Carrollton-Farmers Branch Independent School District v. Edgewood Independent School District

Independent al., 3) wood District et The 18th District Court in School Somervell D-1477, County, Cause No. and the 32nd Independent Andrews District Court County are Edgewood School District et al. v. Inde Mitchell instructed that pendent al., proceedings School District et and Cause those courts for D-1560, Highland injunctive stayed No. relief are until fur- Independent Park Court; School District et al. ther order of this Edgewood v. Inde pendent al, School District et from the 4) Appellants, Carrollton-Farmers 250th County, District Court in Tex Travis Independent Branch School District et as; D-1493, Cause No. Dan McCarty and al., Independent Andrews School Dis- Charles County Sanderson v. Education al., McCarty et trict Dan and Charles # 21, Elder, District Amos G. and Wil Sanderson, al., Reyes Eliodoro et Jones, liam H. from the 18th District Highland Independent Park School Texas; County, Court in Somervell Cause District, Independent Plano School D-1544, No. Reyes Eliodoro et al. v. District, Independent and Richardson County District, Mitchell Education District, School shall from the recover Harris, Dwayne Robert Finley Dale Texas, pay, State of which shall Zant, Warren from the 32nd District Court costs this Court. County, Texas; in Mitchell and the Court A copy judgment of this and of the having original record, considered the opinion Court’s respective certified to the briefs, argument counsel, and the is of Texas, District Courts of for observance. opinion state finance embodied in the enactment

by the 72nd Bill 2885, (Act amended Bill House

April 11,1991, Leg., R.S., 20, 1991 72nd ch.

Tex.Gen.Laws amended Act of

May 27, 1991, Leg., R.S., 72nd ch. 1475) VIII,

Tex.Gen.Laws violates article CARROLLTON-FARMERS BRANCH 1-e, section and article section INDEPENDENT SCHOOL DIS the Texas Constitution. TRICT, al., Appellants, et ORDERED, IT IS THEREFORE in ac- cordance opinion, Court’s that:

1) judgments of the district courts in INDEPENDENT EDGEWOOD SCHOOL Independent above causes are reversed and DISTRICT and Alvarado District, al., respective Appellees.

remanded to the district et School courts for further proceedings in con- D-1469, No. et al.1 formity Court; opinion with the of this Supreme Court Texas. 2) Judge presiding in Cause No.

362,516-A, docketed in the 250th Dis- Jan. Court, Texas, trict County, Travis re- injunction issue the previously issued Edgewood II, I & as modified opinion;

this Court’s proceeding D-1469, appeals This consists of five direct Texas: Cause No. Carrollton-Farmers judgments Dist, from in three district courts. We Indep. Edgewood Branch Sch. et al. v. probable jurisdiction appeals noted over these Dist., al, D-1477, Indep. et An- Sch. Cause No. and, because all of them involve similar conten- Dist., Edgewood Indep. Indep. drews Sch. et al. v. tions, argument consolidated them for and deci- Dist., al., D-1560, High- and Cause No. Sch. et (October 9, 1991). sion. 35 Tex.Sup.Ct.J. Dist., Indep. Edgewood land Sch. al. v. Park et appeals Three of the five consolidated cases are Dist., al.; D-1493, Indep. Sch. et Cause No. 27, 1991, judgment August from the rendered McCarty, County et al. v. Education Dist. No. and made final after severance in al, appeal judgment rendered et is an from the Dist., Meno, 362,516-A Indep. Sch. et al. v. No. 4, 1991, September in Cause No. 2962 in the County, in the 250th District Court in Travis September judgment appeal 5, 1991, rendered County, from Texas. in Somervell District Court 18th 12,195 District D-1S44, in the No. 32nd Reyes, at. v. Cause Eliodoro et No. Cause Dist., al, County, Texas. in Mitchell Court County Education et Mitchell Dallas, Hankinson, appel- Deborah G. lees in No. C-1477. Marshall, B. Han-

Schuyler Deborah G. Martin, kinson, Ashley, H. John G. Luke Dallas, appellants in No. C-1560. Arlington, Ray Jerry Hoodenpyle, R. E. III, Hutchinson, Dallas, E. Gray, Richard Richards, Richard Payne, David R. Crillion Arnett, Owen, Austin, L. Martha Albert P. Kauffman, Antonio, Holl- H. San Lonnie O’Hanlon, Jr., ingsworth, T. Toni Kevin Austin, Hunter, appellees for No. C- 1560. Lowe, Kennedy, D. R. James

Hugh Peter Davies, Jr., Austin, for George, Thomas I. appellants in No. C-1493 No. C-1544. Owen, Wilson, Fort B. A. Bruce David Worth, appellees No. for C-1493. Buhrmann, Suttle, L. H. David Stephen Abilene, appellees in No. for C-1544. APPEAL ON DIRECT OPINION GONZALEZ, Justice. again upon determine

We are called sys public state school finance whether the Arti tem Texas Constitution. violates Luna, VII, 1 Texas cle section of the Constitution Atchley, E. Michael L. Earl Robert duty gives Legislature the “to establish Luna, Dallas, appellants for in No. C-1469. support provision and make suitable Richards, III, R. Gray, E. David Richard system efficient and maintenance of an Austin, H. Kauff- Payne, Crillion Albert re We twice free schools.” Hunter, man, Antonio, T. Toni Kevin San sys public school cently held that the state Austin, O’Hanlon, appellees No. C- tem, way in it is because by financed, required as is not “efficient” Austin, George, Jr., Schuyler R. James Edge of the Constitution. provision Dallas, Davies, Marshall, I. B. Thomas Kirby, v. 777 Indep. Dist. wood Sch. Arnett, Austin, Roger Rice, Richard L. 391, (Tex.1989) [“Edgewood 398 S.W.2d Mass., Dean, Jr., Sommerville, Truman 491, (Tex.1991) I”], [“Edge 804 S.W.2d Austin, Owen, Ray Houston, P. E. Martha system’s cure the try To wood II”]. Dallas, Partin, Hutchinson, Toni Mark S. Seventy-Sec infirmity, the constitutional Austin, Kauffman, Hunter, San Albert H. 351, Bill enacted Senate Legislature ond Jr., Antonio, Hollingsworth, Kevin Lonnie (“Senate Bill Bill 2885 by House amended Austin, O’Hanlon, appellants in No. T. changes making in the 351”),2 various C-1477. issue us scheme. At before school finance by prescribed method Richards, Payne, now Aus- is whether David R. Crillion Lowe, provisions of Dallas, violates other Brandt, Hugh statute tin, Politz Jane Martin, Austin, H. Texas Constitution. Kennedy, John Peter D. R.S., 391, 27, 1991, Leg., R.S., Tex.Gen. 11, 1991, ch. Leg., 72nd April ch. Act 72nd May Laws 1475. amended Act of 1991 Tex.Gen.Laws

Appellants, composed attend the of numerous historical difficulties which citizens, devising sys- school districts and individual chal- an efficient lenge constitutionality of the school public schools], recognize tem and we [of finance devised Senate Bill 351 legislative and execu- the efforts (1) grounds: on three that it levies a state goal. departments tive to achieve this VIII, ad valorem tax in violation of article 804 S.W.2d at 498. 1-e; (2) section that it an ad levies valorem appellants must bear the burden of approval tax without of the voters in viola- demonstrating Bill is un that Senate VII, 3; (3) tion of article section that it constitutional, presume because we state (“CEDs”) county creates education districts E.g., statutes to be constitutional. Vinson in violation of article section 3 and (Tex.1989); Burgess, S.W.2d III, 64(a). Appellees article sections 56 and Indep. Spring Branch Sch. Dist. v. Sta Texas, include the State certain CEDs mos, (Tex.1985), ap 695 S.W.2d created Bill Senate and other inter- dism’d, peal 475 U.S. 106 S.Ct. ested school districts and citi- individual (1986). 89 L.Ed.2d 290 After careful con proceeding, zens.3 In this appellees all principles sideration of the constitutional aligned defending with the State in issue, appellants’ we sustain two of the against challenges by appel- Bill 351 First, challenges to Bill 351. Senate we lants. Bill hold that Senate 351 levies a state ad fully gravity We are aware of the of the VIII, valorem tax in violation of article by present appeals issues raised and 1-e; second, section and we hold that the singular importance litigation of this to Bill levies an ad valorem tax without an I, people of Texas. In Edgewood we VII, election in of article section 3 violation stated: of the Texas Constitution. not been unmindful of the [W]e Appellees argue in Edgewood that II we involved, magnitude principles of the and pre-approved constitutionality in effect respect popular due to the branch of adopted of the finance structures later in government_ Fortunately, how- Senate Bill 351 and now under attack. ever, people, for the the function of the show, argument, Their as shall is dis- we deciding in judiciary ques- constitutional proved by Edgewood the text of II both tions is not one liberty which it is at Legis- and raised decline_ doubts before cannot, legisla- as the [We] concerning validity Bill lature Senate may, ture avoid measure because it suggest Legisla- 351. We do not that the approaches the confines of the constitu- faith; good in hold ture has failed to act we tion; pass cannot it it because is [we] has failed to enact a constitu- that it doubtful; doubt, with whatever with system. finance tional school whatever difficulties a case be at- tended, it, must decide when [we] holding in this case does not conflict Our judgment. in arises I previous Edgewood with our decisions 394, citing II, 777 S.W.2d at v. way Morton Gor and in no with- Edgewood and we don, (Tex.1841). Dallam 397-398 opinions. from those None of draw II, Edgewood we stated: urged us parties proceeding to this Edgewood I and lightly

We do not undertake to strike reconsider our decisions II, Legislature. not done so. Edgewood down an act of the We are and we have very holdings that un- practical mindful of the serious and We reaffirm our earlier contend, court, They 3. Some of these school also in the district districts individuals parties successfully Voting Rights are the same who contended Act of Senate Bill 351 violates the Edgewood Edgewood I and II the school (1981 & 42 U.S.C. 1973-1973bb-l §§ system violated section 1. finance In article Supp.1991) article and violates the mandate of proceedings pending which remain in the VIII, 18(a) taxa- section of the Constitution that court, parties persist district these in their equal of these is- and uniform. None tion system claims that the school finance fails to appeals, present are before us in the sues efficiency, meet the constitutional standard of no view on of them. we intimate following even the enactment of Senate Bill 351. inefficiency public II, I Edgewood Edgewood constitutional in the an under school must be eliminated standing without important these matters so delay. the seri- Yet we cannot brush aside proper legal is assessment ous constitutional infirmities that affect subject sues before us that we revisit the expediting Senate Bill 351 in the interest of history Texas finance here. “ necessary changes public school finance. ‘rough one has been of a accommodation’ upholding It Bill clear that prac of interests in an effort arrive at goal. appellee would advance Rodriguez, tical workable solutions.” private do school districts and citizens (citations 411 U.S. at 93 S.Ct. Bill concede that Senate 351 satisfies omitted). steadily progressed Texas has efficiency set out constitutional standard a time local ad taxes from when valorem opinions; in our issue is not earlier supple public education were seen as a This case other now before us. broaches funding, point ment to state ap- constitutional standards which must be expected ad taxes now are local valorem ap- plied scrupulously previously as we of educ provide most of the basic needs plied pro- efficiency standard portion ation.4 From 1906 to vision education. funding state total contributed recognize We “the vital role of education percent local tax revenue increased from 24 Indep. free society.” San Antonio Walker, percent. Billy D. The Dis 1, 30, 93 Rodriguez, Dist. 411 U.S. Sch. trict Court and III: Promethe 1278, 1295, (1972). S.Ct. 36 L.Ed.2d 16 We Interpretation Bed? or Procrustean perhaps acknowledge “that ‘education is (Oct. 23, 1991) (unpublished mono 21-22 important the most function of state and record). graph, on file Differences ” governments.’ local S.Ct. at great the wealth in local tax bases created 1295; Educ., 347 U.S. Brown v. Board of disparities the amount of revenue which 686, 483, 493, 691, 98 L.Ed. 873 74 S.Ct. the varying generate with locales could (1954). VII, section 1 the Texas Article of effort, regular legislative despite same princi- enunciates Constitution these same I adjustments system. Edgewood the In ples: these Edgewood and II we determined that general knowledge be- A diffusion of of inefficient disparities are indicative an ing preservation the of the essential to It context system. is within historical it rights people, of the shall liberties and Bill 351. Legislature passed that the Legislature the duty pro- and suitable State establish make present our Constitution When support for the and maintenance vision 1876, meting adopted provided system public free of an efficient per-stu- funds out of state education schools. Const, VII, In art. dent basis.5 Tex. § com- implies The that the Court’s dissent 1883, so that was amended Constitution opportu- equal mitment to more educational required augment local taxes could nity has The Court’s commitment waned. al- The amendment funding for education. Constitution, every and is to the each to create local Legislature lowed the commit- its and in that provisions, one of levy a and authorize them districts ment we remain steadfast. Const, art. limits. Tex. tax within certain 1883). (1876, VII, as amended § I districts, each the tax revenue School Although the nature have reviewed we education, not devel did system in could contribute history our school finance day, 4. Some funds per capita to this continues provided distribution for education are relatively government, although into Foundation it is absorbed federal spent. relatively do portion We Program, of the total funds small contributes a Fund funds, |300 discussion. funds in our per not include federal portion about of school small II, at annually. Edgewood S.W.2d student 5. Funds were administered through the Avail- n. 10. VII, 5. The § art. able School Fund. Const, Tex. grown at population had 1915, disparities in If our state’s op By at the same rate. if the point in each district and grown had the same rate local tax resources appro district had also special made a each that the taxable wealth rate, efficiency could equalization grown aid for rural school same priation of at the already taxing at the maintained within probably districts that were have been 1915, legal May system. present maximum rate. Act of the structure of C.S., Wealth, Leg., 1st ch. 1915 Tex.Gen. in its happen. 34th That did 22; Hobby P. generally forms, geo- see William appeared Laws has not many Walker, Billy Legislative D. & devel- symmetry. The economic graphic Reform System, the Texas Public School Finance has not been uni- opment of the state (1991). 1973-1991, 28 HARV.J.LEG. grown dramati- Some cities have form. equalization aid as upheld This Court rural their sister communities cally, while Legis being appropriate means an or have shrunk. Formu- remained static discharge duty make “suit lature to knocked as- las that once fit have been support and mainte provision for the able kew. public free nance an efficient Limited resources were 777 S.W.2d at 396. Marrs, 120 Tex. schools.” Mumme v. large by the creation of a further strained (1931), quoting 40 S.W.2d TEX. small, school dis- uneconomic number identified art. 1. The Court § CONST. example, 5938 of tricts. problem persists day: to this very average districts contained 6953 school inequality opportu- of educational Walker, Hobby & students each. of 65 nities in the main arises from natural 381, citing HaRvJ.Leg. supra, 28 State type conditions.... The of school RepoRT Education, Results BoaRD of community depend must can have Adequacy School of the Texas Statewide community, upon population of the (1938). Although total num- SURVEY soil, productivity generally of its has now declined to ber of school districts its taxable wealth. crazy-quilt pat- 1000 and between Mumme, 40 at 36. S.W.2d districts remains tern of small school Texas edu- significant feature of the among local disparity of the wealth II, 804 S.W.2d system. cation only increased as Texas moved tax bases increasingly industrialized econ- towards an

omy. comprehensive school finance was Public differences in the value of assess- Sizable in 1949 the enactment ly overhauled property local school dis- able between statutes Bills.6 These the Gilmer-Aikin increasingly the tricts evident as became Program the Minimum Foundation created more industrialized and as State became allocating school for as the basic vehicle population shifts became rural-to-urban mini guaranteed a funds and envisioned The location of com- pronounced. more student, per of resources mum amount property began to mercial and industrial roughly percent of the funds 80 determining the play significant role in come from the State and program the resources available amount of tax from local tax only percent 20 to come growing dis- each school district. These funds each The exact amount of bases. proper- parities population and taxable from the State was district would receive responsible in districts ty between were mea designed to dependent on a formula differences part increasingly notable to county’s ability to contribute sure each expenditure for edu- of local levels the program for the share of the wards cation. boundaries, or its its school districts within assignment.” The local fund 8, at 1283. “local fund 411 U.S. at 93 S.Ct. Rodriguez, guaran deducted from the assignment was I: As we observed R.S., 335, R.S., 334, 647. Leg., 1949 Tex.Gen.Laws Leg., ch. ch. 51st June 51st 6. Act of 28, 1949, 625; April Act of Tex.Gen.Laws 1949 496 allotment, up encouraging

teed and the made local State same time control. Rod- required difference. No was district at at In riguez, U.S. 93 S.Ct. 1308. revenue; raise district re each would decision, reaching its the Court did not ceive its share of state funds as determined pronounce patient well: formula, regardless by the of whether the hardly this Court’s We need add actually district portion raised its of the today plac- action not to be viewed as assignment. local fund met Once district on status ing judicial imprimatur assignment obligation, its local fund it was quo. apparent The need reform free to add additional funds enrich its may well relied systems Walker, programs. Hobby & educational long heavily and the local too too supra, Support HARV.J.LEG. at tax_ solu- property But ultimate encouraged schools local taxes thus must come tions from lawmakers but not mandated. pressures those from the democratic 1960’s, By Legislature had who elect them. amended the Gilmer-Aikin Bills to include 58-59, 93 Id. at S.Ct. at 1309-10. adjustments a number of to their economic Legisla- of Rodriguez, the wake index formulae. amendments encour ture renamed the Minimum Foundation aged spe development improved Program, Program the Foundation School through programs cial educational match formulae, index reformed the economic ing property-rich funds. The dis assignment directly on based the local fund capable implementing tricts were more rather the wealth within a school district programs, they gen these thus special 1, 1975, county. than Act of June 64th erally advantage newly of the ear took R.S., aspect Leg., funds. marked state This ch. 1975 Tex.Gen.Laws Program unfortunately 877-899; Organization, Foundation School House Research Special Legislative Program’s original undermined the aim No. Report, An equalizing opportunities. (Feb. Pa educational at Finance Introduction School Comment, Special Legislative Fry, tricia Texas Fi A. School 1990) [hereinafter Incompatibility Property nance: The legislation The 1975 created Report]. Education, Quality Taxation & Tex. financing, Equal- called second tier of State op (1978), citing Aid, purpose L.Rev. REPORT of which was to ization Comm, Study poorer sys- Joint Senate Interim Public money more state direct (1973). II—9 This II—8 to School Finance through program. tems the foundation to observe led federal district court Tex.Gen.Laws, supra, “equalizing” of state policy was: stated school districts actually benefited wealthier that each student enrolled districts, poorer more than the because pro- system shall have access to could afford the the wealthier districts grams appropriate and services that generate state programs which would to needs that are his educational Anto matching Rodriguez funds. San equal substantially to those available Dist., 280, 282, F.Supp. 337 Indep. nio Sch. student, notwithstanding any similar 1, (W.D.Tex.1971), rev’d, 411 93 285 U.S. local factors. varying economic (1973). 1278, Because S.Ct. 36 L.Ed.2d 16 State, however, did not Id. The at 877-78. held disparities, that court of these funding of fully supply its share own funding vio public school system Texas goal. Fry, supra, necessary to meet this protection guarantees of equal lated 27. at n. 56 TEX.L.REV. 257 & F.Supp. at 337 Constitution. United States 285. 1977, was amend- In the Education Code 1977, 15, Leg., again. July ed Act of 65th Supreme re- States Court The United C.S., 1,1977 This 11. 1st ch. Tex.Gen.Laws statutory plan versed, holding that the bore fund Legislature lowered local furthering time the relationship to rational at least a en- districts were assignment which school guaranteeing a minimum goals of state adjusted couraged to contribute opportunity and at level of educational funding rig second tier state directed to a tractor-trailer fueled out resembled poorer gallon districts. Some vehicles were flood- Legislative bucket. Special Re- ed, along purred nicely, and some supra, expressly some statute PORT, gas. qualified always out of A fleet of such provided that a district were school efficient, though is not even a few contribute vehicles need not its total local share of may reach their We of them destination. participate in revenue the Foundation efficiency requires abso- Program did not hold funds. School receive state rather, Tex.Gen.Laws, equality spending; we said lute supra, at 26. willing citizens who were to shoulder 1979, Legislature In established burdens, should have similar similar tax county appraisal districts to afford more Specifi- for access to revenues education. appraisal local and in- uniform methods cally, we said: creased state funds for education. Act of There must be a direct and close correla- 26, 1979, R.S., 841, May Leg., 66th ch. tax effort and tion between district’s 2221, 28, 2224; May Tex.Gen.Laws Act of it; the educational resources available 1979, Leg., R.S., 602, 66th 1979 Tex. ch. words, have sub- in other districts must 1300, 1318; Legislative Gen.Laws Special equal stantially access to similar reve- 1984, supra, Legislation at 4. REPORT, per pupil at of tax nues similar levels 72, adjustments House Bill made further poor who dis- effort. Children live formula, including refinements children in rich dis- tricts and who live allotment, equalization aid, and the basic substantially tricts must be afforded a assignment. local fund Act of June opportunity to edu- equal have access to Leg., C.S., 2nd Tex. 68th ch. cational funds. In Legislature Gen.Laws 117. at 397. changed significantly for qualifications in the

participation system state of school Following Edgewood I, Legislature finance. For the first time the remedy Bill 1 enacted Senate as a required that a local the full district raise goal constitutional defects.7 It codified a amount of its local share it could before produce tax equivalent effort should qualify program for state aid from the yield roughly regardless the same 29,1989, R.S., May Leg., fund. Act of 71st per- property wealth for least 95 local ch. Tex.Gen.Laws retained, It cent of the districts. however, system the basic of administra- Despite periodic adjustments to the through tion of funds education system, brought when I was Program. The the Foundation School appeal, forward on the ratio taxable Program maintained the Foundation School in the property district to that wealthiest financing. pro- first tier two levels of poorest district was 700 per vided the basic allotment student in a range per-student which resulted adjusted by a number factors. $2,112 $19,333. spending Edge- In Tex.Gen.Laws, G.S., 6th at 2. The second I, existing system wood we held that the yield tax guaranteed tier based on local finance, public school which relied so heavi- addition, Id. at 5. local districts effort. districts, ly upon an ad valorem in local supplement the first and were entitled provide failed to an “efficient” financing. Bill second tiers Id. Senate “general purpose for the “essential” of a ongoing study so that state provided knowledge” diffusion of in violation of arti- adjusted to revenue contributions could be 1 of cle section the Texas Constitution. at 7. biennially. Id. I, 777 398. The ineffi- Edgewood S.W.2d at gross in ciency disparity challenged Edge- was this both tax in Bill 1 was Senate put it, too, spending. and tax To held failed to burden II. We wood state, graphically, requirements in some sec- areas meet the article of Senate motorcycle resembled a 1. “The fundamental flaw education tion tank, said, 1,” any particular “lies 1000-gallon fuel in other areas it Bill we not in and 6, 1990, C.S., 1, Leg., 1. of June 6th ch. Tex.Gen.Laws 7. Act 71st 1990 498 by Legis- re-

provisions property its overall ute taxes as directed failure lature. at 20.942. system.” Id. at 496. § structure S.W.2d heavy dispar- reliance Specifically, upon provisions Bill complex The of Senate changed taxes had ate local ad valorem follows. be summarized as Senate Bill change at all. Senate did provides program. Bill 351 still a two-tiered of the 1052 school dis- boundaries “guarantees The first tier sufficient financ- existence, provide all ing fund- for school districts to a basic tricts then the basic meets program of education that accredita- ing more than half of all allocation with legal tion and other standards.” Tex.Educ. from local coming state education funds 16.002(b). end, To the statute § property taxes than revenue. Code rather state entitles district to a basic allotment each disparities The great property wealth student, which increases from for each districts, spending among and the school year to for the 1991-1992 school $2200 remained, ameliorated, though somewhat year. for school Id. at the 1994-1995 $2800 in- resulting and so did constitutional addition, allotment, in 16.101. This basic § Reiterating said in firmities. what we had subject for dis- adjustment, e.g., is I, Edgewood we concluded: education,” supple- and “cost of trict’s local efficient, funding system To is “special for mat- by mentation allotments” proper- so dependent on local ad valorem ranging special ters from education ty all taxes must draw revenue from 16.102-104 “technology funds.” Id. at §§ substantially at a rate. property similar districts, (cost education, spar- small compensato- sity); (special, enforce 16.151-160 Id. We ordered the trial court to §§ vocational, ry, bilingual education stu- /, our mandate students; dents; gifted trans- and talented 1, 1991, stayed April provide until costs; supplements; portation career ladder Legislature legislation. time enact new funds).8 technology guar- district is Each Id. 499. at special basic and allotments. anteed these responded The with Senate 351, however, Bill mandates Senate Bill the same 351. Senate Bill retains raise this first tier an each CED shall for upon local ad valorem historical reliance share,” prod- assigned defined “local cost of to fund most of state taxes tax the taxable specified uct of a rate and disparities To ameliorate education. within the CED.9 property value property due to local among school districts per of valuation is tax rate hundred dollars county wealth, creates 188 Senate Bill 351 1991-92, year: for set for each school $0.72 Most of these CEDs districts. education 1992-1993, 1993-1994, $0.92 $0.82 single in a coun- consist of districts 16.- thereafter. $1.00 § Tex.Educ.Code ty, although of them include some (“Determina- 252; 11.86 see also Id. § county. Tex. more one districts in than Values”). Property District tion of School only tax 20.941. CEDs have § Educ.Code that each Bill 351 also commands functions; no educational perform valorem tax at levy” ad CED “shall teachers, provide no They employ duties. assigned local to collect its rate sufficient classrooms, educate no children. no commission- 20.945. The share.10 Id. at § their own do not even determine CEDs CED of the notifies each er education effectively by prescribed rate rate. That is component school district amount due each 16.252(a). The CEDs’ and sets the schedule statute. under statute § 16.501-.502. collect, Id. at levy, and distrib- distributions. § sole function 20, 11,1991, R.S., Leg., Tex.Gen. ch. adjustments added 72nd Many these were 30, 27, 1991, 72, 1984, 407, Leg., 381, May 68th Act of June amended Act House Bill Laws C.S., R.S., Tex.Gen.Laws Leg., ch. 2nd ch. 1991 Tex.Gen.Laws 72nd 20.945). (amending § TexEduc.Code = given in the as "LFA formula statute 9. The change prescribing rate itself to from § 16.252. TR DPV”. Tex.Educ.Code x gives prescribing for estimated collections a rate making leeway determi- CEDs no more Bill it was amended House 10. Before very actually nation. Bill set the § § April levy. Act of must See at which CEDs rate per valuation aspires mum rate of provide $1.50 $100 Tier two “to all school Id.; also 16.252. year. each tax see substantially equal § districts with access annually decreasing caps gap between provide program funds to an enriched and rates, by set section on school district tax “op- for additional funds facilities” with 20.09, cap on each dis- and the constant portunity” supplement they as should two, by in tier set section trict’s “DTR” 16.002, choose. Tex.Educ.Code 16.301. §§ 16.302, steadily from $0.33 decreases form, simplified the tier two formula of this is to reduce effect $0.05. guarantees specified each school district a unequalized reve- ability district’s to raise student, per ranging amount from $21.50 “third tier” of school nue—the so-called year for for the 1991-1992 school to $28 finance. year, the 1993-1994 school for each cent of limit” for is an overall “revenue There assigned already tax effort over that districts, local school defined as amount however, guarantee, The State’s CED.11 percent the state and local equal to 110 effort, only to and the extends of tax $0.45 guaranteed funds under the Foundation caps a “enrichment and statute district’s Program per student to school School each rate,” “DTR,” or facilities tax at Id. $0.45. taxing per district at a rate $0.25 $100 at 16.303. If a district’s local revenue § calculated for the 1994- taxable value year, example, for the 1991-1992 school for year. 16.- 1995 school § Tex.Educ.Code per each should exceed student for $21.50 009(a). appear to This limit does not DTR, cent of the district’s the district uniform, That comprehensive or absolute. get nothing would more from the State. is, single applies amount it is not a amount, What it takes in excess of that districts, equally to all school nor does however, might be called “local enrich- revenues, nor does it encompass all local ment.” absolutely transgression. Each district bar limit, second, independent evidently limit on has its own revenue annual- There is a that district ly by estimated and certified to provided each district’s school tax rate by the commissioner of education. Except 20.09. to the ex- § Tex.Educ.Code 16.009(b).12 they § tent are authorized to collect pledged previously taxes for authorized Finally, commissioner of education debt, may school districts not tax at a rate share of the costs of determines the State’s exceeding for for $0.78 $0.68 Program School tiers Foundation —both for each subse- $0.50 $0.58 by subtracting what the dis- one and two— 20.09(a). quent year. Id. at These annu- § trict is due from the CED funds what limits, annually al if combined with the avail- the district has collected from state rate, grants increasing in maxi- funds. He then CED tax result able school limit, allotment, “GYA”, guaranteed yield sub- 11. The trict exceed this the commissioner following by per calculated formula: student re- tracts therefrom the total funds - = (GL x x 100) x quired Revenue GYA WADA DTR LR for the district’s debt service. triggers evidently 16.302. "GL” is the dollar § Tex.Educ.Code limit collected excess of the guaranteed commissioner, and local amount of state funds consequences no unless the weighted student for each cent of tax ef- each fort, reviews, aggre- that the determines his annual gate weighted is the number of stu- "WADA” exceeding population in districts student attendance, average daily dents in and "DTR” is equals percent or exceeds two their limits district enrichment and facilities tax rate of Then, population. for the next total student district, by dividing school determined except year, school no districts — by of taxes collected the school total amount exceeding already limits— their revenue those applicable year district for the quotient may “levy result in an a tax at a rate that would proper- of the district’s taxable value funds, excluding of state and local amount 11.86, ty under Tex.Educ.Code § as determined service,” that "exceeds required for debt funds revenue, deter- 100. "LR” is the local divided exceeding already Districts the revenue limit". by multiplying quotient "DTR” mined however, limit, evidently may con- the revenue property divided the district’s taxable value of so, "maintain” tinue to do insofar as by 100. Section 16.009 amount of revenue. same determining the total state 12. Before whether (c), (d), (e). per to a dis- and local funds student available approves upon any proper- a warrant for the If rem shall be difference. taxes levied insufficient, appropriations prove state ty Appellants contend within State.” however, the commissioner will reduce required that the taxes which the CEDs are each district's allocation. Tex.Educ.Code by levy Bill ad 351 to are state Senate 16.254. § prohibited by this provision. valorem taxes agree. We

Thus, I, aspects since some of public the have been Bill the Senate 351 mandates tax CEDs changed, others not. The reliance levy. levy to tax. No CED decline the on local ad valorem taxes for more than predetermined The tax rate for all CEDs is half of the revenue for education has not by Bill No CED can tax at a Senate However, changed. the manner which higher any rate or a rate under cir- lower local funds the system are contributed to Indeed, very purpose of cumstances. the changed dramatically. The has State levy the is to a uniform state- CEDs tax moved encouraging from school districts to proceeds The of the is wide. distribution revenue, contribute local tax to condition- any Bill by set 351. No CED has contribution, ing state funds on such to proceeds discretion to distribute tax mandating specified This contribution. by except required as statute. Ev- manner disparities geographical has reduced the ery purely of the ministe- function CEDs availability the of revenue education. Hannah, Jr., rial. Letter from John See however, this, has accomplished It re- State, Secretary At- Texas of Assistant district, quiring taxpayers in the one school General, Department torney United States approval, without a vote of fund the Justice, 3,1991). Voting (May If of Section they schools in other over which districts levied, that a tax State mandates be changes present have no control. These rate, prescribes sets the distribu- the constitutional issues now raised before tax, is a proceeds, tion the tax state of us. regardless instrumentality of the may choose to use.13 State

II why VIII, advance several reasons Appellees 1-e of Article section the Tex as a as “No State ad tax should not characterized Constitution states: valo- be 13. The dissent asserts that Florida caselaw con- In Pub. v. State local area. Board Instruction of struing Florida, (Fla.1970) provision (per of the Florida Constitution 231 So.2d Treasurer of VIII, 1-e, supports districts, curiam), similar article section county the issue was whether that the CED tax here not a state contention constitutionally to control their own authorized provision, ad tax. That article sec- valorem public levy ad schools and a local valorem Constitution, 1(a) tion the Florida states: them, required by could be statute fund except pursuance No tax shall be levied junior colleges support not under district local shall levied law. No state ad valorem taxes upon county provided The that if a control. statute tangible personal property. estate or real promoted had the establishment district which preempted All forms of taxation shall other college junior support, later withdrew its by general except provided law. to the state would from that district state withdraw by the dissent do not The Florida cases cited part support for of its financial support Senate Bill its assertion. Unlike at 3. The Florida schools in district. by the none Florida cases cited dissent statute, upheld rejecting Supreme Court levy involved a statute which mandated junior college argument operation of a that the taxes, prescribed the rate ad or of such valorem function, purely a state and therefore that taxes, required specified be used or county use ad valo- requiring a district to local Management purposes. Johns River Water St. junior college support a rem tax revenue to Florida, Inc., Ranches District v. Deseret levy ad tax. to a of a state valorem amounted districts, 1982), (Fla. holds that water So.2d 1067 colleges junior both Id. The court held served provision expressly one authorized purposes. state local and taxes, levy ad valorem Florida Constitution three Florida statutes at issue these violating prohibition without could do so clearly distinguishable from Senate cases provi- against ad valorem taxes another state statutes authorized Bill 351. Florida Sandegren ex rel. v. Florida Sarasota sion. levy taxes as allowed Bd., (Fla.1981), water districts to local County Hasp. So.2d 657 Pub. Johns), (St. or conditioned required constitution state upheld local a statute which the court support upon support local of local schools state governments share in the cost state-man- (Board), colleges required local junior services furnished in the dated health mental First, by prescribed purposes, State ad valorem tax. the State such means points out that while the accomplish it could not do itself. what yield, it mandated is the CED that sets pull- puppets; are mere the State is CEDs yield. rate to achieve that A witness in ing strings. Though the all the hands col- the district court testified Bill that Senate Esau’s, lecting tax the voice of au- 351 does not mandate a tax rate because a thority unmistakably is Jacob’s. The de- CED is allowed to take into account pository govern for CED taxes does not projected delinquencies arriving tax they are state or local. whether necessary the rate to obtain the CED’s share. One district court concluded that By analysis, the same the dedication collection vary, because rates will the State proceeds of each CED’s tax to activi rate, does not set the and therefore it is not wholly ties within its boundaries conducted a state tax. As one commentator observes: does not make the tax a local one outside logic precarious The court’s is because: VIII, prohibition of article section 1-e. (1) the state sets the amount of the local otherwise, Again, it the State could were (2) figure, share at a fixed dollar simply pre divide itself into districts and by CED base is fixed taxable also funding for scribe the activities conducted certified tax roll it from one or receives Although each district. the activi within appraisal rate, then, more districts. The by ties funded CED taxes are conducted self-calculating (levy is by divided tax district, funding part their within the base). effect, the state sets a de facto public the state education scheme mandat specific levy. rate when mandates a tax by ed Bill Senate The fact that each CED’s collection rate argues State CED taxes vary will is a thin distinction to draw required by simply Bill 351 Senate reflect between a state-established tax rate and the historical uses of both local and state locally-established tax rate. education, public by funds for authorized Walker, (footnotes supra, omitted). at 19 VII, article section 3 of the Constitution. objective collection rate is based However, plain language neither the of ar- facts, another fixed number the formula VIII, history ticle section 1-e nor its re- by mandated the State. any exception permits veals state ad Despite this contention that it does valorem taxes for education. Prior to Jan- rate, not set the CED tax the State con 1, 1951, uary levy the State could ad valo- cedes, must, surely as it pro that if the general purposes. rem taxes for Effective by ceeds of the tax levied the CEDs under date, VIII, pro- article section 1-a Bill deposited 351 were into general scribed state ad valorem taxes treasury, state the tax would be a state tax purposes, allowing revenue still such taxes VIII, prohibited by article section 1-e. But including specific purposes, education. argues the State proceeds that because the VIII, Article section 1-a did not eliminate deposited treasury, are not into the state ad tax for schools the state valorem the tax is not a state ad valorem tax. The VII, 3. How- authorized article section attempts distinction the State draw VIII, ever, when article section 1-e was If not viable. the State could avoid the adopted special this ad valo- state VIII, prohibition of article section 1-e sim repealed: rem school tax was ply by requiring proceeds that tax be de 31,1978, and after December From posited instrumentality’s in some lesser ac no ad taxes shall be levied State valorem count, provision essentially would be upon any property within State meaningless. The State could create Coun Districts, purposes except the tax levied ty Highway State County or Prison Districts, VII, insti- Funding Article Section for certain all-purpose County levy higher learning. Districts to taxes at set rates for tutions of funding gren). programs of state mental health with- (Sonde- prescribing out the source of funds program

