Honorable Jack Fields~ 

County Attorney 

Calhoun County 

Port Lavaca, Texas 

Dear Mr. Fields: 

Opinion No. C-319 

Re: Construction of Article 

4477-2, V.C.S., relating 

to,the levying of a tax 

for mosquito control. 

Your request for an opinion poses the following questions : 

"In checking the petition flor the calling oi'an election pursuant to ArtiFle 4477-27 

to determine the qualification of the individual 

petitioners, shall those who are not qualified as 

y;;;;r;ty tax paying voters be stricken, from the 

2. “. . . is it mandatory on the Commissioners Court or the County Judge, if there'are 

200 qualified petitioners, that an election,be 

submitted to the voters, even if no funds are subject to allocation under the 804 tax rate, without an increase of real property valuations?" 

3. n 6 . . if the election is submitted and 

is passed by a majority vote, is it mandatory that 

the Court appoint‘a five-man commission, a mosquito control engineer and special employes necessary for mosquito eradication, or may~itdesignate 

the county health off.icer and the employees of the 

State Health Department or of the County hgricultural Department?" 

by thz'deiartment as rendered prior’ to ihe 1961 

is the opinion of 1950 No. 1116, 

amendatory act, still an approved ruling as to 

whether the 25# per One Hundred Dollar valuation 

is to be a reallocation of the 804 maximum tax 

rate under the Constitution, or can-an additional 

tax above the 804 maximum be levied to supply the 

necessary funds for mosquito extermination?"' 

-1522- 
Hon. Jack Fields, page 2 (C-319) 

5. “. . , in view of the fact that the 

marshes of our adjacent counties (Aransas, 

Refugio, Victoria, Jackson and Matagorda), 

which now have no mosquito control districts 

with which a Calhoun County District could 

merge, although a study of the mosquito infestation indicates that no effective or successful control can be achieved ~by a single 

county acting alone because the varying winds 

of each county transport mosquitoes from one to 

the other. On such a finding of fact, can the 

Court in submitting the election provide a condition that no tax will be levied unless like 

districts are created in the adjoining counties 

and like taxes levied therein, since our county 

can not expend funds to control the breeding 

grounds in adjacent counties?” 

6. ” if increased valuations are 

re 

803 

uired to’makd available the funds out :of the 

constitutional levy, can a blanket percentage increase be applied to all tax renditions 

or must each rendition in the county be separately considered with due notice of an increase to 

each person on the tax roll?” 

7. I’... is there a possibility that, if 

a rate increase is required to finance this district, can a county which does not levy the full ; 

30# flood control tax, increase that levy for the 

purpose of mosquito control because it is flood 

water that produces mosquitoes?” 

Sections 1, 2 and 3 of Article 4477-2, Vernon’s Civil 

Statutes, provide: 

“Section 1. In all counties of this State, 

the Commissioners Court may call an election within 

sixty (60) days after the effective date of this 

Act, and at subsequent elections when called by the 

County Judge upon his being petitioned by two hundred (200) qualified voters to call such election to 

determine if the qualified voters of such county desire the establishment of a Mosquito Control District 

to embrace all or a portion of the territory within 

said county, for the purpose of eradicating mosquitoes in said area. The form of the ballot shall be 

as follows: 

“FOR the establi~shment of a Mosquito Control 

District in County. 

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. 

Hon. Jack Fields, page 3 (C-319) 

"AGAINST the establishment of a Mosquito 

Control District in County. 

"Sec. 2. The Commissioners Court in each 

County governed by the provisions of this Act 

may call an election within sixtyt(60) days 

after the effective date of this Act and at subsequent elections when called by the County 

Judge upon his being petitioned by two hundred 

(200) qualified voters to call such election to 

determine if the qualified real property taxpaying voters of said county or portion of said 

county desire a levy of a tax not to exceed 

twenty-five cents (25#) on each one hundred dollar tax valuation to finance the program provided in this Act. The form of the ballot shall 

be as follows: 

"FOR the levy of a tax of cents on 

each one hundred dollar tax valm to finance 

the Mosquito Control District within 

County. 

"AGAINST the levy of a tax of 

cents on each one hundred dollar tax valuation 

to finance the Mosquito Control District within 

county. 

"Sec. 3. The elections provided in Section 

1 and Section 2 shall be combined. in one election; 

provided, however, that only qualified property 

taxpaying voters shall be authorized to vote to 

create such district and on the question of a tax 

levy as provided in Section 2." 

It is noted that the petition.provided for in Sections 1 

and 2 may be signed by any qualified voter of the County as distinguished from the qualification contained in Section 3 which 

limits those eligible to vote at such an election to qualified 

property taxpaying voters. In answer to your first question, you 

are advised that the phrase "200 qualified voters" contained in 

Sections 1 and 2 is not limited to property taxpaying voters-, 

but includes all qualified voters of the county. Therefore, 

those qualified voters who are not property taxpaying voters may 

not be stricken from the petition. 

