Honorable Gib Lewis 

Speaker 

Opinion No. JM-835 

Texas House of Representatives Re: Whether section 26.08 

P. 0. Box 2910 of the Tax Code, which 

Austin, Texas 78769 permits a tax rate rollback election to limit 

school taxes, is unconstitutional (RQ-1286) 

Dear Speaker Lewis: 

Section 26.08 of the Tax Code provides that if the 

governing body of a school district adopts a tax rate that 

exceeds the so-called "effective tax rate" calculated 

pursuant to either section 26.04 or section 26.042 of the 

Tax Code by more than eight percent, the qualified voters 

of the taxing unit by petition may require that an 

election be held to determine whether or not to reduce the 

tax rate adopted for the current year to a rate that 

exceeds the l'effective rate" by no more than eight 

percent. See Attorney General Opinions JM-792 (1987); 

JM-574 (1986). Section 26.085 of the Tax Code permits a 

tax rate rollback election, limiting the percentage of the 

total tax levy of a school district dedicated by the 

governing body of the school district to a junior college 

district under section 20.48(e) of the Education Code. 

In Attorney General Opinion JM-792, we concluded that 

section 26.07 of the Tax Code, which authorizes such a tax 

rate rollback election for taxing units other than school 

districts, is unconstitutional insofar as it applies to 

counties. you ask whether sections 26.08 and 26.085 of 

the Tax Code likewise are unconstitutional. We conclude 

that they are not. 

Section 26.08 of the Tax Code sets forth the following relevant provisions: 

(a) If the governing body of a school 

district adopts a rate that exceeds the rate 

calculated as provided by Section 26.04 of 

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Honorable Gib Lewis - Page 2 (m-835) 

this code by more than eight percent, the 

qualified voters of the district by petition 

may require that an election be held to 

determine whether or not to limit the tax 

rate the governing body may adopt for the 

following year. . . . 

. . . . 

(e) If a majority of the qualified voters 

voting on the question in the election favor 

the proposition, the governing body may not 

adopt a tax rate in the following year that 

exceeds the rate calculated as provided by 

Section 26.04 of this code for that year by 

more than eight percent, except than in 

making the calculation under Subsection Cd) 

of Section 26.04 of this code, the assessor 

shall use the amount of taxes determined as 

provided by Subsection (c) of Section 26.04 

of this code in the year in which the tax 

increase th~at initiated the referendum 

occurred rather than the year in which the 

calculation occurs. 

(f) For purposes of this section, local 

tax funds dedicated to a junior college 

district under Section 20.48(e), Texas 

Education Code, shall be eliminated from the 

calculation of the tax rate adopted by the 

governing body of the school district. However, the funds dedicated to the junior 

college district are subject to Section 

26.085 of this code. 

Section 26.085 of the Tax Code contains the following 

relevant provisions: 

(a) If the percentage of the total tax 

levy of a school district dedicated by the 

governing body of the school district to a 

junior college district under Section 

20.48(e), Texas Education Code, exceeds the 

percentage of the total tax levy of the 

school district for the preceding year 

dedicated to the junior college district 

under that section, the qualified voters of 

the school district by petition may require 

that an election be held to determine 

whether to limit the percentage of the total 

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Honorable Gib Lewis - Page 3 UM-835) 

P 

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tax levy dedicated to the junior college 

district to the same percentage as the percentage of the preceding yearts total tax 

levy dedicated to the junior college 

district. 

. . . . 

(e) If a majority of the qualified voters 

voting on the question in the election favor 

the proposition, the percentage of the total 

tax levy of the school district for the year 

to which the election applies dedicated to 

the junior college district is reduced to 

the same percentage of the total tax levy 

that was dedicated to the junior college 

district by the school district in the preceding year. . . . 

In Attorney General Opinion JM-792 (1987), we 

concluded that section 26.07 of the Tax Code, which 

authorizes a tax rate rollback election under certain 

circumstances for taxing units other than school 

districts, is unconstitutional insofar as it applies to 

counties. We based our decision upon specific language in 

article VIII, sections l-a and 9, of the Texas 

Constitution that confers explicit authority on 

commissioners courts to set tax rates and levy ad valorem 

taxes upon property in the counties. 

Article VIII, section l-a, of the Texas Constitution 

contains the following relevant language: 

Prom and after January 1, 1951, the several 

counties of the State are authorized to levv 

ad valorem ws unon all arovertv within 

their resvective boundaries for countv 

purnoses . . . not to exceed thirtv cents 

(30C) on each One Hundred Dollars ($100) 

valuation, in addition to all other ad 

valorem taxes authorized bv the Constitution 

of this State, provided the revenue derived 

therefrom shall be used for construction and 

maintenance of Farm To Market Roads or for 

Flood Control, except as herein otherwise 

. 

provided. 

