Attorney General Opinion WW-1009

THEATI-ORNEY GENERAL OF TEXAS March 16, 1961 Mr. R. L. Templeton County Attorney Collingsworth County Wellington, Texas Dear Mr. Templeton: Opinion No. Wd-1009 Re: Legality of an election levy- ing a 30 cent ad valorem tax, when the notice provided for the tax to be levied for the years, 1957, 1958, 1959 and 1960, while the proposition voted on was not restricted as to certain years, and related questions. Thank you for your recent letter concerning an election held In Collingsworth County on April 2, 1957, as provided for in Section 7 of Article 7048a of Vernon's Civil Statutes. You advise that the Commissioners Court called the election so that the qualified voters could pass on the proposition' as follows: "PROPOSITION "To determine whether or not said County shall be authorized to levy, assess, and collect ad valorem taxes upon all taxable property with- in said County for the years of 1957, 1958, 1959 and 1960, except the first $3,000.00 valua- tion of residential homesteads, not to exceed 30 cents on each $100.00 valuation in addition to all other ad valorem taxes authorized by the Con- stitution of the State of Texas, provided the revenue therefrom shall be used for the construc- tion and maintenance of farm-to-market and lateral roads as provided in House Bill No. 107, Acts 51st Legislature, Regular Session, 1949." Your letter reflects that the wording appearing on the ballots which were used in the election was as follows: "FOR THE TAX OF NO? EXCEEDING 30 CENTS ON EACH ONE HUNDRED DOLLARS (100.00) VALUATION" Mr. R. L. Templeton, Page 2 (WW-1009) "AGAINST THE TAX OF NOT EXCEEDING 30 CENTS ON EACH Your a vote of election, taken the 1. 2. 3. ONE HUNDRED DOLLARS ($lOO.OO] VALUATION" letter further reflects 655 votes to 338 votes. you asked the following liberty of rephrasing: that the tax carried by In connection with the questions, which we have ad valorem tax in May the duration of the question be limited to a specific number of years? Did the fact that the ballots failed to show that the tax was only for the years 1957, 1958, 1959 and 1960, invalidate the election? Can the tax in question be collected for 196.1 without another election? Section 7 of Article 7048a of Vernon's Civil Statutes reads as follows: "Before any county shall levy, assess and collect the tax provided for herein the question shall by the Commissioners Court of the county be submitted to a vote of the qualified property taxpaying voters of such county at an election called for that purpose, either on said Commis- sioners Court's own motion, or upon petition of ten per cent (10%) of the qualified property taxpaying voters of said county as shown by the returns of the last general election. Said election shall be ordered at a regular session of said Commissioners Court and such order shallows specify the rate of tax to be voted on, not to exceed thirty cents (304) on each One Hundred Dollars ($100) valuation of taxable property with- in such county, shall state the date when said election shall be held, and shall appoint officers to hold said election in accordance with the elec- tion laws of this State. Provided, however, that the proposition submitted to the qualified property taxpaying voters at said election may provide that the tax at a rate not to exceed thirty cents (30#) on each One Hundred Dollars ($100) valuation may be . Mr. R. L. Templeton, Page 3 (~-loog)~ used for the construction and maintenance of Farm-to-Market and Lateral Roads or for Flood Control purposes, either, or both, as 'the Com- missioners Court may determine (In which event Ehe ballots shall have written or printed thereon, 'For the tax of not exceeding _ cents on each vne Hunared Dollars (FlOuJ valua- tion,' and the contrary thereof, specifying the tax to be 'voted upon), or the proposition may Drovlde for a sneclfic maximum tax for Farm-to- ‘Market and Lateral Roads purposes and a specific maximum tax for Flood Control purposes, the total of the two (2) specific maximum taxes not to ex- teed thlrt lars ($100 7 cents (304) on the One Hundred Dol- valuation (In which event the ballots shall have written or printed thereon, 'For a Farm-to-Market and Lateral Roads tax of not ex- ceeding cents and a Flood Control tax of not exceeding cents, on the One Hundred Dollars- ($lOO)valuation,' and the contrary there- of, specifying the specific taxes to be voted upon). Provided, further, that elections may subsequently be called and held In the same manner for the pur- pose of changing the amount of the maximum tax with- in the limit of thirty cents (30d) on the One Hun- dred 'Dollars ($100) valuation, or for changing the amounts of the maximum specific tax voted for each purpose; provided, however, that such tax or taxes may not be reduced to an extent which would result In the Impairment of any bonds or warrants thereto- fore issued under the provisions of Section 10 of this Act." (Emphasis added) In connection with question number 1, by