THE,LYTORNEY GENERAL 

OF EXAS 

A~STINII.TEXAS 

WILL WII4sON 

A1TOasNlcY GENEHAL 

July 29, 1958 

Hon. Fe&gin W. Windham 

District Attorney 

Orange County 

Orange, Texas 

Opinion NO. ~~-480 

Re: Is the Commissioners 

Court authorized to levy 

an ad valorem tax upon 

all taxable property 

within Orange County for 

the purpose of establlshing a general fund to be 

used for the maintenance, 

upkeep, repairs and additions to the Improvements 

of the Orange County 

Conservation and Reclamation District without 

first causing an election 

to be held for the purpose of establishing a 

rate in accordance with 

the provisions of Article 

8013, Texas Revised Civil 

Dear Mr. Wlndham: Statutes, 1925? 

You request the opinion of this office upon the above 

captioned matter. 

The facts submitted by you may be thus summarized: In 

1931, there was legally created, In compliance with Section 

59 of Article XVI of the Constitution of Texas, and appropriate statutory provisions, the Orange County Conservation 

and Reclamation District. Said district Is co-extensive with 

the boundaries of Orange County. After the cre’ation and 

establishment of said Conservation and Reclamation District, 

bonds were voted and Issued by the district as provided by 

statute. The Issuance of said bonds were submitted to and 

voted by the requisite number of qualified voters of the 

dfstrlct, and appropriate provisions were made for the levy, 

assessment and collection of a tax to meet this bonded lndebtedness. There is not at this time nor has there heretofore been 

any question of validity of the creation of said district or 

the bonds. 

The specific question now before us Is the validity of 
. . 

Hon. Feagln W. Windham, page 2, Opinion No. ~~-480 

the assessment and collection of a maintenance tax without 

submitting the same to the voters of the district. You state 

that there has never been an election by the voters of the 

district for a maintenance tax, but that such a tax has been 

levied and assessed for many years notwithstanding the absence 

of an election. 

We are quite reluctant at this late date to hold that 

the district Is without authority to levy and assess a malntenance tax In the absence of an election, but we have no 

other alternative. 

The Orange County Conservation and Reclamation District 

was created pursuant to the statutes enacted under the 

constitutional authority granted by Section 59 of Article 

XVI of the Constitution. The questlon.you submit has been 

answered by the Supreme Court in the case of Brown County 

Water Improvement District No. 1 vs. Austin Mill and Grain 

Company, 135 Tex. 140, 138 S.W.2d 523. We take the liberty 

to quote f,rom this case rather fully because it bases the 

ruling primarily upon the Constitution. In this case, the 

Court said: 

"The Court of Civil Appeals held that the 

maintenance taxes In question were invalid, because not authorized by vote of the property 

taxpaying voters of the district. 128 S.W.2d 829. 

Writ of error was granted because of the constltutlonal question Involved. Having reached the 

conclusion that the holding of the Court of Civil 

Appeals is correct, there is but little which can 

be added to its opinion. 

"For purposes of this discussion it Is assumed 

that statutory authority existed for levying the 

maintenance.taxes. Notwishstandlng this, however, 

lf a vote of the taxpaying voters was an essential 

prerequisite, the taxes were invalid. We are of 

the opinion that the matter is determined by a 

construction of the language of Subdivision (c) 

of Section 59, of Article 16, of the Constitution, 

and that the construction of this particular section, as regards the question here Involved, has 

not been directly passed upon by this court. 

"As the controversy between the parties Is 

waged largely around Subdivision (c) of Section 59 

of Article 16, we are setting out same In full. 

For convenience in arriving at the meaning of same 
Hon. Feaglh W:,~Wlndham, page 3, OpinlonNo~. WW-480 

we are setting it out In designated subdivisions, 

retaining the original punctuation: 

'(a) The Legislature shall authorize 

all such Indebtedness as may be necessary 

to provide all improvements and the maintenance 

thereof requisite to the achievement of the 

purposes of this amendment, 

' (b) and all such indebtedness may be 

evidenced by bonds of such conservation and 

reclamation districts, to be Issued under 

such regulations as may be prescribed by law 

' (cl and shall also, authorize the levy 

and collection within such districts of all 

such taxes, equitably distributed, as may be 

necessary for the payment of the interest and 

the creation of a sinking fund for the payment of such bonds; 

' (d) and also for the maintenance of such 

districts and Improvements, 

' (e) and such Indebtedness shall be a lien 

upon the property assessed for the payment 

thereof; 

'(f) provided the Legislature shall not 

authorize the Issuance of'any bonds or provide 

for any indebtedness against any reclamation 

district unless such proposition shall first be 

submitted to the qualified property taxpaying 

voters of such district and the proposition 

adopted.' 

"[g Looking at said constitutional provision 

more in detail we find that Subdivision (a), empowers 

the Legislature to authorlze,all such Indebtedness as 

may be necessary to provide all improvements and the 

maintenance thereof. Manifestly, the 'indebtedness' 

which, under this provision, the Legislature may 

authorize, means all enforceable obligations which 

may be incurred, regardless of the conditions of their 

payment or the time in which they may be payable. In 

other words, 'indebtedness,' as here used, has no 

technical or special meaning, but obviously has a 

broad significance as covering all debts or obllgations created for improvements or maintenance. 
Hon. Feagin W. Windham, page 4, Opinion No. WW-480 

"Subdivision (b) declares that 'such indebtedness' 

may be evidenced by bonds. Obviously, the word 'lndebtedness' here has the same meaning as In the preceding paragraph. 

