### HEAITORNEY GENERAL OFTEXA~

GROVER SELLERS AU(~TIN,,.TEXAO

Honorable Ottis E. Lock, Chairman Committee on Education House ofRepresentatives Forty ninth Legislature Austin, Texas
Dear Sir: Opinion No. 

### 0-6533 Re: Is the limit of the power of taxation of the schooldistricts, as provided In the statute stated herein, valid in view of the language of the Constitutionalso referred to? And a related question.
We are In receipt of your letter of recent date reading as follows:

"Anumber of bills have been Introduced in this session of the Legislatureproposing 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 statutesmaking exceptions to the statute fixing the limit.
"Yourattention is called to Article 2784,in which the following language is found: "ITheamount 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, togetherwith the rate of maintenance tax voted in the district shall at any time exceed one dollar on the one hundred dollars valuation, suchbond tax shall operate to reduce the maintenance tax to the differencebetween the rate of the bond tax and one dollar.'
"Yourattention is further directed to Section 

### 3,Article 7, of the Constitution of Texas inwhich this language Fs found:Honorable Ottis E. Lock, page 2 

### o-6533

("*****and the Legislaturemay authorize an additional ad valorem tax,to be levied and collectedwithin all schooldistricts heretofore formed or hereafter formed, for the furthermaintenance of public free schools, and for the erectionand equipment of schoolbuildings 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 oneyear one dollar ($1.00)on the one hundred dollars valuation of the property subject to taxation in such district, but the limitationupon the amount of schooldistrict tax herein authorized shall not apply to incorporatedcities or towns constituting separate and independent school districts,nor to independentor common schooldistricts createdby general or special law.'
"Youwill observe the specificexception for the various types of schools on the one dollar llmltation in saidArticle 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 schooldistricts, as provided in the statuteabove 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?" "Thepeople in framing the Constitution, "says Denio, Ch. J. committed to the legislature the whole law-makingpower of the State, which they did not expressly or impliedlywithhold. Plenary power Intie legislature, for all purposes of civil government, Is the rule. A prohibition to exercise a particularpower is an exception. In Inquiring,therefore,whether a given statute is constitutional, it is for thosewhf question its validity to show that It is forbidden. Cooley's ConstitutionalLimitations,Vol. 1, pages 

### 176-77.Honorable Ottis E. Lock, page 

### 3 o-6533

"Thetest of legislativepower is constitutional restriction. What the people have not said in the organic,,law

their representatives shall not do, they may do. 

### 60Atl. 

### 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 circumscribingit. * * + parental supervisionby Cooley's Constitutional Limitations,Vol. 2, pages 1099-1100. "When,however, it is said to be essential to valid taxation that there be legislativeauthority for every tax that is laid, It Is not meant that the legislativedepartment of the State must have passed upon the necessity and propriety of every particular tax; but thosewho assume to seize the property of the citizen for the satisfactionof the taxmust 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 constitutionallaw 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 shouldbe careful to keep within its limits, lest they rern;vzf"om their acts the shield of %ts protection. Cooleg's ConstitutionalLimitations,Vol. 2, page 1100-1102. The Constitutionnot only has not prohibited the Legislature from passing any law authorizing school districts to levy taxes, but in the very sectionreferred to in your letter,we find the following express authority:

"Andthe Legislaturemay authorize an additional ad valorem tax to be levied and collected within all school districts heretofore formed or hereafter formed, for the furthermaintenance of public free schools,and for the erection and equipment of school buildings therein;" and further provides that such taxmust 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 taxableproperty, which limitation as to rate does not apply to any schooldistrict, since the limitationas to rate was removed by a proviso to that effect. Removing the limitation as toHonorable Ottis E. Lock, page 4 

### O-6533

rate does not affect the authority of the Legislature to provide for a tax at any rate itdeems advisable.

From the above authorities,you will see ?;hat no tax is valid which is not authorizedby law. The Constitution does not limit the rate nor does itprohibit the Legislature from fixing the rate. Therefore, the L,gislature,by general law,may authorize a school tax at such rate as itdeems advisable. It is our opinion thatArticle 

### 2784 is valid.

In view of our answer to your first question, it becomes unnecessary to answer your second.
Yours very truly
ATTORNEYGENERAL OF TEXAS'

By s/C.F. Gibson C. F. Gibson Assistant
CFG:EP:wc

APPROVED APRIL 23, 1945 s/Grover Sellers ATTORNEYGENERAL OF TEXAS Approved Opinion CommitteeB,ys/BWB Chairman