R-461

**~HICE DANIEL**  ***,( ‘** **cm!XEx GESERAL**  May 20, 1947

Hon. Claud Gilmer, Chairman Opinion No. V-210 Committee on Appropriations House of Representatives Re: The constitutioLla1ity Austin, Texas of H.B. 199, by Wiseman, relative to an appropriation to pay taxes to the bkgdelle Independent Sohool Uiatriot. Dear Mr. Gilmr:

You .haverequested the opinion of this Department aa to the constitutionality ofHouse Bill No. 199, whioh is as follows:

.~

“An Aot mating ‘anappropriation of One Thousand Fifty-Three and 16/100Dollars ($1,053.16);~ or somuch theresf as may be necessary, out of $he General Revenue Fund to pay taxes due by the State to a certain independent school district; and declaring an emergenoy.

“Be It enacted by the Legislature of the State of Texas:

%eoticn 1. The sum of One Thoueand Fifty-Three and 16/100 Dollars ($1,053.16),or as much thereof as may be neoessary, is hereby appropriated out of the General Revenue Fund to pay texes due by the State of Texas to theMaydelle In- .6epemMn,llt;

soho Ql&rict for the years 1943, 1944 and 1945 and 1946.

“Section 2. The fact thatArticle 2784b.of the Revised Civil Statutes of Texas, 1925, and Article 7150, Section 2-A and Seotlon 3-A, Acts of the Fortyfirst Legislature, Fifth Called Session, Chapter 47 ma Chapter 49, pages 190 and 191, Seotion 1 of each chapter,provides tha,tthe State shallpay taxes creates anHon. Claud Gilmer - Page 2 (V-2LO)

emergency and an imperativepublic necessity that the ConstitutioaalRule requiring bills to be’ realf OLLthree several days in each Rousebe suspended, and said rule is hereby suspended,and this Act shall take effectaad be in force from and after its pessrage, and it la so enacted.”
Chapter 39, Aots of t&o 41st Legislature, 5th Called Session, 1930, page 179, (Article2704b, V.C.S.) is in part as follows:

Weotion 1. Thatfrantand after the passage of thisAct, all land in Cherokee County, Texas, ownedby the., State of Texas and Prison Coormlssion of Texas, except the land heretofore‘set aside for the Rusk StateRospfital, but inoluding the land heretofore set aside to the Agricultural & MeohaaiaalCollege for re-forestrationpurposes, shallbe subject to taxation for schoolpurposes where any such land is embraoedwithin the~metes and bounds of any itiependent
or common school district.

“Seotion 2. Where any such iand is embraced within the metes cad bounds of any independent or **c0nuw5** schooldistrict, the Trustees of the Pndependent Sohool District, of the Comissioners’ Court for a Common School uistxiot,are hereby authorized to levy sod zause to be assessed and collected taxm for school purposes for the amount. and in the
manner prescribed by the Genenl Laws for the levy of school taxes.

mSection 3. The taxesbereinprovided for shallbe assessed an% collected in the manner now prescribed ~YJ General Laws for the assessment and coUecti.on
or school taxes.

. .”
Chapter 47, Acts of thegistLegislature, 5th Called Session, 1940, page 190 (titicle7150, Sub. 18, V.C.S.) is in part as follows:son.claud Cilmer -~Page 3 (V-210)

WSeotion 1. Th.at Article 7150, Revised Civil Statutes of Texas, 1925, provide for the exemption of suchproperty from taxation be amended by adding thereto another Section, No. 3a, as follows:

"Section 3-a. Provided thatany territory that has been acquired or may hereafterbe acquired, by the State of Texas, as a part.of any State **Prison** Farm or property, shallnot hereafter be exempt from the payment of itspro ratapart of any maintenance tax **of** a public school district of which the said territorywas a part at the time said maintenance tax of the said district which are now outstandlog was votedi, or which is a part of said district at the time any maintenance tax my hereafter be voted by said district; and thepro rata part of said tax that shallbe paid by said territory shall be the proportionatepart that the assessedvaluation of such territory for countypmposes is of the total assessed valmtion of the school district for the year in whidh such taxes are assessed. Provfaed, also, that the saidmaintenance tax shall be paid by the governing Board or tinagement of the State Prison System out of any funds appropriated thereby by the Legislature. It is hereby specifically provided that the saidmaintenance tax shallbe paid for each year that has elapsed since any such territory of a schooldistrict was aoquired by the State for

