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 ofthe individual petitioners, shall those whoare not qualified as y;;;;r;ty tax paying voters be stricken, from the

2. “

. . . is it mandatory onthe Commissioners Court or the County Judge, if there'are 200qualified petitioners, that an election,be submitted to the voters, even if nofunds are subject to allocation under the 804 tax rate, without anincrease of real property valuations?" 

### 3. n6..if the election is submitted and is passed byamajority vote, is it mandatory that the Court appoint‘a five-man commission, amosquito control engineer and special employes necessary for mosquito eradication, or may~itdesignate the county health off.icer andthe employees of the State Health Department or of the Countyhgricultural Department?" by thz'deiartment as rendered prior’ to ihe 

### 1961

is the opinion of 1950 No. 1116, amendatory act, still anapproved ruling as to whether the 25#per OneHundredDollar valuation is to be areallocation of the 804maximumtax rate under the Constitution, or can-an additional tax above the 804maximum 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 andMatagorda), which nowhave nomosquito control districts with which aCalhoun County District could merge, although a study of the mosquito infestation indicates that no effective or successful control can be achieved ~bya single county acting alone because the varying winds of each county transport mosquitoes from one to the other. Onsuch a finding of fact, can the Court in submitting the election provide a condition that notax 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 803uired to

’makd available the funds out:of the constitutional levy, can ablanket percentage increase be applied to all tax renditions or musteach rendition in the county be separately considered with duenotice of an increase to each person on the tax roll?” 

### 7. I’

... is there apossibility 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, 2and

### 3of Article 4477-2, Vernon’s Civil Statutes, provide:

“Section 1. In all counties of this State, the Commissioners Court maycall anelection within sixty 

### (60)days after the effective date of this Act, andat subsequent elections whencalled by the CountyJudge upon his being petitioned by twohundred (200) qualified voters to call such election to determine if the qualified voters of such county desire the establishment of aMosquito Control District to embrace all or a portion of the territory within said county, for the purpose of eradicating mosquitoes in said area. Theform of the ballot shall be as follows:

“FORthe establi~shment of aMosquito Control District in County. -1523-.

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

"AGAINSTthe establishment of aMosquito Control District in County. "Sec. 2. TheCommissioners Court in each County governed by the provisions of this Act maycall an election within sixtyt(60) days after the effective date of this Act andat subsequent elections whencalled by the County Judge upon his being petitioned by twohundred (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. Theform of the ballot shall be as follows: "FORthe levy of a tax of cents on each one hundred dollar tax valm to finance the Mosquito Control District within County. "AGAINSTthe 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 1andSection 2shall 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 2maybe signed by any qualified voter of the County as distinguished from the qualification contained in Section 3which 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 1and 2is not limited to property taxpaying voters-, but includes all qualified voters of the county. Therefore, those qualified voters whoare not property taxpaying voters may not be stricken from the petition.

In view of the provisions of Sections 1and2 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 200qualified voters of the county whether funds are subject to allocationunder the 80# constitutional limit or not for the reason-that such an election is aprerequisite 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 9of.hrticle VIII of the Constitut.ion,ofTexas provides in part:

II

. . . Oncethe Court has levied the annual

tax rate, the sameshall remaln,in force andeffect 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 andeffect during that taxable year, it does not preclude the Commissioners Court frommakinga 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 andthe necessary allocation of constitutional funds be made, prior authorization by the property, taxpaying voters of'the county to levy such a tax'is aprerequisite. .*',

Sections 5 and 6of 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, anhdvisory Commission composed of five (5) members whoshall be qualified property taxpaying voters. of the county. EachCommissioner of the Commissioners Court and the CountyJudge shall appoint one (1) member of the Advisory Commlssion. %%i= hers of th Cmmi i pensation.e hall ithout comTgeA%%-~ Comm~~F~:hall make recommendations to the Commissioners Court as it deemsare necessary to carry out the provisions of this Act andshall perform such other duties as the Commissioners Court maydetermine. Each memberof the Commission shall take an oath of office prescribed by the Commissioners Court.

. TheCommissioners Court shall have the power to remove anymemberof the Advisory Commission at any time it deemsnecessary." (Emphasis added).