Article VIII, section 9, of the Texas Constitution sets 

forth the following: 

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Honorable Gib Lewis - Page 4 (JM-835) 

[N]o county, city or town shall levy a E;t 

rate in excess of Eighty Cents (SOC) on 

One Hundred Dollars ($100) valuation in any 

one (1) year for general fund, perman;;: 

improvement fund, road and bridge fund 

jury fund purposes: provided further that at 

the time the Commissioners Court meets to 

ew the annual tax rate for each countv it 

-1 lew whatever tax rate mav be needed 

for the four (4) constitutional Durnoses; 

namely, general fund, permanent improvement 

fund, road and bridge fund and jury fund so 

long as the Court does not impair any 

outstanding bonds or other obligations and 

so long as the total of the foregoing tax 

levies does not exceed Eighty Cents (8OC) on 

the One Hundred Dollars ($100) valuation in 

any one (1) year. (Emphasis added.) 

We concluded that both provisions confer authority, 

not on the voters, but on the commissioners court, and the 

legislature by statute cannot remove governmental power 

conferred by the constitution. Tex. Const. art. V, 518. 

Se aenereJJy BBgerson v. Wood, 

19L) 

152 S.W.2d 1084 (Tex. 

; Dodson v. Marshall, 118 S.W.2d 621 (Tex. Civ. APP. 

- Waco 1938, writ dism'd). Because the legislature does 

not have the power to enact any law contrary to a 

provision of the constitution, Citv of ort Worth v. 

Howerton, 236 S.W.2d 615 (Tex. 1951), we zoncluded that 

section 26.07 of the Tax Code is unconstitutional insofar 

as it applies to counties. 

In answering your question, the first issue that we 

must address is whether the relevant constitutional 

provisions governing school districts confer the sort of 

authority on the school districts' trustees that sections 

l-a and 9 of article VIII confer on county commissioners 

courts. 

Article VII, section 1, of the Texas Constitution 

sets forth the following: 

Section 1. A general diffusion of knowledge 

being essential to the preservation of the 

liberties and rights of the people, it shall 

be the dutv of the leaislature of the State 

to establish and make suitable nrovision for 

the suuvort and maintenance of an efficient 

svstem of DubliC free schools. (Emphasis 

added.) 

p. 4016 
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Honorable Gib Lewis - Page 5 Of-835) 

Article VII, section 3, of the Texas Constitution contains 

the following language: 

* . of taxes in all said districts and for the 

Iggnaaement and control of the nublic school 

or schools of such districts, whether such 

districts are composed of territory wholly 

within a county or in parts of two or more 

counties, and the Legislature may authorize 

an additional ad valorem tax to be levied 

and collected within all school districts 

heretofore formed or hereafter formed, for 

the further maintenance of public free 

schools, and for the erection and equipment 

of school buildings therein: provided that a 

majority of the qualified property taxpaying 

voters of the district voting at an election 

to be held for that purpose, shall vote such 

tax not to exceed in any one year one 

($1.00) dollar on the one hundred dollars 

valuation of the property subject to 

taxation in such district, but the 

limitation upon the amount of school 

district tax herein authorized shall not 

apply to incorporated cities or towns 

constituting separate and independent school 

districts, nor to independent or common 

school districts created by general or 

special law. 

The underscored language of article VII, section 3 

does not directly authorize school districts to set tax 

rates and levy property taxes. Instead, the provision 

authorizes "the Legislature . . . to pass laws for the 

assessment and collection of taxes in all said 

districts. . . .'I See. e.a., Brown v. Truscott 

Indenendent School District, 34 S.W.2d 837 (Tex. 1931): 

Desdemona Indeoendent School District v. Howard, 34 S.W.Zd 

840 (Tex. 1931); Cain v. Lumsden, 204 S.W. 115 (Tex. Civ. 

App. - Amarillo 1918, no writ). A school district's 

taxing authority is subject to the legislature's power to 

enact laws setting tax rates and providing for the 

assessment and collection of taxes. Section 26.08 of the 

Tax Code is such a law. 

It has been suggested that article VII, section 3-b 

of the Texas Constitution confers upon school trustees 

p. 4017 
Honorable Gib Lewis - Page 6 (JM-835) 

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authority which cannot be circumscribed by section 26.08 

of the Tax Code. We disagree. 

Article VII, section 3-b, of the Texas Constitution ? 

provides the following: 

Sec. 3-b. No tax for the maintenance of 

public free schools voted in any independent 

school district and no tax for the 

maintenance of a junior college voted by a 

junior college district, nor any bonds voted 

in any such district, but unissued, shall be 

abrogated, cancelled invalidated by 

change of any kind Ti the boundaries 

thereof. After any change in boundaries, 

the governing body of any such district, 

without the necessity of an additional 

election, shall have the power to assess, 

levy and collect ad valorem taxes on all 

taxable property within the boundaries of 

the district as changed, . . . in the 

amount, at the rate, or not to exceed the 

rate, and in the manner authorized in the 

district prior to the change in its boundaries, and further in accordance with the 

laws under which all such bonds, 

respectively, were voted. . . . 