"Subdivision (d), when read in the light of the 

preceding language, means that the Legislature shall 

also authorize the levying and collection of such 

taxes as may be~necessary 'for the maintenance of 

such districts and Improvements,' and this is lmmediately followed by the language (Subdivision e) 'and 

such indebtedness shall be a lien upon the property 

assessed for the payment thereof.' Here again the 

indebtedness mentioned is manifestly the same mentioned In the preceding paragraphs, and necessarily 

means all debts or obligations Incurred In connection 

with improvements and maintenance. The word still 

has no special or technical meaning. 

"Then follows the provision which is the subject 

of debate. It is necessary to repeat same with emphasis upon the controlling words: 'Provided the 

Legislature shall not authorize the issuance of any 

bonds or provide for any Indebtedness against any 

reclamation district unless such proposition shall 

first be submitted to the qualified property taxpaying voters of such district and the proposition 

adopted.' 

"p-q The words 'any indebtedness' are emphatic 

and inclusive. We are called upon, however, to say 

that the word 'indebtedness' in this provision does 

not have the same broad meaning or significance which 

it undoubtedly has in the preceding subdivisions 

where it is used. The contention Is that as here 

used It has the restricted meaning given to the word 

'debts' in Section 5, Article 11, of the Constitution 

pertainin 

8 

to cities and towns. See McNeil1 v. City 

of Waco, 9 Tex. 83, 33 S.W. 322. We perceive no 

reason for giving this word this special meaning, 

when its true meaning is clearly apparent from Its 

own context. It is a general rule that words are 

usually given a broad and liberal meaning, if necessary, In order to effectuate the purpose of the 

constitutional provision of which they are a part. 

It may be safely said that one of the dominant purposes of the constitutional provision in question 

was to prevent the burdening of property with tax 

liens, except with the approval of the taxpayers 
Hon. Feagin W. Wlndham, pages 5, Opinion No. ~~-480 

themselves, formally expressed in an election for 

that purpose. So, In light of this ,manlfest purpose, It 1s plain that the 'Indebtedness' mentioned 

In this provision Is exact1 the same indebtedness 

mentioned in Subdivision (e T , where It is said, 

'such indebtedness shall be a lien upon the property 

assessed for the payment thereof.' 

"While the prohibition Is primarily against 

indebtedness, yet It Is apparent that if the taxes 

be assessed and a lien created against the property 

without approval of the taxpayers, the prohibition 

of the Constitution will be defeated, regardless of 

how the money may be expended." 

There Is no question of the authority of the district 

to levy, assess and collect a maintenance tax provided it 

Is authorized by a vote of the qualified electors of the 

district, but until this Is done any tax levied, assessed 

and collected would be invalid. The authority is found In 

Article 8013, V.C.S., and It Is apparent from the opening 

sentence of this statute that a levy, assessment and 

collection of a maintenance tax may be voted by the quallfied electors of the district. It plainly says "When a 

maintenance tax shall have been voted In any district entitled by the benefits of this Act." (Emphasis added.) 

You are therefore .respectfully advised that the Orange 

County Conservation and Reclamation District has no authority 

to levy, assess and collect a maintenance tax without the 

same being submitted and favorably voted by the required 

number of qualified voters of the district. 

The foregoing conclusion Is applicable only where a 

maintenance tax is levied and assessed upon an ad valorem 

basis. There are certain assessments and charges made by 

water control and Improvement districts that do not require 

submission to the voters of the district. An election is 

only required for the Issuance of bonds and for a malntenance tax that Is supported on an ad valorem basis. This 

is made quite clear In the case of Moore vs. Maverick 

County Water Control and Improvement Dist. No. 1, Clv.App., 

162 S.W.2d 1004, error refused. Certiorari denied 63 S.Ct. 

993, 318 U.S. 790, 87 L.Ed. 1156. We quote from said case 

as follows: 

"We next consider appellant's attacks upon 

the flat rate assessments and the assessments for 

the amortization and emergency fund. 
. - 

Hon. Feagin W. Windham, page 6, Opinion No. ~~-480 

"These assessments are commonly referred to as 

'service charges' and may be considered together. 

"Appellant contends that these service charges 

are invalid because they were not authorized by a 

vote of the property tax-paying voters of the district. 

As supporting this contention, he relies upon the 

case of Austin Mill & Grain Co. v. Brown County 

Water Improvement District No. 1, Tex.Civ.App., 

128 S.W.2d 829; Brown County Water Improvement 

District v. Austin Mill & Grain Co., 135 Tex. 140, 

138 S.W.2d 523. 

"The Brown County case is not in point. It 

deals with the validity of an ad valorem tax for 

maintenance purposes and not with a flat rate 

assessment, or with an amortization and emergency 

fund assessment. 

"The constitutional distinction between the 

ad valorem tax and the assessments here Involved Is 

clear and well defined. In Lower Colorado River 

Authority v. McCraw, 125 Tex. 268, 83 S.W.2d 629, 

633, it was directly held that the constitutional 

vote required by Article 16, Sec. 59 Subd. (c), 

was applicable only 'to * * * bonds and indebtedness to be paid out of tax funds.' 

SUMMARY 

The Orange County Conservation 

and Reclamation District has no authority to levy, assess and collect a malntenance tax upon an ad valorem basis 

without the same having been submitted 

to the voters of the district and authorized by the requisite number of qualified 

voters. 

LPL/ba 

Very truly yours, 

APPROVED: WILL WILSON 

OPINION COMMITTEE:,; Attorney General of Texas 

Geo.P.Blackburn, Chairman 

Jay Howell 

J. Milton Richardson BY 

Richard Wells 

ga$g$tJ 

Wayland Rivers, Jr. Assistant 

REVIEWED FOR THE ATTORNEY GENERAL 

By: W. V. Geppert