HEAITORNEY GENERAL 

OFTEXA~ 

GROVER SELLERS AU(~TIN,,.TEXAO 

Honorable Ottis E. Lock, Chairman 

Committee on Education 

House of Representatives 

Forty ninth Legislature 

Austin, Texas 

Dear Sir: Opinion No. 0-6533 

Re: Is the limit of the power of taxation of the school districts, 

as provided In the statute stated 

herein, valid in view of the 

language of the Constitution also 

referred to? And a related question. 

We are In receipt of your letter of recent date 

reading as follows: 

"A number of bills have been Introduced in 

this session of the Legislature proposing to increase the maxlmum tax rate that may be levied for 

the local support of public free schools in Texas. 

A number of measures are now on the statutes making 

exceptions to the statute fixing the limit. 

"Your attention is called to Article 2784,in 

which the following language is found: 

"IThe amount of maintanance tax, together 

with the amount of bond tax of any district, 

shall never exceed one dollar on the one 

hundred dollars valuation of taxable property; 

and if the rate of bond tax, together with the 

rate of maintenance tax voted in the district 

shall at any time exceed one dollar on the one 

hundred dollars valuation, such bond tax shall 

operate to reduce the maintenance tax to the 

difference between the rate of the bond tax 

and one dollar.' 

"Your attention is further directed to Section 

3, Article 7, of the Constitution of Texas in which 

this language Fs found: 
Honorable Ottis E. Lock, page 2 o-6533 

("***** and the Legislature may authorize 

an additional ad valorem tax, to be levied 

and collected within all school districts 

heretofore formed or hereafter formed, for 

the further maintenance of public free 

schools, and for the erection and equipment 

of school buildings therein; provided that 

a majority of the qualified property taxpaying voters of the district voting at an 

election to be held for that purpose, shall 

vote such tax not to exceed In any one year 

one dollar ($1.00) on the one hundred dollars 

valuation of the property subject to taxation 

in such district, but the limitation upon the 

amount of school district tax herein authorized shall not apply to incorporated cities 

or towns constituting separate and independent 

school districts, nor to independent or common school districts created by general or 

special law.' 

"You will observe the specific exception for 

the various types of schools on the one dollar llmltation in said Article of the Constitution. We, therefore, would like to have a specific answer to the 

following questions: 

"1 . Is the limit of the power of taxation of the school districts, as provided 

in the statute above referred to, valid 

in view of the language of the Constitution 

also above referred to? 

"2 . If the answer is 'no,' then do the 

statutes enable school districts to collect 

such tax as the voters in said districts 

may have authorized, or may hereafter authorize, without regard to the one dollar 

limitation of the statutes?" 

"The people in framing the Constitution, "says 

Denio, Ch. J. committed to the legislature the whole 

law-making power of the State, which they did not expressly or impliedly withhold. Plenary power Intie 

legislature, for all purposes of civil government, Is 

the rule. A prohibition to exercise a particular power 

is an exception. In Inquiring, therefore, whether a 

given statute is constitutional, it is for those whf 

question its validity to show that It is forbidden. 

Cooley's Constitutional Limitations, Vol. 1, pages 

176 -77. 
Honorable Ottis E. Lock, page 3 o-6533 

"The test of legislative power is constitutional 

restriction. What the people have not said in the 

organic,,law their representatives shall not do, they 

may do. 60 Atl. 169; 105 Am. St. Rep. 825. 

"But it is as true of the politIca divisions 

of the State as it Is of the State at large, that 

$g;i:azive authority must be shown for every levy 

. The power to levy taxes by these divisions 

comes from the State. The State confers It, and at 

the same time exercises a 

circumscribing it. * * + 

parental supervision by 

Cooley's Constitutional 

Limitations, Vol. 2, pages 1099-1100. 

"When, however, it is said to be essential to 

valid taxation that there be legislative authority 

for every tax that is laid, It Is not meant that 

the legislative department of the State must have 

passed upon the necessity and propriety of every 

particular tax; but those who assume to seize the 

property of the citizen for the satisfaction of the 

tax must be able to show that that particular tax is 

authorized either by general or specIa1 law. The 

power inherent in government to tax lies dormant until 

a constitutional law has been passed calling it into 

action, and is then vitalized only to the extent provided by law. Those, therefore, who act under such 

a law should be careful to keep within its limits, 

lest they rern;vz f"om their acts the shield of %ts 

protection. Cooleg's Constitutional Limitations, Vol. 2, page 1100-1102. 

The Constitution not only has not prohibited the 

Legislature from passing any law authorizing school districts 

to levy taxes, but in the very section referred to in your 

letter, we find the following express authority: 

"And the Legislature may authorize an additional ad valorem tax to be levied and collected 

within all school districts heretofore formed or 

hereafter formed, for the further maintenance of 

public free schools, and for the erection and 

equipment of school buildings therein;" 

and further provides that such tax must be further authorized 

by a vote of the property taxpayers of the district, and 

fixes a limit of $1.00 on the $100 valuation of taxable property, which limitation as to rate does not apply to any 

school district, since the limitation as to rate was removed 

by a proviso to that effect. Removing the limitation as to 
Honorable Ottis E. Lock, page 4 O-6533 

rate does not affect the authority of the Legislature to 

provide for a tax at any rate it deems advisable. 

From the above authorities, you will see ?;hat no 

tax is valid which is not authorized by law. The Constitution does not limit the rate nor does it prohibit the 

Legislature from fixing the rate. Therefore, the L,gislature, by general law, may authorize a school tax at such 

rate as it deems advisable. It is our opinion that Article 

2784 is valid. 

In view of our answer to your first question, it 

becomes unnecessary to answer your second. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS' 

By s/C. F. Gibson 

C. F. Gibson 

Assistant 

CFG:EP:wc 

APPROVED APRIL 23, 1945 

s/Grover Sellers 

ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee B,y s/BWB Chairman