2. The ad State valorem autho- fund unless it raised its local rized Article Section May Leg., Act 71st share. imposed Constitution shall the fol- 816,1989 R.S., ch. Tex.Gen.Laws 3742. Al- lowing rates on each Hundred One Dol- though had districts thus some incentive to ($100.00) years lars for the valuation education, their for raise local share none through [setting 1974: forth a rate so. was mandated to do Senate Bill 351 years] declines in each of that these and away step takes a final from local discre- no tax pur- such school thereafter for tion, time, for first law the state man- poses shall be levied and collected. ad dates local taxes at a set rate valorem CONST, VIII, (1968, art. 1-e amended § TEX. specified purposes. for Bill is Senate also, 1982); Leg., 60th see Tex.S.J.Res. all stick no thus with carrot attached.14 R.S., (emphasis 1967 Tex.Gen.Laws 2972 argues The State that CED taxes uni- added). VIII, In article section 1-e necessary to form statewide are meet the was to any remaining amended remove au requirement VII, of section 1 article that taxes, thority impose ad to state valorem system public the school be efficient. As- resulting prohibition in the blanket now in correct, argument suming that is it VIII, history effect. The of article section follow, argue, does not nor does the State 1-e thus that framers establishes its only the one that is specifically ratifiers intended to eliminate VII, comply 1. would with article section the ad state valorem tax as a source of Legislature has While the some latitude public funds for education. discharge duty the it to manner chooses its past, has a the the State taken carrot- public establish and maintain an efficient approach encouraging and-stick local system, go it cannot so far as to school funding public for For education. several provision in violate another constitutional 1989, qualified years prior to school dis- attempting comply sec- article required trict not to contribute its total tion 1. funding local share obtain state from the See, Program. e.g.,

Foundation School Act An ad tax is a tax valorem state 30, 1984, C.S., of Leg., June 68th 2nd ch. imposed directly by it is the State or when 28, 1984 Tex.Gen.Laws 143. School dis- completely controls the when the State so encouraged to tricts were raise excess of levy, assessment and disbursement of reve however, share; their so local this was nue, indirectly, directly or the either that that could be rewarded with increased authority meaningful is employed without guaranteed yield program. aid under go can changes far the to After in the law in discretion. How State taxing authority qualify encouraging for aid a local district could not state from ward public that Id. 61.035. When a § The dissent contends whichever comes first. at system created Senate Bill 351 is no county’s expenditures indigent finance for care reach programs different from other in which the levy percent county’s general revenue for requires participation. Invalidating State local eligible year, county State assist- that warns, "imperils Senate Bill the dissent appropriated funds are avail- to the extent ance rights responsibilities" balance of delicate State funds § Id. at 61.036. Once those able. government. Opinion state and local between exhausted, county expended has ruling. exaggerates at The dissent our We levy percent general no fur- revenue placed any do hold fiscal burden not liability. Unlike Senate § Id. at 61.038. ther government by the State is unconstitution- local impose any Code does Bill Health example, Indigent al. For Health Care obligations may discharge their tax. Counties Act, dissent, requires Treatment cited revenue, including using general sales and provide a certain amount health counties taxes, taxes, reducing raising property ex- use indigent patients. qualified care for Tex.Health at penses, of these. or some combination (1991). Under the Safety §§ 61.001-.081 & Code 61.002(6). statutory requirement § Act, county payor of last resort for funding indigent care share health counties persons who not reside in the health care to do approach Bill mandate does public hospital hospital or area of a service pre- levy taxes CEDs ad valorem 351 that 61.022(b). county is § Id. at liable district. $30,- cannot devi- which the CEDs scribed level from eligible patient up to care of each treatment, days hospitalization ate. 000 or 30 levy requires an ad valorem tax before the tax Constitution becomes a state tax is difficult provision to delineate. for” “establish and make suitable Clearly, merely if the State authorized a schools, specific no public free it contains levy decision but left the whether to requirement public education be fund- authorities, entirely up ap- to local to be revenue. The completely ed with state proved if necessary, the voters then the however, heavy prohibits, re- Constitution tax would not be a state tax. The local grossly disparate local revenue liance on authority freely could choose whether to provide funding essential extreme, levy To the tax or not. the other II, schools. 804 S.W.2d 496- levy if the at a State mandates the a tax but an 500. Were local revenue insub- prescribes set rate and distribution funding, the part stantial the total dis- proceeds, tax, the tax is a irre- state property parities in district wealth school spective of whether the State acts its might system inconsequential be as through intermediary. own behalf or pays a whole. local revenue a But when spec- extremes Between these two lies a very significant cost of a part of the funda- If possibilities. trum other the State half— mental more than education—now required levy local authorities to an ad sys- disparities those the entire dominate valorem tax but allowed them discretion tem. setting disbursing pro- the rate and sum, we the tax mandat- conclude that ceeds, might the State’s conduct not violate VIII, difficult, by state ad valorem It ed Senate Bill 351 a article section 1-e. VIII, perhaps impossible, prohibited to define for section every con- tax article 1-e hypothetical precisely along ceivable where of the Constitution.

this continuum such taxes state become Therefore, Legislature,

taxes. if the in an Ill remedy effort to Senate Bill 351 with as argument changes possible, inject few as their Independently chose to based 1-e, VIII, some leeway upon appellants additional element of in the article section tax, impossible assessment of the CED it is argue Bill violates that Senate 351 article say in advance whether VII, that element levy a section because the CEDs tax prohibition would remove the tax from the gaining approval first of the without VIII, of article section 1-e. case Each Appellees affected counter that voters. lo- necessarily particu- must turn on its own may VII, cal taxes under article be levied Although parsing lars. the differences approval, or section 3 without voter alter- may dancing likened to on the head of a VII, natively, that section 3-b article excus- pin, Legislature it is the which has created voting requirement es the because Senate dancers, pin, and called summoned Bill 351 has school districts. “consolidated” Legislature The can tune. avoid these VII, consider the article section 3 We first by choosing conundra anoth- constitutional VII, argument, section and then the article path altogether. er argument. 3-b clear, however, things are Two among many which are not. One is that A play achieving role may local revenue Article section 3 is constitutional public of free an efficient schools. up patched wilderness. rather “[A] VIII, 1-e is that article section other enactment,” overly Shepherd cobbled doing indirectly prohibits the State from Dist., College San Jacinto Junior directly, it cannot through CEDs what do (Tex.1962), it has been S.W.2d is, levy an ad valorem tax. haveWe to write example cited as an of how not attempted Legislature to dictate to the GeoRge BRaden, constitution, 2 The Consti- play local revenue should part

what education, funding viewing that deci public Texas: An Annotat- tution of State Analysis Comparative (1976). Legislature's preroga properly sion as ed and form, single present it is a sentence Although instance. In its tive in the first prescribe provi- 393 words.15 It retains obsolete Constitution does not the func- tive clauses: sions valorem ate Our focus is on the the qualified property tricts lection of taxes the formation of school district16 ... to pass laws for the levied and collected within all school dis and the rize an additional ad valorem tax to be ^[1] ... as the procedure such as the ^[3] ... tax, and the management Legislature provision Legislature ^[4] and covers provided or schools of forming Legislature following poll all said districts and may assessment free shall be authorized subjects that a tax school districts. also text books and control of the paying such districts four provide state ad consecu- and col dispar- voters autho ^[2] proviso thorized whether like the CEDs pendent above 94 Tex. Brownson, in the power (1901). regarded tions districts. Appellees acknowledge that approved for a Legislature’s power must, according We therefore consider of the third clause the second S.W.2d Love v. the fourth. school constitute the third of the clauses Legislature before the voters. power district, City us as school districts. clause to the fourth to tax that 61 S.W. and we have (1931); to create entities Dallas, to have plenary regulate and free imparts upon it to the tax au- State v. 120 Tex. be with- issue is is inde- quoted clause, long voting of an the district at election to be VII, history helps The of article section 3 purpose, held for that shall vote such original resolve The section 3 this issue. tax.... simply of the limited the amount State’s Const, VII, Tex. 3. § art. general spent on revenue to be schools and poll established tax.17 Other sections of “nominally” Bill 351 creates funding provided the additional article districts,” “independent CEDs as school al However, public schools. noted, mechanisms for though per as we have do not original provision no article ex- of the VII any form of a school district’s traditional pressly The authorized local school districts to functions. 20.942. § Tex.Educ.Code may Legislature an the revenue the and the authorize additional 15."One-fourth of derived from poll occupation State taxes and tax of one dollar ad to be levied and collected within valorem tax State, every on ages inhabitant of the between the formed all school districts heretofore or hereaf- sixty years, twenty-one and shall be set formed, pub- maintenance of ter for the further apart annually public for the benefit of free the schools, equip- lic free and for the erection and thereto, schools; shall be and in addition there therein; provided buildings ment of that school ad collected an annual valorem State levied and qualified property taxpaying of the thirty-five amount not to exceed of such an voting voters of district election to be the ($100.00) on the one hundred dollars valu- cents ation, purpose, for vote such tax not to held that shall arising as with the available school fund ($1.00) any year exceed in one dollar on the one sources, will be sufficient from all other property of the one hundred dollars valuation support public the of this maintain and schools district, subject to limi- in such the taxation period of not less than months in State for a six upon of school district tax tation the amount duty year, be the the State each and it shall apply incorporat- herein authorized shall to set a sufficient Board of Education aside constituting separate in- ed cities and or towns provide the said tax to free text amount out of districts, dependent independent nor to school attending pub- children the books for the use of by general districts created or common school State; however, provided, of this lic free schools special law.” taxation named the limit of herein should may by appro- be the deficit met insufficient "district,” word, singular Although general priation funds of State and from the text, provision history and of the the context may provide Legislature also the forma- for suggest plural. that it should laws; by general and all tion school district may parts embrace of two such school districts annually apart set not more 17. “There shall be counties, Legislature and the shall be or more general of the revenue of the than one-fourth State, pass laws for the assessment and authorized to poll one dollar on all male and tax of said for taxes in all districts and collection of ages between the inhabitants in this State public management control of the districts, twenty-one sixty years, for the benefit of the of such whether such school or schools VII, art. 3§ territory wholly free schools.” composed of Const, with- districts are Tex. (1876). counties, parts county of two or more in a or in gave levy Constitution City Fort Worth it is true that the taxes. (1882), Davis, reject- Legislature unlimit- given 57 Tex. 225 this Court or has ever Legislature argument levy levy ed the that the had authorize the power ed or to power to authorize school dis- inherent school fund. provide of taxes to On levy tricts under article has, itself, taxes former the Constitution contrary, VII, section 3. Court reasoned that should consist said what the fund the Constitution manifested an intention to because the Constitution ter of limit 231-32. The Court stated was Taxation to the framers of the were provision authorizing what has been plainly tion. vailing bracing convention show ciencies no room school supplemented. It power in other intentional, for, of a was for funding general implied authority. states, said, that all system generally pre- districts in article or state government were voted down. spoke present propositions journals that: which the defi- omission of was familiar system addition to on the mat- constitu- Id. at there fund tax; em- which we focused above: tax. the substance of the second crossed doubt section 3. This amendment lowed other amendment pass laws parts of how the formation of school districts all ^[1] Ill S.W. such Of county note, may school districts Legislature creation two such districts be raised.... the 1909 amendment added or more counties. the assessment and collec 727. Parks lines in 1909 to shall be authorized to of school districts that may and removed had the ... also principally prompted article provide clause power embrace ..., ^[2] And VII, an- al- long voters. Id. at 232. quoted districts ered the cle allow and then added what eventually became 102 ad 3 1883. The amendment authorized a state In response was amended and valorem tax first, VII, Tex. 1908, as the taxes were the creation above. third and fourth clauses which we section Legislature this Court held Parks v. levy 111 to to fund the local ad valorem This Davis, S.W. of school greatly expanded 726 amendment to authorize school article amended, approved by in (1908), districts VII, that arti- taxes did not empow- schools section West, local that as in Tex.H.R.J.Res. Gen.Laws 251.18 Amendments to article trict, fied that whether such districts are collected within tional ad territory wholly parts of tion ^[4] lic school or schools of such provided management property taxpaying Legislature may purpose, voting taxes two or valorem at an that shall vote 31st all said more counties. all school districts a and control within election to be tax to be levied and Leg., authorize voters districts and a such tax.... VII, section 3 R.S., county or composed of the of the of the 1909 districts, held ^[3] quali addi Tex. pub And ..., dis in proposed in 1915 and 1916 allow were sug- The county crossed lines. Court also taxes, they county for increased but gested if section 3 authorized that even 2 districts, generally they might were both defeated. See such nevertheless lack BRA- power supra, The section was to tax: at 512-13. den, form, separate, preceding present clause two sentence. the condition of an elec- in In its plausible of that version have called clause follows The more construction tion in what we four three, Preceding applied to clause three. clauses is that clause two and four semicolon. comma, suggests Nothing history separated by in of either version also follow a semicolon. change grammatical punctuation might argue either or the in One that con- that grammatical provision was intend- applying the condition in clause form struction favors meaning. affect Under the circum- four antecedent clauses two and three. ed to stances, to both however, provision, we to rest our construction decline The quite version of the 1909 There, grammar. Sears grammatically. provision See on its different clauses (Tex.1990). sentence, Bayoud, 251 fn. 5 the same 786 S.W.2d three four were in 1918,19 Jordan, (Tex.1946). again part in to raise amended 198 S.W.2d 1920,20 tax, here, ad valorem and in state Applying principle we construe remove the limit on local taxation. VII, impo- article section to condition the amendment, final removed adopted upon tax sition of a local ad valorem authority the State create approval of the electorate. law, special districts by and edited the lan- guage to the form now effect.21 supported in this construc We are eight fact that tion the additional VII, history of article section of the 1909 decades since ratification thus we called indicates what have amendment, Legislature has never act response clause Parks two was added which if local ad ensure school districts ed as this amendment authorized county crossed lines tax. There is no could approval. To taxes without voter valorem suggestion support appellees’ conclu contrary, every Legislature time imposition sion that clause two authorizes sought power to alter the districts to of a ad elec local valorem without an tax, levy an it went to the ad valorem argument upon ques tion. Their rests two seeking amend trouble constitutional First, appellees premises. tionable assert VII, reading appellees’ ments. If of article two that the word “assessment” clause correct, Legislature section were three levy; means thus clauses two and passed a Not simply could have statute.22 would an identical effect. While we Bill 351 until Senate has the have some doubt that the two words are power. “[A]lthough non- asserted such context, synonymous, we at least in this power to exercise will not defeat the use[ ] assume that are and confront the sec in a rights expressly delegated written premise necessary appellees’ argu ond Constitution, practical con an established ment, the condition of an disregarded unless struction ‘should apply to election in clause four does not provision furnish the terms of the clear clause two. contrary support for construc definite Appellees’ reading of article section ” 121, 196 Baker, 145 Tex. tion.’ Walker v. allow a ad valorem tax to be would local (1946).23 only there Not S.W.2d imposed either with or without an election. support for a con no clear and definite impose If a can a tax district without VII, contrary 3 struction of article section two, under burden of an election clause provision Legis that the of the view why there no reason it should choose is eighty over apparently lature held for calling impose only instead to the tax after plausible reading years, we think the more four. an election under clauses three and provision is that of the consistent with Thus, appellees’ reading the effect of Accordingly, a we conclude that view. four, two, independent of is clause clause may levy to an ad CED not be authorized altogether. four nullify to clauses three and VII, 3, article section valorem tax under provision of One fundamental constitution- voters in the approval of the given without is be al construction that effect must provisions possible. all if Hanson v. CED. to 2230; R.S., 27, generally Leg., 2 Tex. Tex.Gen.Laws see 35th 1917 1965

19. Tex.H.RJ.Res. Braden, supra, Gen.Laws 503. at 512-13. R.S., 17, Leg., Tex.Gen. 20. 36th Tex.SJ.Res. Walker, Senate the issue was whether the 23.In Laws 356. power on its own motion. to convene had R.S., power, Leg., holding lacked such Tex. In that Senate 39th Tex.H.RJ.Res. forty- significant "it is that Gen.Laws the Court noted that legislatures passed to eight before it occurred R.S., Leg., Tex. 22. Tex.H.RJ.Res. 34th reject power to or Senate that the confirm 286; Leg., Tex.H.RJ.Res. 34th Gen.Laws implies duty appointments the Governor’s 287; R.S., Tex.Gen.Laws Tex.SJ.Res. purpose....” Id. 196 will for that convene at 356; R.S., Leg., Tex.Gen.Laws Tex. 36th S.W.2d at 327. R.S., Leg., Tex.Gen. No. 57th S.J.Res. R.S., 1301; Leg., Tex.H.RJ.Res. 59th Laws only by Bill 351 right CED tax mandated cynically The dissent refers to this “veto,” the tax transposing against as a vowels. more voters vote if there are right are, be it; they But vote cannot brushed if are than for and there no tricks; people word have they aside with simply less to vote because do entitled upon right prerequisite this as a insisted tax that the dissent favors. not favor a by by school districts ad valorem taxation that the CED The dissent seems assume VII, establishing it in section 3. The article would not by Senate Bill 351 mandated protection right deserving no less is assump- This approved by be the voters. simply may because there be votes cast disparage dissent to first and tion leads the against plan that school finance right to vote deny then the constitutional passed and which people’s from will. statute save the strongly approves, dissent or because right people may The surrender their against plan may some who vote VII, 3, by section amend- vote under article wealthier, words, inor the dissent’s more ought ing they but not to provision; that than vote it. “privileged,” some who by judicial right taken from them have the although shows a school The record that fiat, by Legislature. ignored rich, it property does not district necessarily “priv- mean citizens are that its B It is ileged.”24 of course axiomatic that Appellees further contend that article regardless of persons, the votes cast all VII, excuses section 3-b an election circumstances, equally. count their under Senate Bill 351. The CEDs created the Constitution vouchsafes un- vote which legislature adopted provision,25 article section is a veto of the der going very only nority at a dissent’s and that forward 24. insinuations instance, wealthy good pace. we "privileged" oppose Senate For have Bill 351 scholastic decathlon; During just competed refuted record. the floor in the academic Legislature, Representative in the Uher a small in South Texas debates the first time school City Bay many competed very the adverse effect Sen- first and from described well won regional would on the School places, ate Bill 351 have Palacios level second at the Matagorda County: very important District in state level. So it is at the pro- quality are able to continue we that, system my district I a school have well-being gram heavily in the that is invested ago, years extremely poor fifteen young people live in the Palacios who system. system school It is a school that is school district. system minority; is a about 65% and it good has had some fortune in that a plant nuclear was built within its boundaries. minority. Here district that is 65% is a school been, over The result that has the last village way fishing primarily, is the It they years, gone property from a fifteen Young livings. their men people most make system; poor property rich to a the third and will leave school at women rate now have a current tax of about go shrimp grade level to work on fourth and Now under the substitute under 351 $0.42. peo- fishing young as other vessels boats and ple, go just every sys- would like other school we system. drop school out of the and $0.80, to the level of and then the other tem good done the fortune But we have what problem kick we factors that in. had, keep we been able to that we have have generic approach to with this how we have today we youngsters in school. And those system each is that while we deal with school University, got got Stanford have Yale we’ve having to our tax rate to are raise and double on University_ Debate on Tex.S.B. 351 the get now $0.80 $0.42 to the rate —we are R.S., —what House, Leg., 14-16 72nd Floor of the bring going means is we to are (Feb. 28, 1991). expenditures spending we are now down young people. it is not idea of our And the on public the maintenance of free 25. "No bill, believe, I know I don’t it is this any independent school district in schools voted Governor, approach we idea of our when the junior of a the and no tax for college maintenance matter, very subject difficult reduce the district, junior college nor voted learning qualities that are there —as the Gov- district, any any sued, but unis- in such bonds voted said, syndrome.” "the down We ernor dumb abrogated, or invalidat- cancelled shall that. want don’t any by change boundaries of kind in the ed boundaries, change any in the After thereof. district, any is, body without the governing of such problem that we the of it will reduce But expenditures election, shall have necessity additional of an heavily that is in a mi- rate, nearly 3 of in is as cumbersome as section the exceed the the manner autho- article, prior change in in in applica same limited its rized the district district, “any independent tion to school the its boundaries.... those instances portion any in major of which is located Dallas where the boundaries of such inde- R.S., Leg., changed by County.” pendent Tex.S.J.Res. 57th school district of, with, appears 1961 Tex.Gen.Laws 1301. It the annexation or consolidation districts, prompted by necessity the have been the of one or more whole school having every purposes taxes to be levied for the here- a tax authorization election in may of a school district inabove authorized the amount time boundaries changed. Indep. or at not to exceed the rate theretofore See Crabb v. Celeste Sch. Dist., (1912); having Tex. voted in district at the time of 146 S.W. 726; Davis, 225; Parks, change greatest popu- Tex. 111 S.W. such scholastic Indep. according lation to the latest scholastic Dilley County Burns v. Line Sch. Dist., (Tex.Comm’n App. 295 S.W. 1091 census.... 1927, judgm’t adopted); Millhollon v. Const, provi- art. 3-b. These § Tex. Dist., Indep. 231 S.W. 332

Stanton Sch. No sions do not fit the creation of CEDs. (Tex.Comm’n holding approved). App.1921, physical of school districts are boundaries origi why provision It is not clear changed imagi- by Senate Bill nally County. 2 BRA- restricted to Dallas nary taxing power. of It boundaries their supra, at 521. In it was amend den, stretching regard a school somewhat apply ed to to all school districts. Tex. ceding taxing power district’s as a R.S., Leg., 1965 Tex.Gen. H.J.Res. 59th so, change in Even its “boundaries.” Laws 2230. quoted apply first sentence above does not CEDs, change imaginary because the

The first sentence of section 3-b has no existing only in school application Appellees case. boundaries occurs base districts, newly in the argument upon following portions created CEDs. their existing of the second and third sentences of the The first sentence would allow go exercising provision: districts to on their school taxing power irrespective of the creation of boundaries, gov- any change After taxing power But it is the CEDs. district, erning body any such without districts, CEDs, existing not of election, necessity of an additional change question. There has been no assess, power levy shall have the CEDs, imaginary or the boundaries ad valorem taxes on all taxable collect otherwise, newly created they are because property within the boundaries of Bill The first sentence re- by changed, purposes as for the district confer tax- upon by appellees does not public free schools lied the maintenance amount, rate, Nor does the sec- ing authority on CEDs. ... in the at the or not to changed, assess, levy property power district and collect ad valorem taxable payment principal interest on such property of and taxable within the bound- taxes on all permitted hy the laws changed, purposes in the manner for the bonds aries of the district as In those such bonds were voted. free or the under which of the maintenance of schools such junior college, instances where the boundaries of a as the case maintenance be, changed by principal independent district are payment of and interest with, of, outstanding against, or consolidation one annexation bonded indebtedness all districts, attributable, to, the taxes to adjusted such more whole school or allocated or therein, amount, purposes authorized any territory levied for the hereinabove in the district or rate, rate, may not to exceed the be in the amount or at the and in the the or not to exceed having prior theretofore voted in the district rate authorized in the district manner boundaries, change greatest the scholastic in accord- the time of such change and further in its bonds, according population to the latest scholastic which all such ance with the laws under voted; only bonds of such governing and the unissued respectively, such census were and may change, prior to such power, district voted body have the without the also shall voted, election, any and subsequently and delivered sold necessity to sell and of an additional unissued, school districts bonds of other but any bonds voted in the district unissued deliver boundaries, consolidation annexation or change involved in such prior assess, in and to such to be issued.” shall not thereafter levy valorem taxes on all and collect ad newly It to Freer because the applies ond sentence. boundaries formed district of, changed by “the or consoli- in never authorized annexation the district had voters with, or dation one more whole school dis- held that levy taxes. Id. This Court it Const, VII, tricts.” Tex. art. Sen- 3-b. a despite § the Freer district’s failure admit, appellees ate Bill does not election, under article authorization tax districts, only consolidate whole school power VII, section it derived the same 3-b portion taxing power.26 of their voters, including the the levy taxes that area, in the had property owners annexed VII, purpose of article section district approved for the Benavides when necessity 3-b is of a tax to obviate the of it. at 490. The part Freer was a Id. every authorization election time a school changed. If district’s boundaries are Court concluded: changed, prior are the electoral boundaries VII, in- Article section 3-b authorizes If dis authorization unaffected. whole to tax for dependent school districts consolidated, tricts the effective autho are in in purposes school those instances approved rization is that the voters subject district was formed which the prior largest the district with the scholastic existing wholly by from an disannexation situation, In the population. either independent pos- school district changed power tax district exercises a power sessed tax. support authorized electorate to seen, part of As we have no article in the When dis schools district. school VII, specifically the section 3-b addresses consolidated, power tricts are However, of new districts. creation new district be somewhat more or less Freer, the new school district was created or previously than that authorized in one change of an exist- by a in the boundaries districts; more use of the consolidated district, contemplated ing situation however, power, support remains to VII, But no by article section 3-b. the schools in the district. Neither the language history of article stretch VII, purpose language nor the of article VII, section can that section be read as 3-b newly section 3-b authorizes a created permitting or more of the districts’ half siphon taxing power off CED to stripped tax to be allotted authorization and constituent districts exercise away redeposited in a new state-con- to take revenue from one school district entity participation. trolled without voter spend it in another. from quite This case is different Freer. We article 3- have construed section Freer, Benavides dis- In the voters once, only Municipal Indep. b Freer Freer, trict, including voted to authorize (Tex. Manges, 677 S.W.2d 488 Sch. Dist. levy an tax for the district to ad valorem 1984) curiam), (per rev’g 653 S.W.2d the district. support of the schools within 1983), (Tex.App. Antonio re — San after 489. The creation 677 S.W.2d at mand, (Tex.App.—Santo 728 S.W.2d 842 An district, Freer out of Benavides district n.r.e.), nio writ ref’d tax, power to did not funda- with the same (Tex.App. S.W.2d 774 Antonio — San had autho- mentally what the voters alter writ). case, no In that inhabitants districts con- rized. residents both Freer from City voted to withdraw subject to ad valorem tax tinued to be District, Independent School the Benavides present circum- for local schools. part, Freer form a of which stances, however, transferring portion independent separate school district. taxing to a power of a school district did, Freer, Freer 677 S.W.2d at 489. This fundamentally changes bur- CED area which and later annexed additional of the school approved by the voters den dis part had of the Benavides also been being subject district. Now annexed Property trict. owners pay for the schools by the taxed pay area refused to taxes assessed taxing power con- part of more each district —its 26. No school district is divided between —is CED, appellees’ quote as from brief than one solidated. Nevertheless, only by suggests. cited dissent III, district, provides in they Article section 56 their own school must pertinent part that shall share the cost of schools in all the other “[t]he not, provided in except as otherwise this They in enti- school districts the CED. are Constitution, special pass any local or law tled to no voice in the affairs of these other [rjegulating the affairs of ... school districts, ... yet they obliged pay their districts_” argue Appellants that Sen may expenses. The residents of a CED special Bill such a law. How ate 351 is this, is, they may choose to vote to do ever, special a or local law is one that levy to authorize the CED to taxes vote persons class of applies to a limited among that will be disbursed the school by geography other distinguished or some expended at the districts the CED be Finley, 93 special characteristic. v. Clark of the school boards of those discretion (1899). By this Tex. 54 S.W. Here, however, the residents of districts. definition, clearly not a Bill 351 Senate take the CEDs have never voted to generally to special applies or local law: it Rather, Bill 351 thrusts it course. Senate that sections of entire The fact State. upon them. dis assign particular school the statute con- attempts justify The dissent not make the law tricts to CEDs does taxing power in as “less solidation of CEDs it affects school special one inasmuch as district consolida- intrusive” than school throughout the state. Lower Col districts tion, Legislature might have un- which the McCraw, 125 Authority River orado to remove the enormous dertaken order Thus, (1935). Tex. 83 S.W.2d disparities property wealth on which III, article Bill 351 does not violate is diffi- heavily school finance so relies. It section 56. “in- course is more cult to measure which argue Alternatively, appellants Certainly, gener- “disruptive.” or trusive” special law Bill is not a that if Senate of whole school districts al consolidation 64(a), III, section then it violates article community’s control over its would dilute which states: the entire structure own schools and alter by special statute Legislature may system, of the education but consolidation governmen- provide for consolidation taxing power in without vote CEDs government and functions of pay for schools over tal offices taxpayers forces any political one or more subdivisions nothing say. The ef- any county. comprising located within hardly of the former alternative are fects require shall an elec- minimal, Any such statute are the effects but neither political subdi- tion to be held within latter. approval by thereby visions affected VII, sum, article section 3-b in each of these of the voters created Senate Bill allow CEDs does not subdivisions, condi- under such terms and tax mandated levy 351 to the ad valorem require. Legislature may tions as the CED, property the statute on all provision re- Appellants contend that approval of the solely upon prior based of school districts quires that consolidation district to constituent school in each voters III, article by special statute. When levy a tax. Article district to allow their it 64(a) adopted first section CEDs VII, requires that before section Coun- only to El Paso and Tarrant applied tax, must statutory it levy the such, obviously intend- it was ties. As in the CED. approved by the voters authority Legislature’s to restrict the ed under school districts create or consolidate VII, IV evi- section 3. Nor is there article when was dence of such intention the cre- contend that appellants Some apply generally amended violates as school districts of CEDs ation part VII, provides in 64(a) section 3 Article III, and article sections 56 article provide for Legislature may also “the each of examine section 3. We gener- formation district[s] in turn. provisions

5H assessing Const, VII, As collecting and functions. 3. This tax al laws.” Tex. art. § noted, as not the case with the interpreted provision have Court has we in granting Legislature “free hand school districts. tax consolidation of establishing independent school districts” by Senate Bill affected base consolidation including III, consolidation abolition and article section does not violate 351 436, Brownson, 94 v. Tex. districts. State 64(a), VII, section 3. article 114, (1901); Prosper 61 115 see also S.W. Trustees, Indep. County v. Sch. Sch. Dist. V (Tex.Comm’n 5, App.1933, 58 6 S.W.2d Cook, argue holding today 365 our judgm’t adopted); Appellees Neill v. 824, (Tex.Civ.App. S.W.2d 829 Bill 351 conflicts with invalidating Senate — Eastland n.r.e.), 1963, appeal writ ref’d dism’d and II. The dissent Edgewood we what said 698, denied, 11 376 U.S. 84 S.Ct. going cert. as argument so far to expands this (1964)(the Legislature 650 has L.Ed.2d of deliber- Edgewood II accuse the Court power change the of or abol to boundaries misleading Legislature into think- ately districts, ish to school consolidate them ing Bill 351 was valid. This that Senate to annex school districts to other school merit. In wholly without accusation districts). VII, applies Article section II, this Court Edgewood Edgewood I and specifically. Inasmuch as school districts specific did not confront the constitutional III, 64(a) with the con article section deals has this presented this case. Nor issues gener governmental solidation of functions constitutionality ever determined Court specific ally, give way provi it must system that embod- of a school finance like VII, section 3. “In constru sions article In I Edgewood in Senate Bill 351. both ied ing apparently conflicting constitutional II, change Edgewood insisted that we provision provisions, general yield must was es- in the itself special provision.” San Antonio & standard sential meet constitutional State, Ry. v. 128 Tex. A.P. Co. VII, efficiency in section 1. article (1936); County S.W.2d also see 397; I, Edgewood 777 S.W.2d Edgewood Shepperd, Tex. Harris However, II, we re- 804 S.W.2d (1956); Anto City S.W.2d San directing the frained from Toepperwein, nio v. 104 Tex. 133 S.W. effectuating particular course take (1911). I, change. said: required Edgewood In we though have held above that even We fi- Although we ruled the school merely tax redistribution mecha- CEDs unconstitutional, nancing system to be functions, in con- nisms with no educational legislature as do not now instruct we districts, Leg- stituting them as school legislation specifics recog- long has not exceeded its islature enact; order it to raise should nor do we nized, authority em- broad to create and legislature primary re- taxes. The power school districts. Our decision to decide how best achieve sponsibility County, v. Parker City of Weatherford only system. We decide an efficient (Tex.1990), not limit the 794 S.W.2d 33 does mandate and nature of the constitutional Legislature’s power to consolidate school met. has been that mandate whether under article section 3. There districts II, Edgewood after at 399. 777 S.W.2d general providing for the we held a statute Legislature’s action fol- concluding assessing col- consolidation of the I not “restructure the lowing did taxing for all units within lecting functions 496, the Court men- system,” 804 S.W.2d at be- appraisal district unconstitutional system- examples of the kind of tioned two could be autho- cause such consolidation necessary change correct the constitu- ic law, required special rized defect. tional 64(a). III, dic- That section section article is one districts Consolidation in City tated the result of Weatherford greater efficien- avenue toward provision available no constitutional because other system. school finance cy our specifically consolidation authorized the the constitution- efficiency not concerned with approach Another is tax this case. base consolidation. al issues of suggest at 497. We did not 804 S.W.2d that consolidation We observed tax base alternatives, or that there were no other existing stat- might implemented under pre- options one of two was these approval. utes with voter discussing contrary, To the after ferred. pow- grant of Since this constitutional option briefly, we reiterated: “We do each and define er create school districts [to Legisla- prescribe the which the not means taxing authority under article their VII] employ fulfilling duty.” ture must statutory specify not the details of does Id. at 498. of alternatives implementation, a number viability of the of tax Our discussion Legislature. One are available to ques- was restricted to base consolidation method, already place, allows vot- such in the district that had been raised tions countywide to “create an additional ers decision regarding the effect of our court in and exercise school district Dallas, 40 S.W.2d 20 City in Love v. county the territory of the for the entire (Tex.1931). We said: on school dis- taxing power conferred disagree court’s ob- We with the district of the by Article Section tricts servation that base consolidation] [tax Texas Constitution.” Tex.Educ.Code constitu- “appears to run afoul of certain im- permitted to 18.01. The voters are § provisions related to taxation.” tional “without taxing scheme plement such apparently court con- The district any existing affecting operation consolidation of tax bases cerned that county.” district within the school opinion Love. violated Court’s added). (emphasis at 497 n. 14 804 S.W.2d reviewing our at 497. After 804 S.W.2d recognized that this one method was We Love, holding concluded: we Legislature’s only alternative. accords of the Article VII Constitution Nevertheless, context of our in the limited Legislature discretion to create broad discussion, obviously contemplated that we taxing define their districts and county would approval of the voters of does not authority. The Constitution Moreover, sug- required. Love itself concept general present a barrier to the necessary: gests that an election would be consolidation, nothing in of tax base permit does not the Constitution Since of school districts prevents creation Love a school people of the the taxation pur- along county or other lines for district, support of that district for and dis- collecting tax revenue pose of people of except upon a vote districts with- tributing it to other school district, that the it is not debatable consolidating While in their boundaries. Legislature compel one district cannot assure substan- may not alone tax bases edu- properties for the use its funds and revenues, access to similar tially equal another dis- of scholastics from cation concluding erred the district court trict, just compensation. without constitutionally prohibited. it is added). Love, (emphasis 40 S.W.2d at 29-30 omitted). saying (footnote at 497-98 rehearing, asked to overrule we were On pro- nor Love the Constitution that neither interpret case ‘in a manner “or Love concept of tax base general “the hibited recap- permit the that would [state-wide] exempt such ac- consolidation,” we did pur- valorem revenues ture of local ad might be under- tion, of how it regardless ” equalization.’ 804 S.W.2d poses of of the taken, requirements all other from to do majority of the court refused 499. A tax say that base did not We Constitution. so, is sound and unconstitutional; stating: “We believe Love not be could consolidation (em- modify it.” Id. to overrule or decline constitu- it could be all we said was added).27 argument Rejecting the phasis simply was of Love Our discussion tional. I, Mauzy, Dog- along rehearing. ques- with Justices was not unanimous The court Gammage opinion gett of the that the were opinion issue on should of whether tion from the manner ing, which have resulted “that school districts mere all creatures by the state, consolidation fashioned ‘in all raised base reality, taxes legisla- in Senate Bill 351. at the local level are indeed State taxes that Bill 351 reveals subject pur- history tive of Senate recapture to state-wide for Legislature were con- the poses equalization’,” majority of a of the members conflicting sharply testimo- court fronted within stated: concerning many the difficult constitu- ny recognizes the clearly Our Constitution presented by this case. Con- issues tional taxes, and distinction between state local argues, they were trary to the dissent what of and the latter are not mere creatures thinking that had into this Court not fooled provision the former. The that “[n]o by the enacted Senate preapproved State ad valorem taxes shall be levied of clarifying the views of one Bill 351. In State,” upon any property this Tex. witnesses, the confer- Const, 1-e, the chairman of VIII, Leg- prohibits art. § attorney committee stated that merely recharacterizing a ence from islature and file probability all “come back property tax as a “state tax.” Arti- would local that’s, however, well, legal a VII, say, that’s cle states that suit section fiction, really a tax and Legislature may just that’s state “the authorize an addi- you ad valorem tax to be levied and a district to collect state tional created tax, here- Hearings collected within all school districts that is.” that’s all Con- formed, tofore formed or hereafter Bill on Senate Committee ference R.S., (Mar. 7,1991) free Leg., maintenance of Tex.S.B. 72nd further schools, equip- 330). (Tr. erection and witness who testified con- One buildings ment of school therein.” Bill cerning conflict between Senate Tex. Const, VII, added). (emphasis 1-e, art. VIII, asked § 351 and article section was provisions These constitutional mandate chairman, you any legal by the “Do see subject tax not that local revenue is Legislature assigning a problem recapture. state-wide rate?” The witness minimum tax or tax “Yes, answered, I at 17. do.” Id. holding not By Id. that the State could tax, reclassify a state local tax be a right people Concerning the court not authorize the State call a did imposition of taxes for on the local vote disapproving state tax a local tax. In schools, attorney general testi- an assistant taxes, recapture of did statewide local we committee: fied before the conference taxes approve the state-mandated local ex- “you can authorization steal [from Bill by levied under Senate CEDs you if isting will school districts CEDs] latter mechanism was not considered VII, 3-b, ... can we article section under II. Edgewood going is to meet guarantee that is, is challenge, the answer II, ad- Edgewood simply we did not constitutional Another testi- Id. 3-4.28 witness proceed- issues now in this no.” dress the raised yet fought. tax base consoli- rehearing has The notion should overruled without motion for be something you’ve be- II, that done dation is opinion. See 804 S.W.2d at why fore, you, tell we cannot we can’t J., that’s (Gammage, (Gonzalez, concurring); Id. at 501 the, challenge predict the outcome J., J., concurring). concurring); (Doggett, set, doing it. set about how we mechanics of purpose consol- done a limited We have never quotation dissent asserts that 28. The Supreme Court has is idation which what O’Han- out context and that Mr. been taken way again is over and over and said over was clearly that Bill 351 lon indicated Senate directing They’re problem. us into to fix the testimo- In fact Mr. O’Hanlon’s constitutional. where, the, there are no area where into an un- ny debate and indicative of intense have, on occasion they each answers. But surrounding Bill Senate conclusions certain this, en- they to write have chosen length: cite 351. We consolidation, concept tax base dorsed the that, word, appear to problem they’ve we another base- here that called it [T]he leading be us down repeated sharing, appear references a situation either every things time that that that I will reiterate consolidations and this road. they tax base they, Love still and they being mention Love led the road nature down there, which, it in terms Court, talk about that Supreme no one exists out that Texas says fied: section 3 before demonstrate that it was not misled our “article levy that new school district can prior opinion Bill to think [CED] got tax it’s to be a vote as challenges free from the now raised authorizing of the voters against it. tax.” Id. at 18. The chairman observed: it, anybody against but the “Wouldn’t VI

