September 8, 1966

Hon. Richard E. Rudeloff County Attorney Bee County Beevllle, Texas Opinion No. C-753 Re: Whether Bee County may change its tax rate from the precedin of $1000 to $year’s rate

.95 notwlthstanding the failure to notify the county tax assessor-collector of such changed or adopted tax rate, where the 54 to be dropped represents money formerly collected for acountywide road bond issue which can nowbe fully retired Dear Sir: by funds on hand.

Byarecent letter you have requested anopinion in regard to the above stated matter. Wequote from your letter as follows:

“The tax rate adopted anumberof years ago by Bee County, andin effect during the year 1966, Is andhas been $1.00, of which amount .05# represented monies collected to retire aroad bond Issue. Bee County nowhas on hand in such road bond fund sufficient money to fully retire such bonds and the .05k portion of said $1.00 tax rate Is nolonger needed for this purpose. Accordingly, the Combsloners Court of Bee County wishes to change the tax rate for 1967 to .95$, in compliance with Section 9of Article VIII, Vernon’s Texas Constitution.

“Bee County is subject to the provisions of Article 7044a, Texas Revised Civil Statutes. Notice of the tax rate adopted was not given to the tax assessor-collector prior to July 20.” In addition to the above facts wehave learned from your office that the road bond tax in question was -3619-Ron. Richard E. Rudeloff, Page 2(C-753)

levied as the result of acounty-wide election In 1946 for the construction and Improvement of the county-wide road system.

In arecent opinion L-No. C-701 (1966) 7 this office ruled, in effect, that Article 70&4a, VeriionIs Civil Statutes, Is not unconstitutional as violating Section 9 of Article VIII of our Constitution, nor Is It unconstltutional as violating Section 16 of Article I, Vernon’s Texas Constitution. Thebasis of the opinion being that Article 704&adoes not attempt to deprive the Commissioners Court of the power to levy the county tax, which it must dopursuant to Section 9of Article VIII, nor does it impair bond obligations in violation of Section 16of Article I, but merely sets atime limit upon the counties and other taxing authorities to determine andnotify the tax assessor-collector of the tax rate to beused for the next year.

The 5# tax levy Involved in the instant case was levied under the provisions of Article 752a, Vernon’s Civil Statutes, which wasenacted pursuant to Section 52 of Article III, of the Constitution of Texas. Article 752a Is quoted in part as follows:

“Any county.

. .is hereby authorized to Issue bonds for the purpose of the construction, maintenance andoperation of macadamlzed, graveled or paved roads.

. .in anyamount not to exceed one-fourth of the assessed valuation of the real property of such county.

. .and to levy and collect advalorem taxes to pay the interest **on**such bonds andprovide asinking fund for the redemption thereof. Suchbonds shall be issued in the manner hereinafter provided, and as contemplated andauthorized by Seotlon 52, of Article 3, of the Constltution of this State.

. . . Provided whenthe principal and all Interest onsaid bonds are fully paid, In the event there is anysurplus remaining In the sinking fund, said remaining surplus not used In the full payment of the principal and Interest on said bond or bonds maybeused by the county.

. .for the purpose

. . . . (Eimphasls added) Prior to the enactment of Article 752a, our Supreme Court held that funds from atax levy authorized -3620-. . 1 ~. .

. Hon. Richard E. Rudeloff, Page 3(C-753)

by Section 52of Article III, andSection 9of Article VIII, for construction andmaintenance of public roads, mavnot be diverted to other uurnoses than those for which voted. Robblns v. Limestone County, 114Tex. 345, 268 S.W. 915 (1925).

This office has ruled in several previous opinions that the Commissioners Court could expend the money raised from anauthorized bond Issue only In the manner andfor the purposes prescribed by law. Attorney General’s Opinions O-4621 (1942), v-157 (194?), v-684 (lg48), W-W-1162(1961).

Article 752a provides that the sinking fund, established to retire the bonded Indebtedness authorized by the bond election, should first be used to pay off the principal andInterest on the bonds, then if a surplus is left It maybe used for certain purposes. However, the Act does not authorize the counties to perpetuate the surplus, by continuing to put moneyinto the sinking fund after the bonds have been paid In full.

Inthe case at hand, if Bee County Is permitted to levy the 5# tax for the sinking fund to retire the bonded Indebtedness, It will be enlarging the surplus, since the fund Is already large enough to retire the bonds. It is our opinion that such 5g?tax can nolonger be validly levied for such purpose. Section 9of Article VIII, of the Texas Constitution; Section 52 of Article III of the Texas Constitution, and Article 752a, Vernon’s Civil Statutes.

Clearly the Commissioners Court could not have continued to levy the 5# tax for county-wide road bond purposes If It had decided to doso prior to July 20th; so, it cannot continue the tax just because It failed to notify the tax assessor-collector prior to July 20th. SUMMARY ------- BeeCounty must change Its tax rate from the preceding year’s rate of $1.00 to 95$!notwithstanding the failure to notify the county tax assessor-collector of such changed or adopted tax rate, where the 54 being dropped represents money formerly collected for aroad bond issue which can be fully retired by funds onhand.
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Hon. Richard E. Rudeloff, Page 4 (C-753)

Very truly yours, WAGGONER

CARR Attorney General

JCMcC:sck APPROVED: OPINIONCOMMITTEE W.V. Geppert, Chairman WadeAnderson Malcolm Quick BobTowery J. C. Davis APPROVED

FORTHEATTORNEY GENERAL BY: T. B. Wright

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