Bonoreble T. Y. Trimble, First Assistant 

State Superintendent of Publio Iastruotioa 

Austin, Texas 

Dear Mr. Trimblea 

%%$k%!ty of Sherman be authoriced by a charter amendment adopted 

by a majority of the qualified 

voters of said oity to levy taxes 

for muaioipal purposes note exoeeding’#2.SO,and for sahoal purposes 

not exceeding #1.50? ‘~ 

Ke aoknonledge~ receipt of your opinion request of May 3rd, together nith,a letter from Mr. J.‘Tip Ikwell, President of the Board 

of Trustees of the Sherman Independent Sohool Diatriat, and the opinions 

of Meesrs. Gibaoa and Gibson and the Honorable George L. Hamilton,‘City 

Attorney of Shennaa. 

We quote from Mr. Xewellta latter a8 followa: 

“The Board of Trustees of the Sherman Independent School 

Distriot has requested the City Commission of the City of 

Sherman to call elections for the purpose of amending the 

Charter of,the City of Sherman to,remove tha limitations on 

the amount of taxerr that,may be levied for sohoolpurposels 

under the Charter as it now reads. and a separate eleotion : 

of the qualified property tai pyin,g voters for the purpose, 

of authorizing the levy of ‘a tax for school purposes not to 

exceed 41.50 per )lOO.OO of assessed valuation. I enclose 

herewith oopy of the aineadmentr proposed by the aohool board 

and a oopy of a draft of. a resolution presented to the Gity 

Commission 0r.1 April 22, 1946, and adopted by the commission 

in substance. Publication of ‘the form of notioe oontained 

in the resolution was started on April 24. 

“After the adaption ,of the resolutiok (in wbstance) 8 

question has oome up a8 to the legal effect of the procedure.-’ 

In order to dlarif’y this matter it is requested that you obtain from the Attorney ‘Genciral aamers: to the following questionsr 

“1. Can the City of Sherman by aliminating the limitations in its Barter and after approval of the proposed sohool 

tax by the qualified property tax paying voters levy and 
Hon. T. M. Trimble. page 2 

a88e86 taxes for municipal purposes up to the two and onehalf per oeat limit imposed by aeotion 5 of Artiole II of 

the Constitution of Texas, and in addition to that amount, 

taxes for aohaol purposes up to one and one-half per cent 

of the taxable property of the oity? In other words oan 

the City of Sherman a6 a munioipality oonstitutionally levy 

taxes at the rate of two and one-half per cent nhile at the 

8ame time as an Independent Sohool tintriot levying taxes 

at the rate of one and one-half per oent, making a total 

authorired tax limit for munloipal and sohool purposes of 

four per oent? 

“2. ail1 the proposed amendments to the Charter of the 

City of Sherman, taken in oonjunotion with a vote of the 

qualified property tax paying voters of Sherman authorizing 

a sohool tax rate not to exoeed one and one-half per oent be 

suffioient to authorize the City of Sherman to levy taxes for 

municipal purposes up to two and one-half per cent and in 

addition thereto taxes for school purposes up to one and orehalf per cent? 

“3. In the absenoe of an eleotion under Art. 2783b R . r I.. 5 . 

for separating the schools from munioipal oontrol, who would 

have authority to call the election for determining the amount 

of sohool taxes, the City Comnisaion or the Sohool Board? 

*In oonneation with the foregoing questions you are 

furnished the following infonnations 

“The City of Sherman on Maroh 6, 1916 adopted a Home 

Rule Charter containing the following provisions, as now amended: 

“Seotion 166. *The City of Shennan ia oonatituted and 

shall oontinue to be a separate and independent 8ohool district, 

and the City Camnission is vested with power to maintain, regulate, direot and govern all the publio free aohools now established or hereafter to be sntablished within the limits, and 

it is further authorized to pass suoh ordinanoes, rulea and regulations, not inoonai8teatwith the Goartitution and laws of 

this State, a8 may be neoeessary to govern the same, establish 

new aehools, purahase building sites, oonstruot s,ohool houses. 

and generally to promote free publio education within its limits.’ 

“Seotion 106. ‘The Commission shall have the power within 

the City to annually levy and oolleot taxes for the following 

purpose6 * 

(1) For general purpores and ourrant expenses not exceeding 606 on the $100 aclclerred value of all real and pers~onal 

estate and property in the City not exempt from taxation by the 

Constitution and Lawa of the State. 
Hon. T. M. Trimble, page 3 O-7060 

(2) For the maintenance and support of public free 

sohools not exceeding SQ! on the #lOO Assessed valuation 

of real and personal estate and property in the City not 

exempt fram taxation by the Constitution and lams of the State. 

