## THE ATTORNEY GEXERAL OF %‘EXAS

Honorable Joe Carroll County Attorney Bell County Courthouse Belton, Texas 76513 Dear Mr. Carroll: Opinion No. M-1245 Re: Status of maintenance tax in Bell County.

Your recent opinion request provided us with the following information and questions:

“In 1921, Commissioner Precinct #l of Bell County, Texas by Precinct-wide election, imposed a maintenance tax upon itself. Thereafter, by individual Commissioner Precinct-wide elections, Precincts X2, (3 and U4also imposed upon themselves a maintenance tax. In at least two of the precincts, the maintenance tax so imposed was 25$ on the $100.00 evaluation.

“The last election was held in Commissioner Precinct W3in 1966, at which time a tax of 1st per $100.09 evaluation was imposed.

“Although the Commissioners’ Precinct lines have changed since the various elections, at one time or another, every citizen of Bell County has had an opportunity to express his opinion on this issue. Byaction of the Commissioners’ Court in 1968, effective in 1969, the tax was equalized in all precincts to a maximumof 151 per $100.00 evaluation. This tax has been collected by precincts and spent in the precinct from which it was collected.

“The time to challenge an election has long since expired.” Question 1. “Does the Commissioners’ Court of Bell County have the.power to cause substantial compliance with the election statutes by making the maintenance fund, one fund, collected and spent

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County-wide without regard. to precinct lines?”

w “Must the Commissioners’ Court of Bell ounty exercise its power to combine these funds, if it has such power?” The answer to Question l,is no, and as a result it is unnecessary to answer Question 2.

Article 2352, Vernon’s Civil Statutes, authorizes the county commissioners court to levy taxes for various purposes by providing:

“Said court shall have the power to levy and collect a tax for county purposes, not to exceed twenty-five cents on the one hundred dollars valuation, and a tax not to exceed fifteen cents on the one hundred dollars valuation to ’supplement the jury fund of the county, and not to exceed fifteen cents for roads and bridges on the one hundred dollars valuation, except for the payment of debts incurred prior to the adoption of the amendmentto the Constitution, September 25, A.D. 1883, and for the erection of public buildings, streets, sewers, water works and other permanent improvements, not to exceed twentyfive cents on the one hundred dollars valuation in anyone year, and except as in the Constitution otherwise provided. They maylevy an additional tax for road purposes not to exceed fifteen cents on the one hundred dollar valuation of the property subject to taxation, under the limitations and in the manner provided for in Article 8, Sec. 9, of the Constitution and in pursuance of the laws relating thereto.” However, as Article 2352 states, such tax levies are subject to Article 8, Section 9of the Texas Constitution and statutes enacted pursuant thereto.

Article 8, Section 9of the Texas Constitution reads:

“Sec. 9. The State tax on property, exclusive of the tax necessary to pay the public debt, and of the taxes provided for the benefit of the public free schools, shall never exceed Thirty-five Cents (351) on the OneHundred Dollars ($100) valuation; andno county, city or town shall levy a tax rate in excess of Eighty Cents (80$) on the OneHundred -6095-Hon. Joe Carroll, page 3 (M-1245)

Dollars ($100) valuation in any one general fund, permanent fmprovement (1) year for fund, road and provided fur-
- bridge fund andjury fund purposes; ther that at the time the Commissioners Court meets to levy the annual tax rate for each county it shall levy whatever tax rate maybe needed for the four (4) constitutional purposes; namely, general fund, permanent improvement fund, road and bridge fund and jury fund so long as the Court does not impair any outstanding bonds or other obligations and so long as the total of the foregoing tax levies does not exceed Eighty Cents (80$) on the OneHundredDollars ($100) valuation in any one (1) year. Once the Court has levied the annual tax rate, the sameshall remain in force and effect during that taxable year; and the Legislature mayalso authorize an additional annual ad valorem tax to be levied and collected for the further maintenance of the public roads; provided, that a majority of the qualified property taxpaying voters of the county voting at an election to be held for that purpose shall vote such tax, not to exceed Fifteen Cents (154.) on the OneHundred Dollars ($100) valuation of the property subject to taxation in such county. Anycounty mayput all tax money collected by the county into one general fund, without regard to the purpose or source of each tax. Andthe Legislature maypass local laws for the maintenance of the public roads and highways, without the local notice required for special or local laws. This Section shall not be construed as a limitation of powers delegated to counties, cities or towns by any other Section or Sections of this Constitution.” Your questions are particularly concerned with those provisions relating to the maintenance or road andbridge tax. Pursuant to Article 8, Section 9of the Constitution, the Legislature enacted Article 6790, Vernon’s Civil Statutes, which provides the procedure to determine whether such maintenance or road tax shall be levied. Article 6790 states:’

“The commissioners court shall order an election upon presentation to it at any regular session of a petition signed by two hundred

_ qualified voters andproperty tax payers of the county, or a petition of fifty persons so

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### Joe Carroll, page 4 (M-1245)’

8ualified in anypolitical subdivision or dei&d district of the county, requesting said court to order anelection to determine whether said court shall levy uponthe property within said territory aroad tax not to exceed fifteen cents onthe one hundreddollars worth of property, underthe provisions of the amendment of 1889to ;FLz;;stitution of the 

### State of Texas, adopted

Said court mayact on suchpetition without’notice, andmaymake 

### anorder for such election fixing the amountto be levied, not to exceed fifteen cents on the one hundreddollars, the election to take place at anytime thereafter, not less than twent nor morethanninety days fromthe date of maing the order thare,for. Upon z apetition signed byamajority of the qualified

. tax paying voters of anyportion of anycounty or of anypolitical subdivision of anycounty, to said court requesting that suchportion of said county or political subdivision shall be created as adefined district, the said court shall declare such territory adefined district andspread the order for sameuponthe minutes of said court; provided the petition aforesaid shall define by metesandbounds the territory desired to be so incorporated in such defined district.” It is the settled lawof this State that commissioners courts are courts of limited jurisdiction, having only suchpower duties andauthority as the Constitution or Legislature mayconfer *uponthem. In the absence of such conferred authority or power, the commissioners court has none. El Pasov. Elam, 106 S.W.Zd393tTex.Civ.App. 1937); Howardv, Renderson County 116 S.W.Zd479 Tex.Civ.App. 1938). Article 6790authorizes t+e comm+sioners court to hold anelection to determine whether the court shall levy a road tax on,theproperty within the count or the political subidvision requesting the election. Noot et K procedure maybe used to determine whetheramaintenance tax will be levied andthe amountof the tax not to exceed fifteen cents 

### (154) on the one hundreddollars ($100) valuation. You are adivsed that the Bell CountyCommissioners Court does not havethe power at the present time to combinethe various maintenance tax funds, andits action in doing sowouldbevoid.
SUMMARY 

### TheCommissioners Court of Bell Countydoes
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### (M-1245)

not have the power to cause substantial compliance with the election statutes by making the maintenance fund, one fund, to be collected and spent countywide without regard to precinct lines.

Prepared by Linda Neeley Assistant Attorney General APPROVED: OPINIONCOMMITTEE

. Kerns Taylor, Chairman W. E. Allen, Co-Chairman John Reeves Gordon Cass BobDavis Gerald Ivey SAMUEL D. MCDANIEL Staff Legal Assistant ALFRED

WALKER Executive Assistant NOLA WHITE First Assistant



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