Hon. Pearce Johnson, Chairman 

Committee on State Affairs 

House of Representatives 

Fifty-first Legislature 

Austin, Texas Opinion No. V-797 

Re: Whether amendment of Sec. 

l-a of Article VIII of the Constitution is self-executing 

and whether the provisions of 

H.B. 107 comply with said 

Dear Sir: section. 

You have submitted a copy of House Bill 107 and requested a ruling of the Attorney General on two questions, the first 

of which reads as follows: 

‘1. Is the enactment of the proposed law neccssary to comply with H.J.R. No. 24 of the 50th Legialature ? ” 

The pertinent provisions of H.J.R. 24, which was adopted by vote of the people in the 1948 General Election, are the following: 

“Section 1. That Section l-a of Article VIII of the 

Constitution be amended so as to be and read as follows: 

u ‘Section l-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 count&a 

of the State are authorized to levy ad valorem taxeo upon all property within their respective boundaries for 

county purposes, . . . not to exceed thirty cents (3O$) 

on each One Hundred Dollar ($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.” 
, 

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

The proviso relates to the applicability of the amendment to ” ‘counties or political subdivisions, or areas of the State 

from which tax donations have heretofore been granted . . .’ ” 

Section 1 of H.B. 107, embodies the exact language of 

the first sentence above quoted prohibiting the levy of State 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, 55 Tex. 536, 542; Hemphill v, Watson, 60 Tex. b’T4F; 

‘681. Mitchell County v. City National Bank, 91 T 

880: 883 

ex. 361, 43 S.W. 

; and authoritres there crted. Section 1 of H.B. 107 is therefore in no wise necessary either to effectuate or to comply with the 

opening mandate of H.J.R. 24. 

Passing to a consideration of the remainder of H.J.R. 

24, we may hold it self-executing “if it supplies a sufficient rule 

by means of which 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 in Mitchell 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 

of Article XI of the Texas Constitution were self-executing: i.e., 

said the court, whether “the source of authority for making the levy 

and collecting the tax is the Constitution and not the act of the Legislature.” 

The portion of the Constitution in question in the Mitchell 

case provided: 

*All counties and cities bordering on the coast 

. . . are hereby authorized, upon a vote of two-thirds 

of the tax payers therein (to be ascertained as may be 

provided by law), to levy and collect such tax for construction of seawalls, breakwaters, or sanitary purposes, as may be authorized by law, and may create 

a debt for such works . . .I( 

The Court reached the conclusion that the provisions of 

Section 7 of Article XI were not self-executing in the following analysis: 
Hon. Pearce Johnson, Page 3 (V-797) 

“The only parts of the constitution which bear 

upon this subject are section 9 of article 8, and sections 2 and 7 of article 11. Section 9 confers no authority upon any officer of a 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 of public buildings 

not to exceed fifty cents on the one hundred dollars in 

any one year,’ places a prohibition or limitation upon 

the power of the legislature to authorize counties to 

impose taxes for such purposes. Section 2 of article 

11 expressly requires the enactment of a general law 

to carry its mandates into effect; and section 7 of the 

same article contains no grant of authority to levy a 

tax nor designation of any official by whom the tax 

specified is to be levied and collected, but is, in effect, a limitation upon the power of the legislature to 

authoriae~ such corporations to create debts. In the 

sense that all laws in conflict with these prohibitions 

are void, section 9 of article 8 and section 7 of article 

11 are self-executing; but, in so far as anything is required to be done to carry them into effect, they are 

not so, because they prescribe no rules by which any 

act could be done in the enforcement of their requirements.” 

Although the provisions of section 7 of Article XI expressly required future action by the Legislature (the vote of the 

~taxpayer, and the amount of the tax, were to be 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 by whom the tax 

specified is to be levied and collected”; nor is “anything . . . required to be 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 of the right 

secured, or of regulating the claim of the right so that its exact 

limits may be known and understood; but all such legislation must 

be subordinate to the Constitutional provision, and in furtherance 

of its purposes, and must not in any particular attempt to narro 

or embarrass it.” Cooley, Constitutional Limitations, 8th Ed., T 01. 

1, pp. 170, 171. The power of the Legislature to implement the 

~presant amendment is indisputable because, should it be regarded 
. 