(3) For the establishment, maintenanoe and,widening, 

extension and improvtient of its streets, alleys and bridges 

not exceeding 20# on the $100 assessed valuation.of all real 

and personal estate and property in the City not exempt from 

taxation by the Constitution and laws of the State. 

(4) For the purpose of paying the City's promissory 

notes, bonded indebtedness, public improvements, and for the 

purposes set out in Section 173 hereof, to include bonds now 

outstanding and bonds hereafter legally issued for the purposes 

named in this Charter, and. as the Conmission may deem necessary, 

and for the best interest of the City, not exceeding $1.60 

on the $100 assessed valuation of all real and personal estate 

and property in the City not exempt from taxation by the Constitution and laws of the State. Said amount shall be apportioned as the Cnmnission shall ordain and deem to be for the 

best interest of the City.' 

"Section 107. The taxes that may be levied for all purposes for any one.yeaf;'tfy said City shall never exceed two and 

one-half per cent of the taxable property in said City, inclusive of the tax to pay the bonded indebtedness of the Texas 

& Paoifio and the Houston EC Texas Central Railway Companies and 

no taxes exceeding said per cent shall ever be levied and collected.' 

"It is proposed to amend Section 106 either to read as 

followsr 'Section 106. The Commission shall have the power 

within the city to annually levy and collect taxes for the 

following purposesr 

(1) For general purposes and current expenses not exceeding 

504 on the $100 assessed value of all real and personal estate 

and property in the City not exempt from taxation by the Constitution and laws of the State. 

(2) For the establishment, maintenance and widening, 

extension and improvement of Its street, allays and bridges 

not exceeding 20$ on the $100 assessed valuation of all real 

and personal estate and property in the City not exempt from 

taxation by the Constitution and laws of the State. 

(3) For the purpose of paying the City's promissory 

notes, bonded indebtedness, public improvements, and for the 

purposes set out in Section 173 hereof, to inolude bonds now 

outstanding and bonds hereafter legally issued for the purposes 

named in this charter. and as the Commission may deem necessary, 

and for the best interest of the City, not exceeding #l-60 on 

the $100 assessed valuation of all real and personal estate and 

property in the -City not exempt from taxation by the Constitution 

and laws of the Sta'te. Said amount shall be apportioned as the 

Commission shall ordain and deem to be for the best interest Of 

the City.' 
Hon. T. M. Trimble, page 4 O-7060 

or to repeal paragraph 2 of Section 106 

‘(2) Forthe maintenanoe and support of the public 

free schools not exceeding 65d on the $100 assessed valuation of real and personal estate and property in the 

City not exempt from taxation by the Conrtitutioa end 

Laws of the State.’ 

It is proposed to amend Seotion 107 to read as followsr 

‘Section 107. The taxes that may be levied for all 

purposes exoept school purposes for any one year by said 

oity shall never exceed two and one half per cent (2&) 

of the taxable property in said city, and no taxes exceeding said per cent, exolusive of taxes levied for 

school purposes, shall ever be levied and oolleoted.’ 

“The City of Sherman has never extended its boundaries for sohool purposes, and no effort haa ever been 

made to separate the schools from munioipal oontrol. 

“It is not desired to separate the sohoole from 

municipal control if the necessary tax levies oan be 

legally authoriaed without taking that step. 

“Sinoe the notice for calling the elections for 

amending the Charter have already been published it will 

be greatly appreciated if you can obtain a ruling on the 

matter at your earliest convenienoe. Referenoe is made 

to the Attorney General’s Opinion No. O-6069, whiohne 

believe may be helpful in determining the matter. 

“Your aooperation in this matter will be greatly 

appreaiated.” 

After a oareful study of Mr. Newell’s letter, the Charter of 

the City of Ghennan, the Constitution and Statutes and oases pertaining 

to the question6 involved, we oonaur in the views expressed by Messrs. 

Gibcxm and Gibeon, but we cannot agree nith the conolu6ion reaohed by 

Mr. Hamilton. 

,We haves determined that the City of 5herman is acting in a 

dual oapaoity and hae dual powerr. It is a munioipl oorporation and it 

is a separate and independent school dietriot. In like situations. the 

courts of this State have consistently recognized the dual entities of 

cities and sohool diatriots, and in every inetanoe the aourt has given 

effect to the separate entitier involved. 