people.” Id. at 20. One committee mem- passing ber summarized: “Without a con- Having provisions concluded that there, amendment we almost stitutional Constitution, Bill 351 of Senate violate percent have a hundred assurance that ruling. our we now turn to the effect of going litigation from we’re to have future one side or another on this.” Id. at 11. A pro The chairman stated an earlier addressing today our In the issues raised ceeding: everybody “I think almost is now require provisions of a mind that it will constitutional focus has been on the of Senate redistribution, recapture, to allow require revision Bill 351 which create CEDs and equalization plan and kind of state-wide provisions, levy them to taxes. These money from district you where take one among many the though relatively few Hearings and use it in another.” Sen matters Senate Bill are an of covered Bill ate Education Committee on Senate fi- integral part statutory R.S., (Feb. Leg., Tex.S.B. 72nd Indeed, system. the tax levied nance CED 13, 1991). The chair conference committee very Senate Bill 351 is the cornerstone you truly man also stated: believe “[D]o of the entire school finance structure. Supreme of the Court of the State Texas statutes, many Like Senate Bill 351 con- guts system has the to shut the school clause, savings purpose of tains a the Well, I want to state here down? ... any infirmity is isolate to message publicly and send them a across provisions pre- found to individual be there, they guts I to don’t believe uninfected the remainder of the stat- serve question do is whether we have it.... clause, savings section 29 of the ute. That guts challenge Supreme to to Court statute, states: Hearings shut schools down.” Con of Bill Committee appli- any provision If of this Act or its ference R.S., (Mar. Leg., 72nd 16-26 Tex.S.B. any person or circumstance cation to 7, 1991) (Tr. 345-355). invalid, invalidity held does not affect applications of this provisions other or Legislature we do not fault the While given can effect without the Act that be reaching wrong to the difficult answers provision application, or and to finance, invalid questions of school constitutional provisions of this Act are this end the unconstitutionality of ignore we cannot proceedings to declared to be severable. Senate Bill 351. We cite its legislature provided recapture. prohibits that it’s constitutional- Love state- statewide of wide say they go ly appropriate. They didn’t that was the recapture on to And of funds. again that their say Edgewood [Edgewood exclusive method. And I take III II motion for regard signifi- language be rehearing] in that to still do tax base con- choice that we can of they’d only through (implement- that was the meth- cant. said solidations the creation If only doing. you provide collection ing) od that had to school districts. That’s what we're is, levy larger this now recap- the local question becomes is this taxes then of unit, it, they they told us that and could have district amount to some kind tured sum, this is a bit chose not to. So in it's a school district. I sham because refer question chancy prospect. no about. you Chapter Chapter There’s to 18 is not a school gets guidance. Anybody Chapter no is an But there is as we know it either. district and, you is a clear solely purposes up and tells that there entity there that exists only way do it one path and that we can collecting, levying taxes when refer talking got their own you to be about levy I to another has in that 14 that talked footnote (two) opinion other than ago. explained because there’s O'Hanlon little while [Mr. foot- Edgewood Love. II to the committee note 14 added). (emphasis They Id. at 4 said that was one method that twice]. II, stayed R.S., we April 11, Leg., Edgewood Edgewood Act ch. I and 72nd 20, 29,1991 Ap- ruling Tex.Gen.Laws our order allow the effect of § plying provision, we not hold Senate do Legislature respond. must con- We in- Bill 351 unconstitutional and therefore follow the appropriate it is sider whether rather, entirety; in its limit our valid we respect, in one course here because same holding system finance creates. prior least, In our this case different. cannot, however, holding We restrict our decisions, operation dealt more with the we portions of those the statute which system a than with as whole rather require CEDs and them to tax. create ruling specific it. Our element of so, system that Were we to do the finance given could not system was invalid be system remained—if a could be discerned past because the could retroactive effect no re- the remnants at all—would bear did, however, delay corrected. We which the semblance time, period for a prospective effect intended, nothing remedy do would allowing opera- to continue disparities funding condemned in school changed. II. The fi- could Edgewood I and tion until it Bill 351 contrast, nance scheme envisioned ruling our invali- proceeding, by given cannot be effect without the CED dating given tax retroac- the CED could be tax. requiring the tax be tive effect that conclude, we We therefore as have taxpayers. refunded to the decisions, prior funding both those judicial apply retro- Generally, decisions that the constitutional defects we have Schindler, actively. v. 651 Sanchez pertain statutory not to found individual (Tex.1983). 249, This rule is 254 S.W.2d provisions but to scheme a whole. however, exceptions, and we not without invalid, It is occasionally apply from it to departed merely components. a few of its In this we are prospectively.29 decision

B Supreme The United States not alone. recognized certain Court also When held that the school fund we application.30 ing system require prospective violated Constitution cases 192, 199, 1463, 463, Kurtzman, E.g., Reagan Vaughn, 468 U.S. 93 S.Ct. v. 804 S.W.2d 411 (Tex.1990) 1468-69, (1973) (adopting (permitted cause of action for loss of state L.Ed.2d 151 36 consortium); parental nonpublic v. States Moser United sectarian schools under to reimburse 99, (con- (Tex.1984) Corp., statute); Steel struing 676 S.W.2d 103 aid Oil Co. v. invalidated state Chevron conveyanc- 355-57, 97, 107-09, 349, "other minerals” in mineral Huson, U.S. 92 S.Ct. 404 Co., es); , Duncan v. Cessna 665 S.W.2d (1971) applied (prospectively Aircraft 30 L.Ed.2d 296 414, (Tex.1984) (adopting comparative cau- 434 period to action under Outer state limitations sation); Friendswood Dev. Co. v. Smith-South- Act, 1331 et § Shelf Lands 43 U.S.C. Continental 21, (Tex. Inc., west Indus. 576 S.W.2d 30-31 701, Houma, Cipriano U.S. seq.); City v. 395 (rule 1978) imposing liability negligent use 1897, 1900-01, 706, L.Ed.2d 647 89 S.Ct. 23 groundwater applied prospectively); Whittle- (1969) (prospectively invalidated state statute Miller, 665, 1978) (Tex. sey 669 v. 572 S.W.2d only property owners to vote mu- permitting (adopting of action for loss of consor- cause Walker, bonds); nicipal v. 381 U.S. Linkletter 928, tium); Felderhoff, v. 473 S.W.2d 628, 1731, 1737, Felderhoff 618, L.Ed.2d 601 S.Ct. 14 85 (Tex.1971) (limiting parental immunity). 933 exclusionary (1965) applied rule (prospectively 643, Ohio, Mapp 367 U.S. 81 announced in v. Smith, Ass’ns, Trucking v. 496 Inc. 30. American 1684, (1961)); Reynolds v. 1081 S.Ct. 6 L.Ed.2d 2323, 167, 2332, 110 L.Ed.2d 148 110 S.Ct. U.S. 1394, Sims, 12 84 S.Ct. 377 U.S. (held (1990) highway tax state use unconstitu- ("where (1964) impending elec- L.Ed.2d 506 tional, require pre- refunds for refused machin- and State’s election tion is imminent years); Pipeline v. Northern Constr. Co. 1987 progress, equitable ery already considera- Co., 50, 88, Pipe U.S. 102 Line 458 Marathon withholding might justify a court tions 2858, 2880, (1982) (prospec- L.Ed.2d S.Ct. tively 73 598 immediately relief in a granting effective granting ju- Article III invalidated statute case, though legislative apportionment even bankruptcy powers III to non-Article dicial existing inval- apportionment scheme was found judgment Congress judges, stayed to allow id”); England State Bd. Medical Valeo, 1, 142, v. Louisiana act); U.S. Buckley 424 96 461, 468, 411, 422, Examiners, U.S. S.Ct. (1976) (stayed for 46 L.Ed.2d 659 S.Ct. (declined (1964) apply new affecting L.Ed.2d 440 part judgment days authori- Employees Commission); interpretation & Civic of Government ty Lemon v. of Federal Election supreme Numerous other state courts have entitled to refunds. When Sunburst sued applied invalidated state taxes and their a refund Great Northern obtained refusing prospectively, grant decisions it, appealed. against Northern Great in Edge- refunds.31 And as we have done Supreme reversed its earli Montana Court wood, II, I and numerous other er decision and held that in the future supreme state courts which have invalidat- paid persons who excessive rates could systems ed their school finance on state However, the court re obtain refunds. grounds constitutional have nevertheless apply fused to its decision Sunburst systems operate allowed the to continue to person paid excessive other who had legislatures while constructed new finance prior rates decision. Northern Great plans.32 appealed, contending that the decision vio Supreme The United Court has States of the Four lated the Due Process Clause recognized that whether a state court’s rul teenth Amendment to the U.S. Constitu ings given prospec of state law are to be contention, Rejecting the United tion. application tive or is a retroactive matter Supreme opin States Court a unanimous North Great for the state court to decide. ion stated: Co., Ry. ern Co. v. Sunburst &Oil Ref. has refused This is a case where a court 77 L.Ed. 360 U.S. S.Ct. retroactive, ruling to make its Sunburst, (1932). the United States novel stand is taken that Constitution Supreme Court reviewed a decision of infringed by the of the United States is Supreme of Montana. In an earlier Court refusal. Supreme case the Montana Court had held think the Federal Constitution has persons shipment We paid who intrastate A upon subject. rates later determined to excessive were no voice state be Windsor, Comm., 1973) (refused require Organizing of unconstitu- CIO v. 353 U.S. refund 364, 838, decision), (1957)); tax collected before date of 77 S.Ct. 1 L.Ed.2d 894 Chicot tional 628, 369, Bank, aff’d, County Drainage 311 Dist. v. Baxter State 308 34 N.Y.2d 355 N.Y.S.2d 371, 374, 317, 318-19, (1974); Metropolitan Ins. Co. v. U.S. 60 S.Ct. 84 L.Ed. 329 N.E.2d 504 Life 399, Ins., (1940) (rejected any "principle Dep’t of absolute retro- Commissioner 373 N.W.2d of of (N.D.1985) (refused invalidity”). refund of unconstitu- active 412 tax,, "significant hardship tional state to avoid existing require- upon the state’s financial Bd., E.g., County Gulesian v. Dade Sch. 281 459, State, ments”); N.W.2d Soo Line R.R. v. 286 325, (refused (Fla.1973) to order re- So.2d 326 (N.D.1979) prop- (prospectively invalidated 465 fund of ad valorem taxes collected under uncon- "chaos”); erty prospectively to avoid tax method funding stitutional school bill because it would County, Algom Corp. P.2d Rio v. San Juan 681 chaos, and school boards had relied cause fiscal 184, (Utah 1984) (invalidated ad valorem 196 statute); presumptively good valid faith on except plaintiffs); prospectively, as to taxes County, Pac. Co. v. Cochise 92 Ariz. Southern 153, Burrows, 103 Wash.2d 690 P.2d Bond v. 403, 770, 395, (1963) (prospectively 377 P.2d 778 1168, (1984) (denied refund of unconstitu- 1174 procedure tax assessment to avoid invalidated "great sales to avoid financial tional hardship”); "great economic Strickland v. New- City hardship”); Gottlieb v. administrative 54, 132, County,. of ton (1979) 244 Ga. 258 S.E.2d 133-34 633, 408, Milwaukee, N.W.2d 646 33 Wis.2d 147 applied (prospectively of invalidation (1967) applied holding (prospectively on uncon- results”); "unjust Jacobs v. sales tax to avoid creating property avoid tax law to stitutional Gov’t, Lexington-Fayette County Urban 560 problems). fiscal 10, (refused (Ky.1977) to retroac- S.W.2d 14 invalidating tively apply holding unconstitution- 584, Priest, tax, E.g., Cal. property v. 5 Cal.3d 96 personal to avoid a "chaotic Serrano al cert, 601, 626, 1241, (1971), hardship upon Rptr. P.2d 1266 disruption all 487 of services” and "a 2951, denied, 907, L.Ed.2d government”); U.S. 97 S.Ct. 53 Salorio 432 the citizens of that local cert, Educ., 1100, 447, (1977); Glaser, Council Better 1111 1079 Rose v. 93 N.J. 461 A.2d v. 186, 993, 486, Inc., (Ky.1989); denied, 216 Helena L.Ed.2d 790 S.W.2d U.S. 104 S.Ct. 78 464 State, Elementary (1983) Dist. No. 1 v. 236 Mont. (prospectively applied of Sch. invalidation 682 44, 684, (1989); decision); Dist. City Seattle Sch. Foss v. 769 P.2d 693 six months after tax as of 71, 476, 128, State, Rochester, 247, P.2d 104- Wash.2d 585 N.Y.S.2d No. 1 v. 90 65 N.Y.2d 491 banc); 717, (refused (1978) (en County 136, (1985) Sch. Dist. Washakie OS N.E.2d 724-25 480 cert, 337, Herschler, 310, (Wyo.), city P.2d 340 retroactively "would v. invalidate tax because nom., County Springs Sch. Dist sub Hot burden if it had to refund the denied suffer an undue County No. collected”); City Buffalo, Sch. Dist. No. 1 v. Washakie Hurd v. taxes (1980). L.Ed.2d 28 (App.Div. 101 S.Ct. 953-54 U.S. 343 N.Y.S.2d A.D.2d States, upon those to thrust defining prece- the United the limits of adherence conception either of make a for itself be- a different may dent choice courts operation binding precedent or of the principle of forward force tween may It judicial process. and that of relation backward. meaning of the court, highest say that decisions of its (citations 364-66, at 148-49 53 S.Ct. Id. overruled, though law none the later omitted). In- less intermediate transactions. recently re- Supreme The Court intimating, too deed there are cases Trucking in American affirmed Sunburst broadly give them that ... it must Smith, Associations, 496 U.S. Inc. effect; ex- never has doubt been (1990). 110 L.Ed.2d 148 110 S.Ct. it so them if it pressed may treat the Court stated: There hardship pleases, injustice or whenever averted_ thereby be On the oth- will issue, law are at questions of state When hand, dog- may ancient er hold generally authority state courts its ma that the law declared courts retroactivity their to determine the had a Platonic or ideal existence before own decisions. declaration, act event the Sunburst). (citing S.Ct. at discredited declaration will be viewed stated, Likewise, it has the sole the Court been, had if it never and the reconsidered retroactivity of authority to determine the begin- declaration as law from the previous- The had its own decisions. Court ning. is the same ... alternative highway ly unapportioned held certain subject of the new decision whether the Commerce use taxes violated Clause statute_ law is common ... Constitution. American the U.S. choice determined state prior held its deci- Trucking the Court juristic philosophy judges applied retroactively sion should law, courts, conceptions her their Arkansas to refund the require the State of origin and nature. We review not under such tax before revenue collected their le- philosophies, wisdom of but the Supreme decision. Court’s initial gality of their acts. The State of Mon- day Trucking was American same by tana has told us the voice of her decided, held in case that the Court another highest court with these alternative that required was to refund her, the State of Florida open preference her methods liquor taxes making choice, preferential excise levied In for first. she Clause of the declaring law those violation of Commerce common within Corp. v. Div. her borders. The common law as admin- U.S. Constitution. McKesson Tobacco, 496 by judges Beverages istered her ascribes to the Alcoholic & 2238, power 110 highest of her court a 110 S.Ct. L.Ed.2d 17 decisions U.S. unextinguished, (1990). two and loose that is The difference between the bind cases, transactions, explained in by a the Court American intermediate decision was that the Florida tax overruling applied Trucking, them. As to such may say had after such taxes transactions we of the earlier McKesson been levied unconstitutional, and not overruled at had been held to be decision that been judg- It into Florida thus on notice of the Court’s all. has been translated holding recognized as the tax was authorized. ment of affirmance and before Thus, retroactivity recogni- issue was not Accompanying the law anew. prece- may may is a or of Florida to follow Court prophecy, tion which the failure conduct, As fashioning its laws. realized that transactions dent be course, arising no occa- governed by in the will “Of we had future Court stated: equities of retroactive a different rule. If this is the common sion consider the precedent be- application doctrine of adherence to of new law in McKesson law only applica- by understood and the courts cause that case involved as enforced Montana, prece- liberty, we are not at tion of settled Commerce Clause anything in the 110 S.Ct. at 2332. contained constitution dent.” 518 Trucking

American recognizes three-part analysis help ques- resolve decisions, judicial including some decisions prospectivity: tions of civil taxes, invalidating applied only should be First, applied the decision to nonretro- Sun prospectively.33 Its reaffirmance actively principle of must establish a new burst establishes the issue is when law, overruling past by either clear whether the decision of a state court precedent litigants may have retroactive, should be issue is to be relied, by deciding or an issue of first decided the state court. Our Court has impression resolution was not whose recognized apply also whether clearly foreshadowed. retroactively prospec state law decision or Second, weigh is well within our discretion. Hu tively ... must ... [the court] FDIC, (Tex. ston v. 800 S.W.2d the merits demerits in each case Sanchez, 1990); see also 651 S.W.2d at 254 looking prior history of the rule in Sunburst). (citing jurisdictions like Other effect, question, purpose position. E.g., adopted wise have this same retrospective operation fur- whether will Board Dale Pub. Comm’rs Wood operation. ther or retard its Library County Page, Dist. v. Du Finally, weig[h] court the in- [the must] 224, 226, Ill.2d 83 Ill.Dec. 469 N.E.2d applica- equity imposed by retroactive (1984); Jacobs, S.W.2d tion, for where a decision [the court] Metropolitan 14; 408; Life, N.W.2d produce inequitable re- could substantial Line, 466; Algom, Soo Rio 286 N.W.2d at applied retroactively, if there is am- sults 681 P.2d at 195. avoiding ple our cases for basis Although authority we have the to deter- injustice hardship by holding of non- mine the effect of our decisions and have retroactivity. it, frequently clearly exercised we Huson, Chevron Oil Co. 404 U.S. upon articulated the factors which bear 106-07, 92 S.Ct. 30 L.Ed.2d 296 Twenty years ago such decisions. (1971).34 adopted A used the Supreme United States Court first number of states have issue, Trucking, ques- has not been In American Justice Scalia con- own resolution of the curred with four other members of the Court in tioned. holding required that Arkansas was not to re- However, fund the taxes in issue. Justice Scalia mistakenly interprets B. 34. The dissent James analysis join employed — refused to U.S.-, Distilling Georgia, Beam Co. v. plurality, arguing instead that courts should 2439, 2448, (1991), S.Ct. 115 L.Ed.2d engage prospective making. decision fact, never casting test. doubt on the Chevron joined plural- in the Because four members Souter, announced the Court's deci- Justice who ity opinion refusing give retroactive effect to case, Stevens, joined by took sion in that Justice a decision that taxes like Arkansas’ are unconsti- opinion limit Chev- care to state that his did not tutional, suggests majority that a of the dissent today grounds ron: "The for our decision Supreme longer apply- Court no favors entirely the U.S. They are confined to an issue narrow. only, ing judicial prospectively some decisions applied of choice of law: when the Court doing and that we therefore cannot consider so litigants rule of in one case it must do law argument by this case. The dissent’s is without respect in so with to all others barred First, precedent judicata. reasons. procedural requirements merit for several Wedo or res binding prognosis. propriety the Su- speculate more than What as to the bounds of involving added). preme pure prospectivity." (Emphasis do in future cases Justice Court White, significant concurring judgment, retroactivity as what Second, stated: issues is not in the prospective application already propriety done in decided cases. of ”[t]he it has Court, statutory retroactivity and Supreme discus- this cases, in both Constitutional the Court’s recent discussion, by prior our decisions.” Id. Ill rais- is settled sions have evoked substantial O’Connor, Kennedy, yet many and ing which have not S.Ct. at 2449. Justices considerations Meltzer, vitality pros- the Chief Justice affirmed the full attention. See Fallon & received Law, noting precisely Non-Retroactivity, pectivity, that "it is in determin- and Constitutional New Remedies, 1733, (1991). ing general retroactivity that the Chevron Oil 1832 104 Harv.L.Rev. inquiry ongoing Supreme the Court Finally, in the test is most needed.... the debate long- represents summarized in Chevron Oil retroactive effect its decisions Court over what standing application nonre- the given dictate our own resolu- doctrine on be does not must debate, troactivity S.Ct. at 2452. Throughout to civil cases.” Id. Ill Sun- of this issue. tion Stevens, burst, the author of at its Furthermore Justice allows each court to arrive

519 Chevron test resolving pros- equally their own we consider it to useful in mat pectivity questions.35 applied Accordingly, We have ters of state law. we consid involving today test matters federal constitu er whether our decision should be law. Wessely Energy Corp. v. tional Jen Chevron’s applied retroactively light nings, 736 S.W.2d 624, (Tex.1987), 628 three factors.36 join Trucking, application dissent in American refused to recent In the most of the Chevron Blackmun, Scalia, court, by Justices and Marshall’s dis- a state Su- test North Carolina question vitality. preme might sents or to Chevron’s Court noted that "we conclude Trucking majority from American that a of the Supreme moving away Court is from the non- Coker, 43, (Ala. E.g., parte Ex 575 So.2d 52 application retroactive of constitutional deci- 1990) (noted usefulness of the Chevron test and sions. We do not believe we should so con- applied question); it to state law Alaskan Vil- opportunity clude. the Court had an 945, Beam (Alaska lage, Smalley, Inc. v. 720 P.2d 949 say longer that the rule of should no Chevron 1986) (new applied prospectively rule could be applied civil so.” cases and declined to do "(1) (2) impression if the rule is one of first ... 791, State, 576, Swanson v. 329 N.C. 407 S.E.2d justifiably prior interpreta- defendant tions, relied on (1991); Brewery Department 795 see Stroh Co. v. result, (3) (4) hardship undue would Control, 468, Beverage Alcoholic 112 N.M. 816 purpose holding and effect of the is best 1090, (1991). P.2d 1093-94 purely prospective application”); served Court, Superior Chevron Chem. Co. v. 131 Ariz. among 36. Conflict exists the various courts that 431, 1275, (1982) (en banc) (noted 641 P.2d 1280 concerning weight use the Chevron test each approval applied of the Chevron test and it in given applying factor should be Chevron 315, case); Young, Woods v. 53 Cal.3d 279 Note, Delong, See Cameron S. test. 613, 455, ("Partic- Cal.Rptr. (1991) Confusion 807 P.2d 463 Application in Federal Courts: the Chevron retroactivity ular considerations relevant to the Decisions, Retroactive-Prospective Test in 1985 determination include the reasonableness of the 117, (1985). 128 Some federal rule, parties’ reliance on the former U.Ill.L.Rev. the nature require proponent prospective ap- courts change procedural, as substantive or re- plication to demonstrate that each of Chev- troactivity1 jus- s effect on the administration of See, prospective factors ron favors decision. tice, purposes and the to be served the new Educ., e.g., Lowary Lexington v. Local Bd. 903 Dale, rule"); 226-28, Wood 83 Ill.Dec. at 469 422, (6th Cir.1990); F.2d 427 v. First (applied N.E.2d at 1372-74 Chevron to deter- Schaefer Bank, 1287, (7th Cir.1975). Natl F.2d 509 1294 invalidating county prac- mine whether decision We decline to follow these cases and instead retaining tice of interest on investment of tax adopt approach followed receipts applied retroactively); should be balancing federal courts which allows a broader Bamicle, 627, Schrottman v. 386 Mass. 437 among 205, the three Chevron factors. Silverman v. (1982) (applied N.E.2d 209 test almost iden- 1072, (D.C.Cir.1988) Barry, 845 F.2d 1085-86 determining tical to the Chevron test in whether (court applied prospectively despite decision apply prospectively); libel rule Moorhouse prong prospectivi- Co., Inc., fact that second did not favor Mich.App. Ambassador Ins. 147 ty); Freightways Corp., (1985) (examined "(1) Iones v. Consolidated N.W.2d (10th Cir.1985) (“A proper rule, as- (2) F.2d purpose general of the new reliance rule, upon (3) Chevron Oil focuses upon sessment under the old the effect of full significance relative of the individual Chevron application retroactive of the new rule on the necessary justice.”); factors. It is not that each factor administration of ners, Sumners v. Sum- (Mo.1985) (en banc) compel prospective application"); Barina v. 701 S.W.2d Co., Chevron)', Trading Transp. (adopted closely resembling & 726 F.2d a test Gulf (9th Cir.1984) Co., (prospective application allowed Orleans v. Commercial Union Ins. 133 N.H. (1990) (declined strength adopt "the of the considerations re- 578 A.2d because outright lating outweigh[ed] and third factors Chevron test noted its usefulness to the first it); ...’’); relating applied the second factor Stretton Educ. Ass’nv. Board Rutherford Educ., 8, 1148, Co., 441, (5th Drilling N.J. A.2d v. 701 F.2d 445-46 99 489 1155-56 Penrod of (1985) (test Cir.1983) (court "virtually prospective holding de- contained the same allowed test); spite concluding prong that the second favored factors” as the Chevron Gurnee v. Aetna Director, Co., Casualty holding); Simpson N.Y.2d 448 N.Y.S.2d a retroactive & 55 Of- Life (1982) (court Compensation, F.2d 433 N.E.2d 130-31 used Workers’ fice of (1st Cir.1982); Califano, Chevron test to determine if state insurance law Cash v. 621 F.2d effect); (4th Cir.1980) ("The given application should be retroactive of [the decision Fountain, through accomplished is not a Fountain v. 214 Va. 200 S.E.2d Chevron factors ] factor, (1973) separate (explained that "considera- discrete reference to each 514-15 given by analysis they purpose of interact with one tion should be rule, to the of the new an how rule, another”). Cir- of the reliance on the old We share the view of the First the extent cuit, justice factors are not dis- [Chevron] and the effect on the administration of of that “[t]he crete, tests, rule”). application offer three of the new disembodied but rather a retroactive

First, provide funding is for the creation and today’s decision involves is impression by sues school The tax of first whose determina of districts. CED levied provide clearly tion not There Bill will was foreshadowed. essential is, noted, funding as a dearth of caselaw for the school part we interpreting provisions the constitutional If our year past. apply now half we should issue, cir retroactively and none of those cases involve a require refund decision presented in this taxes, like those upon cumstances the school of those the effect previously ad devastating. case. No Texas court has Many system would challenge brought under article schools, dressed a by parties, the we are assured VIII, only previous section 1-e. In one operate through not the would be able spoken has this on article instance Court part pur- the of the year. end of Another VII, 3-b, not and that case did section VII, 3, however, is to pose of article section by case at presented address the issues the power levy condition school districts’ to it our decision bar nor did foreshadow By approval apply- the the electorate. day. testified before Witnesses who prospectively, we ing our decision allow concerning the same issues approval, tax without voter collection of a first vigorous disagreement. The were in derogation provi- of this constitutional appli Chevron prospective factor a favors levy We allow state ad sion. also cation of our decision.37 VIII, tax in violation of article valorem attempt There is need to section 1-e. no is Chevron of the test The second factor purposes of all served analysis detailed history question, “prior of the rule in provisions issue constitutional effect, and retro- purpose its whether here, purposes those how various spective operation further or retard will pro- retroactive or would be affected question” in operation.” The “rule in this spective case. Suffice it simple decision case one because more than is not applica- say that the effect a retroactive provision one is involved. constitutional damaging so of our decision would be purpose Part of article section tion neither; simply question did not ad- perspectives retroac- II did it on the central justi- contrary dress the issues here because were tivity: was on a rule so reliance Edge- proceeding. issue expectation raised in is so detri- fied and the frustration of Legislature had II whether require wood was deviation the tradi- mental as from system. adopted Tax school finance retroactivity.” Simpson, an efficient presumption tional problems possible and its base consolidation at 85. F.2d simply one alternative the were discussed Legislature might said it consider. We logically in its dissent is inconsistent 37. The possible district bas- to consolidate school is analysis factor. the one Chevron On violating the Constitution. In es without hand, plainly argues dissent that the Court context, obviously contemplated very we limited plan Legislature Edgewood told the II that so. we elections and said But tax authorization was in Senate Bill 351 constitutional. embodied decide, party we were asked hand, argues On dissent that to- the other approval voter either would did not hold that day’s contrary nothing exactly to the decision required; prop- was not would not be the issue fact, wrong on both the dissent new. erly before us. pre-approve we did not Senate Bill 351 counts: prospective ap- also contends that dissent Edgewood II or so to- otherwise foreshadow plication this case is incon- of our decision in day’s applied retroac- decision that it must opinion in sistent with our recent Caller-Times tively. Communications, Inc., Publishing v. Triad Co. “fallacy in the is the The flaw dissent (Tex.1991). There we deter- 826 S.W.2d 576 argues dissent that the excluded middle": required time elements mined for the first positions take of two extreme Court must one pricing, prove predatory to re- but refused ground there is no between them. because Although the issue mand case for retrial. dissent, Thus, according us, Court must impression one has been of first clearly Edgewood II foreshadowed hold that by dozens of courts and commenta- addressed adopted years. like that throughout country that a finance We were tors constitutional, rather, slate; writing Senate Bill 351 either would state on a clean our Legisla- requires so Court now misled the to construe it in that the has antitrust statute harmony us unconstitutional, ture, law. would be so that to- federal antitrust See or Tex. contrast, day’s apply pro- By the consti- be made to Bus & 15.04. § decisions cannot Com.Code case, truth, however, present only. spectively raised tutional issues system to the school it could not further declare unconstitutional and [a statute] holding apply then not the same any purpose of the Constitution. [in pronouncement would transform our case] The third element of Chevron test advice”)). respects, into In mere some equitable calls us to examine the considera- course, every prospective decision is adviso- tions in applying pro- involved a decision Nevertheless, Court, ry. every spectively retroactively. particular, or In aware, jurisdiction other of which we are injustice the court should consider the or recognized necessity prospective hardships that would result from a retroac- By ap- decisions in some circumstances. application. Again, tive hold- retroactive plying prospective- our decision in this case ing severely disrupt would school finances parties ly, we do not leave the before us during year. the current school It would unaffected. We limit that relief be- cause closings, delays wasteful school impossible give cause full it is retroac- payments administrators, destroy- to teachers and tive effect to our decision without ing constitutionally guaranteed damage inter- inestimable to the children ests that it serves.38 interrupted whose education could be an indeterminable amount of time. The

