-. 

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 

on % 

a special tax of five cents 

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 commissioners' 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 establishing, improving, operating, maintaining and conducting 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; districts for the conservation and development of natural resources 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 distric ts 
Honorable Weaver Moore, page 2 O-3310 

and the levying of taxes thereby for the purpose of constructing airports. 

Article 8, Section 9 of the Const1tutlon of Texas 

provides: 

"Sec. 9. The State tax on property, exclusive 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 incurred 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 annual ad valorem tax to be levied and collected 

for the further maintenance of the public roads: 

provided, that a majority of the qualified property 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 maIntenante 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 

1876 and running through the amendments of 1893, 

1890 and 1907, the specific designation in section 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 progressive growth. That change and that development, 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, respectively, but, incidentally, to restrict to each 

such purpose ,the application 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 construing 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 except as in this constitution is otherwise provided.' 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 constitution itself. * * *. 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. Sectlon 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. Consequently, 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