,

September 22, 1950

3ion. C. Bennett opinion HO. v-1109 Coiinty Attorney &&be Count* Re: Ltiglrlity of holding an Crane,. Texas 6ledtion to lev'y aaaea dounty taxes for fsrmto-marketroads or flood Dear Xr. Bennett: control prior'to 1951.

You present for the:opinionof this office the foolloving

question: "Canan election-be held anytime during the remainder of the yem 1950 for the purpose of authorizingthe levy of the acldltional 304 tipon

the $100.00 valuation to become effective on January 1, 19511" This offlce,has'heretofore held that the @WIaims of House-.Bill 107; Acts 51st Legs., ti.S. 1989; Oh.
. MY 464; p. 849 ~(Art.

7048a,V.C.S.), ~whioh'r&quire a local &,leOt~ozi

to det&rmine'if~and..whefi the 30+ent per $100.00 valuationcounty tax anthorizd.by th~'amend.menKto Section 1-a.ofArticle'VIIIof.the Texad Constitutkonshall be lev---.------- ~ led,are vaua. Atty. Gen. OP. V-1077 (1950) ,,_

Section lc of Article VIII provides as follows: "Prwiiied,

however, the terms of this Resolution shall not be effectiv6untilH6usB Joint.Resolution

No. 24 Is Mopted by the mople &Xi in no event-shall**this** Resolution **~0** lntd effect until January 1. l951." **(Emphssls** aaaea) Xoreover, in the emergency3laus6 of~HouseBill// 107, stipra,

(Article7084a); it is stated that "thisAct shall be in force from.andafter.its passtie, ana shall take effect~onJanuaPy I. 1951." (Emphasisa&Ted) This clearly reflects the Legislature'stiterpretation of the effective date of the above Resolution.

Thti; we see that both under the Constitution and the emergencyclause of the Act, the terms thereofwill notHon. C. Bennett, Page 2 (V-1109)

be operativeuntil January 1, 1951. Therefore, there will be no effectiveauthorityto order ana hold the electionuntil January 1, 1951.

n In Corpus Jurls,Vol. 20, p. 95, It Is stated:

. . . an electionheld without affirmativeconstitutlonal or statutoryauthorityis universally recognizedaa belng a tiulllty.An electionpurportingto have been held under a statutewhich by its terms had not then gone into effect is void. ”

In the case of Smith v. Morton Indeuenclent School District, 85 's.W.2a 853 (Tex.Civ. App., 1935, error.dism.), it was held:

"In our form of government electionsmust be'hela by virtue of some legal authority,and an electionheld without afflrmetivestatutory authority or contrary to a material provision of the law is universally held to be.a nullity." It is true that it is provided in then emergency clause of House Bill 107 that the bill "shallbe in m from and after its passage," but it is our opinion that this means, when considered with the clause immediatelyfollowing, that upon enactmentsuch bill would become a part of our statutebooks. It could have no other meaning, for Immediately followingit is provided that the bill "shall take effect on January 1, 1951." The Intent is clear, when considered with Section lc of ArticleVIII, that the bill would not becdme operativeuntil January 1, 1951.

The effect of this conclusionwill not deprive the county of a year's tax, for it Is manifest that no tax could be levied for any year prior to 1951. After the operative date of the Constitutional provisionand the statute, there is ample time ti,

order and hold an election so that the tsx can be levied, along with the other county taxes, for the year 1951. .!2zJB!m

An election for the purpose Of authorizing the- cbmmissloners~

court to levy a tax for farmto-marketroads or flood control aannot legally be orderedand held prior to January 1, 1951.Hon. C. Bennett, Page 3 (V-1109) 

### 43

._ Article VIII, Sets. la and lc, Tex. Const.; Art: 704&i, V.C.S.

APPROVED: Ev&%tt~Eutahl.nsiin ExecutiveAssistant Charles D. M&hews First Assista&

GWS-s Yours very truly, PRICE DANIZL Attorney General

Byb--fk~ ~y&m~~~ Spsrks