Legislature permitted should not be im- C pose illegal an tax on the citizens of this I, Edgewood our we announced is, State. As onerous as this burden how- 2, 1989, stayed decision on October but onerous, very ever—and it is indeed—we months, 1,May effect for about seven until equitable give believe that considerations Legislature opportuni favor an avoiding ty respond. 777 S.W.2d at 399. There very disruption serious in the regular Legislature was no session of the Although education of Texas’ children. during period, subject this time but the considerations on both sides of this factor school finance was considered four called significant, are we believe that the balance II, sessions. 804 S.W.2d at 493 clearly prospective application favors a Legislature n. 3.39 The enacted Bill our decision. 6, 1990, 1 on June a little more than a upon Based all three of the Chevron month after the deadline we set. Act of factors, conclude we that our decision in 6,1990, C.S., 1,1990 Leg., June 71st 6th ch. applied prospectively. this case should be II, 1. In Edgewood Tex.Gen.Laws we an argues The dissent applied that a decision 22, 1991, January nounced our decision on prospectively advisory. Opinion 1, 1991, at 524 stayed April its effect until (citing Wessely, (“[t]o months, just S.W.2d at 628 over for enactment of two peculiar application public their ing school fund- tax until our decision becomes effective is no Texas, unique. process denying of due than more denial recovery Great Northern of the rates it refunded 38. The dissent criticizes the Court for affording to Sunburst in that case. when, course, only prospective relief it would all, prospective afford no relief at or otherwise. 39. "We noted when we issued our opinion professions sympathy taxpayers Its tire Edgewood I that the Governor had called the disingenuous. position, thus most The dissent’s beginning Legislature special into session No- brief, constitutional, is that Senate Bill 351 is vember 1989. 777 S.W.2d at 399 n. 8. The possible and that it should not be for the Court funding system school call, however, was not included in the contrary being to reach conclusion without special until the third session of destroy compelled to Legislature, began February which of Texas. adjourned adopting without correc- That session The dissent contends that the Court's decision session, legislation, special as did the fourth tive taxpayers pay illegal forces tax in viola- adjourned immediately which followed and process rights due under the feder- tion of their session, 1,May special the fifth 1990. At al constitution. Our decision has no such effect 2, 1990, began May a school finance bill was delay prospective only. because it is We passed by houses of the holding both of our until after collection of the effect tax, May permitted the Governor on CED we are was vetoed 1991 and 1992 Leg., S.J. 71st 5th C.S. 145 do under Sunburst. Enforcement the CED Tex.S.B. Tex., 522 1, tations,

legislation September give to we set a deadline that would be effective II, Edgewood possible Legislature 1991. 804 S.W.2d at 498-499 the as much time as to Although period nn. time was beginning 16-17. of the next school act before the appreciably shorter than the deadline we year. prescribed, Legislature had earlier the urged Although repeatedly we have regular then in Bill 351 session. Senate delayed, school finance reform not be 11, 1991, April was enacted and amended I, Edgewood 399, 111 S.W.2d at ante, 27, May 1991. at 492 n. 2. Other II, 498-499, recognize 804 at we S.W.2d required courts which have revisions easy While the that the task not an one. their state’s laws have al- finance Legislature into Governor could call legislatures respond time for their to lowed time, Legislature special any session at ranging period from indefinite to six an regular meet in session until Janu- will not months.40 ary provide Legisla- to 1993. We wish cases, prior important of both our consider com- opportunity ture sufficient to setting dead- consideration in a reasonable public reform education prehensive cycle line was the annual of However, past, Leg- system. as operations. must certi- Appraisal rolls islature must take corrective action as soon 26.01, 25, by July fied Tex.Tax Code § unduly so possible as it is to do without 1, August taxing submitted units functioning orderly disrupting the of pre- budgets School must be 26.04. schools.41 23.42,

pared. Tex.Educ.Code § Bill in- Accordingly, we hold Senate 351 1, September adopted by rates must be valid, ruling so but defer the effect of this 26.05. All of these dead- Tex.Tax Code § collection of all as not to interfere with the course, could, adjusted by lines of ruling is CED taxes. Our However, 1991 and 1992 as Legislature. in order cause contracts, payment as a defense to the be used disruption possible little as Legisla- operations, public’s expec- such taxes. We extend ordinary and the (1973) (issued period (1990). during deadline: "some Bill 1 was enacted no special another statu- sixth session.” time be needed to establish will tory system, obligations pur- incurred hereafter invali- United States District Court which existing will be valid accord- suant to statutes system in 1971 al- dated Texas’ school finance statutes”); ance the terms of the Robinson Legislature years two correc- lowed the take 196, 65, Cahill, (per 306 A.2d 66 v. curiam) (court 63 N.J. Rodriguez Indep. tive action. v. San Antonio statutory not disturb the would Dist., 280, (W.D.Tex.1971). F.Supp. 337 286 Sch. failed enact scheme unless systems to be states have held their Those 31, 1974, legislation compatible with December granted prospective relief unconstitutional 1, July no than and effective later decision varying upon based the realization duration cert, Robinson, nom., 1975), Dickey v. denied sub restructuring enormity of the that the task 976, 292, L.Ed.2d 219 414 U.S. (1973); 94 S.Ct. 38 E.g., system time. Serrano would take some State, No. 1 v. 90 Seattle Sch. Dist. 345, 728, Priest, Cal.Rptr. 557 v. 18 Cal.3d 135 476, 71, (en banc) (1978) 585 P.2d 105 Wash.2d 940, 929, (1976) (trial judgment court P.2d 958 1978, 28, (opinion September deemed all issued period years setting six from the date existing valid until under statutes acts taken entry judgment time for reasonable 1, 1981); July County No. 1 Sch. Dist. Washakie compli- bringing into constitutional 310, (court Herschler, (Wyo.) 606 P.2d 337 Meskill, affirmed); 172 Conn. Horton v. ance 615, be in effect and ordered that the conversion 359, (1977) (stayed judicial A.2d 376 cert, 1, 1982), July underway not later than Assembly an the General intervention to afford nom., Springs County Sch. Dist. Hot denied sub legislative appropriate ac- opportunity to take 1, County Dist. No. 1 Washakie Sch. No. v. Inc., Educ., tion); Rose v. Council Better 86, (1980). 824, 66 L.Ed.2d 28 U.S. 101 S.Ct. 186, (withheld (Ky.1989) finality of S.W.2d 8, days judgment June 1989 until 90 issued allegation categorically deny the We dissent’s Assembly adjournment of the General after the deliberately delayed its deci- court has that the 1990); regular session Helena Etem. expedited contrary, con- we have State, To the sion. Mont. Dist. No. 1 v. 784 P.2d Sch. deci- and announced a case (1990) sideration (delayed effective date of Febru- complete our delibera- 1991); as we could July sion as soon ary judgment until Robin- Cahill, is- dissent’s insinuation tions. The 62 N.J. 303 A.2d son v. duty longer period ture a to act that free schools.” The to establish and may have sufficient time to consider all provide system by for such a is committed not, however, options fully. We do encour- Legislature. to the the Constitution Tex. Const, age it to exhaust the time we allotted. have only art. 1. role is to Our § may The Governor well consider that Legislature determine whether people require interests of the that best complied with the Constitution. We have Legislature immediately be called into ses- not, now, suggest do not that one and we adopt sion to a constitutional school finance funding way of school is better than anoth- plan coming year. Legisla- for the er, any way past challenge, or that is or tors, too, may that inter- believe best any prefers of this Court member ests of their constituents mandate immedi- (other particular course action than what simply urge ate action. We the other two writing separately today those Justices government delay. branches of not to We themselves), expressed that one require only that corrective measures be clearly measure or another is constitution- adopted year, before 1993-1994 school dissent, not contem- al. Unlike the we do 1, specifically June 1993. To assure plate that our review of the school finance deadline, modify enforcement of this we litigation system in this will continue indefi- injunction previously issued Rather, nitely. hope expect we 250th District Court as set out in the foot- immediately will make note.42 changes system sound in the that will with- challenge. stand constitutional VII We offer two additional observa- A tions. The first is that the consensus before, systemic prescribe As we at least two decades has been that do not structure for system public change “an efficient is essential correct the deficien- opinion any way pursue suance of this any related in In order to allow Defendants to totally other event is unfounded. appeal, upheld their and should this decree be appeal, to allow sufficient time to enact 42. The 18th District Court and the 32nd District constitutionally funding plan sufficient injunctive proceedings Court denied relief in the education, injunction stayed public this un- them, respectively. before The 250th District 1, September til 1989. It is further OR- previously following injunc- Court issued the legislature DERED that in the event the enacts tion: constitutionally plan by Septem- sufficient INJUNCTION 1, 1989, injunction stayed is further ber hereby It is ORDERED that William N. Kir- 1, 1990, September recognition until Education, by, Commissioner of and Robert funding system require modified Bullock, Comptroller of the State of Texas and period implementation. of time for This re- successors, them, their each be and quirement system the modified be in enjoined hereby giving any from force and 1990, 1, place by September is not intended to effect to the sections of the Texas Education fully require that said modified education, relating financing Code implemented September 1990. including Program the Foundation School Act II, injunction In we modified this Code); (Chapter 16 Texas Education 1, 1989, April September extend the date specifically hereby said Defendants are en- 1, 1990, September Sep- and the date joined distributing any money from under the We tember 804 S.W.2d at 499 n. 17. (Tex- Financing System current Texas School origi- modify injunction now to extend the 16.01, imple- seq., Education § Code et 1, 1989, 1, 1993, September to June nal date conjunction mented in with local school dis- original September Septem- date unequal trict boundaries that contain taxable injunction modify ber We also financing property education). wealth for the change the CEDs and to the names of include parties. We do not direct the 18th and 32nd ORDERED, injunction It is further that this injunctions; Courts to issue identical District way enjoining shall in no Defendants, be construed as agents, injunction successors, the modified of the 250th District employ- their ees, relief. Court is sufficient to effectuate attorneys, persons acting in concert direction, injunction will not bar suits for The modified with them or under their from en- taxes, delinquent penalties and in- forcing implementing any collection of or otherwise other provisions of Texas Education Code. terest. system. in the B cies school finance Rod- riguez, Supreme the Court observed: U.S. summary, public In we hold that the system school enacted under Sen- finance apparent

The need in is reform tax Bill 351 levies ad ate valorem tax systems a.state well have relied too VIII, 1-e, of article and violation section long and the heavily property too local an an elec- levies ad valorem without thinking certainly tax. And innovative of section 3 of tion violation article methods, education, public to its as and However, Texas we de- the Constitution. necessary to funding is assure both a ruling part fer the effect of our as stated higher quality greater and uni- level opinion, Judge the VI C of this and direct formity opportunity. These matters 362,516-A, presiding in Cause No. docketed merit continued attention of the the Court, County, in the 250th District Travis already scholars who have contributed Texas, injunction previously to re-issue the by challenges. But the ulti- much their issued, (see opinion 42 of and footnote the mate solutions must come from law- 16,) II, 804 at n. as Edgewood S.W.2d pres- makers and from the democratic opinion. causes are modified in this The sures those who elect them. respective for fur- remanded to courts proceedings opin- consistent ther with 58-59, 411 U.S. at 93 S.Ct. at 1309-1310.' ion. stressed, I, system In Edgewood we “the changed.” must

itself be 777 S.W.2d There remains for system long public 397. As as our responsibility the Governor the for reform- theme, on the same consists variations comply ing public system to problems system inherent cannot expressed people sovereign will of the suddenly expected vanish.43 in our Constitution. We trust changes necessary will make structural is The second observation we would offer delay. unnecessary without that, brought us although the issues before I, II, and now Edgewood Edgewood dissenting Concurring opinions III, have limited Edgewood all been GAMMAGE,JJ. CORNYN schools, opposed financing operation, money aspects to other of their DOGGETT, J., Dissenting opinion by issue, money only is not the nor is more MAUZY, joined by J. only Contrary the dissent’s solution. only is suggestion, income tax not the Justice, CORNYN, concurring and remedy. I we “More stated: dissenting. present system money allocated under held Texas’ time this court has Each existing dispari- would reduce some of system of finance unconstitu- public school districts but would best ties between enjoined the prospectively tional we have necessary is only postpone the reform that finance the payment of state funds used to efficient.” S.W.2d make the system. eschewed an The reason we have argu- by the at 397. We are constrained ruling, in favor immediate effect our parties to address raised ments relief, a desire ame- prospective has been We have not of school finance. been issues disruptive impact of our any unduly liorate consider, example, upon called Today, the ruling school children. on our which could be

improvements in education tax enacted that the CED court holds unconstitutional, by eliminating gross wastes in the a deci- realized Senate Bill 351 Furthermore, system. in an ef- of the join. administration which I bureaucratic sion children the harm school fort to alleviate Legislature is so restricted. relaxing man- Without go saying consolidations. that the Court trict datory 351, It should without imposed by Bill sug- of the tax any way nature the dissent’s not endorse does not avoid the approval would voter alone gestion to choose could be forced that voters VIII, section 1-e. dis- obstacle of article approval of taxes and school CED between expectation whose schools would be closed were such unwarranted. tax, produced for the revenue by that we today wound that the court self-inflicts will hold that 1991-92 taxes are nevertheless disparate to heal. The court’s slow agree still proper balancing due. I that a treatment of two different violations of the equities compels this result too. starkly unacceptable same constitution is a responsibili abdication of its constitutional straight But the court veers from the ty. We either have a constitution which is path judicial propriety and narrow the fundamental law of our state or we do effect, by, into a constitutional ditch in law, regard not. of due Out for the rule of telling taxpayers that an unconstitutional the constitution must be enforced or it tax CED must be endured for an additional must be simply amended—the law cannot cycle year. because this is an election ignored delayed or its enforcement apparently The court believes that citizen reasons, opposition expediency. reasons of legislative For these available alter- although join judgment natives to Senate Bill 351 too I in the court’s will be irre- and permit type opinion sistible to in respects, of fundamental all other I dissent from reforms repeatedly VI, which this court has opinion section ofC the court’s and indispensable held are sys- to an efficient join portion judg decline to of the public However, tem of education. this delays ment today’s the effect of deci simply equitable is not an legal basis for sion until 1993. perform the court to refuse to its clear duty. pressures, Political the reason for I. delaying the today’s judgment effect of Moreover, exigencies I believe that the of cycles, two tax do not rise to the same level case, particularly the likelihood that in equity potential as the disruption of the constitutionality public of our school system which is the reason for the system finance will remain in doubt and holding correct that the 1991-92 taxes are years, unsettled at least two more war still due. description key rants a some Moreover, purported justification the attributes of the kind of school finance delaying court offers for the effect of to system pass that would constitutional mus day’s ruling year an simply additional can failing attributes, ter. to describe those scrutiny. not withstand Even if one as practically public the court insures that purported justification sumes that litigation school finance will remain unre valid, the court taxpayers can offer no re anytime in solved the foreseeable future. political assurance that similar pressures litigation began Since this state-court present will not likewise be in the next 1984, equitable funding public for our general legislature. session of the There is opinions schools has dominated our three something fundamentally wrong with the ensuing legislative Only and the debate. logic court’s dramatically when it can so passing quality public has the of the edu decisively strike down one constitution system cation in Texas been addressed. violation, al as we in Edgewood have done I system public Yet our education lan (Edgewood Indep. Kirby, Sch. Dist. v. guishes mediocrity improvement with no (Tex.1989)) Edgewood S.W.2d 391 II achievement, in sight. If educational (804 (Tex.1991)),only S.W.2d 491 to abide means, solitary constitutional is not the another constitutional violation for two education, goal public of our years political expediency. because of Fur being waged in thermore, there is a different battle unnecessarily the court itself the name of education from that delay, resulting contributes to the con generally argued popu fusion, which has been establishing a constitutional larly Equitable system by two-year postpone See n. assumed. infra. funding can one end. judgment. ment of the effect means of its Does requires really expect legislature An “efficient” education more court gross disparities in might react in advance of deadline than elimination of we Experience requires any funding; set? should tell us that the inculcation of (1990). Or, learning in the A.2d finally, essential level of which each below, may judges child in Texas to live a full and of one we enabled words productive increasingly complex life in an begin patience

world. There comes time when assigned to wonder if been [w]e ha[ve] permit process legislative to run its must judicial purgatory where some [w]e I am course ceases to be virtue. con the same case over and over. hear extraordinary vinced that nature III, op. slip at 36. proceedings these demands that court given has inscrutability mask The fact that this court never discard its collective of an a hint of the substantive level and describe basic elements effi more than requires2 system public cient education Texas. education our constitution aplomb.3 As a I am convinced that we do not serve universal not been met with by merely consequence, school children of our state well and, in reversing telling case effect passions, entrenched bureauc [g]iven legislature try again,” without “try, resources, racies, scarcity of and conflict Otherwise, given guidance. history interests, political horse ing informed Texas, funding in all- school recounted and trading and not rational models have too-painful in JUSTICE GONZA detail day carry the in edu continue to will require opinion, LEZ’S the constitutional cation finance. public system ments of the Texas Yudof, at 597. School Finance Reform litigated years are certain to be of another at- rough and tumble Surely, In come.1 no one can contend that crisis, it is fundamen- tempt in to resolve litigation interminable serves the best legislature be important tally Nor does it terests of our school children. of the effi- of the elements in our mindful all solve the fundamental defects Edge- we announced Many, many, ciency of our chil standard schools. far too more deals with educationally by illiteracy wood I. That standard crippled dren are money, re- it mandates educational than due to the lack of basic education when Otherwise, up may we end like Con- public I sults. system. am exit conclude, necticut, example, years after where ultimately concerned we will litiga- “legally school finance Jersey’s Supreme did after successful” like Court New financial the state's litigation, which increased years of that we have not laid tion 17 35%, schools student support to to rest. See Robinson v. Ca these issues im- 514, significantly hill, 478, (1973), performance has not 303 A.2d 273 62 N.J. Liebman, Brown nom., Implementing proved. Dickey Robin cert. denied sub Reconstruction, son, Political 38 L.Ed.2d in the Nineties: 414 U.S. 94 S.Ct. Recollection, bitigatively En- (1973); Burke, 119 Liberal 219 Abbott v. N.J. víe do not will, prescribe which the already, the means if it has not become 1. This case fictional, notorious, duty. fulfilling employ case Jarn- albeit like the must Jarndyce: dyce and S.W.2d at 498. Jarndyce Jarndyce drones on. This sca- time, has, question gotten that "the asked in course of 3.We are informed suit recrow so complicated legislators no knows what can the basic that man alive How [is] most ...: least; system parties to understand it main- it means. of the educational structure Chancery tained, satisfy- no two it has been observed that changes, while still with minimal Yudof, five minutes lawyers can about it for talk Fi- School ing the state constitution?" disagreement coming a total as to without Happy, REV. Worry, Be Don't nance Reform: premises. Yudof, all the (hereinafter (1991) OF LITIG. Dickens, (Penguin HOUSE 52 Charles BLEAK Reform); & also Parker see School Finance 1971) classics ed. Weiss, Edgewood: Litigating Constitutional Application to Educational said, Standards Edgewood I: first in we have 2. Rather (1991) Choice, OF LITIG. REV. legislature as to do not now instruct the [W]e legislative solu- ("[T]he demanded court has legislation en- specifics it should passes muster but constitutional tion act. ... a con- clearly elements of Edgewood never enunciated Similarly, in II 777 S.W.2d system”). stitutional we reiterated: forced, Legislative Reform, 76 VA.L.REV. II. 349, 392-93, (1990). Or, n. 144 we II, Edgewood opinion denying in an conclude,

ultimately Jersey, like New which plaintiff-intervenors’ rehearing, motion for spends per more student than other we wrote: Alaska, except state “[B]eyond that: doubt position raises the [Plaintiff-intervenors] money ... alone has not worked.”4 Ab- question Legislature may of whether the Burke, bott v. 119 N.J. 575 A.2d constitutionally authorize school districts (1990). Accordingly, in addition to its generate spend local taxes to en- anticipated efforts to address financial as- supplement rich or system an efficient pects of efficiency Legisla- educational (footnote omitted). Constitution [T]he forthrightly ture should equal- embrace the enrichment, permit does such without ly difficult issue of how the educational equalization.... spent. dollar Texas is A focus on results required by opinions this court’s in Edge- II, Edgewood 804 S.W.2d at 499. In other I wood and requires II and the words, implied we expressly did not —but legislature to requirements articulate the state —that the Constitution does not re- of an system efficient school in terms of quire equalization of funds between stu- results, educational just in terms of dents across the state. This means that funding. Although legislature current- the educational in Texas is not con- ly requires testing of competence student stitutionally required equal funding to have reading, writing, studies, social science Further, per implicit student. in the con- mathematics, performance overall cept system of an efficient school is the Texas’ school children on these tests has output system idea that the should despairingly poor. been meet certain minimum standards —it should provide minimally “adequate” a education.

Texas does not start with a blank slate. Walker, Billy D. Intent the Framers in Other states struggled, have successfully, the Education Provisions the Texas similar constitutional mandates for Constitution “efficient” REV. OF LITIG. example schools. The of other 625, 661, (1991)(hereinafter, points n. states 289-290 In- legislature need for the Framers). define, fund, tent clearly directly to This was then a minimal- ly I, adequate Edgewood addressed in education for all Texas when a unani- school children. This mous court means that for held: those dis- tricts which cannot do so based on local tax conveys meaning of effec [e]fficient effort, provide the state must sufficient productive tive or of results and connotes means. For those students and schools produce the use of resources so as to getting who are not minimally adequate results with little waste.5 education speak English because as a 777 S.W.2d at 395. language, second learning because of disa- precisely approach by This is taken bilities—for whatever reason—the state Supreme Kentucky, must fund remedial Court of for exam- pro- instruction and grams, triggered by ple, requiring child, perform- every substandard that “[e]ach ance, child, bring up legislatively pro- them to the this Commonwealth must be Only equal articulated standard. opportunity then will the vided with an have system Texas adequate be constitution- education.” Rose v. Council for ally Educ., efficient. (Ky. Better 790 S.W.2d Jersey’s Supreme ultimately efficiency 4. New Court con- 5. Concern for in the education article although cluded that legislature the standard set in the Texas Constitution arose from a basic thorough system for a and efficient frugality, opulence, Texan sense of distrust of (the adequate funding was court noted the government overreaching and a fear of equalized spending per mechanism child in 64% Walker, Billy spending. excessive D. Intent of gross of the districts but nevertheless that dis- the Framers at 665. eliminated), parities monitoring sys- were designed tem to measure educational results lofty objectives. had not realized its Id. at 370. (due 1989). I, provide guarantee); course of obligation But the state’s art. section adequate equali- law), does not seek “efficiency” an education of art. and the mandate goal. primary as its zation school funds VII, appeal, 1. On because this section uniform, is provided education Once basic agreed system unconsti court system, equalization of fund- l’s under section “effi tutional art. Kentucky ing necessary. not As clause,” did ciency not reach other court noted: arguments.7 777 S.W.2d at constitutional way In no does this constitutional re- 398. quirement act as a limitation the Gen- In the trial of one of consolidated Assembly’s power to local eral create causes, III, Edgewood Judge McCown grant enti- school entities and to to those engrafted an appears nevertheless supplement state authority ties the I, 3) (art. requirement equal rights section system.... may empower them to [I]t example, Edgewood decisions. For on our supple- enact local revenue initiatives to Judge constitu- McCown wrote that “the uniform, equal ef- ment the educational substantially ‘a rights children to tional Assembly pro- must fort that the General * * * to edu- equal opportunity have access guaran- will

vide. Such [a] strong they can- funds’ are so opportunity tee to all children the cational education, sys- adequate through Slip state local election.” be thwarted taxpay- tem. To allow local citizens and I op. agree with one commentator at 8-9. in no supplementary effort ers make particular who has written “[t]his way negates minimum reduces or equal strongly edu- statement hints required in quality the state- of education opportunity a ‘fundamental cational system. wide by the right,’ studiously avoided an issue Kentucky Implicit at 211-12.6 in the I Supreme Edgewood Texas Court Supreme preserva rationale is the Court’s Edgewood II and mentioned in even Indeed, con of “local control.” “local tion opinion on Motion (majority Ha translates, part, at least parents trol” Walker, Billy Rehearing).” D. Dis- money more to “the freedom to devote Edgewood Promethe- trict and III: Court An education of children.” San [their] Interpretation or Procrustean Bed? an v. Rod Independent School District tonio (Oct. 1991) monograph, on (unpublished 1305, 49, 1278, 93 S.Ct. riguez, U.S. record). file with (1972). It is not difficult 36 L.Ed.2d 16 defense, however, this In the trial court’s “equality funding” took how discern on I concentrated Edgewood court in In trial of stage this drama. center funding in the disparity of educational I, Judge Harley held H.B. Edgewood Clark results. rather than educational state public system finance then in school on based Though that decision was as violative of Texas place, unconstitutional constitution, the provision of our Constitution, I, (equal rights efficiency art. section 3 wrote, (since 1970) public require “efficient" Kentucky high Illinois court however: 6. The constitu- systems. States whose educational not be used Such local efforts "thorough edu- provid- and efficient” Assembly tions mandate as a substitute General Minnesota, Ohio, substantially Mary- ing adequate, equal uni- systems an cation land, include throughout (from system Jersey, Pennsylvania, form educational New Illinois state. 1870-1970) Pauley Kelly, Virginia. v. and West Id. at 212. (1979). "It S.E.2d 162 W.Va. appears in the outcome no difference make Montana, Jersey, Kentucky, New Six states: challenges] legal whether the Texas, [of school finance Washington Virginia, have in- and West efficient, thorough says thorough, or financing systems clause validated their Thro, Impact ar- Wave: The education The Third state constitution’s efficient.” based on their ticle, declining equal Montana, rejecting Kentucky, Decisions reach and Texas while of on Burke, 119 N.J. protection claims. Abbott Finance Future Public School Reform (1990). 575 A.2d 244 n. 134 Litigation, 19 J.L. & EDUC. Arkansas, Texas, (1990). The state constitutions Delaware, (until 1971) Virginia Kentucky, efficient, equal rights tionally court did on occasion use ter- no matter what level of minology. example, For the court stated: funding provided. gross Elimination of funding disparities alone not result in will apparent from the historical record

[i]t system. efficient school that those who drafted and ratified arti- contemplated cle section 1 never responsi- The unwelcome constitutional possibility gross inequalities that such bility attempting again once to enact a system. could exist within an ‘efficient’ system constitutional school finance follow- added). (emphasis This word choice ing present judgment rendition of the express was unfortunate because the court legislature presents the the formid- issue; ly equal rights did not reach the duty able to enact and to fund a school addressing court was disparity the 700-1 in system that minimum meets standards of revenue available education when the academic achievement.9 poorest richest and school districts were compared, ranging in expenditures per stu III. $2,112 $19,333. fact, dent from In court, by subtly changing trial the court’s system An efficient school cannot be “efficiency” I, rationale in has through simple achieved control of the in- legislative By contributed dilemma. (and puts system certainly mandating equality funding strict as the alone); through funding control of the out- solitary goal of efficiency rather than re puts system of the must be monitored and quiring system productive that is of re against measured a standard and the in- sults, my opinion the trial court has in puts adjusted must then be to correct holdings skewed our in Edgewood I and II.8 deficiencies. input

Fiscal guarantee alone offers no quality pure education. This is because A. “equality input” requirements do not I Edgewood the court assumed as true require positive correlation between dol is, fact, widely disputed a conclusion that spent (input) quality lars of education by experts when it wrote: (output). A realized where mastery so few children money spent demonstrate The amount of a stu- basic educational skills cannot be meaning- constitu dent’s education has a real and argued rights It been quately Although purpose that fundamental funded. analysis applied compel Program, could be increased Foundation School first enacted in education, 1949, government funding higher provide "adequate pro- state of is to resources to care, indigent housing, eligible health vide each student a basic instructional and abortions. generally program See and facilities suitable to the student’s Albert H. Kauffman & Carmen needs,” Rumbaut, Applying Edgewood Kirby educational under S.B. 351 the Founda- Maria program provides per Analysis Rights tion for a basic allotment Fundamental Under the Texas of $2,200 year Constitution, only (1990). school district of for the school 22 ST. MARYS L.J. 69 16.002, TEX.EDUC.CODE; § 1991-92. See III, Edgewood slip op. at 4. Foundation "[T]he Texas, Arkansas, Jersey like New and New Program School does not cover even the cost of York, example, already uses minimum com- meeting the state-mandated minimum [finan- petency identify lacking tests to students basic I, requirements.” Edgewood 777 at cial] S.W.2d (in- improvement skills and schools in need of schools), cluding ‘failing’ to determine students’ eligibility Furthermore, needs and remedial services and order to receive Foundation 2, 21, funds, certain dedicated funds. See Title Ch. only comply School a school district need O, TEX.EDUC.CODE; Subchapter See also Lieb- regarding num- with state-mandated standards man, Implementing Brown in the Nineties: Polit- days, ber of school accreditation the Central Reconstruction, Recollection, ratios, ical Liberal and Li- Agency, com- Education student/teacher tigatively Legislative Reform, 76 VA. position professional paraprofessional Enforced 349, (1990). However, n. 102 there personnel Salary L.REV. 376 and teacher Ladder Career 16, B, is no state definition of what constitutes a basic Supplementation. Subchapter Ch. TEX. Texas; and, adequate requirements education in because EDUC.CODE. None of the of the clearly right purport been that has not articulated as a current even to address edu- right, legal outputs there is no current on the level of an individual constitutional cational requirement that such an education be ade- school or student.

530 impact attempt expenditures to correlate opportunity

ful on the educational to that flatly offered student. concludes: with student achievement relationship systematic “There is no be- Significantly, 777 S.W.2d at 393. the court per- expenditures tween school and student authority no this offered citation Hanushek, When hand, Eric A. formance.” other most edu- conclusion. On the May Not Be there is no di- School Finance experts agree cational that “Reform” Policy, money 28, edu- Good rect correlation between No. HARV.J. ON Vol. years be- 423, 1991). Indeed, cational achievement. Seventeen (Summer if LEGIS. I, Edgewood Su- fore the United States education, money equal it equal meant corre- preme referred to an assumed Court explain why some impossible would be money lation between academic schools, the mon- operating on a fraction of as a matter of “considerable achievement ey, consistently perform out other better- dispute among and commenta- educators among those ex- funded schools.10 Even Independent tors.” San Antonio School perts hopes that increased that harbor 1, 56, Rodriguez, District v. 24 n. 411 U.S. in increased academic money will result 101, 1278,1291 n. n. 43 n. 46-47 S.Ct. it there are those who concede achievement (1972) (“[T]he n. 101 n. does do so across' the board. quality of education extent to which money question little that seems [T]here per expenditure pupil is debat- varies with count, orga could within the current but inconclusively by thoughtful the most ed schools, so it does do nization education”). public Significant- students of systematically. assump- unproven ly, the over the debate edu- equal money equal added). However, tion that means it Id. at 439 (emphasis today, notwithstanding rages cation still unlikely highly judges are more seems I. unfortunate statement qualified positive correlation discover a public spending and aca- between re- example, commentator who For one experts demic achievement than cently published survey 187 education- fact, contrary, 1967-1988, In student studies, performed field.11 al between e.g., infra; see Peter M. 10. See note also Works, Flanigan, System A School That fact, precisely because of the histori- 11. In Journal, February at A-12. Wall Street output difficulty correlating input cal schools, $6,700 per City's public New York sys- held school finance some courts have their student, approximately twice amount of cost funding inequality of unconstitutional on tems Although city’s Catholic schools. 95% words, protection equal other on alone—in entering high Ro- run students schools holding grounds, not reach in this court did gradu- of New York man Catholic Archdiocese Yudof, e.g. Equal Edgewood I. Educational See schedule, high public can on schools ate (de- (1973) Opportunity, TEX.L.REV. 25% its stu- for about make claim scribing problem correlating educational Moreover, Catho- four out of five dents. inputs outputs at time as not one go post-secondary graduates lic schools' not," Coons, "cannot”); J. W. Clune & "will contrast, graduates of New education. Sugarman, PUBLIC WEALTHAND S. PRIVATE frequently read and write York's schools (1972) ("[T]he to be basic lesson EDUCATION Although grade the Archdioce- far below level. experts point is the from the drawn Irish, integrate Ital- were to san schools created to inadequacy of science delin- social current groups immigrants, when these and Polish ian any clarity between cost the relation eate with city they replaced were moved out of inner unwilling postpone re- quality. and We to Hispanic by relatively poor primarily black and hoped-for refinements form while we await students. issue.”) methodology will settle the Hanushek, differ- many (cited for the cost There are ence, reasons School Fi- A. When Eric is, Policy, of the May one as defenders Vol. and of them Not Be Good nance “Reform” out, system point that Catholic 425 n. 9 public ON LEGIS. No. 2 HARV.J. Ratner, (Summer 1991). Legal get their New smaller salaries than But see A school teachers another, counterparts. Edu- less often Public Schools: Duty But Urban Effective for Skills, mentioned, supports public system 63 TEX.L.REV. is that the cation in Basic (1985). 7,000 argues recent edu- that more its head- Ratner than bureaucrats more Districts; characteris- Community studies identified quarters School cational greater oppor- people and allow employs tics of effective schools than 35 fewer Catholic "inputs.” controlling "Giv- tunity for successful in its central office. performance Functionally up as measured the Scholastic illiterate adults make Aptitude (SAT) actually Test disproportionately large percentage fallen during periods recent of increased school depriving unemployed, country spending in indicating the United States gross valuable contributions to the na- (illustrated relationship hy inverse the at- product corresponding tional tax rev- Figure 1 tached extracted from Eric A. Furthermore, enue. functional illiterates Hanushek, When School Finance “Re- employed dangerous who are can be May Not Be Policy, Good employers. Disproportionately high per- form” (1991)). HARV.J. ON LEGIS. centages group of this commit crimes. Critically important too is the fact that Society suffers the direct finan- alone, concentrating money the current cial, physical, and emotional losses school finance debate overshadows reforms crime, pays caused also billions of designed produce results. And if stu- per year imprison dollars the crimi- performance goal, dent is not our arewe addition, disproportionately nals. engaged perverse in a exercise that will high percentages of illiterate adults need likely uncontemplated have ramifications government welfare and other forms of by majority and unintended of the court. assistance, society pays for which billions Thus, any per year. funding correlation of dollars between and educational results is tenuous at best.12 Ratner, Legal A Duty New Urban So it is with CEDs under S.B. 351 that Public Schools: Education in Effective dutifully turn over independent funds to Skills, Basic 63 TEX.L.REV. districts, governed by independent (1985). trustees, boards of who make whatever use good or bad or indifferent— IV. funds — they, virtually in their unlimited discre- Setting measurable standards for stu tion, way see fit. Unless some is found to part dent achievement is of a nationwide change the merely districts that would response educational reform effort in squander the additional funds into districts study study after that concludes that ours money effectively, that would use the add- is a nation at risk due to the failure to ed likely improve funds alone are not teach at least minimal skills to our nation’s performance. Moreover, student the fail- Chambers, Adequate school children. Ed ure to effectively educate students in basic Right, A ucation All: and Achievable very costly skills is society. Goal, 22 HARV.C.R.-C.L.L.REV. (1987) Chambers, If gives way (hereinafter concern for “results” Adequate equality all, All). funding part as an end our As of this na Education for effort, schools languish will continue to in medioc- tionwide several state courts have forever, rity, consequent with the loss of ventured to describe the contours of the dignity competitiveness human adequate minimum education their basic already require. added burden to our state’s over- state constitutions See Rose v. Educ., system. loaded social service Council Better 790 S.W.2d capacity graders passing, spent per en the demonstrated ceed, of schools to suc- cent of its ninth $3,437 public policy longer any justi- per spent provides no student. But the amount higher excusing per $672 district is student than that fication for their failure." Id. spent hy Lindsay Independent School District in students) (417 example, year, County 12. For for the 1988-89 school which ranked Cooke Petersburg Independent per passage School District in Hale cent rate. third in the state with 97 $5,085 (410 students) County spent per Policy Analysis, Report student See National Center for 17, 1990); graders (January per passed while 100 cent of its ninth all Card on Texas Schools Na- Policy Analysis, year. Report three TEAMS tests administered that Card tional Center 17, 1990); (January Independent Fruitvale School District in Van on Texas Schools accord (296 students) $8,686 County Agency, Department spent per of Zandt Texas Education Re- only per graders Development, Snapshot: student but 26 cent of its ninth search and 1988-89 (March 1990) (Edgewood passed TEAMS test. The San Elizario Inde- School District Profiles (1,417 II), (Edgewood pendent dents) Kirby in El Paso Defendant's Exhibit School District stu- v. H.2). only which ranked last the state with 532 Burke, demand substantive 119 N.J. The court definitions (Ky.1989);