In view of the provisions of Sections 1 and 2 of Article 

4477-2, it is mandatory.that the County Judge call the election 

-1524- 
Hon. Jack Fields, page 4,,(C-319) 

provided for therein' if he is petitioned by 200 qualified voters 

of the county whether funds are subject to allocationunder 

the 80# constitutional limit or not for the reason-that such an 

election is a prerequisite to the authority of the Commissioners 

Court to create such Mosquito Control District or to levy the 

tax provlded therein. In this connection, it is noted that Se?- 

tion 9 of.hrticle VIII of the Constitut.ion,ofTexas provides in 

part: 

II 

. . . Once the Court has levied the annual 

tax rate, the same shall remaln,in force and effect during that taxable year; . . ." 

While the above-quoted constitutional provision specifltally requires that the annual tax rate levied by,the Commissioners 

Court shall ,remain in force and effect during that taxable year, 

it does not preclude the Commissioners Court from making a dirferent allocation of the 804 constitutional limit for a subsequent 

tax year. Thus, if taxes 'of subsequent years are to be levied 

for mosquito control and the necessary allocation of constitutional funds be made, prior authorization by the property, taxpaying 

voters of'the county to levy such a tax'is a prerequisite. .* ', 

Sections 5 and 6 of Article 4477-2 provide: 

“Sec. 5. There shall be appointed by the 

Commissioners Court in each county in which a 

Mosquito Control District is creaked, an hdvisory Commission composed of five (5) members 

who shall be qualified property taxpaying voters. 

of the county. Each Commissioner of the Commissioners Court and the County Judge shall appoint 

one (1) member of the Advisory Commlssion. %%i= 

hers of th C mmi i 

pensation.e 

hall ithout comTge A%%-~ Comm~~F~ :hall make 

recommendations to the Commissioners Court as it 

deems are necessary to carry out the provisions 

of this Act and shall perform such other duties 

as the Commissioners Court may determine. Each 

member of the Commission shall take an oath of 

office prescribed by the Commissioners Court. . 

The Commissioners Court shall have the power to 

remove any member of the Advisory Commission 

at any time it deems necessary." (Emphasis added). 

“Sec. 6. The Commissioners Court in each 

countv which has established a Mosauito Control 

District is hereby authorized to aGpoint a Mosquito Control Engineer who shall be well qualified 

-1525- 
Hon. Jack Fields, Page 5 (C-%9) 

in the field of mosquito control and who 

shall serve at a salary to be determined by 

the Commissioners Court in such county. The 

powers and duties of the Mosquito Control 

Engineer shall be under the supervision of 

the Commissioners Court. The Engineer shall 

make recommendations to the Commissioners 

Court as to the number of assistants and employees as may be needed, and the Commissioners Court shall appoint such assistants 

and employees as it deems necessary for 

mosquito eradication in said District. The 

Engineer shall also make biannual reports to 

the Commissioners Court or as many reports 

as requested by the Court relative to the 

work of mosquito eradication, and of the expenses needed for the ensuing year. The first 

report shall be made not later than June 30th 

subsequent to the establishmentof the Mosquito 

Control District, and the second report shall 

be made not later ‘than December 31st following 

the first report." (Emphasis added). 

A study of the provisions of Section 5 reveals that the 

Commissioners Court is required,to appoint an Advisory Commission under the mandatory language of Section 5. Section 6, 

however, merely authorizes the Commissioners Court ,to appoint 

a mosquito control engineer and leaves..to the discretion of 

the Commissioners Court the determination of the number of employees~,&o be appointed that the Commissioners Court deems necessary for mosquito eradication. In view of the foregoing, you 

are advised in answer to your third question that if a mosquito 

control district is created, pursuant: to the provisions of hrtic’le 4477-2, Vernon’s~ Civil ,Statutes, the provisions of Section 5 

of Article 4477-2 are mandatory and the Commissioners Court is 

required to appoint an Advisory Commission as provided for therein. The provisions of Section 6 of Article 4477-2, Vernon's 

Civil'Statutes, are not mandatory and the Commissioners Court is 

not required to appoint a mosquito control engineer or employ 

other assistants and employees for mosquito eradication. On the 

contrary, such matters are left to the discretion of the Commis-. 

sioners Court. There is no provision, however, authorizing the 

Commissioners Court to designate some other officer to carry 

out the powers and duties of a mosquito control engineer. 

held: 

In Attorney General's Opinion v-1116 (1950), this office 

-1526- 
Hon. Jack Fields, page 6 (C-319) 

"In view of the foreaoing authorities, 

you are advised in answer to your second 

question that the tax lev 

tions 2 and 4 of Article 51 

authorized by Sec477-2 is not in 

addition to the constitutional limitation 

fixed by Section 9, Article VIII of the Constitution. 

