are created under statutes passed in pursuance to Section 59 ofArticle XVI are as varied as the aspects of conservation of natural **resources** are numerous. Nevertheless, the districts which have been organized are generally limited to the accomplishment of one particular aspect or field of conservation even though their work may incidentally aid or embrace other fields. For example, there are Drainage Districts, Flood Control Districts, Reclamation Districts, Levee Improvement Districts and Soil Conservation Districts. Soil Conservation Districts may be created under the provisions ofArticle 165a-4, V.C.S., which expressly states that it is carrying **out** the mandate ofArticle XVI, Section 59. Laws providing for the creation ofSoil Conservation Districts could not have been enacted under the provisions ofArticle III, Section 52, as none ofthe three subdivisions thereof are comprehensive enough to embrace the various methods of soil conservation; yet aFlood Control District is plainly authorized by its provisions. We are aware that many aspects of soil conservation do result in controlling floods; but many other methods of soil conservation have nobearing upon flood control. Moreover, we are ofthe opinion that H.J.R. 24 could easily have enumerated soil conservation purposes as one ofthe uses towhich the tax revenues could be applied had use for such purposes been contemplated. Itnot only failed to do so, it specifically requires that the revenues shall be used for two purposes (farm to market roads or flood control) “except as hereinotherwise provided.” You are therefore advised that H.B. 107 has exceeded the constitutional limitations inattempting to divert these revenues to “Soil Conservation” purposes by requiring that some ofthe **revenues** ‘be used supplementary to and in connection with

. . .State Soil Conservation Districts.”Hon. Pearce Johnson, Page 6 (V-797)

We do not wish tobe understood as saying that none of the funds can be expended on soil conservation. But funds may be expended for soil conservation purposes only if the particular purpose has adirect relationship toflood control. Inother words, an integral part of flood control under certain circumstances may be soil conservation. But “soil conservation” standing alone may have nothing to dowith flood control. If so, expenditures for such purposes would be unconstitutional. The same is true of *water conservation.” Ordinarily water conservation expenditures must be incident toand a part of the “flood control.”

Turning to the disposition ofthe revenues which are to be used for “water conservation and flood control” purposes, the act contemplates the transfer of such revenues to “municipal corporations within the county” (Section 5), specifically providing in Section 6for “crediting to the municipal corporations whatever funds as may be decided upon by the county.

. .- These provisions are inviolation ofArticle III, Section 52 ofthe Constitution. The new Constitutional amendment authorizes only counties to levy the prescribed taxes on property within their bound-r county purposes. The taxes which are tobe collected are therefore county taxes; the revenues are therefore county funds; and Sectionr

‘iirArticle III “prohibits the Legislature from authorizing any county to lend its credit, or to grant public money or thing ofvalue, in aid ofany corporation whatsoever. * Harris County flood Control .Dist. v. Mann, 140 S.W.2d 1098. 1104.

We find no fault with Sections 9, IO, 11and 12ofthe Bill except such portion of Section 12as requir~es the **revenues** tobe used for purposes which we have hereinabove held unconstitutional.

Section 13provides for the issuance ofbonds by the county. Inso far as it purports toauthorize the issuance ofbonds and the use ofthe proceeds oftheir sale for purposes which we have here held without the provisions ofthe Constitutional amendment, it is un- 6 constitutional. Inthis connection, although we have nodesire toattempt an improper invasion of fields of policy, we would like tocall toyour attention the fact that the provisions relating toauthorization, issuance, sale, etc., are rather **vague.** Moreover, itis not entirely clear whether theAct authoriaes more than one issue.

Section 14 provides that “Any city or townwithin such county may likewise issue bonds,” etc. We have already pointed **out** that H.J.R. 24 relates on1 to count&s and authorizes atax levy for county purposes only. -v?eheld that Article III, Section 52 precluded the donation toand control of these funds by municipal corporations. Itnecessarily follows that H.J.R. 24 neither contemplates nor authorizes legislation enabling cities to issue bonds for any purpose..

., .

Hon. Pearce Johnson, Page 7 (V-797)

The caption of H.B. 107will, of course, have tobe amended to conform to the changes suggested herein.
SUMMARY
No legislation is necessary to effectuate that portion ofthe recently adopted Section l-a **of** Article VIII ofthe Texas Constitution (H.J.R. 24). which provides that from and after January 1, 1951, no Sta,tead valorem tax shall be levied upon any property within this State for general revenue purposes. The remaining portions of H.J.R. 24 are not self-executing. Mitchell County v. City National Bank, 91 Tex. 361, 43m

, R 24 specifies that the tax money shall

. . . . be used for farm to market roads or flood control. H. B. 107 has exceeded the limitations of H.J.R. 24 inproviding that some of the tax revenues shall be used for

‘Soil Conservation” and for “Water Conservation.” Such purposes, as evidenced by the detailed provisions ofthe Bill, are not embraced within either of the two purposes towhich H.J.R. 24 limits the **use** ofsaid revcnues unless the soil conservation or water conservation is an integral part of flood control. The provisions of H.B. 107 which authorize the transfer of some of these county tax revenues to municipal corporations within the county **are** violative of the provisions ofArticle III, Section 52 of the Texas Consti-. &tion. Harris County Flood Control Dist. v. Mann, 140 S.W.2d 1098. 1104. Sections 9-13. inclusive. of **H.B.** 107 comply with-the provisions ofH.J;R. 24 except for those portions which relate to the **use** ofthe tax revenues or the issuance of bonds for “Soil Conservation” and “Water Conservation” purposes. Section 14, authorizing the is**suance** ofbonds by cities, was neither contemplated nor authorked.by H.J.R. 24.
**Yours** very truly
ATTORNEYGENERALOFTEXAS

MMC/mwb By s/ Marietta McGregor Creel **Mrs.** MariettaMcGregor Creel

Assistant ’

APPROVED sj PRICE DANIEL ATTORNEYGENERAL