212 Abbott v. improvements, they (1990);13 rather than financial 374 Seattle 575 A.2d disadvantaged State, ensure the education of P.2d 94 No. 1 v. School Dist. education, youth by guaranteeing an (1978); Pauley Kelly, S.E.2d money, a sum of and rather than (1979). example, For in Rose v. Coun legis- of and leave in the hands educators Educ., Kentucky Su cil Better designing responsibility for lators the sys held that an “efficient” preme Court edu- required deliver the plan that will goal have as its to tem of education must cation. minimum, every each and child provide, at following capacities: at least the seven McUsic, LEGIS. at 332. 28 HARV.J. ON (i) oral and written communi- Sufficient B. to to enable students func- cation skills effi- Obviously, a strict results test for rapidly changing complex

tion in a and court panacea because the ciency civilization; (ii) knowledge sufficient of legislature disagree on whether and can economic, social, political systems to and prop- being met. But the the standards are make informed enable students to education, sought the results goals of or er understanding choices; (iii) of sufficient education by public achieved to be governmental processes to enable instance, For subjects.14 not new understand the issues that student to suggested following components have been state, community, her and affect his or “minimally of requirements basic as the nation; (iv) self-knowledge and sufficient (1) legislation: re- adequate education” phys- and knowledge of his or her mental curriculum; (2) for minimum quirements (v) wellness; grounding in sufficient ical (3) tests; testing competency re- minimum appre- to enable each student arts trigger assist- remedial quirements that historical his or her cultural and ciate identify ance, (4) designed to programs and (vi) training prep- heritage; sufficient or generate plans failing schools and training in either for advanced aration In- at 433-34. improve them. Liebman fields so as academic or vocational deed, defini- “[wjhile single no nation-wide pursue child to choose and enable each education is dis- legally of a sufficient tion (vii)sufficient intelligently; and life work cernable, ingredients of such a defini- skills to or vocational levels of academic Chambers, Adequate coalescing.” tion are compete students to public enable at 61. “Achievement All Education for in sur- counterparts favorably with their mili- required for entrance into levels states, in the rounding academics reading math accepted and tary, societally job market. by newspapers norms as reflected competency exchange, and basic But the modes of (Ky.1989). 790 S.W.2d applied to the task might all be standards that what was Kentucky court reiterated 15 Id. at education.” defining adequate expenditure of equal required was results n. 27. money. liber- expect of civil the continuance Jersey Supreme is idle Court wrote: New 13. The self-government. capacity ty, or the re- equality our Constitution ... "Rather than Repub- Independence of the The Declaration level of education....” quire[s] a certain (Vernon). of Texas lic Jersey Significantly, was New A.2d at 386. expenditures per pupil to Alaska second example, in concept. new For 15.This is not a consistently spends one of the for 1988-90 John Stuart Mill wrote: per pupil the United States. highest amounts axiom, Id. at 366. that the State self-evident It is not a education, up compel require and should standard, every being goal public human primary education a certain One Republic is born its citizen? founders of who embraced Texas, Independence in their Declaration Mexico. from enforcing the law could The instrument examinations, extending science, no other than political that un- is an axiom [I]t age. children, early beginning at an enlightened, all people are educated less a Obviously, focus; (3) if vague ly standards are too understood instructional they can will be circumvented. On the orderly, teaching safe climate conducive to hand, specific other (4) standards have the learning; teacher behaviors that Arkansas, application. benefit of certain convey expectation that all students are example, conclusively presumes that expect mastery; to obtain at least minimum schools in which of the students fall 15% (5) pupil the use of measures of below standard on state-mandated tests are program achievement as the basis for eval- failing participate schools and must (which uation. Id. at 801 he refers to as school-improvement pro- state-mandated the “new catechism of im- urban school 140; gram. Liebman at 391 n. see also provement,” originated by the late Profes- McUsic, Molly The Education Use of Michigan sor Ronald Edmonds of State Clauses in School Finance Litiga- Reform Walker, University); Billy D. see also In- tion, (Sum- 28 HAR.J.ON LEGIS. (listing gen- tent the Framers at 662-63 1991). Texas, mer currently em- erally accepted input-oriented measures of ploys similar competency state-mandated adequacy citing in education and E. CUB- testing, already legislatively mandated BERLEY, SCHOOL FUNDS AND THEIR literacy minimum standards and the means (1905)). APPORTIONMENT assessing performance. However, what missing is the remediation element of the V. formula, funded, properly adequate to ac- advantages efficiency The of an standard complish objective that schools. all requires that results are self-evident: proffered One commentator has his an- (1) remedy puts money where purported swer to the justifications for fail- is, problem likely where it is more ure to are false. educate— disadvantaged child; deal with the possible. Effective education ...is Suc- pour money does not into a school dis- cessful important schools do have char- specific purpose trict for no other than to acteristics common. These character- equalize spending. policy Such a will capable istics being replicated. help spending ensure that is not And success proof is affordable. The proper essential to the schools’ mission— schools can educate the vast enhancing student academic achieve- majority of their students basic skills likely. example, ment—is far less For many is that already done so. expenditures superfluous administra- Enough public serving schools sizable tors, Astroturf, or the like will be populations poor minority stu- importantly, minimized. More a refocus- enough dents in different locations na- ing great- of resources the need where successfully taught tionwide have funding est will result increased vast of these students basic e.g., substandard schools. See Connecti- existing budgets, skills within and the Aid, Scores, cut to Link Test Education evidence of common characteristics and Week, 25, 1988, (Connecticut May at 10 replicability strong, pur- is so plan to distribute aid to school districts ported justifications for failure are no scoring based on number of students be-

longer defensible. low the remedial level and on test-score Ratner, Legal A Duty New Urban rates). Furthermore, improvement Public Schools: Education in Effective overbroad; remedy is not Skills, Basic 63 TEX.L.REV. 795-96 (1985). (2) remedy reality Ratner cites the addresses the characteristics of (1) districts, prin- successful schools as differ follows: education costs across es- cipal’s leadership quali- pecially and attention to the as the needs of rural and urban instruction; (2) ty pervasive and broad- schools are considered in a state im- * * * tion, every year general Once in the examination a certain minimum knowl- renewed, gradually virtually edge compulsory. should be with a extend- Mill, ing range subjects, (Encyclopedia so as to make the uni- J.S. ON LIBERTY 317-18 more, acquisition, 1952). versal and what is ed. reten- Britannica (7)Finally, remedy leaves means as geographically diverse

mense and efficiency represent- accomplishing Texas; government. departments of state ative (3) remedy implemented The with- can my profound hope that the It is harming healthy school districts be- out eclipse the ur- school finance debate not for mini- minimum standards call cause actually gent work. need schools all not interference with mum education Otherwise, generation yet another not; districts, healthy or benefits school children will be denied the (4) remedy produce disrup- The will no rights. For the rea- of their constitutional and will allow tion of “local control” stated, opinion in I join sons long re- creativity local as maximum unconstitutional, Bill holding Senate standards; meet sults portion of the court’s to that but dissent accountability; (5) remedy promotes beyond stays judgment judgment which year. (6) input output; and the 1991-92 tax remedy ties GAMMAGE,Justice, concurring overruling concurrence the motion for rehearing in dissenting. Edgewood II. S.W.2d at people It avail to will be little

the laws are made men of their own choice if the be so laws voluminous I read, they cannot or so incoherent history 3 re- of Article section understood; if they cannot be legislature veals and the courts repealed be or revised before are consistently given practical it a con- undergo promulgated, or such incessant requiring struction a vote of local citizens man, changes that no who knows what levy to authorize the of an ad valorem tax guess what today, law can it will support for a school when a district’s such be Law is defined to be a tomorrow. legislature. district is created See action; rule how a but can be generally 2 G. Braden, Constitution known, rule, and which is little less Texas: An the State of Annotated fixed? Comparative Analysis (1976). Arti- 512-13 (James Madison). Federalist No. VII, cle authorize cre- section 3-b does not taxing authority, ab- ation CEDs with fitting a Madison’s admonition be newly-cre- a approval, sent voter because epitaph episode continuing for this in the change ated CED is not a “boundaries” saga public school finance. existing school district. Freer portion judg- I concur in the of the While Municipal Indep. Manges, School Dist. v. holding ment that Senate Bill 351 uncon- (Tex.1984) curiam), (per 677 S.W.2d 488 judgment agree stitutional and existing held court that when an school applied I prospectively, should cannot splits completely separate district into two join majority’s opinion in the overwritten por- by disannexation of a school districts agree necessary that it is do not either district, original is a tion of or to inflict an unconstitutional desirable change for of the result- “boundaries” both tax on the of this state for more citizens districts, 490, and Freer could ing id. taxing cycle. than one to tax at the rate authorized continue generally majority’s I with his agree district, it of which had been the Benavides account, opinion, Part I of its torical part. simply apply does not to this Freer development of Texas school finance Further, the new CEDs are case. challenges has I and the recent faced. of, boundary changes by annexation “the III agree generally also with Parts and Via with, or or consolidation one more whole qual majority’s opinion, of the but with Const, VII, art. 3- school districts.” § Tex. expressed below. The fatal de ifications added). Bill does (emphasis b Senate failure to fect Bill 351 is its Senate districts, school not consolidate whole taxing authorities newly proposed submit taxing authority pur- new rather creates a voters, Article required by to local as existing portion of the porting to utilize a of our Constitu sections 3 and 3-b State’s taxing power. districts’ II, IV, issues addressed in Parts tion. The VIB, opinion majority’s and VIIA of II unnecessary in this case. are to the decision prospec applied should making judg decision disagree I with the court’s Our districts, stu their taxing cycles tively because for two prospective ment pre patrons have relied on the dents and provided for in VIC and VIIB. More Parts Bill V, constitutionality of Senate over, sumption disagree Part wherein I 351, equitable considera wading and because more into court insists once Texas disruption swamp constitutionally apparent tions opinion advisory —a 3; only prospec V, favor art. proscribed journey, § TEX. CONST. remedy. Bill 351 violates Corbin, 62 tive Tex. Morrow v. Texas unique to the provision (1933), my constitutional criticized S.W.2d statutes; Legislatures Constitution, plete enact invalidity question and its is a advice. this court legal issues courts decide cases. Even when only of state law. No federal involving case Whether to make this court’s it an actual involved. before prospective retrospective specific complaint, decision or is a we have constitutional legislature, decision for this court. American Truck for the speculating no business Associations, Smith, else, ing department, anyone Inc. v. 496 U.S. the executive or 2323, 2330, 110 S.Ct. 110 L.Ed.2d consti- may may not be otherwise what (1990); Ry. Northern Co. v. Sun duty Great address the tutionally done. Our is to Co., Refining burst 287 U.S. Oil & questions presented to the extent neces- 145, 148, (1932). 77 L.Ed. 360 53 S.Ct. dispose of the case—no more sary to adopt any We need not should not no less. fed prospectivity,

federal test for because eral law is involved. Our decision IV Reagan Vaughn, 467-68 S.W.2d correctly Doggett’s dissent char- Justice (Tex.1990)(“considerations of fairness and local on requirement acterizes the of a vote policy preclude retroactivity full the when as a “veto” in the the CED taxation issue principle decision court’s establishes a new following sense: unless the voters each past either of law that overrules clear tax, approve sys- the the whole state CED precedent litigants may on which have re Edgewood tem fails to meet the I mandate impression lied or decides an issue of first requiring substantially the same education- clearly whose resolution was not foreshad tax effort. For opportunity al for the same owed”), engage controls. We should not efficiency to meet this system the entire legal gymnastics to make our test fit the requirement, components all of its CED federal formula under Chevron Oil Co. v. sys- substantially must have the same tax Huson, 404 U.S. 92 S.Ct. Consequently, any one of the 188 tem. (1971), try L.Ed.2d 296 to rationalize can, effect, statutory “veto” the CEDs applying factors as if we federal law. were tax scheme for the entire state. Nor should we be distracted election- presented for our decision But the issue year political considerations from our earli specific this is indeed whether to enforce recognition urgency resolving er taxation, right people the right to vote on the issues of school finance. For expressly reserved to themselves of Texas agree majority these reasons I the with 3 and of our in Article sections 3-b judgment the effect of the court’s ignore the ex- may not Constitution. We prospective, should be but would withhold Constitution, nor press words of its effect until June duty construe section 3 and we shirk our consistent exceptions of section 3-b

Ill legal analysis. precedent and sound strongly object I to Part of the court’s V bend the words of the Con- We should not opinion. legislature speculat- Whether beyond their reasonable construc- stitution might ed that the act be unconstitutional is convenience, nor our even tion to suit cause, This court’s role irrelevant. perceptions of what our own meet contesting parties actual where we have chil- educating Texas school “good” for statute, constitutionality of the is to uphold the Texas oath is to dren. Our from the the act suffers decide whether right, Constitution, including people’s alleged. The infirmities constitutional therein, such to vote on expressly reserved writing defend its goes court further to tax matters. II, by arguing rehearing say that tax base consolidation “did not DOGGETT, Justice, dissenting. unconstitutional; all said we could not justice! Ante, many little What So words—so was that it could be constitutional.” ordinary Texan—the court does it all mean to (emphasis original). at 512 citations, the footnotes and advice, lofty prose, once give but imprudently tried to charges and coun- multiple opinions, com- give undertaking the task failed to Taxpayers tercharges? It means that New Year alone. who awaited wrong. brings an For the obligations immense new clear their are as- indication of children, delay perhaps there is in- tonishingly told have forfeited — delay equal achieving finite educational illegally their collected 1991 taxes and must —in prob- opportunity; taxpayers, for the most pay taxes into continue unconstitutional unspoken ably an income tax. This is very message A real announced here. provision Disregarding a constitutional Legisla- court led permitting consolidation school districts primrose path. Today’s un- ture down vote, majority announces a without a legislation yester- is only constitutional principle privileged must be ac- new vision; nothing more day’s judicial it is —the any sharing corded veto of of the state’s response majority’s than the natural In- underprivileged. resources with the previous encouragement of tax base consol- deed, “vote,” Governor, referencing Legislature, a local whenever idation. The all separate judges today’s really and three Texas trial opinion means “veto”. in- accurately prior judicial followed County further that the Edu- declaration structions; majority unjustifiably now the (CEDs’) levy is an un- cation Districts’ tax changes opinion Its the instructions. new injects constitutional state ad valorem excuses. a morass of contradictions and relationship in the confusion overall be- I dissent. government and its tween state subdivi- expected litigation Future can be sions. today is wrong inflicted on Texans can be majority’s de- over state mandate that satis- aggravated by the deliberate improper Public of this lay. only by expenditure announcement fied of revenues made decision could and should have been After generated by property taxes. local ago.1 passing day, the long With each causing this havoc in both education legislative execu- majority denied relations, intergovernmental the court then opportunity respond tive branches an by compelling Texas compounds its errors assembling judicial the new instructions pay tax. taxpayers to an unconstitutional system. a constitutional school finance verbosity the ma- Given the with which boards, teachers, Surely and admin- school injustice, I jority cloaked its have writ- has year constant deserved without istrators thoroughly length respond ten at uncertainty; surely budgetary clarify the true misinterpretations and Instead, the ma- children deserved better. 2 in- consequences dissent of each. This year crisis another election jority creates following: impact beyond far cludes the with an educational concerning (Dist.Ct. County, of 98th Judicial plea 01104 Travis even a from the Governor Not Texas, 28, 1992); Dist. filed Jan. American of of the court’s inaction the adverse effect Morales, (Dist. Storage, L.P. No. 92-01050 Gas v. property tax collections was sufficient current County, Dist. of Judicial of Tex- Ct. Travis as, 98th timely to a announcement. to move 1992); Bldg. v. Jan. Beta Mu Co. filed Richards Brief Governor Ann Letter Amicus (Dist.Co. Morales, Travis Coun- 92-01060 of No. 13, 1991). (Dec. delay, With sever- this needless Texas, ty, filed Jan. Judicial Dist. of 250th including many taxpayers, al thousand 1992). pay- major corporations, delayed have state's law- taxes and filed numerous ment precon- merely that this Nor is it coincidental preserve right taxes their to a refund of suits finally plan been announced after ceived has See, e.g., January due paid 31 date. before the gone from its has come and Cattle v. Travis Co. Educ. Land & Co. Bandera filing special deadline for and after the session (Dist.Ct. Dist., County, of Travis No. 92-00860 expired. three seats on this court Texas, 23, 1992); filed Jan. Judicial Dist. 331st Dist., Ramirez, Keahey v. Co. Educ. No. 92-00936 829 739 Travis 2. See v. S.W.2d Terrazas J., (Tex. (Mauzy, (Dist.Ct. County, orig. proceeding) Dist. 200th Judicial dissent- Travis Texas, 1992); long- ing) (addressing majority’s rejection Co. v. Halliburton filed Jan. (Dist.Ct. Republicans Agency, legal principles 92-00996 to afford Educ. No. followed preferential Central Texas, legislative District of treatment 1992 County, Judicial 331st Travis Morales, elections). 28, 1992); 92- No. NCB Jan. filed

539 Page 539 Long Struggle for Justice I.The 540 by Advisory Opinion Entrapment II. Judicial 547 Texas Rewriting Article YII Constitution III. 551 property prohibition” IV. The “statewide Today’s Ruling “Prospective-Plus” Application of V. Cornyn’s Opinion Response VI. to Justice Hope? Any Glimmer of VII. VIII. Conclusion other concerned periences of thousands of point one substantive Confronted with effectively regions from all parents after another to which cannot and students majority undoubtedly finds respond, In Mr. Rod- groups in Texas. ethnic distressing. highly Incredible inequities this dissent sought relief from the riguez inconsistencies, prece- repeated rejection of system in federal state school finance dent, ever-present philosophy elitist and an said judges federal in Texas court. Three majority’s writing. permeate the inequitable and unconstitution- that it was All nine of the United States al. members always way. prior It was not two sys- finance Supreme said this school Court case, court opinions on this same only four of them inequitable, tem together the rather clear worked to follow willing declare it unconstitutional. were re- command of the Constitution without Indep. Antonio Sch. Rodriguez v. San gard political consequences of its (W.D.Tex.1971), Dist., F.Supp. Through compromise decision. and consen- Dist. v. rev’d, Indep. Antonio Sch. San spoke firm sus-building, the court with one 1, 93 411 U.S. S.Ct. Rodriguez, many recognized as the voice what (1973). 16 L.Ed.2d important case it has considered. most ever Tragically, this has all been lost. ruling quite many ways today’s is In writing upon it to this 1973 which similar writing, majority concluded

In its last compassionate Pronouncements of much. Reasoned relies. justice demanded too abound, unaccompa- gave way to generalities constitutional determination calculation; gave way to political precedent by enforcement of constitutional nied interpretive guide. As partisanship as an True, rights. judges five of the United Court, responsibility is to Supreme our “recognize[d] ‘the Supreme Court States ” supreme justice by upholding the assure society.’ in free of education vital role Constitution. We law of our state —our (quoting Rodriguez, Majority Op. at only fa- pick apply and choose to cannot 1294). They 93 S.Ct. at U.S. at pro- cannot invoke its provisions; we vored they refused thou- recognized just it before convenient only at times deemed visions any remedy for a of school children sands of this comfortable for members and As same “vital” element. denial of this regularly court; consistently and we must eloquently re- Marshall Thurgood Justice damage the its terms. The enforce all of sponded: today just to our insists on is majority holding can be seen majority’s [T]he very to the credi- education but children’s commit- from our historic as a retreat justice. bility system our opportu- equality of educational ment acquiescence nity unsupportable as and Long Struggle for Justice I. The deprives children system in a which chance to years of the their earliest in the is reflected history of this case citizens. potential their full as Rodriguez the ex- reach of Demetrio efforts 70-71, fully finance not be Rodriguez, system 411 U.S. S.Ct. at great- (Marshall, J., enjoyed Rodriguez’s even Mr. dissenting). grandchildren. Nearly quarter of a cen- After federal and further un failure Rodriguez began his tury after Demetrio attempts legisla state successful obtain justice, end journey for is nowhere redress, Rodriguez tive Demetrio and oth sight. Edgewood state ers returned to court.3 Independent Kirby, School District Entrapment II. Judicial (Tex.1989) I), (Edgewood they S.W.2d 391 Opinion by Advisory persist two it. After decades obtained injus- completely more claims, To understand ently opposing attorneys his for the today accom- tice which attorneys for its richest state developments plished, a review of recent finally injustice districts have conceded necessary. arguments litigation complained. Rodriguez Demetrio there proceeding made in the instant court, argument they In oral before this —that school dis- are constitutional barriers to belatedly agreement4 with indicated sharing and that restruc- tricts resources principle unanimously announced im- tax turing property would Edgewood I that: pose proper- an unconstitutional statewide There close must be a direct and correla- new; ty all were tax—are tion between a district’s tax effort ad- opposition principles raised in it; the educational resources available to opinion, In its Edgewood I.6 first vanced words, in other districts must have sub- argu- these this court declined to address stantially similar equal access to reve- by which or to a method ments mandate per pupil nues at similar levels of remedy the unconsti- Legislature could must af- effort. ... [All] [c]hildren sys- features the school finance tutional substantially equal opportunity forded a tem. funds. to have access educational Confronting a Gover- most recalcitrant only good That news from this is the multiple forces nor Clements William good that comes too case. But it is news accept this court’s unani- which refused of Demetrio Rodri- late the children I, Legisla- writing mous good news comes too late guez; l,7 only initially produced Bill ture grandchildren of Demetrio for some of the appointed a Judge after McCown Scott today Rodriguez. pro- is that willingness The bad news a master and indicated plan. This inad- disposition court-imposed ensures with ceed with prop- challenged by equate legislation of the reform of the Tex- the benefits that See also effort.” S.W.2d 398. that relief was nar- local tax 777 At the same time federal 3. following note 85. appropriately discussion rowly rejected, Justice Marshall infra availability of state constitutional noted sys- inequitable Rodriguez, finance was introduced remedies for 5. Mr. who 133, 100, cause, origi- argument Rodriguez, 411 n. 93 in this when See U.S. court at oral tems. J., (Marshall, Edgewood dissenting). previous nally of our decision in 100 told S.Ct. at n. I, stated: (Novem- Argument Transcription of Oral something 4. See morning because this is I cried this George, 1991) by (Responses R. James My ber my children that has been in heart.... it_ Hunter, Richards, Luna, years Twenty-one David Earl Toni not benefit from will questions from Jus- long Hankensen to Deborah G. time to wait. Further, Kozol, (1991). exception Doggett). Savage Inequalities 226 tice Jonathan Luna, specifically concede all counsel now Mr. Edge- Argument Transcription Oral 6. supplementation See or enrich- unlimited local that 5, 1989) by (July (Responses Kevin T. I wood through widely on dis- reliance ment financed Doggett). questions from Justice O’Hanlon also parate property tax bases would result unconstitutionally system. It is inefficient an C.S., 6, 1990, Leg., ch. 71st 6th Act of June that we said in I for this reason solely Tex.Gen.Laws derive from 1990 “any local must enrichment erty-poor urged judi- year.”12 They school districts who claimed that Plan, cial substitution of the Uribe-Luna Judge rejecting McCown had erred in tax consolidating county’s each tax base with- again base consolidation and maintained They urged out election.8 the trial require that the Constitution “do[es] judge recognize Constitution county taxing elections to create dis- require elections to create coun- “do[es] response, tricts.” the State insisted ty taxing Judge districts.”9 McCown re- during argument implement oral contention, jected concluding this consolidation, “you tax base have to have precluded three constitutional deficiencies option the local election. You have to let proposed alternative:10 impose taxing citizens vote new Because of the resistance to district con- authority on themselves or not.” solidation, some have advocated tax base sharing recapture.

consolidation or Addressing arguments these and con All essentially of these terms mean judge cerned that the trial had misinter thing. same Bill Bill Senate 9 and House preted prior subject, our on the silence we Plan, the Uribe-Luna was based unanimously in Edgewood Indepen wrote county-wide tax base consolidation and Kirby, dent School District v. S.W.2d produced significant equity. The Texas (Tex.1991) II), 497-98 (Edgewood League Research developed a similar override all of the constitutional barriers consolidation, plan. however, Tax base ascertained the trial court: appears to run afoul of certain constitu- approach efficiency Another is tax provisions tional related to taxation. See Const, base consolidation. Bill 1 ex- VII, VIII, Senate Tex. art. and art. § 1(e); Dallas, City Love v. 120 Tex. pressly provides legislatures that future § (1931). S.W.2d may use other methods to achieve fiscal neutrality, including “redefining precisely It is these three obstacles refer- opinion 16.001(d). enced the trial court in its base.” Tex.Educ.Code We § September govern 1990 that the issues of disagree with the district court’s obser- (1) present appeal: whether article option “appears vation that this to run vote, requires (2) section 3 levy whether a provisions afoul of certain constitutional by the CEDs is an unconstitutional state consol- related to taxation.” ... While VIII, 1-e,11 (3) tax under article section idating tax bases not alone assure prohibits whether Love the creation of the equal substantially access to similar rev- sharing CEDs and the of resources. enues, the district court erred conclud- appeal challengers urged On those same prohibited. ing constitutionally that it is rejecting “that this Bill Court [in 1] If this court had desired to remove some implement order the District Court to but not all of the three barriers raised plan practicable just Uribe/Luna consolidation, the trial court to tax base alternative and the method to assure Instead, protection plaintiffs rights easily in the 1991- could have done so. VIII, 1-e,” plan brought Op. 8. This tax base consolidation encom- article section at was under (1990), passed Leg., by provi- in Tex.S.B. 71st 3d C.S. is contradicted the citation of this Uribe, Judge majority by by authored 34, Senator Hector and Tex.H.B. sion both McCown and the I, (1990), Leg., by Repre- rehearing Edgewood C.S. S.W.2d at 499. 71st 3d authored on Greg sentative Luna. Appellants Edgewood I.S.D. at 12. Brief of 9. Transcript Edgewood Indep. Edgewood at Sch. Dist. II. (Tex.1991) {Edgewood Kirby, 804 S.W.2d 491 II). 13. Id. at 38. 10. Id. at 589. 14. See Edge- Transcription Argument of Oral 28, 1990) (November (Response II Kev- wood 11. majority’s questions Mau- contention that Texas in T. O’Hanlon to from Justice ”[n]o The challenge zy). previously court has addressed a Judge unanimously taxing authority ... consistent with Love

court concluded that misinterpreted contrary sug- si- prior had our to the district court’s McCown gestion, tax base consolidation could be lence with reference to all three constitu- provisions, just through one. the creation of new tional achieved districts_given authority school Unfortunately majority’s commit- generate property local tax revenue yielded our as the ment to Constitution districts with- all other school pressure of external forces intensified. boundaries. their Rehearing Opinion See on Motion for added). 7/-),15 (emphasis dispensed It further (Edgewood Edgewood Id. Two Minus or J., concurring) the unsolicited advice that: (Doggett, at S.W.2d A). En- (Appendix at 507 804 S.W.2d Legislature may, long ... so as [T]he gaging manipulation,” in a “conscious maintained, efficiency is authorize local majority improperly utilized unrelated supplement their edu- school districts to rehearing advisory motion for to issue an if property cational resources local own- publish opinion. “[Rjacing Id. at 506. proper- approve17 ers an additional local pro- opinion before other branches ty tax. solution,” the majority their own vide[d] (footnote added). Id. guide legislative process,16 sought to adjudicate.” Id. legislate “to rather than short, message majority’s to the per- Legislature concerning constitutionally opinion rehearing on addressed missible action was: taxes recapture whether local statewide VIII, independent power to de- under article section 1. You have permitted taxing authority of school 1-e the Texas Constitution: fine districts; clearly recognizes the Our Constitution tax- is recapture distinction between state local 2. of local taxes Statewide Const, es_ 1-e, pro- prohibited; Tex. art § re- Legislature merely from hibits may, consistent Property 8. tax revenue characterizing property a local _ tax as of the Texas constraints “state tax.” These constitutional Constitution, locally— recaptured local reve- provisions mandate that among through school redistribution recap- subject nue is state-wide long is confined as this districts —so ture. of the new the boundaries within superim- districts that are added). majority (emphasis districts; existing posed upon ringing offered a endorsement nonetheless recapture in form of tax base local limits, districts reasonable Within consolidation: supplement or enrich their edu- approval of Legislature’s resources with Focusing power cational on the by local voters. their additional taxes districts and define create school House Public passed vote of 8-1 in the opinion by court five members 15. This II-, Only rushing Edgewood or Two its ad- Committee. referred hereinafter Education Minus, majority's represented effort visory since Clerk of the after hours to the comments holdings I and evening February from the Supreme subtract on the Court detailing improperly II prior while able to interfere was the funding preferred solution. February expected on the House floor vote Response Supplementary of Plaintiffs- 27. See inap- precisely occurred as the what A race Rehearing Appellants and Amicus to Motion for majority maximum propriate desire of 25, 1991) (Feb. Edgewood Curiae II- Briefs by a political was almost thwarted influence litigation (informing pending court of status of legislative process leader- with new responsive urging process). noninterference in Lieuten- ship Richards and from both Governor fully majority was The Governor Bullock. ant Stone, discussing text Hill v. opin- 17.See preceding during its the week that aware infra (1975), by U.S. 95 S.Ct. L.Ed.2d ion, approved 20-7 had been Senate Bill 351 very had this section. version a similar the Senate and envisioned, contemplated” writing. in its majority Legisla- earlier As the conflicting type Surely attempted precise ture to draw the n. 37. these two 520 & reorganization is it recommended. Nor cannot co-exist. propositions that, study of surprising diligent after made majority Let us examine how prior writings, these Texas trial three it “obvious” prior its declaration so judges by tax found the authorized Senate immediately been understood should have constitutional, Judge Bill 351 McCown with short, is ordinary person. any by Supreme concluding specifically “the (1) the for two reasons: claimed “obvious” already approved con- Court has tax-base Edge- of the fourteenth footnote content 18 No one able to solidation.” has been (2) language to which II and certain wood explain how the CEDs created Senate many in one of the the court never referred slightest Bill differ from the it cited. authorities given school districts the authori- “new ... ty generate property local tax revenues em- Assuming magnifying glass was their for all other school districts within study print the fine of the foot- ployed to II-, boundaries,” specified Edgewood note, only that the reader would learn mirroring Virtually 804 S.W.2d at grant does not powers “constitutional directions, pro- Bill 351 majority’s implementa- specify statutory the details of vides: accordingly] a number of tion [and inde- county Each education district is an Legisla- alternatives available pendent district established 14. This lan- 804 S.W.2d at 497 n. ture.” of the consolidation local school districts understanding that guage demonstrates an purpose its boundaries the limited range of Legislature enjoys a broad exercising portion taxing pow- of the method,” such mentioned options. “One previously er authorized voters example, cre- by way of “allows voters to distributing districts

those school .md of countywide school dis- ate an additional county of the district revenue education certainly This was not the trict.” Id. districts. to those course, permissible nor constitutionally example suggest that this or following does this Tex.Educ.Code 20.942. After § map, voting prereq- road majority’s require choice would other Moreover, told it has come to a dead end. re- explicitly now uisite. the text 16.001(d), stat- ferred to Tex.Educ.Code § majority responds this situation voting pre- no ute that contained additional First, contradiction and we excuses. If “redefining the tax base.” requisite to today reached are told decision precondi- this court had desired an election could not have been “foreshadowed” constitutionally allowable tion all In- suggested Op. beforehand. at 518. consolidation, said so it could have base deed, majority particu- in this correct Moreover, not unequivocally. clearly and lar, today’s adopts a since decision view reference single, indirect footnote even this opposite previ- directly that announced employed majority voting by the then the claims that ously. majority But “obviously opinion. II- requirement Edgewood the vote had been appeals many was man- Transcript lawmakers assumed it too in the three consolidated that dated.”). County, critique aggressive 250th District in Travis from the Court Even the Indep. Sch. Branch Texas—Carrollton-Farmers upon court’s decision trial Dist., Edgewood Indep. Cause No. Sch. Dist. apparent frequently legislative peculiar. Having The second excuse is even more charted the course Previously language through murky uncited is now relied waters of Texas consti- Dallas, upon law, from City Love v. 120 Tex. is no minor matter that the tutional it 351, 372, (1931), sug- 40 S.W.2d 29-30 majority map now claims its failed to detail gesting people a vote of the one district near sharp rocks and swift current necessary using before their “funds and peculiar position shore. The essence properties for the education of adopted by formerly providing is that scholastics now opinion from another district.” This 1931 guidelines for tax base consolidation with- peo- was issued several decades before the unnecessary, saying out that a vote was ple of Texas amended the reflection, Constitution majority, upon further finds adding language the current of article necessary. that it is section in as discussed in section 3-b Disavowing paternity of the CED off- III, important- Perhaps even more infra. spring prior writing, majority of its ly, significant objective of the court’s Legis- vainly tries to shift the blame writing in II Edgewood about Love was so, doing lature. In it exercises extreme impression correct the mistaken it attempt protect in an itself on caution presented an to tax base consolida- obstacle “good by professing front19 another unequivo- unanimously tion. We held Legislature enacting faith” of the Senate presented cally that it no such barrier. again Maj. Op. Bill at 493. Once 351. II, Edgewood 804 S.W.2d at 497-98. itself, contradicting majority then magnifying glass glass Neither a nor commit- paints picture of the conference type crystal ball—would of another chairman, urging ringleader, —a tee as revealed that the reference to Love by em- Legislature to confront the court II-, any Edgewood without discussion imple- barking the audacious course of on voting requirement, meant a vote was nec- pursuant to menting tax base consolidation II-, essary. majority In did Edgewood writings. at 493. This this court’s voting its way find a to make views Chairman, Par- on the Senator Carl attack it the reader known: it wrote what wanted ker, It also nasty is both and unfounded.20 mystically communi- to know. It did not despite lip service to makes clear through required a vote some cate that was majority truly feels that the contrary, the ambiguous foot- reference to an obscure Legislature in bad faith. acted language in an outdated note or to uncited are miscon- The Senator’s comments one mention of a opinion. There is but impression that to create the false strued De- voting requirement Edgewood II- disregarded purposefully Legislature scribing the circumstances under which Bill requirement for CEDs Senate vote mandated, it further voter action would be disapproval. of fear of voter because must con- plainly said that the voters fact, his remarks concerned Id. at 493. supple- sulted a local district wished if consolidation a different alternative —full Although indicating resources. ment districts, de- of school of all functions constitutionally Legislature transcript “true consolida- in the as scribed implement tax consoli- empowered to base rejected by the indicate, tion”—that was dation, majority did not public.21 In a fur- unacceptable to the precondition. Rather way, an election attack, quotes the nega- ther unfair this matter directly resolved recap- comments on statewide chairman’s tive. II-, discussing prospectivity process. 804 S.W.2d at lative See V See section infra J., (Doggett, concurring). a tax refund. and the denial of majority’s follows the This ill-advised abuse 21.Hearings Committee on on Conference ap- rejection previous Senator Parker’s most (March Leg., R.S. 72nd Bill Tex.S.B. plea avoid unsolicited propriate that this court 1991) (Tr. 349). legis- judicial disruptive interference in the ture, you ex- pronounce- can steal the authorization prior id. at made to its [from isting you if school districts CEDs] on this in II- Af- Edgewood ments issue 3-b, section ... will under article received, ter that advice his views gonna this meet guarantee can we that is changed, as his were evidenced assess- is, challenge, the answer a constitutional ment at the later conference committee is no. hearings. Similarly, ques- the chairman’s spoke This neither Id. at 513. witness regarding any tax chal- tion future state briefly. is none other anonymously nor He lenge wrongfully has been distorted the O’Hanlon, who, argument than Kevin T. majority Upon receiving into a statement. court, very question raised the to this had response to from a query this witness prerequisite to tax base of a vote as a supported legislation as who the constitu- any lawyer would consolidation.23 While tional, “I Senator Parker stated: tend to any- client “guarantee” foolish to to a agree you that.”22 about do, might thing about what Particularly revealing majority’s is the testimony that Mr. indicates O’Hanlon’s excerpt the from conference committee tes- him to Edgewood provided the answer II- timony attorney argument of an he had ad- previously unnamed assistant the that below,24 Set forth his general that vanced this court. something (exchange you do less than consol- between Chairman Par- ... can idate, Kauffman). tax base.... ker and AI we can consolidate the doing you splitting essence is [W]hat original authorizations.... supra accompanying See & 14 and notes 6 text. appear problem here is that ... The we being road in a led down the situation ...of 24. Mr. O’Hanlon testified that: Court, which, Supreme that that Texas The notion tax base consolidation which is of fought. yet tax base no one notion of talking we’re we what about when talk about something you’ve consolidation is not that is, recapture pretty is a new much critter in the before, why you, we done we can't tell that's the, uniquely State Texas arose out that the, challenge predict cannot the outcome Supreme Edge- Court deliberations set, of how we set about mechanics Edgewood says opinion_ specif- wood two doing pur- have never done a limited it. We achieving] ically way of [that another efficien- Supreme pose is consolidation which what the cy tax base consolidation.... and the again and over over Court has said over disagree[s] ... with the court’s [trial] court finding directing problem. They’re way fix appeared that tax base consolidation where, the, there us into into an area where problem to run with the [into] constitu- have, they occa- are no But on each answers. tion. ... That tax base consolidation can be they on sion to write in which chosen is, is clear matter done as a constitutional this, concept tax base consoli- endorsed gives It law Article Section 3 B. [from] dation, they base-tax have .. called it ... legislature express authority to consolidate leading sharing appear to be us down provide and to districts continuation they every that time road. will reiterate I taxing districts without a effort those they about it in Love ... and talk mention [s]pecifically is] reauthorization.... contemplate[d] [This recapture. prohibits terms Love of statewide forth and sets in Article [sic] they go recapture of funds. And statewide question Section 3B. The then becomes ... say do that we can still [II-] you partially [district’s] can ... consolidate through the creation tax base consolidations Supreme And tax bases. we think that doing. That’s we’re school districts. what [of] that, clearly signals legislature Court that is, recap- question then becomes is this authority. has that kind because tured ... some of sham district Chap- you district. I it’s a school refer question respect comes with The other that Chapter as ter 18. 18 is not a district it, you recapture can is not whether do entity Chapter we either. 18 is know it of, necessity question the collateral ... solely purposes of collect- that exists Again the re-authorization election. Article levy ing, levying to that taxes when refer guidance gives B Section 3 us some here. They one it was in that footnote 14.... said says no Article Section 3 B re-authori- legislature provided that it’s method that necessary election is event that zation say constitutionally appropriate. They and, didn’t you districts there is a have consolidated I take And that was the exclusive method. pre-existing there ev- is in [authorization] language again again you their choice ery can, So that if district.... significant. they’d regard If a said you to be if can consolidate school districts flat testimony provided Legislature taged neighbor, the the ad- the majority’s consolida- vice of its lead counsel that Senate Bill 351 plan wealthy tion if will work the will sim- by was both constitutional and directed the ply poor. vote to share with the Criticizing prior majority’s writing. “requiring taxpayers the 188 CEDs as the in one school district to fund ... the Why majority go does the to such lengths they schools in other districts which pub- to strain and misconstrue the over control,” 500, determined lic record? Because it is to have id. no at “as responsibility shift for its own handiwork forcing] taxpayers to pay for schools over except anyone majority to The itself. can- they nothing say,” which have to id. at escape Edgewood not II and II the majority attempt the makes no to conceal financing only school alternative identified previous its panacea. disdain for its To- was consolidation—consolidation in whole day’s writing essentially implies that through part or consolidation in tax base wealthy citizen of a be district would al- merger. previous ruling Nor can its be pre- implement most to vote to the foolish by pointing avoided to its disclaimer that majority Edge- ferred of the solution only the could make final the Judge correctly wood As //-. McCown type choice of the of consolidation to be concluded: Op. adopted. people at 511. The Texas of A in a rich citizen district who votes representatives every and their elected had against sharing can draw on still vast reason to believe that the veto issue had resources for his district’s schools. Such by majority Edge- answered the been a voter has no incentive to vote to only change II- The has in the wood been rich share.... districts [T]he [have an] majority, by of the minds as indicated vote advantage defeating any local doublespeak unsuccessfully with which it consolidate_ cannot state struc- attempts explain its own misdeed: right ture so this can that be say did not that tax base We consolida- election, particularly local if defeated unconstitutional; tion could all proper- of the election is stacked in favor we said was that it could be constitution- ty-rich districts. al. Tragically, just Tr. at it is such a 722-723. The majority entrapped at 512. veto, a vote— “stacked” election—a Legislature, and it blames now the victim. majority that the has demanded. Unfortunately, children of are Texas majority has mindful of its been ever entrapment. the ultimate of this victims duty rights privi- most protect of the them, hope. offers For little leged it among us. II- was Edgewood majority’s prior sug- Implementation of the away so carried with this notion it gestion of tax consolidation is made base right limited to claimed the vote was dependent wholly upon the benevolence of property “local 804 S.W.2d at owners.” advantaged disadvantaged. If the truly most reflective of While more happenstance given populat- two require- majority, elitist this county substantially attitude ed districts within a qualifica- ownership ment as a property property taxable than their disadvan- of more you only provide all the and outs of school had to know ins [doesn’t] method finance,” 349-50, challeng- lawsuit levy Tr. at that a of collection of taxes local ing unit, CEDs is “dead at Su- larger they on arrival” now could have told us preme language, sum, the clear Court "because the So in is chose not to. says language base [II-J ques- chancy prospect. There’s a bit of a no through the cre- consolidation can achieved Ah, guidance. is no about. but there tion district,” and "I ation a new school id. Hearings Committee on Senate Bill Conference will work [these alternatives] understand that (March Leg., R.S. Tex.S.B. 72nd testimony, express- legally.” Id. at 350. Other added). 1991) (Tr. 330-334) (emphasis constitutionality opinions ing unqualified course, See, quoted similarly e.g., Legislature's Further statements omitted. is ("So Kauffman, identify Testimony their A1 id. at 335 I skewed failure witness transcript. very authority to do you clear it.... and to review entire One of the think witnesses, 513-514, gen- concepts Op. are consistent with ... quoted Austin law- [These] n added). law.") Supreme (emphasis opined yer, “the also Court eral constitutional control, ers, budgetary remained long ago including voting tion for had been held an unaffected. protection. equal unconstitutional denial of Stone,