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

as self-executing, the machinery for its enforcement could only be 

found in existing legislation which is, of course, in the main, subject to repeal or amendment at the pleasure of the presently constituted legislati,ve body, 

Question No. 2 reads as follows: 

“If your answer to question number one is ‘yes,’ 

does the Bill properly comply with H.J.R. No. 24?* 

The Constitutional Amendment in question (H.J.R. 24) 

says that the tax funds raised “shall be used for (1) construction 

and maintenance of Farm 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. 24 with a notable departure in providing that the tax revenue s “shall be used as provided in this Act for the construction and 

maintenance of Farm-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 a Farm-to-Market and Lateral 

Road Fund and for a separate Soil and Water Conservation Fund to 

which the County may credit such portion of the revenues as it sees 

fit. Both funds are to be under the jurisdiction of the Commissioners Court of the 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 to be used “solely for Soil and Water 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 of the County programs for 

Soil Conservation on farms and ranches shall be handled according 

to plans and with the personnel of the local conservation district, 

where one exists in whole or in part within such county.” Section 

8 further provides: 

“To this end, the Commissioners Court may, in 

its discretion, engage the services of a Federal or State 

Soil Conservation engineer, or of extention service personnel, in devising and planning for farm and ranch owners and operators, soil, water, erosion, drainage, and 

eradication program coming within the purview of.this 
Hon. 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 to farm 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 of the 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 of existing 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 to have been familiar. Any discussion 

or even a, summary of these provisions would extend this opinion 

to voluminous 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 of Article 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 of Article 165a-4, V.C.S., which expressly 

states that it is carrying out the mandate of Article XVI, Section 

59. Laws providing for the creation of Soil Conservation Districts 

could not have been enacted under the provisions of Article III, Section 52, as none of the three subdivisions thereof are comprehensive enough to embrace the various methods of soil conservation; 

yet a Flood 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 

no bearing upon flood control. Moreover, we are of the opinion that 

H.J.R. 24 could easily have enumerated soil conservation purposes 

as one of the uses to which the tax revenues could be applied had 

use for such purposes been contemplated. It not 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 herein otherwise provided.” You are therefore advised that H.B. 107 

has exceeded the constitutional limitations in attempting to divert 

these revenues to “Soil Conservation” purposes by requiring that 

some of the revenues ‘be used supplementary to and in connection 

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

We do not wish to be 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 a direct relationship to flood control. In other words, an 

integral part of flood control under certain circumstances may be 

soil conservation. But “soil conservation” standing alone may have 

nothing to do with 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 to and a part of the “flood control.” 

Turning to the disposition of the 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 6 for “crediting to the municipal corporations whatever 

funds as may be decided upon by the county. . .- These provisions 

are in violation of Article III, Section 52 of the 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 to be collected are therefore county taxes; the revenues are therefore county funds; and Sectionr 

‘iir Article III “prohibits the Legislature from authorizing any county to lend its credit, or to grant public money or thing of value, in 

aid of any corporation whatsoever. * Harris County flood Control 

.Dist. v. Mann, 140 S.W.2d 1098. 1104. 

We find no fault with Sections 9, IO, 11 and 12 of the Bill 

except such portion of Section 12 as requir~es the revenues to be used 

for purposes which we have hereinabove held unconstitutional. 

Section 13 provides for the issuance of bonds by the county. In so far as it purports to authorize the issuance of bonds and the 

use of the proceeds of their sale for purposes which we have here 

held without the provisions of the Constitutional amendment, it is un- 6 

constitutional. In this connection, although we have no desire to attempt an improper invasion of fields of policy, we would like to call 

to your attention the fact that the provisions relating to authorization, issuance, sale, etc., are rather vague. Moreover, it is not entirely clear whether the Act authoriaes more than one issue. 

Section 14 provides that “Any city or town within such 

county may likewise issue bonds,” etc. We have already pointed out 

that H.J.R. 24 relates on1 to count&s and authorizes a tax levy for 

county purposes only. -v? e held that Article III, Section 52 precluded 

the donation to and control of these funds by municipal corporations. 

It necessarily 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. 107 will, of course, have to be 

amended to conform to the changes suggested herein. 

SUMMARY 

No legislation is necessary to effectuate that 

portion of the recently adopted Section l-a of Article 

VIII of the Texas Constitution (H.J.R. 24). which provides that from and after January 1, 1951, no Sta,te ad 

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 in providing that some of the tax revenues shall be used for 

‘Soil Conservation” and for “Water Conservation.” 

Such purposes, as evidenced by the detailed provisions 

of the Bill, are not embraced within either of the two 

purposes to which H.J.R. 24 limits the use of said 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 of Article 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 of H.J;R. 24 except for those 

portions which relate to the use of the tax revenues or 

the issuance of bonds for “Soil Conservation” and “Water 

Conservation” purposes. Section 14, authorizing the issuance of bonds 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