“Sec. 6. TheCommissioners Court in each countv which has established a Mosauito Control District is hereby authorized to aGpoint aMosquito Control Engineer whoshall be well qualified -1525-Hon. Jack Fields, Page 5 (C-%9)

in the field of mosquito control andwho shall serve at a salary to be determined by the Commissioners Court in such county. The powers andduties of the Mosquito Control Engineer shall be under the supervision of the Commissioners Court. TheEngineer shall makerecommendations to the Commissioners Court as to the numberof assistants andemployees as maybe needed, and the Commissioners Court shall appoint such assistants andemployees as it deemsnecessary for mosquito eradication in said District. The Engineer shall also makebiannual reports to the Commissioners Court or as manyreports as requested by the Court relative to the workof mosquito eradication, andof the expenses needed for the ensuing year. Thefirst report shall be madenot later than June30th subsequent to the establishmentof the Mosquito Control District, andthe second report shall be madenot later ‘thanDecember 31st following the first report." (Emphasis added). Astudy of the provisions of Section 5 reveals that the Commissioners Court is required,to appoint anAdvisory Commission under the mandatory language of Section 5. Section 6, however, merely authorizes the Commissioners Court ,to appoint amosquito control engineer andleaves..to the discretion of the Commissioners Court the determination of the numberof employees~,&o be appointed that the Commissioners Court deemsnecessary for mosquito eradication. In view of the foregoing, you are advised in answer to your third question that if amosquito 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 anAdvisory Commission as provided for therein. Theprovisions of Section 6 of Article 4477-2, Vernon's Civil'Statutes, are not mandatory and the Commissioners Court is not required to appoint amosquito control engineer or employ other assistants andemployees for mosquito eradication. Onthe contrary, such matters are left to the discretion of the Commis-. sioners Court. There is noprovision, however, authorizing the Commissioners Court to designate someother officer to carry out the powers andduties of amosquito 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 2and4 of Article 51authorized 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 washeld: "The.changes to Article 4477-2, Vernon's Civil Statutes, provided in the 1961 amendment, madethe 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, andraised the authorized levy from not to exceed five cents on each $100.00 valuation, to anauthorization of a levy not to exceed twenty-five cents on each $100.00 valuation. Therefore, the 1961 amendmenddid not affect the conclusions reached in Attorney General's Opinion v-1116. "In view of the foregoing, weagree with your conclusion that Harris County is authorized to expend county funds for mosquito~control; however, the levy of taxes for such purpose mustbe apart of the 804 constitutional limit prescribed In Section 9of Article VIII of the Constitution of Texas. In order to create amosquito control district with the power to levy taxes over andabove the constitutional limit prescribed in Section 9of Article VIII of the Constitution of Texas, aconstitutional amendmentwould 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

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. .,,a

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

the form of the ballot andthe 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,oesnot in and of itself levy a tax for such apurpose, 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 washeld insAttorney General's Opinion O-&885:

"The Commissioners' Court as such, has no authority, as you correctly state, to instruct the TaxAssessor to assess all property 5%higher than rendered by ablanket increase of 5$, or at any other valuation.. Indeed, there is no tionstitutional or statutory authority authorizing the Commissioners' Court to give anyinstructions to the TaxAssessor 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 andmakethe assessment, it is proposed by the Board of Equalization to raise the value of such rendition andassessment, it can ,only be done after duenotice to the taxpayer or property owner as provided in Section 5of 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 .TaxAssessor. It mayact upon.its owninitiatiue. 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 ablanket 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 owninitiative. If valuation is increased, however, notice mustbe given to the taxpayer.

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

In answer to your seventh question, you are advised that the cost ofoperating amosquito control district created for public health purposes of the county mustbe paid out of the eneral fund. 1950)* Attorney General's Opinions v-567 (1948), v-1116

If petitioned by 200qualified voters of the county pursuant to Sections 1and2of Article 4477-2, Vernon's Civil St.atutes, the county judge Is required to call an election for the purpose of creating amosquito control district and'authorizing the levying of a-tax for mosquito control. Anytax levied for mosquito c,ontrol must be within the 80# constitutional limit provided for in Section 9of Article VIII of the Constitution of Texas. Yours very truly, WAGGONER

CARR Attorney General

JohnReeves Assistant JT:bk:dl:ms APPROVED: OPINIONCOMMITTEE W.V. Geppert, Chairman Pat Bailey Ivan Williams Brady Coleman BobRichards APPROVED

FORTHEATTORIVEY

GENERAL By: Roger Tyler

-1529,