Hill v. U.S. 95 S.Ct. right What at issue not the voters (1975). 44 L.Ed.2d 172 Now the virtue of taxes, rather approve how weapon the vote has been converted into must many approval times such be ob- very the ma- consolidation penny Legisla- obstruct taxes the Every tained. Indeed, by jority previously recommended. the new- proposed ture to reallocate within consolidation, has rejecting ly-created county the voters education districts tax base In by voters. reach- single among district been authorized local of even education required, vote is ing the result that another attempt 188 the CEDs can veto the state’s authority under the ignores the court clear by guarantee equality required the the allowing tax- the transfer of Constitution Edgewood I II. Edgewood mandate of and the ing authority from school districts to approval. further In- CEDs without voter Rewriting III. of Article VII deed, a veto power in its desire ensure the Texas Constitution ignores privileged, for the the court create, may Legislature The abolish or two, approvals— one, previous tax just the consolidate school districts without con amending Texas Constitution the vote the of of the sent the trustees the voters setting the tax rate 1966 and the vote territory. Indep. affected Lee Leonard v. districts. individual (Tex.Civ. Dist, 449, 24 S.W.2d 450 Sch. approve lev Whether voters must taxes 1930, ref’d); App. writ see — Texarkana by is a answered by question ied the CEDs Educ., Clay County also v. Bd. Cowan of VII, 3 of the Texas article sections and 3-b 513, (Tex.Civ.App. 41 516 S.W.2d — Fort analysis of majority’s Constitution. ref’d). 1931, plenary Worth writ It has provision represents signifi the former districts, power over school “but of departure cant from traditional methods orga the state government, subdivisions of interpretation. This court constitutional exercising the gov nized for convenience repeatedly recently stated that establishing ernmental function Constitution, rely construing our “we free the maintaining public schools for ben I, heavily Edgewood literal on the text.” Lee, 24 people.” efit S.W.2d 394; Cornett, 781 v. 777 S.W.2d at Damon VII, 597, (Tex.1989). 599 Article S.W.2d districts, organizing Legis- In school grant power to create section a broad to setting lature is not limited boundaries districts, Legisla “the states that instead, authority; may on their total fix pass laws for ture authorized to shall be particular on the exercise of boundaries in all and collection of taxes the assessment II, powers. As we stated in concedes, majority As the said districts.” S.W.2d at 497: in 1909 as a provision was enacted Article accords VII Constitution sentence, by any separate unconditioned Legislature broad discretion create plausible voting “The more requirement: taxing their districts define [impos four is that clause ... construction authority. only to ing voting requirement] applied Dallas, City 120 Tex. See also Love amend clause three [and 351, 366, (1931) (the Legis- 40 S.W.2d way, 505 n. 18. To have its Op. at ment].” modify or lature “increase or abro- read majority implausible does the districts). powers gate” of school Instead ing Texas Constitution words out of the imposing precisely of adminis- do permit Legislature full consolidation functions, rejects Bill It trative other Bill 351. it did in Senate what rule less literal as the first Legislature 351 the chose the intrusive on the text reliance single with the de consolidating only interpretation tax- approach of of constitutional it declines “to function, nonexplanation that ing disrupting ceptive without the control provision on aspects all education exer- rest construction over other [its] grammar.” pow- Those cised local school boards. constitutionally proffered

A rule of true than second cardinal construction today. Tr. 726-38. today prohibition cast aside is that absent a Constitution, Texas or limitation in the require article section 3 Even should empowered fully to act. election, majority rec- an authorization Shepherd College v. San Jacinto Junior ognizes “people may surrender Dist., (Tex.1962); see S.W.2d right by amending their vote ... Marrs, Tex. 391- also Mumme v. people 507. The provision.” Op. at (1931). Finding no 40 S.W.2d 33-34 precisely done that. November limitation, explicit grammatically or defini- the voters amended Texas Constitution one, tionally, invents a new process to “facilitate [school district] purportedly give eliminating costly effect all elec- “to consolidation [of al., tions,” 2 Braden Op. George if D. et provisions possible.” Constitution’s] An the State Texas: Constitution court’s of a imposition at 506. While the of Comparative Analysis Annotated and voting requirement gives ef purportedly (1977) (hereinafter Braden), by provid- 3,26 part super fect to of section it renders ing that: the language fluous of the 1909 amend tax for maintenance of free No the ment. independent any school schools voted language Previous noninvocation this abrogated, district ... shall be cancelled Legislature by argument the is the next change any kind by any or invalidated the majority grasps. Walker any in the thereof. After boundaries Baker, 121,196 (1946), Tex. S.W.2d boundaries, change governing the single upon authority majori- the which the district, body of such without the necessi- relies, presented very a situa- ty different election, have ty of an shall additional Legislature sought im- tion. There the to assess, ad power levy and collect ply power ability a to call itself into —the property on all taxable valorem taxes specifically session—which not autho- was as within the the district boundaries contrast, Sen- rized the Constitution. In rate, amount, changed in the at the ... legislative represents ate Bill 351 invoca- rate, in the or not exceed and authority expressly granted by the tion of prior to manner in the district authorized levy of Constitution—the taxes—which change.... In those instances majority away by implying a limita- takes any inde- where the boundaries such That amend- tion on its the 1909 changed by exercise. pendent school district may grown nonuse dusty ment from consolidation one the annexation or districts, it to the taxes be vitality, should not or cause or more school vitiate au- purposes hereinabove levied age upon court’s touch. crumble from this or not to thorized the amount today reasoning employed The makeshift in the exceed the rate theretofore voted in ana- history disserves of this court such having at the time of district dignity lyzing the Constitution with Texas change population greatest scholastic terms, respect is insuffi- for its and according cen- to the latest scholastic overriding justify plain words cient to .... sus governing document. of this fundamental Const, ar- Although grounding VII, dissent on this 3-b.27 The need Tex. art. § reasoning of In 1929 I find the was manifest. ticle section this amendment districts; 7,840 and there were school Judge persuasive far more McCown three, Legislature empowers authorize majority condi- stead reasons clause election, upon tioning is sur- taxes an tax without vote. Prior school districts to impose under the plusage given if can a tax districts Bill had never queries It without vote. 1909 amendment option. school districts this holding authori- why bother an a district would apparent it need not. One zation election if 3-b, adopted originally Because section does 1909 amendment reason that the County dis- Dallas was limited to directly in- power give to the districts 4,474; 1969,1,244. map. within at 521. can drawn on a Residents Braden largely designed These consolidations were can be identified without these boundaries more to create school districts that were Legisla- difficulty. The are not CEDs fiscally administratively efficient friend; see imaginary everyone can ture’s improve (citing curricula. James of this court. them but Hankerson, Special Dis- Governmental perplexing is the court’s conclu- Equally tricts, (1957)).28 The 35 Tex.L.Rev. 1004 Manges right and was sion Clinton that, presented difficulty under Crabb wrong it Freer court was when decided District, Independent v. Celeste School Municipal District v. Independent School (1912), no tax 105 Tex. 146 S.W. (Tex.1984) (per Manges, 677 S.W.2d levied in altered could be districts without curiam). rejected argu- There the court an approval. voter Manges strikingly similar to the ment requirement 3-b Section eliminated today taxes could one embraces —that elections, subsequent easing consolida- imposed by newly-created school not be changes other tion and for school districts. Manges without a vote. owned district 3-b is essentially exception “Section originally included Bena- property in the requirement in Section 3 that Independent vides School District. approve voters a school district Freer, City part of Benavides also taxes levied the district.” 2 Braden ISD, opted for formed added). disannexation and (emphasis Legislature 521-22 district, upon preauthorization wholly the within the former. relied voter’s another VII, forth in taxes set article section 3-b The Freer ISD annexed ter- then additional creating empowered levy CEDs taxes ritory, including by property the owned requiring without another vote.29 None- Manges. Having approve never voted theless, today’s opinion abruptly dismisses ISD, expansion creation of Freer the the its applicability the of this critical constitution- authorization, Manges or its tax refused provision, by finding al that Senate Bill 351 taxes to it. tender changes the neither boundaries of upheld levy court collection This the district school nor consolidates whole tax, stating the that: result, reaching school districts. begins by overlooking the court the statute VII, 3-b in- Article section authorizes “indepen- created as a that each CED new dependent school districts to tax by dent school district established the con- purposes in those school instances solidation the local school in its districts the school district was formed boundaries.” Tex.Educ.Code 20.942 § existing wholly by disannexation from an added). (emphasis question There is no but possessed power the school district that geographical that boundaries of the to tax. taxing existing powers of all dis- language to dis- applies 490. This Id. at substantially. tricts been altered by formed the disannexation of tricts recognizing While that Senate Bill and thus power to tax from school districts boundary change, la- majority works taxes. Just as the authorizes CED bels the of the boundaries 188 CEDs newly-created district Freer derived ignore so “imaginary,” Op. it can them. pow- power previously from the authorized These are no 508. boundaries more or less district, unit, er the Benavides so do CEDs any governmental those real than power existing from school dis- including the on derive their territorial limitations power. governing districts’ Both tricts. reasonable, tricts, necessary give, cost an education amendment in 1966 was at a that is really provide applicability. program modern needs.” 35 meets statewide at 1005. Tex.L.Rev. Urging that done” there remains "much to be O’Hanlon, districts, supra Testimony note consolidating asserted of Kevin Hankerson See III, 24; supra Court and "a school district with insufficient scholas- The District population at 9. or financial resources cannot tic note Consequently, today Asserting tion we discover 3-b. that tax base consoli- writing Manges, only previous case dation is as intrusive as full consolidation question, to consider the is erroneous. It is requires taxpayers because it to “share the wrong part because “no of that section CEDs, Op. cost of schools” within the specifically addresses the creation of new 510, then majority transmutes de- Op. at districts.” 509. This statement proposition batable into constitutional man- incorrect, clearly ap- because 3-b section Contrary majority’s date. reason- plies newly to districts —such as CEDs— ing, distinguish the Constitution does not through created the consolidation of whole affecting between consolidations all and districts. affecting only part prior those of the dis- majority distinguishes Manges then trict’s functions. While the Freer because district was formed may undoubtedly full dictate consolidation change in the boundaries of the old Bena- vote, today’s opinion without a local under similarly vides district. Yet the CEDs are precluded choosing it is from the less far- by change formed in boundaries in exist- reaching alternative tax base consolida- majority ing districts. Since the views tion. “imaginary,” CEDs’ boundaries as it is not districts, Applicable only to school sec- surprising apply refuses to unique, narrow, unequivocal quite court’s tion is a Manges decision 3-b exception requirement them. ap- of voter existing proval. It ensures that permits Article section 3-b also enlarged by cannot be authorization estab- school districts formed consolidation to lishing imposed limit on the taxes tax without authorization election. To subsequent issue, consolidated entities without a skirt the consolidation CEDs, misrepresent arguments newly-created as con- must election. The parties. Bill entities, The conclusion that “Senate constitutionally are em- solidated admit, appellees does consol- powered levy a tax exceed to not to that districts,” Op. idate school at 509 whole already by “in the authorized voters dis- altered), their (emphasis contradicts brief change time having trict at the of such the clearly which states that: according greatest population scholastic to Const, Each of the C.E.D.’s described in S.B. Tex. latest scholastic census.” 351 is a consolidation of whole school VII, art. section 3-b. districts. of Texas’ districts had all school Appellees Brief of State Defendants at to The levy voter a tax. Dis authorization Moreover, the no court fails observe that III, supra note trict Court and configured geographically to in- CED is argued that in 18 at 33 n. 81. While it is district; part of a each encom- clude school CEDs, raise necessary the tax some passes only whole districts. rate, may this either local share exceed conceding legislative power While unspecified some future currently or at districts, Op. at establish CEDs as required local share increases time as the majority refuses treat these 351, nothing in the record Bill under Senate pur- as school districts same CEDs McCown, Judge supports conclusion. this VII, Empha- poses article section 3-b. him, peti was pending in the before suits “perform no educational sizing that CEDs of the level of judicial tioned to take notice teachers, provide They employ no duties. Having con existing tax authorizations. classrooms, no children and educate no could, Legislature under cluded ...,” finds Bill Op. at the court Senate VII, 3 of Texas Constitu section article failing remove control 351 defective tax, he tion, deter empower the CEDs to local from these functions over unnecessary to consider this mined it was rejects The thus the less court boards. request to take overruling question, Bill 351 consolidation of Senate intrusive any deferring factual judicial notice under sec- requiring full consolidation forego remainder of the Act or affect the hearing or determination. Tr. 793-94.30 application those districts whose the records in the consolidated cases its Since inconclusive,31 not, may approved also this court a tax from which are voters have facts, presume in the an uncon judgments paid. absence can be such Brady v. Four effect. See stitutional Brady, also 509; Id. see 795 S.W.2d Appeals, 795 S.W.2d teenth Court of (“Statutes con- given a construction (determina (Tex.1990, orig. proceeding) requirements, constitutional sistent with applied violates tion of whether statute as By limiting tax- possible_”). when CED “requires fully-developed Constitution arti- previously authorized under es to that record”). factual Texas section 3-b of the Constitu- cle it to have a factual Even were shown tion, Bill 351 can and should be basis, disrupt argument should not upheld. Instead, Bill application of Senate used in those districts would be tax rate property The “statewide IV. previously authorized limited to that prohibition” tax presented similar issue voters. A was to reform asserted Another barrier County Flood Control District v. Harris VIII, 1-e of is article section Mihelich, (Tex.1975), in 525 S.W.2d 506 Constitution, provides: the Texas sought judg- which the district void ad valorem taxes shall be levied No state Act, ment the Texas Tort under Claims upon any property within this State. arguing Legislature powerless against to authorize a “tort claims tax” court, re- parsing the words without court, approval of the voters. This without flecting in which on the circumstances upholding constitutionality suggests that adopted,32 erroneously were enactment, concluded that: impose upon local dis- the State obligation to fund education The District contends the Tort tricts prohibi- through property levy. as to entirety Claims Act is void District, repre- taxes part against state ad valorem because it violates that tion years culmination of 34 of con- pro- the Texas Constitution which sented the ... providing amendments. An examination hibits the from stitutional during school finance against history a reclamation indebtedness period an intent that ad valorem proposition district unless such shall first reflects Nei- adopted by the revenues be used for education. be submitted voters tax people nor the of Tex- of the district. We think the Act can be ther the proposal would contemplated as the reconciled the Constitution.... with complete redistribution of author- collecting taxing provi- require if the a Even and its sub- applied ity government state sions are unconstitutional when between legislation re- any Henceforth and reclamation district divisions. to a conservation any county, school district or other approved quiring a main- whose voters have not financially dependent on ad valorem tax, entity operations tenance and it would D-1493, similarly No. is Judge "If the Educ. Dist. No. McCown’s order states that: 30. Supreme opinion the Court is of the deficient. Texas authority previously-voted tax is crucial vitality willingness sap majority’s the constitutionality is 32.The S.B. then the court of language with the is at odds hearing question from the relevant prepared on the to hold a recently expressed that authority upon view Justice Gonzalez previously-vote remand.” tax frequently mean- "legal achieve their definitions Tr. 794. applied ing in which from the context understanding. Dist., generic A County than from Reyes Educ. No. rather v. Mitchell particular area D-1544, applicable for a testimony definition plaintiffs presented term's the by witnesses, shaped superin- constitutional of law should the tax collector and the two promote statutory policies the state seeks Independent School tendent of the Westbrook County & Co. v. Wise the taxes levied in that area.” Neither testified that District. pursuant Gifford-Hill (Tex.1991) Dist., Appraisal 827 S.W.2d the autho- to Senate Bill 351 exceeded J., (Gonzalez, dissenting). McCarty County The record in rized rate. action subject taxes to take treasury appropriated by some is into state being requiring Legislature. levy by invalidated a statewide The made is property CEDs, goes tax. into the treasuries of the CEDs used and is to finance schools within the In determining that Senate Bill im The is not predetermined CEDs.33 tax rate impermissible poses an state ad valorem Op. by Senate Bill 351. As the tax, fails to re accord the recognizes, origi- court Senate Bill 351 as quired presumption constitutionality nally introduced was amended so that the today’s opinion that even neces indicates is longer no “prescrib[ed] act the rate itself.” sary. Op. at Bldg. 503. See Texas Public Op. at 498 The legislation n. 10. does Mattox, (Tex. Auth. v. 686 S.W.2d impose upon the responsibility each CED 1985). presumption especially That is raising a of the education share cost of strong statutes, respect requir with to tax speci- share that district. That is not a ing showing of a clear of a violation amount, initially fied dollar but rather is provision. constitutional Vinson v. Bur percentage calculated as tax base of its (Tex.1989). gess, 773 S.W.2d value, equal per to $0.72 $100.00 Judge one state McCown was of three adjustments subsequent Tex. years. judges properly district who accorded this The is not Educ.Code 16.252. tax rate § determining presumption in that Senate vary the levy amount of will $0.72. impose Bill 351 does an unconstitution- among depending upon CEDs collection opinion al state ad tax. set valorem His unique rates and other factors to the dis- developed thoughtfully forth a test for dis- Tr. trict. 740.34 The State thus does not tinguishing a state local between tax and a rate, impos- impose tax nor set tax. first element considers the man- by the es a burden that can be met spent: ner in which tax is collected and government's levy. local by A state ad valorem is a tax undoubtedly superficial appeal There according state assessed to the value argument that, by requiring property, goes treasury which into state, levy cannot districts a tax the State appro- and is withdrawn an impose, indi- priation of itself the State achieved Legislature. A local ad rectly directly. what it cannot achieve valorem tax is a tax a local unit government according the Whether Bill 351 reflects the most assessed should property, goes prudent policy value of into the alternative not, however, treasury government, its con- the local be determinative of appropriation stitutionality. withdrawn government. local majority’s analysis is Absent from the Tr. 738-39. The second element focuses of whether the CEDs’ consideration purpose the nature of for which levy purpose, key serves a factor local spent; state tax is collected and when both Al- classifying the tax as state or local. served, local the tax is and functions though parties in this case by claimed some not an unconstitutional state ad valorem function, purely to state education a Id. at 741-48. tax. and undeniably significant local benefits joint as a by traditionally The tax Bill 351 is has been viewed authorized Senate state, by local placed responsibility is it state and by not assessed the nor shared Austin; County will money sent to As the Mitchell Education District their will be 33. persuasively County. states: remain Mitchell County Reply Appellees Edu- evidence that the were local Brief of Mitchell The showed taxes only. (only They locally were assessed taxes cation District County), in Mitchell were to be collected lo- cally, the to be allocated to concluding were to set the In that discretion County Not local Mitchell school districts. consequence classifying tax no rate is of County. dime leave one would ever Mitchell local, upon solely as state relies taxes, They were not a ad valorem local state quotation "unpublished an mo- from extensive County taxpayers tax. Mitchell will not write nograph.” payable State of None of checks to the Texas.

553 governments. sister state with a similar experience Texas Constitution of a permits clearly share bur- to relegated state to a footnote in to- problem financing den of education with localities day’s opinion. power to determine most of In Board v. Public Instruction State partnership. terms that Treasurer, (Fla.1970) (per So.2d cu- Today’s invalidation of Bill 351 is riam), argued legislation impos- it was accomplished way in a contradicts that both ing upon duty school districts the to local inter-governmental precedent concerning junior to col- render financial assistance places validity relations in doubt the leges not under the control local beyond numerous enactments far the arena prohibition violated the constitutional board of school finance where the state has im property Identifying state tax. of a posed upon its duties various subdivisions. question ad determinative as whether the receptive Texas to the courts not been receipts tax to a valorem were used further imposition notion the state’s a fi purpose, the court held: local government nancial uncon burden local finally that the Plaintiff asserts whole stitutionally power interferes with junior legislative plan is establish col- challenges tax. These have been mounted leges require institutions and state VIII, under article section 9 of the Texas support by local their ad valorem taxes Constitution, granting to the counties the circumventing provision thus section tax, power levy setting a the maxi prohibits 1 article which ad VII state chargeable Pogue mum rate. v. Dun colleges a valorem taxes. Junior serve can, (Tex.App. Tyler S.W.2d — state function. So do universities. So denied), rejected writ the court do the free schools. Junior col- argument vesting statute district distinctly leges also serve a local func- judges authority court set com tion. ... Ad valorem taxes levied

pensation county-paid re levels court support school districts for of such insti- porters impairment constituted state for local tutions are local taxes levied government’s taxing powers. local Accord purposes. County, v. Gill-Massar Dallas 781 S.W.2d writ). (Tex.App. no — Dallas Legislature may not circum- While the obligated pay were counties thus prohibition of ad vent the state valorem court, expense of the state district without any scheme or device taxation any right approval Similarly, or control. then requires ad valorem taxes and local Dowleam, County Harris S.W.2d proceeds essentially into channels the (Tex.Civ.App. [14th — Houston state which are not also local functions n.r.e.), re writ ref’d the court Dist.] functions, no such situation here challenge

jected constitutionality presented. requiring of the Texas Tort Claims Act as words, Su- at 4. In other the Florida beyond rate for the lawful set Court, preme faced with a constitutional county. Burgess, 773 Vinson v. Cf. ad against statewide valorem prohibition (holding state S.W.2d at 267 constitutional taxes, upheld requirement state elections). authorizing rollback statute property local taxes. schools funded Interpreting the consti- only other state Similarly, River in St. Johns Water provision country tutional to bar District v. Deseret Ranches Management taxes,35 ad the State levy of state valorem Florida, Inc., 421 1070-71 So.2d ex- opportunity has had the of Florida of (Fla.1982), taxes levied court held that plore its limits. Three times that state’s to further by a local district water reasoning sim- highest rejected court has conserva- interest water resource by the state’s adopted majority. to here ilar ad valorem extremely insightful did constitute state surprisingly, tion Not Const, VII, 1(a) ("No states as bar- two other identifies Fla. art. state ad valo- commentator § tax, is similar to ring property state neither upon shall be levied real estate or rem taxes tangible Although See Braden property."). personal one Texas. it, unjustifiably majority taxes. This case is distin- correct invites a multitude guished on the basis that the challenges existing Florida Con- similar laws to stitution authorizes creation of water impose any on a financial burden unit of power to levy districts with ad valorem government by ad local that is funded valo- recognize The fails to taxes. rem tax revenues. article section 3 of the Texas Constitu- be example One of what could numerous accomplishes purpose by tion a similar au- impact fiscal having statutes substantial on districts, thorizing the creation of school government Indigent the 1985 local CEDs, including power levy with the ad Act, Health Care and Treatment Tex. valorem taxes. Safety Health & Code 61.001-.065. §§ State, Sandegren In So.2d upon That Act counties the imposes obli- (Fla.1981), County challenged Sarasota $30,000 in gation up to fund health care requiring government statute local to fund expenses indigent Only resident. for each the cost of mental servic- share of health expending generated after of revenues 10% Court, Supreme finding es. The these county from taxes entitled to is the state community, services the local benefitted funding. property The effect on local tax- compelled county payments make has es been documented: providers: due to health care two-thirds Texas counties have [O]ver Although governing giv- local are bodies raised tax rates to their meet effective review, on, right en the comment and 1988], obligations. the new Cameron [In approve plans up by drawn men- district indigent County million on spent $1.2 boards, this does give tal health them just health care and was reimbursed un right to fund to refuse mental health $500,000. county der The has a mil $15 programs.... judgment aof local fund, general had to lion and taxes governing body necessity as to the percent pro increased to cover the program is not such a material when the gram’s Hidalgo County cost. officials— legislature has declared programs those percent statutory cap who met their ten necessary and that a are share year months of fiscal within first six locally costs should be funded.... spend will 1987—estimate that therefore, funding programs, of local ing percent total tax of their revenue ministerial, been made a rather than a indigent years. two care within discretionary, act and is enforceable Fritz, R. Local Fi- Texas Government through mandamus. nance, Equity, on Tax in Select Committee impose Not could at 659. (1989)(empha- Rethinking Texas Taxes running afoul of financial burden without added); of the State sis see also Office bar on the constitutional state ad valorem Auditor, Indigent Report on the Health taxes, the state could also mandate System (1990).36 Care payment, govern- remove the and local participate. discretion to ment’s Indigent distinguish attempting to Act, majority leaves Health Care analysis Rejecting Judge both misimpression have multi- that all counties guidance provided by prece- McCown ple sources available meet of revenue dent under the Texas Florida Constitu- fund obligation the’ health tions, adopts substantial the court unworkable indigents. care These sources iden- unpredictable imperils test that the delicate taxes, property ... rights responsibilities tified as “sales and use balance of be- taxes, reducing expenses, or some combina- governments. state and local tween our these,” citing n. By leaving wrong Op. unclear the exact tion of at 502 com- 61.002(6), Safety Senate Bill 351 and the means to Tex.Health Code mitted & § carry weighty similarly and §§ 36. Other state statutes ratio setting teachers to students 16.055-.057 burdens, million); ordinarily accompanying $800 without exceeds teacher salaries Fritz, See, (re- e.g., e.g., funding. § R. Texas Govern- see also Code 84.002 Local Tex.Loc.Gov't Finance, (the county supra, imple- quiring pay salary county at 122 auditor ment cost establishing appointed judges). menting § Tex.Educ.Code 16.054 district which, fact, deprive them of “general entities would not defines revenue these levy” property “meaningful Op. to of the tax discretion.” 502. solely consist any revenue re- and sales and use tax gain- is Regrettably there little value Basically majority implying the is ceived. major- understanding of ing a the reasoned availability the to counties revenues and ity’s taxes are state test than ad valorem differentiates other taxes local, they admit it is not which are because imposed by Indigent the burden the Health accepts very majority test. The a useful Act from 351. Care that of Senate Bill application unpredictability This facile distinction exhibits court’s decision, stating is diffi- today's that “[i]t inability unwillingness or to understand cult, pre- perhaps impossible, to define ... government finance. mechanics of local cisely along tax- where this continuum such Although permits to Texas now counties taxes,” Op. at 503. The es become state taxes, ability has impose sales use guess man- Legislature is left to as and, in in- significant limitations certain correcting its error: ner of stances, If completely. any part is barred Therefore, Legislature, in if the an effort rapid county of a is transit located remedy Bill 351 with as few regional authority authority, it transit possible, inject some changes as chose may adopt tax. Tex.Tax Code leeway element of in the as- additional 323.101(b). Further, county may § tax, impossible it is sessment of the CED if impose a tax the combined rate of all say in advance whether that element political sales use taxes other subdi- prohibi- remove the tax from the would county per- visions within the exceeds two VIII, section 1-e. tion of article 323.101(d). Thus, Id. than cent. fewer § willing Unless submit to the va- Id. implemented half of Texas counties have decisionmaking garies of this court’s few, To coun- these taxes. name but a IV, and so forth process in V Bexar, Cameron, Collin, Dallas, ties of Den- Legislature “right,” it it gets until ton, Bend, Galveston, Harris, Hidalgo, Fort majority junk base by the advised Nueces, Potter, Tarrant, Montgomery, Tay- try something “The consolidation and else: lor, Travis, Wichita and Williamson collect Legislature can avoid these constitutional general Comptrol- no sales and use taxes. by choosing path conundra another alto- Accounts, ler of Public Texas Sales and gether.” Id. at 503. (Jan. 1992). Use Tax Rates majority’s opinion, In what should be signif- Because counties do not as receive Legislature degenerates deference to the icant from state and federal contribution thinly-veiled contempt. Its colorful into sources, many dependent are in fact more analogies legislative charge the branch on ad valorem taxes than school districts. of the school with intentional obstruction Cole, Kennedy Prop- John See & Jeff Describing the as process. CEDs finance Texas, Rethinking Tax Texas erty pull- “puppets,” it accuses “the State (in 1986, [of] “[cjounties at 321 relied Taxes strings.” at 501. We are ing all heavily property on tax reve- most unhelpful the court's also informed that nues_”).37 Additionally, special most distinguishing between state test Texas, college including junior districts in conundrum, it is produces a districts, local taxes districts, prevention fire water Legislature created. Id. at one the others, a host control districts and (“Although parsing the fund property [the court’s] tax available to dancing on be likened Tex.Prop. differences operations. generally their See pin, it 1.04(12). the head Code Under test announced § pin, comprehend created the summoned which has today, is difficult to how tune.”). dancers, After statutorily-mandated imposed called the now burden exclusively distinguishing county from formulating revenue almost be- raises the test one, (emphasis the trial court tween a state tax and a local was better informed than workings valorem tax.” Tr. the local ad added). intergovernmental "[A] relations: Stills, (1950) refusing say would to what form of CED Rae The Gilmer-Aikin Bills muster, pass (“In aid, constitutional to obtain state it is neces- order Legislature daring blames the to ask. sary levy a tax which will for the district designed This diatribe disdain is cam- assigned raise the funds to it the formu- ouflage majority’s manipulator role as la.”) (legislation require and 60-61 would legislative process. supra note See rates). some to raise tax Further- districts accompanying 16 and text. more, financing equalized would be uncertainty injected The into the distribu- wealth, by distributing the derived from authority tion of and local between state taxes, throughout the coun- property local government by today’s opinion is all the ty. Taylor, Forward James Texas Moves objectionable more in that it is based on a Stills, Education, in Rae The Gilmer- incomplete analysis most of our Constitu- (1950). Aikin Bills 167 In tracking develop- tion. constitutional plan partner- The committee’s created beginning culminating ments 1948 and govern- ad ship with abolition state valorem and local between state taxes, the court fails to note that the shift provide ments.38 The state would funds to away property from a tax and the state per capita all schools on a basis and estab- increased reliance on local taxes to finance minimum lish standards education. public developed indepen- schools have not imposed upon local districts had them the dependence property dently. As on state raising of school burden of their share years, these local taxes declined over through property taxes and the funds local funding proportion- of education increased meeting minimum responsibility of passed ately. Even before voters had program “it is standards set because commencing of several amendments first make a important that local communities tax, property the slow death of the state of edu- direct contribution to the cost Education Committee had Gilmer-Aikin Financing Public Education at cation.” public education. convened to evaluate 10. In order to finance the Minimum Foun- Confronting strikingly a crisis similar to upon Program, dation the committee relied present, need for it realized the action property the exercise of local taxes because Legislature’s to fulfill the constitutional ob- local effort were viewed local initiative and ligation provide system “an efficient plan. Com- finance free schools.” Gilmer-Aikin as essential See mission, Subcommittee, Financing Finance Taylor, Forward in James Texas Moves Proposed A Public Education in Texas: (1950). Education, supra, at 167 (hereinafter (1948) Financing Plan 2 Pub- limiting The constitutional amendments Education). lic levy valorem tax were of a state ad prohibition of the use of the With the framework, permit adopted within this general revenue property statewide tax for tax to fund reliance on the local increased simultaneously, the committee purposes, Comm’n on State education. See Texas funding that school would be envisioned Policy, Property Local Tax The State through property local the use of achieved 1962). (Dec. Surely it not the Tax Committee, To taxes. Gilmer-Aikin and the voters Texas objective (1948) (“Every Must 15 Have What We render unconstitutional required in Texas local should contemporane- funding enacted laws local funds for edu- to raise some eliminating step cation....”) added); ously the first toward (emphasis see also R.S., 1, 1949, Leg., 25, 1949, of June 51st January conclud- S.B. 116. Act the committee 38. On Report This landmark and released The Final ed its work ch. 1949Tex.Gen.Laws Committee, Leg., (sepa- R.S. 51st legislation Gilmer-Aikin standards for established minimum (1949), pamphlet) recom- rate which contained financing plan intended and a education and financ- mendations to reform the condition redistributing funding by local equalize school system. ing of the Texas education money school dis- property from wealthier every proposal Legislature adopted ver- almost poorer ones. tricts Bill, it enacted the Gilmer-Aikin batim when