"In answer to your third question, it 

is our opinion that the cost of operating a 

Mosquito Control District created for public 

health purposes of the county,must be paid 

ou;6;f(;;;8kekeral fund. Att y. Gen. Op. 

In Attorney General's Opinion c-316 (1964), it was held: 

"The. changes to Article 4477-2, Vernon's 

Civil Statutes, provided in the 1961 amendment, made the provisions of the Act applicable toall counties of the State rather than 

to the counties of the State which border on 

the Gulf of'Mexico, and raised the authorized 

levy from not to exceed five cents on each 

$100.00 valuation, to an authorization of a 

levy not to exceed twenty-five cents on each 

$100.00 valuation. Therefore, the 1961 amendmend did not affect the conclusions reached in 

Attorney General's Opinion v-1116. 

"In view of the foregoing, we agree with 

your conclusion that Harris County is authorized to expend county funds for mosquito~control; however, the levy of taxes for such purpose must be a part of the 804 constitutional 

limit prescribed In Section 9 of Article VIII 

of the Constitution of Texas. In order to create a mosquito control district with the power 

to levy taxes over and above the constitutional 

limit prescribed in Section 9 of Article VIII 

of the Constitution of Texas, a constitutional 

amendment would be necessary." 

In answer to your fourth question, the conclusions reached in Attorney General’s Opinion v-1116 (1950) are equally 

applicable to the 1961 amendatory act. 

ion c-316 (1964). 

Attorney General's OpinIn answer to your fifth ques,tiori, Article 4477-2 prescribes 

-1527- 

. 

0. 
I . . 

. .,,a 

Hon. Jack Fields, page 7 (C-319) 

the form of the ballot and the Commissioners Court is not authorized to change the wording that is to appear on the ballot. 

It is to be noted, however, that this election is for the purpose of granting authorization to the Commissioners Court and 

d,oes not in and of itself levy a tax for such a purpose, but 

merely grant.s the Commissioners Court the authority to levy such 

tax., 

In answer tc a si.rilar question as that posed in your 

sixth question, it was held ins Attorney General's Opinion O-&885: 

"The Commissioners' Court as such, has no 

authority, as you correctly state, to instruct 

the Tax Assessor to assess all property 5% higher than rendered by a blanket increase of 5$, 

or at any other valuation.. Indeed, there is no 

tionstitutional or statutory authority authorizing the Commissioners' Court to give any instructions to the Tax Assessor by blanket order or 

otherwise to raise or lower valuations. 

"If the rendition fixed by the taxpayer, or 

by the Assessor, where, under the conditions prescribed by statute, the Assessor is ,authorized 

to fix the value and make the assessment, it is 

proposed by the Board of Equalization to raise the 

value of such rendition and assessment, it can 

,only be done after due notice to the taxpayer or 

property owner as provided in Section 5 of Article 7206 noted above." 

(1947) : 

Likewise, it was, held in Attorney General's Opinion V-194 

"The Cotiissioners' Court {Board of Equalization) has the power to raise property valuation for taxation without its jurisdiction beings 

first invoked by the .Tax Assessor. It may act 

upon.its own initiatiue. If the valuation is in-' ' 

creaseri, however, n&ice must be given to the taxpayer. 

In view cf the foregoing, you are advised in answer to 

your sixth question that a blanket percentage increase to be 

applied to all tax renditions is not authdrized; however, the 

Commissioners Court has the power to raise property.valuation 

for taxation on its own initiative. If valuation is increased, 

however, notice must be given to the taxpayer. 

-1528- 
Hon. Jack Fields, page 8 (C-319) 

In answer to your seventh question, you are advised that 

the cost of operating a mosquito control district created for 

public health purposes of the county must be paid out of the 

eneral fund. 

1950) * 

Attorney General's Opinions v-567 (1948), v-1116 

If petitioned by 200 qualified voters of 

the county pursuant to Sections 1 and 2 of Article 4477-2, Vernon's Civil St.atutes, the county 

judge Is required to call an election for the 

purpose of creating a mosquito control district 

and'authorizing the levying of a-tax for mosquito 

control. Any tax levied for mosquito c,ontrol must 

be within the 80# constitutional limit provided 

for in Section 9 of Article VIII of the Constitution of Texas. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

John Reeves 

Assistant 

JT:bk:dl:ms 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Pat Bailey 

Ivan Williams 

Brady Coleman 

Bob Richards 

APPROVED FOR THE ATTORIVEY GENERAL 

By: Roger Tyler 

- 1529,