Thue in Love v. The City of Dallas, 40 6. W. (Zd) 2.0~ Chief 

Justioe Cureton deolared, 
Hon. T. M. Trimble, page 5 O-7060 

"The City of Dallas is a municipal corporation, 

chartered under the laws of the State, has assumed control 

of its public schools,' and as such is to be regarded as an 

independent sohool district." 

In dealing with schools which are under the control and management of oities, the courts have consistently held that the rate of tax 

whioh may be levied for sohccl purposes in suoh oities is limited by 

Article 7, Seotion 3 of the Constitution of Texas, which relates to 

schools, and is not oontrolled by constitutional provision relating to 

cities and towns. In other words, in this respect the courts have 

treated schools under the management and control of cities as school 

districts rather than as a part of the, oities under whose control the 

sohools are operated. 

The leading case announcing the dootrine of the dual nature of 

suoh a ciQ is City of Rockdale v. Cureton (Sup. Ct.) 229 S. HI. 852. 

See also Houston v. Gonzales Independent School District (Comm. of Appeals), 

229 S.W. 467; M.K. & T. Ry. Co. of Texas v. City of Whitesboro (Ccmn. of 

Appeals), 267 S. 1. 9043 City of Ft. Worth v. Zane-Cetti (Ccmm. of Appeals), 

278 S.W. 1633 Treacoar v. City of Galvestion (Galveston Ct. of Civ. App.), 

28 S.W. (2d) 887; City of Fort North v. Cureton (Sup.Ct.), 222 S.W. 631: 

City of Belton v. Rarris Trust & Savings Bank, 27s S.W. 194 (affirmed by 

the Texas Ccmm. of App.), 263 S. W. 164; Temple Ind. Sch. Dist. v. 

Procter, 97 S.W. (2d) 1047 (writ of error refused)1 City of El Paso v. 

Carroll, 106 S.W. (2d) 251 (writ of errcr refused). 

Taxation for municipal purposes in the City of Sherman is 

governed by Article 11, Section 6, of the Constitution of Texas and 

Article 1165 of Vernon's Anno. Civil Statutes. Said article and statute 

read in part as follows: 

"Said cities may levy, asssss, and colleot such taxes 

as have been authorized by law or by their charters, but no 

tax for any purposes shall ever be lawful for any one year 

which shall exceed two and one-half per cent of the taxable 

property of such oity." 

Taxation for the management and control of public schools of 

school distriots is governed by Article 7, Section S of the Constitution 

of Texas. This Section authorizes a tax of $1 on the $100 valuation, 

but has a proviso that said limitation "upon ths mount of school district tax herein authorieed shall not apply to incorporated cities or 

towna, constituting separate and independent school districts, nor to 

independent or ccmmon school distriots ,created by general or special law". 

Thus it is seen that all school districts ar exempted from the constitutional limit of $1 on the $100 valuation, and the Legislature is left 

free to fix such limit as it deems advisable. 

Article 2784-e, Vernon's Annotated, Civil Statutes (Acts of 

1945, 49th Legislature. page 486, Chapter 304. Section 1) authorizes 
Hon. T. M. Trimble, pge 6 O-7060 

$1.50 tax on the $100 valuation in all school districts except cities 

and towns which oonstitute separate and independent school districts. 

~A$ to these districts, the Legislature has left the rate to be fixed 

by the property taxpaying voters. Article 2799, Vernon's Annotated 

Civil Statutes, reads as follows: 

"Article 2799. The governing body of any city or 

town whioh is a separate and independent school district, 

whether incorporated under any act of the Congress of the 

Republic or the Legislature of Texas, or under any act or 

incorporation whatever, shall have power by ordinance to 

annually levy and collect ad valorem taxes for the support 

and maintenanoe of public free schools and for the erection 

and equipment of public free school buildings in the city 

or town. The proposition suhnitted may be for such a rate 

of ad valcrem tax not exceeding such per cent, as may be 

voted by a majority vote of all votes oast at any such 

eleotion. If the proposition is carried, the school tax shall 

be continued to be annually levied and collected for at least 

two years, and thereafter, unless it be discontinued at an 

election held to determine whether the tax shall bs continued 

or disoontinued at the request of fifty property taxpayers 

of such independent district. Ylhan the tax is continued no 

eleoticn to disccntinue it shall be held for two years; 

when the tax is discontinued no election to levy a tax shall 

be held during the same year." 