1 

By its very terms, article VII, section 3-b, applies 

only in those instances in which there has been a change 

in a school district's boundaries. The amendment, as 

originally adopted in 1962, was intended to validate bonds 

issued by school districts in Dallas County whose 

boundaries had been changed. Acts 1961, 57th Leg., S.J.R. 

No. 6, at 1301. Section 3-b was amended in 1966 to apply 

to all counties and to include specifically junior 

colleges. Acts 1965, 59th Leg., H.J.R. No. 65, at 2230. 

In the only supreme court case construing article 

VII, section 3-b, the Texas Supreme Court declared: 

This constitutional provision was added in 

1966 to eliminate the need for new voter 

approval of bonds and taxes when authorized 

changes are made in the boundaries of school 

districts. Once taxation h b 

authorized. a chancre in the school dyzn 

trict's 

power to tax. 

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Honorable Gib Lewis - Page 7 (JM-835) 

. . . . 

Article VII, section 3-b authorizes 

independent school districts to tax for 

school purposes in those instances in which 

the subject district was formed wholly by 

disannexation from an existing independent 

school district that possessed the power to 

tax. (Emphasis added.) 

. . 

Fr 

S.z?2d y88 at 490 (Tex. li84). 

001 Di ic naes, 677 

In other words, article 

VII, section 3-b, authorizes taxation without the holding 

of an election to authorize such taxation as required by 

article VII, section 1, in those instances in which taxation has alreadv been authorized by the requisite number 

of voters. It does not transfer to school districts any 

power conferred upon the legislature by article VII, 

section 3. We conclude that section 26.08 of the Tax Code 

is not inconsistent with article VII, sections 3 and 3-b, 

of the Texas Constitution. 

It is also urged that section 26.08 of the Tax Code 

unconstitutionally violates article III, section 1, of the 

Texas Constitution, by effecting an improper delegation of 

legislative authority, and article I, section 28, of the 

Texas Constitution, by effecting a suspension of the laws. 

It is urged that section 26.08 improperly delegates to the 

voters the authority to set tax rates and improperly 

suspends section 26.05 of ,the Tax Code, which authorizes 

the governing body of taxing units to adopt a tax rate. 

We now turn to these constitutional provisions. 

Article III, section 1, of the Texas Constitution 

provides: "The Legislative power of this State shall be 

vested in a Senate and House of Representatives, which 

together shall be styled 'The Legislature of the State of 

Texas. f I1 Article I, section 28, of the Texas Constitution 

provides the following: "No power of suspending laws in 

this State shall be exercised except by the Legislature." 

It is a maxim of constitutional law that the power 

conferred upon the legislature to make the laws cannot be 

delegated by that department to any other body or 

authority. * Te s a 'o Mccraw, 

126 S.W.2d 627 (Tex. 1939); Brown v. Humble Oil h Refininq 

co., 83 S.W.2d 935 (Tex. 1935), r eh e arina denied 87 

S.W.2d 1069 (Tex. 1935). The principle of non-delegition 

has certain important qualifications. See aenerally 

Annot., "Permissible limits of delegation of legislative 

p. 4019 
Honorable Gib Lewis - Page 8 (JM-835) 

power," 79 L. Ed. 474 (1935). For example, the legislature may delegate to municipalities local legislative 

power that is adequate to carry out the purposes for which 

they were created. See. e.a., Stanfield v. State, 18 S.W. 

577 (Tex. 1892). The United States Supreme Court declared 

almost a century ago: 

It is a cardinal principle of our system 

of government that local affairs shall be 

managed by local authorities, and general 

affairs by the central authority, and hence, 

while the rule is also fundamental that the 

power to make laws cannot be delegated, the 

creation of municipalities exercising local 

self-government has never been held to 

trench upon that rule. Such legislation is 

not regarded as a transfer of general legislativs power, but rather as the grant of the 

authority to prescribe local regulations, 

according to immemorial practice, subject, 

of course, to the interposition of the 

superior in cases of necessity. 

Stoutenbauah v. l?ennic&, 129 U.S. 141 (1889). 

Article III, section 1, of the Texas Constitution 

requires that a law must be so complete in all of its 

terms and provisions when it leaves the legislative branch 

that nothing is left to the judgment of the recipient of 

the delegated power. See. e.a., Commissioners Court of 

Lubbock County v. Martin, 471 S.W.2d 100 (Tex. Civ. App. - 

Amarillo 1971, writ ref'd n.r.e.); Gerst v. Jefferson 

Countv Savinas and I~$oan Ass'n, 390 S.W.2d 318 (Tex. Civ. 