. . and as a part of saidprison system. n

. "

5thCalled .l.C.S.)

is

224, --Chapter

49,'Aots of the 41st Legislature, Session, 1940, page 191, (Art.7150, Sub. 17, ih_part:as follows:

_ ‘;‘s;;tion

il. That Chapter 81, page of the Cenerai and Special Laws of %he Bifst'called session of the 40thLegi~latu~ke;.19%7,-be.and thersame is hereby amended so as to hereafter read as fallows:Hon. claua Cilmer - Page 4 (v-210)

"ThatArticle 7150 of theHeViSed ,ciVil**Statutes** Of Texas, 1925,providing for the exemption of certain property from taxation, be amended by addingthereto another Section No. 2-A, as fo~llows:

"Section 2-A. Provided that any territory that has been acquiredmr may hereaft8r **be** acquired, by the St%te of Teras, as a,part of any State Prison Farm
or property, shall not hereafterbe **ex** empt from the payment of its pro rata part of any bona tax of a public 5ohool district of which the said territorywas a part at the time bonds of the 5aid district which are now outstandingwere issued, orwhich is a part of said&strict at the time of the issuance of bm@s which may hereafter be voted; and &he pro rata part of said tax thGhal1 &W paid by said territory shallbe the proportionate part that the assessed valuatimn of such territory for county purpos8~5i.5 of the total assessed valuation of tka school district for the year in'which sue%taxes
are assessed. Provided, also, tha%the said bond tax shallbe paid by th8governing board ofmanagement of the StatlePrison System out of any funds approprilated therefor by the Legislature. It ishereby specificallyprovided that the saifi bond tax shall b8 paid for each year thathas elapsed since any such territory o.? a sohool districtwas acquired by theState for and as a part of saidprison system, if any bonds were then outstanding." (Emphasis added)

-Under the ruling of this Department in Cpinion No. V-161, approved April 23, 1947,mnd for the identical reasons stated therein, Chapter 39and Chapter 47, Acts of the 41st Legislature, Fifth Called Session,Supra,
are each unconstitutional and void and, %h8refOr8insofar
as House Bill No. 199, is predicated up05 the constitutionality of either or both of said lawa,it is also unconstitutionaland void for the same reamns stated in Opinion No. V-161.

The language of House Bill **ND.** 199 does not indicatewhether or not the taxes "dtie by the Stat8 of Texas to theMaydelle Independent SchoolDistrict for.

uca,Claud Gilmor - Page 5 (V-210)

+-,, years 1943, 1944 and 1945 and 1946"are Ynaintensncen :,cxes under the provisions of Chapter 47; supra, 0r"bond" :ex8sunder the provisions of Chapter 49, supra.

Chapter 49, supra, is a valid law, save and exceptthe following clause, "or which 1-s a part of said !!8trictat the time of the issuance of mnds which may :.*:e:ifter

be voted". The emphasized clause is unconstizilonal and void for the same reasons stated in Opihion fib. V-161. However, since suchunconstitutionalclause ce.1 be severed from the remainder of theAct without der:royingits purpose, the balance thereofis constitu- <lOL.¶l,

even though there is no severabilityclause. See zarber vs. Florence, 131 Texas 341, 115 S.W. (2d) 604, b2b. The Stat8may not impair the obligationof a valid existingcontractbetween the bondholdersand the.schooi elstrictand when it acquired the land in Question, the 5:hteimpliedlyassumed the payment of its pro rata share of the thenexisti ----i-P bonded indebtedness. Hence theLeg- !rleturemay ega ly appropriate funds for the payment cl the obligation so assumed.

It is the opinion of this Department that, absentany language therein to the effect that the sum douchttobe appropriated is for the paymermt ofb.ond :oXeYfor the payment of bonds legally issuedand outotandingupon the land in question at the time of its ecquisitionby the State of Texas, House Rill No. 1991s I;r.oonstitutional.

House Bill No. 199, Fiftieth LegislatUr8,providing for the payment of cartain taxes on Stat8 owned lands, to a certain independent.schooldistrict, out of the General Fund of the State, is unconstitutional andvoid as violative of the provisions of Article III, Section 51 and Article II, SeCtion 9, Constitution of Texas. General's Opinion No. V-161. SeeAttorney SUMMARY

Yours V8Jrytruly

ATTORNEY GENERAL OF TEXAS

ed! BY C. K. tU8hards Assistan4*