In the case of City of Rcokdale v. Cur&on, supra, the following language is uaed: 

"When these bonds were voted, the section concluded with 

this alauser 'But the limitaticn upon the amount of school 

district tax herein authorized shall not apply to incorporated 

cities or tovms. constituting separate and independent school 

districts,' This provision explicitly relieved independent 

school distriots oonstituted by cities or town6 of the tax 

limitation imposed upon school districts otherwise constituted, 

and left the Legislature unrestrained by ocnstituticnal provision in that particular. In keeping with it, the Legislature 

by the Aot of October 10, 1917 (Chapter 14, Aots of Third 

Called Session of Thirty-fifth "egislature) amended Article 925 

sc as to provide that cities and towns constituting separate 

and independent aohool districts may levy and collect such ad 

valorsm tax for the support and maintenance of their public 

free schools and for the ereotion and equipment of school 

buildings therefor as their electors may determine." 

There is no constitutional or statutory limit on the rate a 

school district suoh as the Shennan &strict may levy and collect, so 

long as the tax is authorized by a majority vote of the property taxpaying voters. 
i:on. 'I'. 1.'. 1rimhl.e , page 7 O-7060 

A city to constitute "a separate and independent school distriat" must have boundaries identical with the school district. YIhen 

the boundaries are extended to take in lands outside of the City, the 

ci~ty no longor constitutes a sap&rate and independent school distr<~ct, 

o~ld the tnx limit fixed by g,aneral!law is nppliccble. 

rn view of the foregoing, your first question is answered i~rl 

tho aff’innativu. 

In reply to your second question, we have a serious doubt RS 

to the sufficiency of the proposed cmendments quoted in Mr. ii'eaoll's 

letter to accomplish the intended purpose. 'Ihe proposed ameodmont to 

Sdctjon 107 clearly authorizes the City to levy $2.50 for city purposes, 

exclusive of taxes levied for sohool purposes, but leaves some doubt es 

to whether the City aould have a sohool tax should the subsequent schcol 

tax election fail. 'There is also some doubt ss to the authority of the 

'3ty Commission to call such an election where the Charter is silent 

0onncrnj~nE; same. It may be that the power is granted under the gonorc1 

law, but we would suggest that you include in your proposed amend,:~~l~:1-:; 

an amendment in'substantially the following lan~uago: 

'?or the maintenance and support of public free schools 

not cxoceding eighty-five cents on the $!.OO,assessed vnluo of 

all real and personal estate and property ih the City not 8.~ 

ompt from taxation by the Constitution and laws of the State, 

such limi~tation as to rate to apply until such ti~mos as tf:e 

nunlif"ed property tax payers shsY.1 vote to incronse same.' 

‘Y:hon nuthori,zed by the qusl j fiod uroperty tax pnyi.np; 

voters, the City !:ommiss.i on shallly ordiranoe a:nnually l.cvy 

arid colleqt a tax of not exceeding l-l/Z par cent of all. tho 

t:axshlo property of said City not exempted from tax by tho 

I'onstitution and laws of the State of 'Texris for the suoport, 

naintennnoe, and operation of the free schools and provide 

an interestand sinking fund sufficient to pay nt maturity 

all bonds heretofore or hereafter issued for the erection and 

nquipment of public free schools within the City of Sherman." 

,i 

If the oharter is amended in aooordance with our first suggostion, the City could still maintain the eighty-five oent tax OS now provided in the charter until after the election to incrense same. 

In reply to your third question, you are respectfully advised 

that it is our opinion that the school tax election shoul,d be called IV 

the City Commission, said Commission having the power under the City 

Charter "to annually levy and oollsct 11 the authorized taxes, and also 

being "vested with the power to maintain, regulate, direct and govern 

all the publia free sohools now established or hereafter to be established 

.within the limits, ">i and it is further authorized to pass such ordinances, 
Hon. T. M. Trimble, page 8 O-7060 

rules and regulations, not inconsistent with the Constitution and laws 

of this State, 88 may be necessary to govern the same, establish new 

sohools , purchase buildings sites, construct school houses, and generally 

to promote free public education within its limits." 

Trusting that this answers your questions, we 81'8 

Yours very truly 

ATTORNEY GENiZAL OF TEXAS 

Hy s/Claud 0. noothman 

Assistant 

c3!3:v:wo 

APPROWD MAY 9, 1946 

s/Carlos C. Ashley 

FIRST ASSISTANT 

I1'TTORNEY GENERAL 

Approved Opinion Committee By GWB Chairman ~-