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THEAYTOR~YEY GENERAL

OFTEXAS

Honorable Weaver Moore, Chairman Committee on State Affairs Texas Senate Austin, Texas

Dear Sir: OpinionNo. O-3310 Re: Constitutlonalitgof 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 constitutionalityof Senate Bill No. 344 of the current session. This bill, exclusive of the title and enactingand emergency clauses,reads as follows:

"Section1. The commissioners' court of any county in this state is hereby authorized to establishwithin the boundaries of such county an airport district of such area as the commissioners' courtmay determine to be necessary for suchpurposes, and to levy and collect a special tax for airport purposesupon 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' courtmay establishwithin such district, and for the purpose of providing all suitable structures and facilities in connectionwith the operation of such airport.'

The only taxing districts, exclusive of counties and municipalities, authorizedby the Texas Constitutionare schooldistricts provLded for by Article 7, Sectlon 3; districts for the conservationand development of natural resources authorizedby Article 16, Section59; and districts for navigation, irrigation,draInage and roads authorizedby Article 3, Section 52 of the Constitution. There existsno constitutlonalauthority for the creation of specialdistric tsHonorable Weaver Moore, page 2 O-3310

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

Article 8, Section 9 of the Const1tutlonof 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, shallnever exceed thirty-five cents on the one hundreddollars valuation;and no county, city or town shall levymore 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 hundreddollars valuation, except for the payment of debts incurredprior 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 Constitutionotherwiseprovided; and the Legislaturemay also authorize an additional annual ad valorem tax to be levied and collected for the furthermaintenance of the public roads: provided, that a majority of the qualifiedproperty tax-payLngvoters 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 hundreddollars valuation of the property subject to taxation in such county. And the Legislaturemay pass local laws for the maIntenante of the public roads and highways,without the local notlce required for special or local laws."

In construingArticle 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 specificdesignation 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,weHonorable Weaver Moore, page 3 O-3310

think a settleddeterminationupon the part of
our people,not only to fix the maximum rates of taxation for the designatedpurposes, respectively, but, incidentally,to restrict to each such purpose ,the

application and expenditure of all taxmoney 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-reachingreauirements in our organic law." (Emphasisours).

The Texas Supreme Court inMitchell County v. Bank, 91 Tex. 361, 43 S.W. 880, used the following language in construingArticle 8, Section 9 (whichwas quoted with approval by the Commission of Appeals in 1921 in the case of,Houston
v. Gonzales IndependentSchoolDistrict, 229 S.W. 467):

‘I* * Y

. Section 9 confersno authority upon any officer of a city or county to levy a tax for any purpose,but the language 'nocounty, city, or town shall levymore 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 prohibitionupon 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 schooldistrict must rely on express constitutionalauthority for its taxing power:

"So the 9th section of the article (VIII)
on taxation carefullyprescribes the limit to state, county and city taxation, except for the payment of debts then already incurred 'andexcept as in this constitution is otherwiseprovided.' These repeated and guarded constitutional limitations of the taxingpower are a orominent feature of that instrument,and are inconsistent with the existence of a lealslativepower to authorize additional taxation by school districts, unless some affirmativegrant of that Dower be found in the

constitution itself. * * *. Our conclusion is that the city of Ft. Worth, in its capacityas a schooldistrict, had no otherpower to levy taxes for the support of public schools than can be fcund expresslyauthorized in the constitution." (Emphasisours).Honorable Weaver Moore, page 4 O-3310

For additional cases declarinn thatArticle 8. Sectlon 9 limits the Legislature'spower t; authorizepolitical subdivisions to levy taxes in excess of the amounts and for the purposes thereinprescribed, 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 OpinionNo. O-3142we held U-&Article 1269h, Vernon's Annotated Civil Statutes, confers authority upon the Commissioners'Court of a County to;establishand malntaln an airport out of the permanent improvementfund of the county. But we are unable to find any constitutlonalauthority for the levy of a tax in addition to that authorizedby Article 8, Section 9 for airport purposes,whether such tax be levied by the county itselfor by any subdivisionthereof. Consequently, it is our opinion that Senate Bill No. 344 of the 47thLegislature is unconstitutional in that It seeks to suthorizea tax in excess of the limits prescribedby Article 8, Section 9 of the Texas Constitution.

Yours very truly

ATTORNEYGENERAL OF TEXAS

By slWalter R. Koch Walter R. Koch Assistant

WRK:RS:wc

APPROVED APRIL 26, 1941 s/Grover Sellers FIRST ASSISTANTS ATTORNEY GENERAL
Approved Opinion CommitteeBy s/BWB Chairman