APP. - Austin 1965, writ ref'd n.r.e.). The rights, 

duties, privileges, or obligations granted or imposed must 

be definitely fixed or determined, or the rules by which 

they are to be fixed and determined must be clearly and 

definitely established, when the act is pass-d. &L The 

test is whether the legislature has prescribed sufficient 

standards to guide the discretion conferred. commissioners Court of Lubbock Countv v. Martin, 

Citv of UnG' 

sunra; Moodv v. 

itv.&?&, 278 S.W.Zd 912 (Tex. Civ. App. - 

Dallas 1955, writ ref'd n.r.e.). 

Section 26.09 clearly sets forth sufficient standards 

both with regard to the calling of an election and with 

regard to the consequences if an election were successful: 

whatever discretion is set forth in the section relates 

only to its execution. Texas courts have upheld, under 

article VII, section 3, of the Texas Constitution, the 

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Honorable Gib Lewis - Page 9 (JM-835) 

authority of the legislature to create school districts, 

Frass v.-Darrouzett I.&l is ict, 277 S.W. 

751 ITex. Civ. ADD. - Amarillo 1926, no writ): to chanae 

their boundaries;-Tad 

(Tex. 1925); to enactV 

Citv of Houston, i76 S.W. 419 

curative statutes validating a 

district's existence, L vf o ee 

V. illamar Indenendent School District, 34 S.W.2d 854 

(Te:. 1931) ; and to delegate to boards of trustees the 

authority to maintain public schools. Weaarael County 

Line Indeoendent School District v. Blewett, 278 S.W. 516 

(Tex. Civ. App. - Fort Worth 1926), m, 285 S.W. 271 

(Tex. 1926). We see no reason why the legislature could 

not also delegate to voters the authority to compel the 

boards of trustees of school districts to reduce adopted 

tax rates upon a successful rollback election. 

While the results of early Texas cases are inconsistent, see, e.a., State Swisher 17 Tex. 441 (1856) 

Stanfield v . tate 18v.S.W. 577' (Tex. 

and 

1892), at least 

since 1920, Texas &urts have upheld delegations of authority to voters or some other body in instances in which a 

statute whose complete execution and application to the 

subject matter was made to depend on the assent of those 

voters or some other body. @S Trimmier v. Carlton, 296 

S.W. 1070 (Tex. 1927); S Dears, 223 

S.W. 166 (Tex. 1920); D ce at'0 of 

Aaencies Othe Than State Administrative Bodies, 16 Tex. 

L. Rev. 494r (1937). Analogously, we conclude that 

sections 26.08 and 26.085 effect no impermissible 

delegation of legislative authority in violation of 

article III, section 1, of the Texas Constitution. 

The prohibition in article I, section 28, of the 

suspension of laws unless it is done by the legislature is 

frequently invoked when analyzing delegations of this 

sort. See, e.a., Attorney General Opinion H-1080 (1977); 

16 Tex. L. Rev. 494, sunra. It is urged that sections 

26.08 and 26.085 of the Tax Code effectively suspend 

section 26.05, which authorizes the governing bodies of 

taxing units to adopt tax rates. If sections 26.08 and 

26.085 actually provided that section 26.05 be 

inapplicable in those taxing units in which a successful 

rollback election occurred, perhaps an article I, section 

28, argument could be made. But sections 26.08 and 26.085 

do not so operate. The relevant provisions of subsection 

(e) of section 26.08 provides: 

If a majority of the qualified voters voting 

on the question in the election favor the 

proposition, the aovernina bodv mav not 

p. 4021 
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Honorable Gib Lewis - Page 10' (JM-835) 

ado& a tax rate in the following year QI& 

- 

calculated as provided by 

. P-J mor t an eiaht 

percent. . . . *(&hasis addzd.jh -3 

Section 26.085 also contains the underscored language. 

Section 26.08 and 26.085 do not effect any suspension of 

the governing body‘s authority to adopt a tax rate; they 

merely place a one-year ceiling or limitation on the rate 

that a governing body may adopt. The power to adopt a 

rate is still reposed with the governing body of a taxing 

unit, even in the event that a rollback election is 

successful. We conclude that sections 26.08 and 26.085 do 

not violate article I, section 28. 

SUMMARY 

Sections 26.08 and 26.085 of the Tax 

Code, which authorize ad valorem tax rate 

rollback elections for school taxes, are 

constitutional. 

Very truly yo , L/ n;, )rl.JGc ? 

JIM MATTOX 

Attorney General of Texas 

MARYKELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLKY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

p. 4022