557 expense pro- with the construing ad valorem tax.39 In their efforts and the state Constitution, win, language they the we the the of Texas that from nouncement history correct, to “the of the times out must look absolutely they have been outset grew may of which it and to which be the fun- complained the tax of violates relation- rationally supposed to have direct but, state, never- damental charter of this to ship, the evils intended be remedied theless, “disingen- “keep paying.”40 How good accomplished.” Edgewood to the is majority suggest that it of the to uous” I, Markowsky (quoting at 394 v. S.W.2d “sympathy for tax- which lacks this dissent Newman, 134 Tex. 136 S.W.2d majority’s at n. 38. The payers.” Op. (1940)). meaning of the literal text The par- they “do not leave the assurance that “understanding that the is derived with the “only rather us unaffected” but ties before ratified to function as an was Constitution relief,” Op. 521, represents at limit [their] society organic govern document to prevail- an understatement. incredible they through institutions as evolve time.” been denied relief ing taxpayers have I, The his- Edgewood 777 S.W.2d at 394. majority is year period.41 The for a two VIII, 1-e, context of article section torical willing than to inflict this wholesale more highlighting interplay the between school re- unhappy the injury in order avoid taxes, con- funding supports and state the maneuvering. Despite blus- sults of their by clusion reached the three trial courts today’s terings contrary, rejection of the Bill 351 does not im- below—that Senate taxpayers is so much a refund for pose an unconstitutional tax. financing as dis- chaos avoid promise of attention from the broken tract Taxpayer, Pay Thy V. Unconstitutional declaring By II- the law Taxes refusing yet recommended unconstitutional Unwilling legal to live the conse- with declaration, majority to enforce that the action, quences improper of its own the responsibility and diffuses resent- denies majority tangled by a more web weaves having created the crisis in ment adopting a rule: convenience dictates new place. first taxpayers pay must the tax which this just court declared unconstitutional. avoiding its self-inflicted In the name of attempts majority justify its refusal to chaos, pro- majority only in fact invoking This “equity.” enforce the law Inviting intensified it. collat- longed and is of little to Texas incantation consolation court, majority in federal eral attacks taxpayers inequity being who bear the of respite offer a brief before tax, pay illegal forced to an a burden even quagmire sinks into the federal state onerous, “very majority describes law. Op. taxpayers indeed.” at 521. Those stranger responses One of the Mitchell and Glen Rose Counties that that this dissent brought rewarded for is the accusation this suit are now (hereinafter (1961) Deci- considering Judicial In taxes to Limitation 39. whether use of local ). colleges impermissible junior state sions finid tax, Supreme Court re- ad valorem the Florida history funding of of the such col- rulings by viewed prior conflicts with 41. This result bar, leges. Finding the court no constitutional regularly parties which have allowed court particularly victory. true when as a observed: ‘This enjoy the of their the suit to fruits to See, Miller, contemporary history we know that e.g., Whittlesey matter of 572 S.W.2d being part junior colleges supported (Tex.1978). were the constitution was funds when local adopted." v. State Board Public Instruction not, majori- remedy as the The choices of 42. Treasurer, 3. 231 So.2d at complete, immediate ty presumes, limited Making taxpayers whole refund or denial. forms, including discourages variety tax credits suits those 40. This result can take a claims, parties It thus the ma- know valid since such cannot refunds installments. dissent, victory. to consider they Note, reap jority, who fail will their benefits of posi- grounds between "two extreme See Limitation Judicial Decisions middle Op. 520 n. 37. See Prospective Operation, tions.” 46 Iowa L.Rev. past could not Op. “word tricks.” active effect because is involved mere fact, very genuine Today’s wholly trick” “word corrected.” Id. at majority’s mis- delay incomprehensibly lies at heart unwarranted then handling appeal. prior of this All of our delays parallel a mere becomes challenges the rulings43 have considered opinions of Edgewood I and II and constitutionality sys- of the school finance “[ojther required have revi- courts which tem; ruling con- today’s for the first time in their state’s school finance laws.” sions constitutionality school fi- siders the of a system is Op. 522. Revision in the not at Proclaiming “constrained nance tax. to be change in today, except for a one mandated parties arguments by raised the the The reason for this confusion is sim- tax. finance,” id. address issues of school remedy were limited to ple: if the court’s disregards majority carefully the requested enjoining an un- the relief—to parties only objected the fact that the would be no ex- constitutional tax —there The constitutional- to a school finance tax. denying a tax cuse for refund. ity system of the school finance is still “[D]efer[ing] ruling,” the effect [its] Judge pending before McCown. 522, majority compels taxpayers Op. at the directed today’s judgment That is instead illegal paying to continue tax even no mere system to the and not to the tax is holding the that the state 1992. Given drafting indispensable Rather it is error. under “1991 1992 CED taxes” collect majority that to the illusion created property Bill no Texas owner simple opinion amounts to more than a its levy for tax paid who the unconstitutional taxpayers declaration that the victorious protest, Janu year even under before pay has been must continue to a tax which due, 31, 1992, 1991 taxes are will ary when jum- This calculated held unconstitutional. Only in 1993 entitled to a refund. ever be designed justify the ma- ble of terms life, opinion spring to today’s will dormant declare the jority’s incredible decision to officially un- making illegal at last tax deny petitioning taxpayers as winners but pro This and unenforceable. collectible winnings. them their ruling is spective application of the court’s Misconstruing appeal sys- as a this tax the doctrine contrary very to the basis of conveniently today’s allows appeal tem requires a rule prospectivity, which that opinion to: time decision. begins apply conclude, prior as we have both those Supreme Court re As the United States decisions, the consti- funding that course, is, “It funda cently explained: pertain have found tutional defects we retroactivity doctrine of our mental tenet statutory provisions not to individual application of a new prospective It is the scheme as whole. date of the begins on the principle of law invalid, merely a and not system that is announcing principle.” Amer decision components. few of Smith, 496 U.S. v. Trucking ican Ass’ns appeal is Op. At same time this at 515. 2323, 2335, 110 L.Ed.2d 110 S.Ct. II, I and precisely Edgewood like treated today’s (1990) Since (plurality opinion). entire “scheme as a concerned the which apply shall that the rule opinion declares Texas, id., financing schools whole” date, questionable it is future only at some differing nature recognizes the court retroactivity and whether the doctrines “a few appeal, which concerns [the] majority dwells prospectivity on which system, specifically components” of ruling amazing controlling. Today’s Brushing the latter at 515. CED tax. Id. unprecedented “pro it is prospective, not aside, majority insists realization spective-plus.” present effect to the giving retroactive liti apply a rule The decision ruling with action taken is consistent at least a beginning I, gants the court before Edgewood invalidations on the ruling an today’s in the future renders given year retro- II-, “could not be II and II. at Section 43. See infra reimburse spite potentially extensive Invalidating

advisory opinion. an enact every party affected Wessely Energy Corp. required v. Jen ment ments (Tex.1987), nings, period. 736 S.W.2d we noted Bis ten-year National during a that statute unconstitutional to declare State, 134 Tex. S.W.2d cuit Co. holding apply here would “and then not (1940). considering the effect pronouncement into mere transform our state statute previously invalidated of a Although previ advice.” packed pri- processed fruit taxing citrus ously writing in its on school fi slowed sale, of all the refund or to we mandated prohibition against advisory nance paid, despite the taxes the unconstitutional II-, opinions, 804 S.W.2d at see had possibility some of what been J., (Doggett, concurring), major 503-05 expended. already been collected had again compound ity should not its error. 348, Co., 155 Tex. 286 v. Prods. State Akin majority only contends that some “[i]n (1956); 110, see also Harris 112 S.W.2d respects every prospective decision is ... Improvement County Water Control & “every advisory,” and that this court and 66, Homberger, 601 S.W.2d 68 v. Dist. jurisdiction” apply other some decisions n 1980, (Tex.Civ.App [1st Dist.] . —Housto generali prospectively. Op. at 521. These n.r.e.) refund of (requiring d full writ ref pros- utterly beg question. ties That tax). unconstitutionally collected Until an pectivity may appropriate cir be in some now, always in Texas it has been law certainly explain not its cumstances does entity “re collecting tax that when the unprecedented unique use context [taxpayers] money to from the ceived tax does this law. Nor it indicate appears it was not entitled which it now opinion only prospec not prospective, is [entity] for the just not be ... it would years tive of two future. Neither as money.” Crow continue retain jurisdictions typically apply this other nor Christi, 209 S.W.2d Corpus City of prospectivity-plus.44 such condon (Tex.1948). Any other result chaos, inviting majority While has pay money it ing refusal to back the state’s inequity, also ensured for the against be illegally simply “would collected Texas, children of but also for the good conscience.” Id.45 taxpayers. It is well-established that when unconstitutional, a tax statute is ruled re- paid tax been Only illegal when an has retroactively. unique lief In applies this no for re voluntarily may be claim there context, retroactivity taxpayers allows Co., 135 payment. Biscuit National illegally seek a refund of their collected “voluntary payment This at 692. S.W.2d This taxes. court has never allowed however, not, an action for bar rule” will tax to without unconstitutional be collected “express recoupment there been where permitting taxpayers to seek retroac- motivating payment of implied or duress” tive refund. Id.; v. Harris Texas Nat’l Bank tax. (Tex.Civ. 823, 824-25 S.W.2d County, 765 declaring a state franchise tax un When 1988, writ den App. constitutional, required a Dist.] this court com [14th — Houston duress, such ied).46 When there has been taxpayers, de plete corporate refund to all of those same unconstitutional and non-refund 44. note 55. See infra any ap- precisely other because taxes inexpedient. For some un- proach be would correctly determining that the unconstitu- reason, very is same conduct known should not be endured for tional tax wrongfully inexpedient in 1992 is deemed Cornyn year, announces that: tax Justice rightfully expedient in Cornyn Justice is a constitution which We either have contradiction. is an This irreconcilable do state we not. law our fundamental application and forfei- of this rule regard 46.To avoid rule of law the of due for the Out taxes, taxpayers have of their thousands it must be ture must enforced or constitution payment duress. ignored under simply suit to establish filed law cannot amended—the expect supra 1. Little could delayed note ex- See its enforcement reasons or pediency. hold the tax unconstitutional to both court involuntary however, of their tender deny refund Op. Inexplicably, concludes them a he at 525. is reason not to allow collection of taxes. that there no taxpayer seek City Standard-Triumph can later a refund even Houston v. explicitly paid if the Co., (5th Cir.), tax was not “under Motor 347 F.2d protest.” Crow, 209 S.W.2d at 924. denied, cert. 382 U.S. S.Ct. added).48 (1965) (emphasis L.Ed.2d 466

Having taxpayers announced to the illegal Texas that this tax is but must be wholly This line of Texas tax is cases paid statutory penalties, to avoid this court ignored by majority in favor of a num- everyone creates a situation in then, opinions. ber of non-tax Even duress, paying implied yet under no one majority “[generally, must concede that gets majority a refund. The announces judicial apply retroactively.” Op. decisions who, awaiting taxpayers Thomas, 786 at 515. See Bums v. S.W.2d tardy opinion paid, court’s still (Tex.1990)(“[T]he general n. 1 rule “ruling is not to be used as a defense to the retrospec- is that a decision of court is taxes,” payment Op. such operation.”). tive in meaning precluded the state is not Who knows what law the pursuing delinquent from suits. The applying predetermined to reach its result penalties non-payment of these taxes abandoning the well established Texas range monetary from fines to seizure and words, Surely rule.49 its claim that this court has property.47 In sale of other “either “clearly pay illegal pay this tax or more in never articulated the factors which even decisions,” your property upon [prospectivity] fines and have seized.” In bear id. at Co., 111, 518, 286 at this dramatically Akin Prods. S.W.2d conflicts rather with our may court found that shown duress just recent announcement of such factors payment when is made to avoid accrual of Corp. Jennings, in Wessely Energy v. 736 penalties unpaid and interest on taxes. (Tex.1987): S.W.2d 624 Again Highland Church Christ v. of whether, To determine and to what ex- Powell, (Tex.1982), 640 S.W.2d 235 tent, apply judicially a modified rule will payments court found that to avoid retroactively, a court should determine penalties and interest were made under (1) holding whether the decided an issue duress. Id. at 237. Fort Accord Bend impression clearly of first foreshad- Weiss, Indep. Dist. 570 S.W.2d 241 Sch. v. decisions; (2) by prior whether ret- owed 1978, (Tex.Civ.App. no [1st Dist.] — Houston operation will further or retard roactive writ) (taxpayer injunction is entitled to an (3) holding question; and whether against illegal collection of taxes if liable in application produce a could retroactive penalties non-payment); and interest for inequitable results. substantial Co., City Grayburg Antonio v. San Oil case did cite Id. at 628. While that Chev (Tex.Civ.App. 259 S.W. 985 Antonio — San 97, Huson, 404 92 S.Ct. 1924, writ). ron v. U.S. Oil Co. no “Texas con Courts [have 349, (1971), clearly set 30 L.Ed.2d 296 sistently legislative that where a act held] interpretation forth Texas of the factors provides penalty its terms and inter (as consider when that a Texas court should est on taxes is the case ad valorem questions. taxes), determining retroactivity See taxpayer may pay the taxes and illegal....” Segrest Segrest, if the tax v. 649 S.W.2d recover them back also (tax Distinguishes Remedy Supreme and Re- lien attaches to Court § 47. See Tex.Tax Code 32.01 33.01(a) State, payment); (penal- property Affecting to secure troactivity § 73 J.Tax’n Issues taxes); 33.21(a) delinquent ty imposed ). (hereinafter § on (Nov.1990) Retroactivity 302 delinquent (property subject to seizure for tax- es); (recovery by taxing unit of § 33.48 high ignoring precedent one. 49.The cost expenses bringing suit to collect costs and emphasized recently Blackmun Justice taxes). delinquent respect for courts fail to demonstrate when the precedent, trust in bar and the lose payment penalties to avoid 48. The view that Distilling judiciary. Co. v. B. Beam James payment constitute made under duress has — 2439, 2450, U.S. —, Georgia, 115 support Corp. 111 S.Ct. in McKesson v. Div. received Tobacco, (Black- (1991) Beverages (plurality opinion) 496 U.S. 110 Alcoholic & 481 L.Ed.2d 2238, 2258, (1990). mun, J., 17 See concurring). S.Ct. 110 L.Ed.2d Ervin, Jr., Giddings, and Katherine E. James M.

561 Dist., denied, Indep. Park (Tex.), v. Deer Sch. U.S. Bank cert. (1983). Among (Tex.App. 78 L.Ed.2d S.Ct. S.W.2d — Texarkana Indeed, prior denied).52 signatory significant differences writ three-part Gonzalez, of the writing from the version today’s recent opinion, Justice at by majority set out Chevron Oil test emphasized indispensable nature of ly 520-521, re Op. are: at addition Reagan part first of the Texas test quirement holding must not have that a (Tex.1990): pro Vaughn, 804 S.W.2d clearly “by prior opin been foreshadowed appropriate spective application is ” ions; requirement retroactive “the court’s decision when establishes application holding” not retard “the that either overrules principle new law “rule”; question underlying rather than the litigants may past precedent clear qualification any inequitable and the an issue first have relied or decides truly Compare result “substantial.” not clear impression whose resolution was Oil, 106-07, 404 U.S. at 92 S.Ct. Chevron at Never ly foreshadowed.” Id. 467-68.53 355-56, at Wessely, 736 S.W.2d theless, length majority explains at rejecting 628.50 The obvious reason set out in Oil the three factors Chevron interpretation own this court’s Chevron Op. n. 36. It is should be balanced. majority that the cannot meet that Oil is escape that the the conclusion difficult standard, today and therefore must weaken making simply up as it majority is law acknowledging Texas it. Instead of grabbing an odd mix goes, here and there standard, through searches precedent from other of federal law and unique interpretations of Chevron Oil rely instead to This dissent chooses states. Op. in dozens of sister states. at 519 n. 35. Texas and relevant case- on established of Apparently satisfied the law law.54 states, majority selectively other turns are con jurisdictions But if other even ato number of lower federal courts which sidered, general throughout rule this degrees varying have to focused on the Texas—an country similar to that of is three-part first and third factors of the law; it con is not a “unconstitutional act actually It Op. test. at 519.51 should be ...; it rights; imposes no no duties fers how, instance, dis irrelevant a federal is, inoperative as as legal contemplation, in Washington, trict D.C. court chooses though passed.” never Norton v. it had among requirements of the three Chevron 442, 425, 6 S.Ct. Shelby County, 118 U.S. Oil, (citing Op. at n. 36 v. Bar Silverman (1886); 1121, 1125, 30 L.Ed. 178 see Clif (D.C.Cir.1988)), ry, 845 F.2d 1072 when Pannam, Recovery L. Uncon ford The consistently required all Texas has that Australia and the Taxes in 628- stitutional Wessely, three be met. 736 S.W.2d at 74 States, 42 795 n. 29; 612-13; Tex.L.Rev. 649 S.W.2d at First United Segrest, interpret federal courts Wessely simply Even one is to look at how thus did not Chev- 52. if 50. test, questions recently ron because federal constitutional Oil it is Oil utilized the Chevron have raised, sug- rule, majority remarkably were the U.S. to the source best to look gests. Op. Wessely at If this were Court, 521. court recently applied equally Supreme which law, parroting simply we would not the federal Trucking, 110 parts. See American all three part reshaped rephrased each of Chev- have ron S.Ct. at 2331-33. three elements. Oits Reagan curiously v. cites 53. ignore choice relevant Texas law 51. The footnote, yet Vaughn Op. n. at 515 questionable in a federal law of relevance favor of propensity ignores case. with the court’s increased the rule consistent drone, blindly following a mere federal act as Publishing Triad See Caller-Times Co. v. courts. afford no It is that this dissent “would 54. untrue Inc., Communications, 826 S.W.2d 595-596 all, Op. prospective at or otherwise.” relief at J., (Tex.1991) dissenting) ("Disregard- (Doggett, required an act of relief is from n. No 521 38. statute, ing unique the court looks our State’s the Constitu- not in conflict with County precedent....”); Bexar federal Sheriffs unconstitutional, I statute were tion. If Davis, v. 802 S.W.2d Civil Serv. Comm'n Texas law. enforce would J., (Tex.1990) (Doggett, dissenting). 666-69 (1964) (“Judges law, Eagerly seeking refuge in the United States have in federal describing vied with one another in majority mistakenly assumes that there nullity utterness of the believe an law, has been no recent evolution be.”); Note, unconstitutional statute to neglects precedents to consider Limitation Judicial Decisions to Pro appear ap- or doom this disfavor even spective Operation, 46 Iowa L.Rev. proach. fact, federal law offers more (1961)(“As general judicial rule deci refuge, unrest than as evidenced operate sions retroactively pro as well as majority’s appropriate- reliance on a source spectively.”). ly entitled in Federal “Confusion exception Op. Nor with rare the courts at n. have Courts.” applied prospective ruling of other states A review of shows that the Chevron Oil illegal an tax the manner of the majority satisfy has failed to the critical majority. Normally when states uti- other prerequisite expressed first in the federal context, prospectivity lize in a the rul- test: ing applies immediately at rather than applied First the decision to be nonretro- some future yet date.55 Taxes not collect- actively principle must establish a new paid;56 ruling applied ed need not be law, by overruling past either clear litigants at least to the before the court to precedent litigants may on which tax;57 complete illegal allow relief from an ..., by deciding relied issue of first permissible anyone a refund is who had impression whose resolution was not already brought paid pro- a suit or under clearly foreshadowed.... test; and a refund is refused when Oil, Chevron U.S. S.Ct. parties timely,59 fail to act the tax had been (citations omitted) added). (emphasis many years,60 collected for or the tax is not major requirement thrust of first capable being neatly accurately re- change is that the cannot have been law distinguishing funded.61 These factors way, Put a rule of support foreshadowed. another demonstrate the absence of applying applied prospectively when today’s deny decision to a refund law will litigants “predictable” even to the successful in this suit. it is that the rule would Council, Turner, refund); Inc. Private Truck v. Oklahoma Tax 426 So.2d Ostemdorf cert, Comm’n, (Okla.), (Fla.1982) (retroactive granted application 806 P.2d "for 598 545 — vacated, U.S.-, 2882, judgment taxpayers timely judicially 111 S.Ct. those who chal- have (1991) (remanding tax); lenged" City Millwright, L.Ed.2d 115 1048 case on Kansas 562 grounds light Supreme (allowing anyone paid other in of a new Court P.2d at 74 relief to who addressing prospectivity pending). decision but not protest under and with an action See 54, issue); 402, County, v. 244 Ga. City Buffalo, Strickland Newton Hurd 41 A.D.2d 343 also v. 132, (1979) (prospective applica- 950, (1973) (leaving open possi- 258 S.E.2d 133 N.Y.S.2d 954 judgment); court tion from date of trial bility recovery paid protest); of taxes under Kalb, City Millwright Albemarle, 416, Kansas Co. v. 221 Kan. County 200 Perkins v. 214 Va. 658, (1977); City 566, 562 P.2d 65 Gottlieb v. (1973) (explicitly leaving open S.E.2d 569 Milwaukee, 408, 633, N.W.2d 646 refund). 33 Wis.2d 147 ability any taxpayer to seek a (1967). Forward, (a is 59. 506 N.Y.S.2d at 532 refund (order- Millwright, City 56. Kansas 562 P.2d at 74 brought prior to the allowed where the action is ing refund of all taxes received after date of 447, Glaser, levy); Salorio v. 93 NJ. 461 tax decision). cert, 1100, 1110, denied, 993, 104 A.2d 464 U.S. 486, (1983) (no chal- S.Ct. 78 L.Ed.2d 682 one Algom Corp. County, v. San Juan 681 57. Rio lenged years incep- fifteen after its the tax until 184, (Utah 1984) (requiring a refund to P.2d 196 tion). taxpayers issuing plaintiff six to avoid an advis- give plaintiffs ory opinion and to “the fruits Salorio, (tax had been col- 60. 461 A.2d at 1110 134; Strickland, victory.”); of their 258 S.E.2d at years); twenty Co. v. lected for Soo Line R.R. City Millwright, P.2d at 74. Kansas 562 459, State, (N.D.1979) (tax N.W.2d 465 had 286 1974-76). been collected from Dist., v. Sch. 133 58. Forward Webster Cent. 480, 528, (1986) (not- N.Y.S.2d Misc.2d 506 532 Burrows, 153, 690 P.2d ing plaintiffs 61. Bond v. 103 Wash.2d that other would be allowed recov- 132, Strickland, (1984); prior S.E.2d ery action 258 because commenced their (both cases). levy preserved right the tax their to a sales tax faith,” Fallon, good at Legislature Op. acted “in announced. Richard H. Jr. & Dan- Meltzer, Law, J. legislative iel New Non-Retroactivi- in the con- assumes belief Remedies, 104 ty, and Constitutional stitutionality of Senate Bill 351. Yet (hereinafter (1991) Harv.L.Rev. is argues Bill 351 majority also that Senate Meltzer). Fallon & unconstitutional, unquestionably goes Legislature When the established great pains Legislature follows that the to note overruled, precedent is later the first problems was aware of the base part of the Oil test is met. Chevron before Senate Bill consolidation it enacted Trucking, 110 American S.Ct. as evidenced the comments logic again The behind this rule is committee. Id. chairman of the conference respect for stare decisis: announcements opin- claiming “today’s at 513. While where except of law should be adhered to impression,” of first id. ion involves issues unpredictable is law so new and majority unhesitatingly con- To application unjust. would be war- type that the of tax enacted Sen- cludes prospectivity, rant a new rule of law must undoubtedly illegal, in part ate Bill is downright “revolutionary.” Ashland approval enacted without the voter because Oil, Inc. 497 U.S. Caryl, S.Ct. “obviously contemplated” writing 3202, 3205, (1990) (per 111 L.Ed.2d 734 Edgewood II- Id. at 512 & 520 n. 37. curiam). Fallon & Meltzer at 1755 See also acted in How could the (concluding that under American Truck- adopting a so good faith in law which is ing, sufficiently “a rule law new [is] illegal? Certainly, obviously under the trigger only when nonretroactivity analysis majority’s theory, it should have been own it marks ‘clear with settled author- break’ Bill 351 clearly foreshadowed that Senate ity.”). rulings of the States United unconstitutional. When there Supreme particu- Court indicate that this is truly of law and a been no new declaration larly true the tax context. id. at See first holding predictable, neither the is nor the prong of the test Chevron Oil today’s opinion But claims that the law this court standards established always has been that tax of the sort Reagan can met.63 To Wessely and imposed by Senate Bill 351 is unconstitu- claims, today’s deny taxpayer’s decision tional, contrary holding and denies first a case of would have be not complete- Edgewood II- This assertion impression, also one whose result was ly meeting inconsistent with the Chevron remotely Ash- not even foreseeable. See theory, test. Under its own the court Oil Oil, Only con- 110 S.Ct. at 3205. land any precedent neither nor estab- overturns tradicting majority attempt to itself can the any remotely rule of lishes new law. unjustifiable refusal of relief justify the trapped is thus in an internal in- consistency. taxpayers the the in this case.64 Their concession that alternative, If, theory Shifting the onus question case. in the the of the their own this inconsistency majority escape constitutionality will not let the of Senate Bill 351 is an ex- one, majority’s explana- tremely majority contorted close the has failed to their own. “fallacy constitutionality of the ex- presume dissent's flawed the of a statute and to tion the middle,” id., simply attempt rely upholds interpretation is another on an available that cluded question away constitutionality. tax in supra the issues from the that See Section IV. shift majority today. It the shows this is ironic that posi- professed concern for a "middle" sudden deign respond majority the 63. The does not they today extremes when rush tion between Instead, point. they ac- dissent on this critical past any point reach the con- of moderation to being “logically cuse the dissent of inconsistent” unquestionably Senate Bill 351 is clusion that Legisla- arguing majority that the misled the unconstitutional. requirement yet is first ture and Chevron Oil’s position Op. my is not met. at 520 n. It opinion, that Legislature, 64.Compare today’s which denies majority entrapped that the the Legislature, misled the majority Edgewood II- basis for declar- that the has no valid FDIC, they Mauzy’s opinion in Huston ing Once with Justice Senate Bill 351 unconstitutional. (Tex.1990) however, (holding so, a by improperly do are bound 800 S.W.2d apply prospectively liti- retroactively "because apply under rule would law to their rule Texas impossible square today’s ap It is willing any magic is to use words to create proach with that by impression undertaken this court the apply that it need not now a ago in weeks solely product Caller-Times Publish decision that is the of its Communications, ing Inc., v. Triad today’s opinion Co. own misdeed. Because in- Tex.Sup.Ct.J. (Tex. 13, 1991).* Legislature Nov. sists that the should have represented That case this court’s first in known that Senate Bill 351 would be uncon- terpretation stitutional, should, Enterprise holding of the Texas Free under Texas law, applied retroactively. and Antitrust Act of 1983. Tex.Bus. & Despite Com.Code 15.01-15.51. ac §§ prong” prob- addition to these “first knowledging that “this a case of [was] lems, deficiency regarding there is a Texas,” impression” “first majority requirement Oil, second Chevron applied its purely new rule of law retroac purpose provision of the constitutional tively, denying even retry a remand to by retroactivity. involved be retarded standard, newly case under a announced Oil, 106-07, at Chevron U.S. S.Ct. because its allegedly decision did “not re majority attempts at 355-56. The first unpredictable change flect in the law.” escape part by citing of the test non- This though was so even the exact form put Texas cases which have more stress and even much of the content of the new prerequisites. Op. first and third applied by standard had never been before 519 n. 36. prerequisite But this second any state or federal court. id. at 601 See easily away, cannot so be wished as seem- J., (Doggett, dissenting).65 unlikely If the ingly by majority’s conceded hurried impression outcome of that case of first attempt to show its satisfaction: predictable, certainly today’s could be deci attempt There is no need to a detailed sion, purported which is to be an obvious analysis purposes of all the served Constitution, application of the State is also provisions constitutional issue predictable. only way rectify these say Suffice it to here.... effect two cases inis their identical result: relief application of a retroactive of our deci- parties was denied in both cases to the any purpose sion ... could not further seeking relief. the Constitution. majority despite Now the us Because, tells Id. at 520-521. as the court em- crystal writing II-, our in Edgewood clear phasizes, facially prohibits the Constitution supposedly and the well-established law of type Bill of statute embodied Dallas, City Love v. the rule purpose little relevant constitu- despite alleged unsettled —that provisions arguably determi- tional is such absolute: tax, through nation of the to flout collected CEDs without court, misguided vote, always unequivocal these officials must have This void. acting “good been prohibition faith.” The constitutional is retarded gants understandably Op. and trial courts have mis- law. at 520 n. 37. Aside from the fact that holdings cryptic adopted construed the somewhat no federal court had ever the test this herein.”). upon cases relied See also Jacobs v. together, surely majority does court threw Govt., Lexington-Fayette City Urban 560 S.W.2d commentary presence not contend that the (Ky.1978). enough against position both for and * original opinion, Editor’s Note—The court’s filed signal adoption position. of that Even if true, ordered November 1991 was withdrawn on 26, 1992; today’s ruling apply would retro- that were rehearing February because, motion for see actively by cited both as the sources Doggett indicate, did not 826 S.W.2d 576. Justice with- majority ques- the the and the dissent 13, dissenting opinion; draw his November 1991 today previously dis- tions raised have been published preceding his on motion Furthermore, it is dissent necessary again cussed. it is once rehearing for at 603. misreading majority's the of the state correct law. While with feder- "[ajlthough antitrust harmonization majority The contends that permissible, precluded al law is it is when impres- issue Caller-Times was one of first [in ] us,” contrary purpose necessary federal law is of sion for it was not to remand the Caller-Times, legislation. S.W.2d writing Texas See 826 “were not on a clean case because state,” J., (Doggett, dissenting). majority by The at 595 the issue had been "addressed dozens distinction, commentators,” it has has not a true rather courts and and the state anti- indicated cases. its error in each of these trust statute allows harmonization with federal demonstrated

