### 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 taxableproperty within Orange County for the purpose of establlshing a general fund to be used for themaintenance, upkeep, repairs and additions to the Improvements of the Orange County Conservationand Reclamation Districtwithout first causing an election to be held for the purpose of establishing a rate in accordancewith the provisions of Article 8013, Texas Revised Civil Dear Mr. Wlndham: Statutes, 1925?

You request the opinion of this officeupon the above captionedmatter.

The facts submittedby you may be thus summarized: In 1931, there was legally created, In compliancewith Section 59 of ArticleXVI of the Constitution of Texas, and appropriate statutoryprovisions, the Orange County Conservation and ReclamationDistrict. Said district Is co-extensivewith the boundaries of Orange County. After the cre’ation and establishment of said Conservationand 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 appropriateprovisionswere 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. FeaglnW. Windham, page 2, OpinionNo. 

### ~~-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 electionby the voters of the district for a maintenance tax, but that such a tax has been levied and assessed formany years notwithstandingthe 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 Conservationand ReclamationDistrict
was createdpursuant to the statutes enacted under the constitutionalauthority grantedby Section 59 of Article XVI of the Constitution. The questlon.you submithas been answeredby the Supreme Court in the case of Brown County Water ImprovementDistrict No. 1 vs. AustinMill and Grain Company, 

### 135Tex. 140, 

### 138 S.W.2d 523. We take the liberty to quote f,rom

this case rather fully because it bases the ruling primarilyupon the Constitution. In this case, the Court said:

"TheCourt of Civil Appealsheld that the maintenance taxes In questionwere invalid, because not authorizedby vote of the property taxpayingvoters 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 littlewhich can be added to its opinion.

"Forpurposes of this discussion it Is assumed that statutoryauthority existed for levying the maintenance.taxes. Notwishstandlngthis, 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 determinedby 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 questionhere Involved,has not been directly passed upon by this court.

"As the controversybetween 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 sameHon. Feaglh W:,~Wlndham, page 3, OpinlonNo~.WW-480

we are setting it out In designated subdivisions, retaining the originalpunctuation:

'(a) The Legislature shall authorize all such Indebtednessas may be necessary to provide all improvementsand the maintenance thereof requisite to the achievement of the purposes of this amendment,

'(b) and all such indebtednessmay be evidencedby bonds of such conservationand reclamationdistricts, to be Issued under suchregulations as may be prescribed by law

'(cl and shall also, authorize the levy and collectionwithin such districts of all such taxes, equitablydistributed, 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 indebtednessagainst any reclamation district unless such proposition shall first be submitted to the qualifiedproperty taxpaying voters of such district and the proposition adopted.' "[g Looking at said constitutionalprovision
more in detail we find that Subdivision (a), empowers the Legislature to authorlze,all such Indebtedness as may be necessary to provide all improvementsand the maintenance thereof. Manifestly, the 'indebtedness' which, under this provision, the Legislaturemay authorize,means all enforceable obligationswhich 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 specialmeaning, but obviouslyhas a broad significanceas covering all debts or obllgations created for improvements ormaintenance.Hon. FeaginW. Windham, page 4, OpinionNo. WW-480

"Subdivision (b)declares that 'suchindebtedness' may be evidencedby bonds. Obviously, the word 'lndebtedness'here has the samemeaning 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 'forthemaintenance of such districts and Improvements,'and this is lmmediately followedby the language (Subdivisione) 'and such indebtedness shallbe a lien upon the property assessed for the payment thereof.' Here again the indebtednessmentioned is manifestly the samementioned In the preceding paragraphs, and necessarily
means all debts or obligations Incurred In connection with improvementsand maintenance. The word still has no special or technicalmeaning.

"Then follows the provision which is the subject of debate. It is necessary to repeat samewith emphasis upon the controllingwords: 'Providedthe Legislature shall not authorize the issuance of any bonds or provide for any Indebtednessagainst any reclamationdistrict unless suchproposition shall firstbe submitted to the qualifiedproperty taxpaying voters of such district and the proposition adopted.'
"p-q The words 'anyindebtedness'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 significancewhich it undoubtedlyhas in the preceding subdivisions where it is used. The contention Is that as here used It has the restrictedmeaning 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 specialmeaning, when its true meaning is clearly apparent from Its own context. It is a general rule that words are usually given a broad and liberalmeaning, if necessary, In order to effectuate the purpose of the constitutionalprovision of which they are a part. Itmay be safely said that one of the dominant purposes of the constitutionalprovision in question
was to prevent the burdening ofproperty with tax liens, except with the approval of the taxpayersHon. FeaginW. Wlndham, pages

### 5, Opinion No. 

### ~~-480

themselves, formally expressed in an election for that purpose. So, In light of this ,manlfestpurpose, It 1s plain that the 'Indebtedness'mentioned In this provision Is exact1 the same indebtedness mentioned in Subdivision (e T,where It is said, 'suchindebtedness shall be a lien upon the property assessed for the payment thereof.'
"Whilethe 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 Constitutionwill 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 authorizedby a vote of the qualified electors of the district,but until this Is done any tax levied, assessed and collectedwould 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. Itplainly says "When a maintenance tax shall have been voted In any district entitled by the benefits of this Act." (Emphasisadded.)

You are therefore .respectfully advised that the Orange County Conservationand ReclamationDistrict has no authority to levy, assess and collect a maintenance tax without the
samebeing submitted and favorablyvoted by the required number of qualified voters of the district.

The foregoing conclusion Is applicable only where a maintenance tax is levied and assessedupon an ad valorem basis. There are certain assessments and chargesmade by water control and Improvementdistricts 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 CountyWater Control and ImprovementDist. No. 1, Clv.App., 

### 162 S.W.2d 1004, error refused. Certioraridenied 

### 63 S.Ct. 993, 

### 318U.S. 790, 

### 87 L.Ed. 

### 1156. We quote from said case as follows:

"Wenext consider appellant's attacks upon the flat rate assessments and the assessments for the amortizationand emergency fund.. -

Hon. FeaginW. Windham, page 6, Opinion No. ~~-480

"Theseassessments are commonly referred to as 'servicecharges' andmay be considered together.
"Appellantcontends that these service charges
are invalidbecause they were not authorizedby a vote of the property tax-payingvoters of the district. As supporting this contention,he relies upon the
case of Austin Mill & Grain Co. v. Brown County Water ImprovementDistrict No. 1, Tex.Civ.App., 128 S.W.2d 829; Brown CountyWater Improvement Districtv. Austin Mill & Grain Co., 135 Tex. 140, 138 S.W.2d 523.

"TheBrown County case is not in point. It deals with the validity of an ad valorem tax for maintenancepurposes and not with a flat rate assessment, or with an amortizationand emergency fund assessment.

"Theconstitutionaldistinction between the ad valorem tax and the assessmentshere Involved Is clear and well defined. In Lower ColoradoRiver Authorityv. 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 ReclamationDistrict 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:,; AttorneyGeneral of Texas Geo.P.Blackburn,Chairman Jay Howell J. Milton Richardson BY RichardWells ga$g$tJ
Wayland Rivers, Jr. Assistant
REVIEWED FOR THE ATTORNEY GENERAL By: W. V. Geppert