limiting the duration of the ad valorem tax in question the Commissioners Court of Collingsworth County used the power granted to it by Section 7 of Article 7048a In a limited way. We find nothing in the statute in question or In the Texas Constitution which makes this self-imposed restriction illegal. The effect of the four year limitation is the same as If the electorate had voted at the end of four years to repeal the tax. Section 7 reserves ~to the electorate the right to reduce or repeal the tax in question, If such reduction or repeal does not impair any obligationin the form of bonds or warrants, as provided Mr. R. L. Templeton, Page 4 (WW-1009) for in Section 10, Article 7048a, or in the form of claims arising out of the extension of the County's general credit by the Commissioners Court for the purpose of constructing and maintaining the farm-to-market and lateral roads in question, San Antonio River Authority v. Shepperd, 157 Tex. 73, 299 S.W.2d 920 (1957). The underlined portion of Section 7 has a direct bear- ing on this situation. Here the proposition did provide that the tax at a rate not to exceed thirty cents (304) on each One Hundred Dollars ($100) was to be used for the con- struction and maintenance of farm-to-market roads, and therefore the provision contained in the first parentheses in Section 7 was applicable. Such wording did appear on t;he ballots used In the election. In view of the language . . . In which event the ballots shall have written there- i: II q&&n a strong argument could be made that the language is mandatory and that the ballots had to read as thev In fact did read In order for the election to be valid. Jones v. Threet, 117 S.W.2d 560 (WV. App. 1938). Even assum- ing that it was not essential to the validity of the election that the ballots contain the wording set out-in the statute, it Is clear that it is not essential to the validity of an election that the ballots contain the exact wordina of the proposition passed upon by the Commissioners Court. In the opinion in 12 S.W. 165 nolds Land & Cattle Co. v. McCabe, 72 Tex. 57, WtS), it is said: ,I . . . When a statute which authorizes a special election for the imposition of a tax prescribes the form In which the question shall be submitted to the popular vote, we are of opinion that the statute should be strictly complied with; but if the form Is not prescribed, then we are of opinion that the language of the proposition submitted is not material, provided it substantially submits the question which the law authorizes with such definiteness and certainty that the voters are not misled. . . ." In England v. McCoy, 269 S.W.2d 813 ,(Clv. App. 1954, error dlsm.), a ballot submitting the question posed charter?" Do you favor the pro- was held to be sufficient to fairly Inform the voters of the question submitted. In the En land case, su ra the Court placed emphasis on the fact that +--- .-ATlii e contents 0 . . Mr. R. L. Templeton, Page 5 (WW-1009) proposed charter had been publicized In the notice of the election. In the instant case, it seems obvious that no voter who previously read the Commissioners Court's order or the notice of the election, w hich was posted and pub- lished in compliance with Section 8 of Article 7048a of Vernon's Civil Statutes, could have been misled by the wording of the ballot. In our opinion, the wording used onthe ballots in question did not invalidate the elec- tion. In Section 7 it Is stated that before any county shall levy, assess and collect this ad valorem tax, the question shall be submitted to the qualified property taxpaying voters of such county at an election called for that purpose, either on the Commissioners Court's own motion, or upon petition of ten per cent (10%) of the qualified property taxpaying voters of such county. In the Instant case, the Commissioners Court's order calling the election was the authority upon which the election was based. Therefore, since such order concerned an ad valorem tax limited to four years duration, the .electorate could vote only upon such limited tax. The fact that the ballots did not reflect such limitation did not have the effect of eliminating the limitation. Your first question is answered in the affirmative and questions 2 and 3 are answered in the negative. SUMMARY It was legal for the Commissioners Court of Colllngsworth County to limit the duration of the tax in question to the years of 1957-1960, inclusive, and the fact that the ballots used in the election failed to show the limited duration of the tax did not invalidate the election. Such tax should not be collected for 1961 without another election as provided for in Section 7 of Article 7048a of Vernon's Civil Statutes. Yours very truly, WILL WILSON Attorney General of Texas JBM:mm ,,wz- Assistant Mr. R. L. Templeton, Page 6 (WW-1009) APPROVED:- OPINION COMMITTEE W. V. Geppert, Chairman w. Ray scruggs J. Arthur Sandlin Iola B. Wilcox REVIEWED FOR THE ATTORNEY GENERAL BY: Morgan Nesbitt