AYSTIN ~~.'l%xas September 28, 1964

Honorable Joe Resweber County Attorney Harris County Houston, Texas

Dear Mr. Resweber: OpinionINo.C-316

Re: Construction ofArticle 4477-2,V.C.S., relating to,the levying of a tax for mosquito control,

Your request for an opinion reads as follows:

"The Commissioners Court has requested that this,

office obtain an opinion from you on the follow~ing

questions. :i "1. Does Article 4477-2 V.C.S. authorize the C.ommissioners Court to levy a tax not to exceed'twenty-fivecents on each One Hundred Dollar Tax valuation in the county (assumingthat tihesame is authorizedby an electionpursuant to Section 2 of saidArticle) in addition to the constitutional limit

8laced on the Commissj.oners Court by Article

, Section 9, of the Texas Constitution?
,"2

. In the eventyour answer to the first question is in the negative, is there any other authority for the CommissionersCourt to levy a tax above the 804 limit prescribedby Article 8, Section 9, of the Texas Constitution, for the purpose of Mosquito Control?

"The local health authorities are of the opinion that Harris County has an epidemic of encephalitis, commonly known as 'sleepingsickness.' These health authorities are further of the opinion that the said disease is spread by the female Culex mosquito. In view of the said epidemic, the CommissionersCourt feels that it is necessary to undertake a program of mosquito control within the county. However,.HarrisCounty now has a tax rate of eighty cents (804) on the One HundredDollars ($100.00)valuation,none of

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which funds is presently available formosquito control.

"The Commissioners Court.is familiar with Opinion of theAttorney General No. v-1116, dated November 6, 1950. However, 

### in view of the importance of the’ma,tter,,. they desire you to determine'whe,ther"o~ not the amendments~(subsequent'tothe date of sa&d opinion) toArticle 8; Section,g,, of the Texas Constitutionand Article 4477-2 V.C.S., 'would have then

effect of permitting a tax formosquito control over and above the 804 limit provided.,

inArticle 8, Section 9, of the Texas Constitution. ,?

"In our opinion, the amendment ofArticle 8, Section 9, of the TexasConstitution did,not in any way modify the 804 limit.

."Theamendment of Section 1 ofArticle 4477- 2 V.C.S. onlymade the act applicable to all counties and portions.of'countiesinstead of 'onlyentire'counti,es~ bordering on the Gulf, as 0riginaUy ~enacted. The~amendments of Sections 2 and 4 oft

Article 4477-2V.C.S. merely increased themaximum amount the county could expend formosquito control under said article from,54 to 25# on each'$lOO.OO~taxvaluation. Furthermore, even if the amendmentsto Article 4477-2 V.C.S. did~purport to author~ize a tax over and, above the 80# constitutional limit, the amepdment would be unconstitutionaland of no force and effect. "Passing to the second question, it will be noted-thatby Article 4418 f, V.C.S., the Commissioners Court is authorized to appropriate and expendmoney from the general~revenuesoftits County for and in'behalf of public health and ,sanitation

within its County. However, we find
no authority for a tax over and above the 804 constitutional limit for such~'purposes.

"CONquSION,
"HarrisCounty.is authorized to expend county funds formosquito control. ,However,the,lev taxes for such 'purpose must be a part of t,he 5 of O$

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constitutional limit prescribedby Article 8, Section 9, of the Texas' Constitution. In order to create a~mosquito control district with thepower 'tolevy taxes over and above the 804 constitutional limit or to authorize the county to ,levytaxes over and above said limit, a constitutionalamendment would be necessary."
Article 4477-2, Vernon's Civil Statutes, as amendedby House Bill 721 'Acts of the 57th Legislature,Regular Sess+on 1961, chapter 4?8, Rage 1105, provides in part as follows:

"Set t&on 1

. In all counties ofthis State, the Commissioners.Courtmay call an election within sixty ‘(60) days after the effective date of thisAct, and at subsequent elections when called by the County Judge upon his being'petitioned.by two hun-. dred (200)qualified voters to call such election to,dstermine. if the qualified v,oters'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'eradicatingmosquitoes in 'sa'id
area."'

The form of'theballot shallbe as follows:.
",FOR the establishment of a Mosquito Control,Distriet in County.

/ "AGAINST,theestablishment of a Mosquito Control District in County.

"Sec. 2. The CommissionersCourt in each county governedby the provisionsof thisAct may call an election within~sixty.(60)days afte,r.the

effective date of this Act and at subsequent ekctions 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'orportion of said county desire a levy of a tax not to exceed twenty-five cents (25#)oneach one hundred dollar tax valuation to finance the program provided in thisAct. The form of the ballot shallbe as follow's:

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"FOR the levy ,ofa tax of cents on valmn to f.i-
-. . each one hundred'dollar tax nance the Mosquito'ControlDUtrict wltnln

County.

"AGAINST the levy of a tax of cents ,oneach one hundred dollar'taxvalus to finance the Mosquito Control District within

County.

"Sec. 4. If the electionsprovided in Section 1 and Section 2 of this Act are in favor of the establishment of a Mosquito Control ,District and the levy~of a tax not to exceed~twenty-five cents (254)on each one hundred dollar tax valuation, the Commissioners Court is authorized to levy a tax not to exceed the amount fixed by the election;provided, however, that the Commissioners Court is authorized .tolower the tax to any designated sum it may determine, should the approximate
revenue be in excess of the needed revenue to carry out the'provisionso,fthisAct. The taxes so levied shallbe collected by the County Tax Assessor and Collector and shallbe deposited in a separate fund and be used for the purposes of carrying,,out the provisions of thisAct and for no,other purposes."
,In Attorney General's Opinion ~-111.6 (1950),this office held:

"In view of the foregoing authorities,you are

advised in answer to your second question that the tax levy authorized by Sections 2 and 4 of Article 4477-P is not in addition to the constituti,onal 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 out of the general fund. Attly Gen. Op. v-567 (1948).”
The than es toArticle 44~7-2, Vernon's Civil Statutes,provided in the t

19 1 amendment,made the, provisions of the Act applicable to all counties of the State rather than to the counties of the State which border on the Gulf of>Mexic'o,,and raised the authorized levy from not to exce'edfive cents eoneach $100.00 valuation, to an authorization of a,levynot to exceed twenty-five cents on each $100.00 valuation. Therefore, the 1961 amendment d&d not affect the condlusions reached in Attorney' General's Opinion v-1116. -i5is-^. -

Hon. Joe Resweber, page 5 (c-316)

In view of the,foregoing,we agree with your contilusion that Harris County is authorized to expend county funds for mosquito control;however, the levy of taxes for suchpurpose must be a part of the 804 constitutional limit prescribed in Secti,on9 of Article VIII of,the Constitution of Taxas. In order to create~amosquito control district with the powerto ~'levy taxes over .andabove the constitutional limitprescribed in Section 9 ofArticle VI.11of the Constitution of‘Texas,,a constitutionalamendment would be necessary.

SUMMARY

A county 1s au,thorized to expend county funds for mosquito control; however, the levy of taxes for suchpurpose.mustbe a part of,the 8054constitutional limit prescribedby Section 9 of Article VIII of the Constitution of Texas.

Yours very truly,

WAGGONER CARR Attorney General

John Reeves Assistant JR:ms

APPROVED:

OPINIdN COMMITTEE W. V. Geppert, Chairman PatBailey Ivan Williams Brady Coleman Rob Richards

APPROVED FOR THE ATTORNEY GENERAL By: Roger Tyler

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