565 rulings in the tax con- prospective ture of it all all times—there applying cases at accidentally described with perhaps text is “King’s X” command of the is no from the itself: accuracy by some of the ma- constitution.66 Since the thrust holding tax is unconsti- jority’s is that the prospectively, applying our decision By tutional, by holding clearly is retarded of a tax without allow the collection we Wessely, allowing a tax refund. See derogation of this con- approval, voter (the question at 628 second is 736 S.W.2d provision section stitutional [article application ... “whether retroactive will ad levy of a state also allow a We 3]. (empha- holding question.’’) retard the VIII, of article tax in violation valorem added). sis 1-e. section willing is to brush aside the The court Op. at 520. may play it the more

law so that justify lack reme attempt In an concept alter equity. It must malleable decision, majority en dy today’s under today’s unprece- is law action state because hasty analysis of the doctrine gages in a Likewise, and in qualify dented. it must non-retroactivity omission that combines part ignore the Oil test because Chevron de great with mischaracterization of shaped to the facts before it cannot be currently raging subject on this bate Instead, shapes it meet that test. the test Supreme In em Court.67 United States rushing past the first to fit facts bracing Ry. v. Northern Sunburst Great third, prongs two order to reach the Co., 358, 287 53 S.Ct. Refining Oil & U.S. equity. which allows consideration (1932), 145, disregarding while 77 L.Ed. 360 Oil, 107, 404 92 at Chevron U.S. S.Ct. caselaw, dismissing more recent federal or 355-56. again the court demonstrated Depression prefers era law Great however, balancing equities, the court refined, substantially mod which has been equation examines half of the when rejected, over current caselaw ified or even payment of taxes the issue. While a is precedent is useful to its when that ancient already refund of collected taxes Title preconceived ends. See Stewart harsh, competing inequity compelling is 1, 822 S.W.2d Guaranty Sterling, Co. v. It taxpayers pay an unlawful tax. is J., (Tex.1991) dissenting) (Doggett, 12-13 “ordering inequity difficult see reviving precedent (discussing the court’s pick pocket” taxpayer’s or State by a had overturned from 1935 that been requiring money “return State to decision). 1984 ,Swanson caught doing it is so.” v. when 576, 791, State, 329 N.C. S.E.2d 797 approval for providing limited While Indeed, (Mitchell, J., dissenting). one state as determined prospectivity68 recently inequitable court ruled that Oil, states, “[i]f 404 U.S. at see Chevron ap- is retroactivity results occur whether hardly Sunburst S.Ct. not, plied ruling make the analysis we must point for of this issue. stopping retroactive,” and mandated a on that basis restrictive test Chevron Oil established a Bosnick, nonretroactivity provided 306 Ark. the ba Pledger tax refund. for (1991), petition prior court’s consideration 811 S.W.2d sis (U.S. prerequisites prospectivity. the three filed, certiorari U.S.L.W. 628-29; 1991) (No. 91-375). Seg- Wessely, 736 S.W.2d at Sept. true na- See Critique Proposal, Va. troactivity: A all constitution the constitution "[T]he (1975). L.Rev. 1570-96 all the time and we time and should be enforced say King’s X it is because inconven- shouldn’t nonretroactivity is not auto- Sunburst 68.Full (Nov. Transcription Argument ient.” Oral generally applied matically See in all cases. 1991) George question (Response R. James Schaefer, Control "Sunbursts": Walter V. Gonzalez). Justice from Overruling, Prospective Techniques of (1967) (discussing variations 631 N.Y.U.L.Rev. gone in on for decades. prospectivity); 67. This debate has fact application Limi- of in Sunburst Beytagh, X. Ten Years Non-Re- See Francis at 613. Judicial Decisions tation of of 566

rest, Moreover, Sun ing 649 S.W.2d at 612. taxpayers any postpayment the reme- burst prospectivity provides dy. ’s allowance of Rejecting argument urged the same exception general the today, requiring to rule of the remedy state to retroactivity. presumption The the remains collection of unconstitutional taxes that an may plainly unconstitutional statute “would serious be cause economic and time. See James B. Beam administrative any State,” enforced at the dislocation — Distilling Georgia, Co. v. —, the Supreme U.S. United States Court reversed 2442-43, 111 process S.Ct. 115 grounds L.Ed.2d 481 remanded on due be- (1991) (Souter, J., plurality opinion); id. 111 cause “the State’s interest in financial stability J., id. a justify pro- (White, does not to concurring); S.Ct. at 2448 refusal vide (Blackmun, J., Id. 110 111 S.Ct. at 2449-50 concur S.Ct. at (empha- 2257 relief.” ring). added). allowing sis While consideration of Legislature’s good enacting faith in Sunburst Chev- Since the limitation tax, the rejected Supreme court Florida Oil, ron Supreme States United Court “equitable Court’s reliance on considera- recently more readdressed the issue of tions” as overriding rights. constitutional prospective application of laws. A number McKesson, Id. “equitable 2251.69 After high of Justices on appear court significance considerations limited are of concept have returned to the that unconsti- once a constitutional violation is found.” void, prohibiting tutional laws are pro- Trucking, American 110 S.Ct. at 2334.70 spective application holding of a of uncon- Corp. McKesson Division stitutionality. recently, Most in 1991 several members Beverages Tobacco, Alcoholic & Supreme of the continued Court their at U.S. prospective application S.Ct. L.Ed.2d 17 tack on the of law Distilling (1990), James B. Beam Co. v. Geor involved review the Florida Su- gia, preme holding may Court’s unconstitutional S.Ct. have further giving preference state tax equity in-state man- limited the deference acknowl Chevron Oil.71 using produce, edged ufacturers deny- possible local while shift dissent, however, entirety majority’s response 69. The of the See 110 S.Ct. at 2325. grave joined concerns raised McKesson is that written Brennan, Justice Stevens and Justices retroactivity Blackmun, issue in that case "was not but the po- Marshall and took the Supreme] failure of Florida to follow [U.S. adju- sition that: are entitled to an “Petitioners precedent fashioning Op. Court tax laws.” constitutionality of the dication of the [state only support at n. 33. The cited for this conclu- understanding under our best current statute] plurality opinion sion is American Truck- regardless good of the federal law faith of the ing equities not "consider that McKesson did legislators.” signifi- at 2346. Id. Most [state] application of a new retroactive law.” Id. As vote, Scalia, cantly, swing although Justice usual, stops reading page too concurring plurality, with the result paragraph, soon. In the same continued on the rejection agreed prospectiv- with the dissent’s page, plurality next clarifies what it is that ity. "prospective He announced that decision- stage, are concerned with: “At this initial making” always impermissible. Id. at 2343. equitable question is not whether considera- opinion to reflect five This thus seems votes for obligation outweigh provide tions relief position the ality that a declaration unconstitution- violation,” for a but whether such constitutional applied retroactively. always should be Trucking, a violation exists. American 110 S.Ct. Indeed, Oil, Retroactivity See in Ashland at 298. added). (emphasis at 2333 To extent that — U.S.-, Caryl, 110 S.Ct. Inc. v. may the Court these four members of been curiam), (1990) (per L.Ed.2d the Court con- distinguish remedy attempting from retroac- supreme cluded that a state court decision note, enough tivity, may as has one it be prospectively a tax statute unconsti- held reality although commentary, ... "[i]n necessarily to be reversed under tutional had remedy determinations these retroactive and plurality either the dissent or in American distinct, well their close interrelation- Trucking. at 3204. S.Ct. Retroactivity ship case." is obvious in each end, matters In the little whether James B. Beam has 71.The court denies that prospectivity, as is classified about McKesson remedies, holding. impact It is real because of its limited process cannot or due mandate —its exactly actually impossible conclude what ignored. Oil other than to James B. Beam did to Chevron continuing note the chaos this area U.S. Trucking, opinion plurality In American plurality McKesson, Supreme jurisdiction. In this Court day decided the same four Justices joined by opinion, Justice Justice Souter straightforwardly applied test. the Chevron Oil

gg7 712, (Tex.1992) J., rejection (Gonzalez, pros- on that Court towards of S.W.2d at 756 pectivity,72 and its recent interest in this concurring on motion for leave to file mo- possibility increases the federal issue rehearing). tion for What is certain is that today’s examination of decision. In the disregarding pronouncement the recent end, predict” it is “difficult to how the equity of McKesson that a state’s view of Supreme States United Court’s recent writ taxpayer’s process cannot overcome a due ings subject interpreted on the and will be rights, today’s writing presents a serious applied “given many options [it has] process problem. federal due As ex- provided_” James M. Ervin & Kath pressed by high the nation’s court: Giddings, E. Supreme erine Court if precedents Our establish that a State Distinguishes Remedy Retroactivity penalizes taxpayers for failure to remit Taxes, Affecting Tax’n Issues State 73 J. fashion, timely their taxes in a thus re- 296, (Nov.1990) (hereinafter 297 Retroac- quiring pay first re- them to and obtain ). tivity “prognosis,” Op. I offer no at 518 validity tax’s later in a re- view of the 33, n. because no certain outcome exists. action, re- fund the Due Process Clause agree IWhile that the federal courts have taxpayers a quires the State to afford unpredictable in no been this area that is opportunity post- to secure meaningful majority’s willingness excuse already paid payment relief for taxes carelessly great throw us into the un ultimately pursuant to a tax scheme known. found unconstitutional. Curiously, focusing solely after on selec- McKesson, (emphasis 110 at 2242 add- S.Ct. law, majority tive federal concludes ed). process implicated because Due a federal court will not a deci- review deprivation “exaction of a tax constitutes grounds. posi- sion reached on state This property.” Id. at 2250. also Amer- See startling, considering signa- tion is that the Not Trucking, 110 S.Ct. at 2339. ican Gonzalez, today’s opinion, tory of Justice surprisingly, many state courts which have only ago the federal a few weeks described retroactivity after considered the issue gorilla” judiciary 1000-pound as “a retroactivity required in McKesson have no excuse what it do “need[s] [for] Ramirez, 829 a tax refund.73 the future.” Terrazas v. Stevens; ruling); judg- application prospective of a tax Davis Justice White concurred in the 817, 803, ment; Michigan Dept, Treasury, U.S. 489 Justice Blackmun wrote a concurrence 1500, 1508-1509, joined L.Ed.2d 891 ex- 103 which Justices Marshall and Scalia 109 S.Ct. (1989) (noting appropriateness retroactivity of retroactiv- pressing in all a view in favor of cases; Scalia, allowing under joined by ity a tax refund Justices Mar- to the extent of Justice case). Blackmun, concurred; of that and Justice the circumstances shall and O’Connor, Rehnquist joined Justices Kennedy, Justices not dis- dissented. six City E.g., Ass'n v. Phila- Trade Automobile application senting agreed 233, (1991) (re- on a retroactive delphia, 596 A.2d 794 528 Pa. gone as far as in that case. One observer appellate fail- manding court because of case to may actually saying that James B. Beam process concerns and meet due ure to consider altogether. Bosnick, Oil test abandoned the Chevron McKesson); Pledger v. 306 Ark. Carolina, 407 North 329 N.C. (1991), Swanson v. petition certiora- 293 811 S.W.2d (Mitchell, J., (1991) dissenting). 3, 1991) (U.S. S.E.2d 797 Sept. filed, 60 U.S.L.W. ri (No. which the the cases on 91-375) Justice Souter criticized (requiring a tax refund because relies, including today Chevron Oil court denying third inequity the refund overrides 192, 198, Kurtzman, Waddell, 93 S.Ct. 411 U.S. Chevron); Lemon v. Ariz. Bohn v. prong of (1973), 1463, 1468, applying 344, 348, (1991) (allowing 36 L.Ed.2d 151 partial P.2d light equitable rulings prospectively Council, con- refund); 806 P.2d 598 Truck Private Beam, 2444. He 111 S.Ct. at retroactively siderations. James of U.S. (allowing to date refund equitable its own method has wrote that "this opinion unconstitu- Supreme on which Court prece- based). the force of Citing it tends to relax drawback: dent, two tionality of tax statute overruling, by minimizing the costs of prospective purely deci- did allow a cases which thereby stand, to act with a freedom allows the courts the erroneous makes sion to legislatures.” comparable that of the “the most recent” these alone are claim that State, 329 Op. Swanson v. precedent. at 519. (1991), rehearing, Oil, (re- 407 S.E.2d 110 S.Ct. at 3205 N.C. also Ashland

72. See (1991), was written S.E.2d 490 N.C. versing decision which allowed a state court

568 rights. deprive no of their federal today’s opinion, there can be citizens

Under action, preserved meaningful opportunity areas for to contest the State even concern, subject illegal is still to constitu of taxes and its state state’s collection Texas, Perhaps most nota those tional limitations. the failure to refund taxes. example remedy doesn’t is Brown v. Board Edu necessary simply exist: ble the of 483, 686, cation, 347 74 S.Ct. 98 L.Ed. of the Tax Code allows a U.S. section 31.11 (1954), that “education is is 873 which stated sought only payment refund to be when perhaps important the most function of mistake, by made such as an erroneous 493, governments,” local id. at 74 state and taxpayer. First the See calculation 691, and then nonetheless conclud Dist., S.Ct. at 770 Indep. v. Deer Park Bank Sch. state discriminatory ed that educational 849, (Tex.App. 853 S.W.2d — Texarkana equal protection policies had violated 1989, denied). genuine no writ Because Amendment. of the Fourteenth clause ap available, is the court’s result relief 495, at 74 at 692. S.Ct. Fifth Amendment man pears violate some “clear and certain date that there be Court, Similarly, Supreme although remedy” collec to cure the unlawful tax delegation of au noting the constitutional McKesson, S.Ct. at 2251. tion. 110 See controlling the elec thority states law, the abili both federal state Under office, process held that “this tion for state necessary remedy some real ty to obtain extinguish authority does not the State's process meet concerns. See due Shaw responsibility the limits” set to observe Inc., 636 Phillips Rigging, Crane & v. Re Tashjian forth in the Constitution. 186, (Tex.1982)(noting con 188 S.W.2d Connecticut, 479 publican Party U.S. of ability taxpayer’s of a protection 550, stitutional 208, 217, 544, 93 L.Ed.2d 514 107 S.Ct. enjoin or erro collection of unlawful Amendment). (1986) (considering First tax). that fore neous indicates Texas, course, McKesson generous And in of with the un closing possibility court, of a refund for of of this assistance very lawfully presents a collected taxes control recently reaffirmed federal courts problem. due Case Com process overturning legis real See over state elections ment, redistricting State Taxes—Fed approved plan. Unconstitutional Ter latively (W.D.Tex. Remedies in State Slagle, F.Supp. eral Standards 828 razas v. 789 for 188, (1990) Courts, denied, 104 190 1991), stay Harv.L.Rev. Rich application for — Terrazas, U.S. —, (hereinafter Tax 112 S.Ct. Unconstitutional State ards v. ); good 924, (1992). faith at 298. The 924 Retroactivity es 116 L.Ed.2d Legislature and “serious eco our of only that a state indicates Sunburst and administrative dislocation nomic apply how make decision of the initial outweigh simply consti State” cannot at at 53 laws. 287 U.S. S.Ct. See McKesson, rights. process tutional due decided the modern That case was before 2257; at see 110 S.Ct. Unconstitutional through the process incorporating Four Taxes 195-96. State liberty guarantees teenth Amendment Rights Bill to action process contained majority, ignoring these due considerations, Beytagh at 1611. taken the states. suggest only because See Sunburst, well feder was also decided before language in there no Sunburst spelled out the re Op. Supreme raised. U.S. Court question constitutional al post-deprivation quirements pre- 1932 case does not 516-517. While that authority procedural process in such landmark have final due indicate that states v. Loud prospectivity, the cases as Cleveland Bd. Educ. to determine states ermill, 84 105 apply free their so as U.S. S.Ct. decisions dissent, dissent, 1991), lengthy two-judge three-judge gave with its own strident Supreme to even mention McKesson. even less consideration than does the failed McKesson Likewise, opportunity to address majority today. Brewery soon have an Co. v. Court will Stroh Control, light Beverages approaches taken these courts Department Alcoholic (1991), petition petitions certiorari which been 816 P.2d N.M. - — (Dec. filed, U.S.L.W. filed. certiorari (1985), plication ruling. this court’s While ea- L.Ed.2d 494 and Mathews v. El dridge, ger prospectivity U.S. S.Ct. federal law on to borrow (1976).74 simply L.Ed.2d 18 did conclusion, Sunburst facilitating its erroneous consideration a state’s not involve of when rejects process principles federal due court process decision could violate federal due that interfere with that conclusion. The rights. Forced to choose between law re- acceptance result of this selective from 1932 and that which has evolved over may this state jection of federal law doom decades, past several the United States complicated prolonged litiga- to further Court, one, Supreme may unlike well this possibility tion in federal court and the precedent.75 choose the more recent The Supreme Court. That reversal U.S. majority simply fails to consider realistical certainly opinion review our Court can ly prospective the ramifications of its rul in- deprivation right of a federal where ing. McKesson, volved. 110 S.Ct. at 2245 n. See 9; majority’s antiquated reading Under the see also State Taxes Unconstitutional law, process protection of federal due nev- at 190. reliance on the Texas Our er an issue when a state court becomes preclude such Constitution will not review. essence, applies majori- its own law. In Retroactivity simple at 298. The fact See ty arguing that the Due Process Clause language clearly is that indi- McKesson’s of the United States Constitution does not prohibit all unconstitu- cates an intent to apply and cannot to the states when the deprivations resulting imposi- from tional underlying issue is one of state or local illegal remedy. of an tion tax without Quite regressive concern. aside from its implies the court that its de- While posture, position this conflicts with McKes- chaos, only imagine sire is to avoid one can unequivocal ’s mandate of a “clear and son resulting if III Edgewood the chaos were remedy” certain awhen state tax is collect- Supreme in the remanded the U.S. Court illegally. ed Retroactivity See at 302. year Edgewood same inevitable IV majority The invites federal intrusion. It through way makes its our state courts. “[tjhere is clear that will be ... inevitable appeals resulting ultimately in further Response to VI. Justice guidance Supreme from the in Court” Cornyn’s Opinion Retroactivity area of the law. at 302. Unfortunately, majority has created the misleading concurring and dis- In a most possibility appeals those will come rejects the senting opinion, Cornyn Justice prob- from process Texas. The same due opportu- equal commitment to educational exist, course, lems under our State Con- unanimously sub- nity to which this court Const, stitution. Tex. See art. 19. § Edgewood I. This is the same scribed opponents principle to which even

As a of this lack of concern result court’s It is finance reform have acceded. process protection, aggriev- for real due an today’s majori- principle the same for which taxpayer judge ed can turn to a federal tepid least injunction against ap- ty seek the eventual continues to demonstrate at an litigation. position may required in other constitutional The that federal courts review not, process at 1826. state courts for due however, violations is Fallon & Meltzer Indeed, entirely writing over new. concluding point majority century ago, explained misses the that: half a one scholar "forc[ing] pay illegal taxpayers to an tax” is enjoin The federal courts ... the collec- process rights due un- not a "violation of their no refund law is [i]f tion of state taxes.... because its decision der the federal constitution” applicable, applicable, if one is and even only.” Op. prospective n. 38. Certain- “is wishing adequate.... avoid States must ago ly sixty years initial con- left the Sunburst injunction in the the interference of federal apply prospectively law sideration of whether must, therefore, really provide a state tax field may do so without states. Whether it recovery. adequate refunds or of tax taxpayers is a allowing seek a refund Field, Unconstitutional Oliver P. Effect of process question af- (1935, 1971) (citations separate and distinct due reprinted Statute omitted). writing fact, Supreme of two Court’s fected courts have re- In the federal remedy beyond years ago quired in McKesson. in tax cases above True, sharp we used commitment. contrast S.W.2d 397.76 the term dissent, opportuni- response my “substantially” modify equal offers only deafening Cornyn’s silence to Justice ty opportunity in recognition that could bold adventure revisionism of precisely equal. In- absolutely never writing deed, court’s unanimous I. challenging some of those the exist- provide compre- Accordingly, it is vital to ing system acknowledged this rather obvi- analysis writing. of this hensive argument during Edge- ous fact oral recognized in wood 7.77 Likewise we “to Cornyn’s search discern how Justice differing reality” among “the costs di- funding’ stage in ‘equality of took center Cornyn verse dis- districts that Justice drama,” Op. this a at leads him down today: covered Judges Harley trail of criticism Clark may This that the McCown, does not mean state in judges the district Scott in area recognize differences costs or That Edgewood cases. criticism is providing with an costs associated appropriately more leveled at the other eight equalized opportunity educational to Supreme of the Texas members atypical disadvantaged Judge is students or stu- Court. McCown condemned daring suggest that Texas dents. to children right substantially “a a constitutional to I, at 398 Edgewood (emphasis 777 S.W.2d equal edu- opportunity to have access to added). (quoting cational funds.” case While resolution of that under 8-9). Slip. Op. at are not McCown These “ ‘efficiency’ provision unnecessary [made originated. Judge words McCown He petitioners’ other our] of] consideration quote, Cornyn we wrote. Justice is arguments,” 777 S.W.2d at constitutional only precise citing the words of this court’s seemingly narrowed basis for the holding Edgewood I: signifi less Edgewood opinion was of far I poor Children who live districts and suggested by Cornyn. Justice cance than in rich children who live districts must be “recognized court This is because the substantially equal opportuni- afforded implicit link that the Texas Constitution ty have access to educational funds. to efficiency equali establishes between Indeed, precise at 397. S.W.2d ty.” way In no did Id. at 397. quoted is from I language Edgewood ap or since then either court then majority today “to reaffirm our earlier Harley prove Judge Clark’s disapprove 497, 493.

holdings.” Op. at concerning equal protec conclusions of law deprivation. is absolutely equal rights tion and Nor nothing is “unfortu- There ap in the question presented that instant concerning this court’s choice” nate” “word footnote, Op. at I, peal. Cornyn’s odd use of Justice Edgewood nor “occasional] that indicating n. the trial equal terminology” a rights mere accident court’s decision in concept court’s adherence to this opinion. Op. at 529. The protection equal opinion; Edgewood I decides equality permeates entire challenge funding issue from edu implicit every to “recognized the link that the we an only provides indica ef- cation to establishes between abortion Texas Constitution mat I, prejudgment of his those equality.” Edgewood 777 tion own ficiency and (“Even II, I, ("[D]is- Edgewood S.W.2d at 496 See also 777 S.W.2d 76. See at 397 produces substantially approach Bill 1 a more equal if the of Senate access to tricts must have dollars, equitable of state educational per pupil at utilization similar levels similar revenues effort_ major remedy causes the wide it does not poor dis- Children who live in poor opportunity gaps rich and dis- between live districts and children who in rich tricts tricts.”); (criticizing Bill 1 for substantially opportu- id. equal must be afforded nity “mak[ing] equalize funds.”); attempt access no id. have access to educational districts.”). among funds all ("[E]qualizing opportuni- educational 397-98 relegated ty are left ‘if funds cannot ("An Argument Edge- Transcription basis."); See of Oral id. at 398 efficient over’ 5, 1989) (Responses E. (July of Richard only wood I requires that the funds available ... Spears). evenly.”). Gray questions Justice equitably from be distributed education to the conventional right” ters. The “fundamental cen We ... adhere money many one wisdom that today’s tral to debate is his fundamental factors that counts. right ignore writing our unanimous equal opportunity. He has educational Id. at 405-06. fundamentally right with en exercised this message Cornyn’s true Justice thusiasm. poor capsulized portion districts in a upon an article he relies: the title of money

“It’s that matters in the USA”— Worry, Happy.”79 Be He attacks “Don’t popular goes.78 so the verse But Justice leap of faith” “major, as a unwarranted Cornyn says worry not to so much about Op. authority,” “no citation of at 529- education, money in because some edu- 530, this court’s unanimous determination experts cational have concluded that does impact. have substantial Justice Cor- money spent The amount of on a stu- nyn highly makes selective use of the com- meaning- dent’s education has a real and Burke, ment from Abbott v. 119 N.J. impact opportunity ful on the educational (1990), “beyond 575 A.2d offered that student. money doubt ... alone has not worked.” Nonetheless, Op. at 527. court or- that I, 777 S.W.2d at 393. Unfortu legislation poor- dered new “to assure that nately, experience he omits the all too real funding er urban districts’ educational is of thousands of students to which this substantially equal property-rich to that of support well-justi of its court referred Despite districts.” 575 A.2d at 408. devel- that: fied conclusion opment debating of an extensive record High-wealth provide districts are able money whether constituted a critical factor their students educational for broader education, quality Jersey in the the New experiences including more extensive Supreme Court concluded: curricula, up-to-date technological more library equipment, better libraries and

Money can make a difference if effective- aides, personnel, counseling teacher ser- used, ly provide can it the students with vices, ratios, lower student-teacher better equal opportunity, educational facilities, pro- parental involvement They chance to succeed. are entitled grams, dropout prevention pro- chance, constitutionally entitled. grams. They also to at- better able They right have to the same edu- experienced teachers and tract and retain opportunity money buys cational administrators. others. quality

The differences in the of edu- programs cational offered are dramatic. These children are ... entitled to a fair example, Elizario offers For San I.S.D. greater equality chance in the form of a foreign language, pre-kindergarten no no funding. They already waited program, chemistry, physics, no no no long remedy, give too for a one that will calculus, college preparatory and no opportunity, them the same level of program. honors chance, colleagues same as their who are experience cited M80 Even school district lucky enough to in a rich be born subur- support position81 of its by the ban district. at with the view of Justice is variance Cornyn. Newman, Matters, Burke, Randy Money Abbott v. 575 A.2d at 395-97 It’s That 80. Accord. 1988). (Reprise poor (discussing disparities Land of Dreams Records between rich and availability equipment, such as districts in the Yudof, 79. Mark G. School Finance Reform: laboratories, computers as well as and science (1991). Happy, Rev.Litig. Worry, Be Don’t offerings). in the extent of curricula differences Interestingly, thorough review of this article this elitist reveals the author does not share correlating (testimony Op. 81. See at 507 n. view but rather believes that Senate Bill 351 results). base with educational increase in tax represents a realistic solution to school finance inequities. poorer physical

Although accompanied by an intimidat- underfunded with facilities, teachers, spend- larg- ing misleading correlating experienced chart less scores, ing Op. classes, range on education with SAT er a narrower 583-535, opinion analysis in no engages substantially than with courses a school ig- underlying Cornyn of its data. Justice greater thus with more funds—and nores reservations of even its source that planning may choice educational — “[tjhere quibbling are reasons ... excel to the credit nevertheless specific about these statistics for both Indeed, child, who can not the State. spending,” no small achievement oppor- for such a child the ever measure mea- part because of the debatable merit of talents wasted for tunities lost and the suring performance scores. Eric with SAT broader, enriched edu- want of a more Hanushek, Finance “Re- A. When School cation? Policy, 28 May Not Be Good form” (1991). Legis. Even Harv.J. on Likewise, recognizes properly if Hanushek that when is difficult believe that choice, used, performance. money can affect See had a free the children of Texas Cor- 442. Overlooked Justice id. choose to be educated dis- they would moreover, opening nyn, resources, statement with and hence tricts fewer publication next same article antiquated plants, experi- more less use results simply “it is indefensible to and a less diversified cur- enced teachers relationship quantitative studies of the fact, financing if variations riculum. school resources and student between insignificant quali- to educational are so concluding as a achievement basis why a ty, it is difficult to understand help funds school additional cannot country’s our wealthiest number Murnane, districts,” Interpret- Richard J. districts, legal have no obli- Money Mat- ing the Evidence on “Does in of the consti- gation argue support (1991), ter?”, Legis. 28 Harv.J. on legislation, have tutionality the Texas funding its that “increased conclusion pursued its cause zealously nevertheless public edu- improve quality can before this Court. at 488. cation.” Id. 83-85, 93 S.Ct. at 411 U.S. at Rodriguez, “con- Considering argument same (citation J., (Marshall, dissenting) 1322-23 spending cerning the effect of variations omitted).82 and footnote achievement,” Thur- Justice educational in end all Money is not the be all and ago provided decades good Marshall two equal without access education.83 But the best answer: I funds, Edgewood in as mandated disputes over sit not to resolve We ... II, Edgewood unanimously reaffirmed theory our but to enforce educational opportunity never be equal will educational inescapable fact It is an Constitution. achieved. if has more funds avail- that one district Cornyn more can- asserts Next Justice district, the per pupil than another able underlying so additionally didly the concern in edu- greater choice former will have writing bogey- majority’s much of the —the planning than will latter.... cational rejected that “local control.” We man of pro- to what the State must [We look] I: Edgewood same claim children, chil- not to what the vides argued reform in they re- Some do with what are able to dren control, will eliminate local an school finance forced to attend That a child ceive. recognized II: light this truism say 83. We went on to Justice Marshall 82. proven by existing disparities Demetrio of the Rodriquez funding suggest an efficient do we Nor others, proving "the burden of itself, many will, by system solve all of disparities in fact affect do not that these challenges facing public Texas education upon must quality education fall of children’s today. oppose cor- who school districts wealthier [the at 498. 804 S.W.2d at recting disparities].” at 93 S.Ct. argument allegedly no Though money has merit. An does not matter much, objec- Cornyn’s principle so Justice system preclude efficient does right wealthy tive is to ensure the ability of communities to exercise local spending to unlimited in the form districts control over the education of their chil- Again Edgewood of “local enrichment.” I requires only dren. It the funds equal recognized that a commitment to ed- eq- available for education be distributed opportunity does not ucational uitably evenly. system An efficient control, mean that local communities would actually will allow more local an precluded supplementing from effi- provide property-poor not less. It will system legisla- cient established districts with economic alternatives that ture; any local enrichment must however Only are not now to them. if available solely derive local tax from effort. alternatives are indeed available can a community exercise the control of mak- added). (emphasis 777 S.W.2d at 398 ing choices. desperately While the tried II-, in Edgewood weaken this commitment Repackaging S.W.2d the same attorney representing many even argument84 improved worn has not its va- challenging districts Bill 351 con- lidity. Inequities in the fi- current school ceded that unlimited local enrichment deny many nance continue too produce type disparities would same an opportunity school districts to exercise among rejected Edge- districts that were meaningful local control. As one commen- ample wood I.86 Districts with wealth and astutely tator has noted: in- capability unlimited enrichment have no If very local school little [a board] encourage fully centive to the State to fund money, control; it has almost no or rath- realistically adequate level of educational only negative er it has control. Its free- why services.87 That is we insisted that dom is to choose which of the children’s solely tax enrichment “derive from local needs should be denied. effort,” I, Edgewood 777 S.W.2d superior happenstance from the of a Kozol, Savage Inequalities Jonathan at base. deny 213. Rather than authority, local effect Edgewood of I is for “each district to Finally, Cornyn Justice tells us that the flexibility, have the same the same local brought in poor plaintiffs district this case control.”85 wrong They should have com- lawsuit. Indeed, argument rejected long ago prohibition against this is a constitutional There myth many as "a for of the local school districts supplementation_ uncontrolled local [L]o- Rodriguez, in Texas.” 411 U.S. at 93 S.Ct. supplement cal to distort [cannot allowed] J., (Marshall, dissenting). at 1346 Justice Mar- Edge- equity required that this court in recognized "striking shall down interdis- provide that allows wood. It cannot wealth, disparities trict in taxable is local ... voluntary supplement equity to distort the likely most to make true local over control problem addressed that was the fundamental decisionmaking reality educational all Tex- for in I. school districts.” Id. at S.Ct. at 1346 original). (emphasis in He un- observed that degree, ‘ade- 87.“To a real what is considered inequities constitutional could be eliminated poor quate’ ‘necessary’ or 'sufficient' for the "leav[ing] gamut while in local hands the entire Texas is determined the rich or relative- in policymaking teachers, of local educational — rich; ly their it is decided in accord with sites, curriculum, process the whole of poor opinion are fitted of what children of the allocating among edu- resources alternative become, role should to and what their social objectives." cational Id. at 131 n. 93 S.Ct. at always equated been be. This role has 1347 n. 98. us; and this consideration their usefulness to Edge- Transcript Argument 85. See of Oral in stake in almost all reflections seems to be at 5, 1989) (July (Responses wood I man). of A1 Kauf- of the ‘minimal’ foundation on the matter sense, schoolchildren, which, in a is offered only metaphor for ‘minimal’ existence.” (Nov. Argument Transcription 86. See of Oral (quoting Savage Inequalities Professor 1991) (Responses by George ques- R. James Trinity University). White of O.Z. Gonzalez): tions Justice from of

plained “outputs” “inputs.” equally.” Op. about count at 507. But all discussion, out, only litigation it turns is a diversion. Since he not satisfied with the for presented today, decision Justice Cor- voters, course, already of have had amazing display judicial activ- nyn an an to vote once on section 3-b opportunity ism decides the case he thinks should have again regarding the tax of article presented. pro- been This is the natural districts, authorization their individual writing gression type improper make but if an additional third vote would opinion upon advisory which Justice Cor- constitutional, Legislature CEDs majority colleagues nyn and his insisted elections. promptly for 188 local could call (Dog- Edgewood II-. 804 S.W.2d at 503 See Yes, require special session this would concurring) danger gett, (regarding the J. dollars, tax and the waste of millions of deciding a of this court case without a step majority’s would even that remove the pending appeal “solely on its own initia- Apparently to reform? latest roadblock tive”). not; majority’s apparently the new found democracy is participatory interest eventually necessary consid- It excuse, not a reason. “efficiency” evaluating “outputs” er system, us at of the school finance but let If the of a vote were the ob- lack present- until the least wait issue has been stacle, procedure could be the election preclude to a trial court. To Justice ed privi- avoid the veto structured to Comyn’s writing unduly prejudicing from leged is so of which the desirous.88 matter, I on the must debate Legislature unquestioned has the Since judicial my personal concern that in- note authority require complete consolidation measuring “outputs” volvement districts, there is no reason that likely system is more the educational even contingent consolida- provide could not produce prolonged judicial intrusion than complete accomplish Theoretically, tion. em- already have the task which we locally-gen- expenditure control over strange that we should barked. How dollars, tax citizens some areas erated beyond scope of this action broaden might prefer complete consolidation. get by the parties that asserted before we could accord a choice: properly the issues resolved have not 188 CEDs whose voters raised. given by a approved base consolidation date, all school complete consolidation “having objective If the true avoid be automat- districts within the CED would generation of school children yet another contingency leg- ically accomplished. Such their consti- [being] denied the benefits of previous from islation would differ little Op. rights,” the solution tutional contingent upon the enactments that were judicial found in less doubletalk will be a vote on a constitutional outcome of application of the Constitu- more consistent See, e.g., Tex.Rev.Civ.Stat. amendment. edu- concern for proclaiming tion. While (concern- (Vernon 1992) Ann. art. 6252-9d.l pleasant platitudes, this concur- cation with Commission). This would ing Texas Ethics only as to reform. rence serves an obstacle year the next academic assure that the every in the State Hope? districts in CED Any Glimmer VII. part or in merged in whole would be either regularly who have Those on this court purposes. for tax base altering right public’s the to vote supported approach be majority rejects this judges redis- The have now in the selection only two voters with presents it right of elections and cause covered the sacred complete partial consolida argued otherwise, anyone as if proclaim, choices— familiar, If choices sound these two per- the tion. axiom “that votes cast all only choices they represent the circumstances, sons, are: regardless their faulty to its purview contradiction central Certainly proper explain the is within majority prefers to this analysis, discount scope majority opin- of a define the dissent to ion, Op. “speculation." n. 43. at 524 attempting Rather than discussion as I do here. Nevertheless, approved by majority Edgewood Senate Bill 351 is con- revealing majority’s utilizing very II-.89 Most is the con demned for method of approval majority contemplated clusion that “voter taxation which the alone would With this presented by Edgewood not avoid the obstacle 77-. alternative [the eliminated, Appellant for the property VIII, statewide counsel tax bar article of] recognized only districts have Op. section 1-e.” at 524 n. 43. if Even remaining source un- conducted, broad-based revenue local CED elections were present der Constitution is an income property statewide prohibition tax would majori- A tax.91 further indication of the preclude still utilization of CEDs. Similar ty’s nudge determination to ly, pre this constitutional bar would even an income tax rather toward is the clear vent use of tax base under consolidation any attempt prop- indication that revise Code, Chapter former 18 of the Education erty financing through must charted newly significant referenced foot minefield, judicial map provided.92 with no 14 Edgewood major note II to which the Fully today aware that its action leaves ity proudly points. majority’s now so only option major of an income tax as a writing is indicative of a Houdini-like at source, funding majority then washes tempt escape improp the confines of its any personal responsibility its hands of writing Edgewood er 77-: result, effectively telling Legisla- possible Tax base consolidation you except- ture: choose method desire problems simply were discussed as one ing urged upon you. that which we last Legislature might alternative the consid- majority absolutely correct that “an only er. said possible We that it is only remedy,” Op. income tax is not the consolidate school district tax bases with- 524; remedy major- rather it is the violating out the Constitution. In that ity Legislature. has left available to the context, very obviously limited we con- Finally majority templated seeks one more bit tax authorization elections covering protective discovers “elimi- and said so. But we were not asked —it nating gross wastes in the bureaucratic decide, any party to and we did not system” administration approval hold that voter [educational] either would as an alternative source of revenues for required.... or would not be achieving efficiency. Through- Id. at 524. Op. added).90 (emphasis at 520 n. 37 I, II, and Edgewood Edgewood Edge- out truth the has no interest in more II-, sup- wood no record has been made elections; it has lost its once zealous inter- port of this claim. But that does not con- consolidation; pre- est in tax base it now good camouflage majority. strain the It is “choosing path altogether.” fers another law, major- and bad as is the balance of the ity’s writing. VIII. Conclusion pro- happen today after is a What will Today’s opinion Bill concedes that Senate longed timed to coincide with an battle represents progress securing Moreover, year. as I concluded in election school finance that would assure II-, “today’s opinion ensures equal opportu- Texas students educational litigation [seemed to] nity. legislation This to diminish works go finally nearing an end will on indefinite- admit; inequities, majority must it has any ly” no one “can act with assur- because geographical disparities “reduced the in the in concerning this court will do ance what availability Op. (Doggett, for revenue education.” the future.” 804 S.W.2d at J., Leg- concurring). Having entrapped the at 500. (November Argument following Transcript supra text note 16. 91. See of Oral 89. See 19, 1991) (Response by George to R. James Doggett Mauzy questions and and from Justices Additionally, is an 90. this convoluted statement Response questions of Earl Luna to from Justice opinion Edgewood admission that this court’s Gammage). advisory, majority "obviously since II- was they contemplated” an issue which were "not supra following by any party Op. note 37. asked to decide.” at 503. 92. See text islature, delaying release of this they purposefully Texas to After further invite judiciary.93 very majority’s suggestion the federal opinion, ensnared un- move forward “without willingness majority's The remarkable Op. rings hollow. necessary delay,” at recently precedent so announced abandon vague pronouncements majority’s The disregard only for the demonstrates Delphi more like the Oracle at than a sound taxpayer, to the but law indifference justice. attempt provider of Its shift abandonment of the children of this also long responsibility to act more state. school children have suf- Governor Our nothing fered from the failure the school finance promptly is but diversion. Today they anew from the system. suffer delay will now ensue is attributable justice to deliver on failure provided lengthy only to the time frame promise of the Texas Constitution. response, legislative but in the unre- delay, offers our children by today’s ambiguities created solvable already plenty have of that. had prove If opinion. there was ever case grade when began A child who the first justice “justice delayed is maxim old originally cause was filed state court denied,” this it. high probably will already school and It for the benefit of our children graduated finance before new that edu- that the Constitution commanded effective. plan becomes It was for their benefit cation be efficient. audacity greatest it Frankly takes sought Rodriguez relief. It that Demetrio delays delays in Edgewood cite I 1989— Edge- their that we decided was for benefit price paid represented part now, But for the benefit of wood I and II. unanimity at this court—as an excuse privileged, deaf ear the court turns a having delay Edge- in 1992 in still more commanding voice of the law both to the 1989, implementation of wood III. of the children. whispered pleas ruling required cooperation from court’s He re- William Clements. had Governor MAUZY, J., joins in this dissent. response dual peatedly voiced a litigation: castigate the messen- Edgewood change the

ger any judge involved—and — the standard for the Constitution lower system. Like other torchbearers urged simple solution— inequality, he PUBLISHING CALLER-TIMES greater equality of Texas needs is not what COMPANY, INC., opportunity, a weaker Con- educational Petitioner, oppo- cope To with this ardent stitution. reform, extended the nent of the court

period for a solution. COMMUNICATIONS, INC., TRIAD Keels, enlightened leadership thank- Wheels &

With more d/b/a Edgewood Respondent. II fully place the time of to avoid another with a determination No. C-9979. limited the time disrupted year, we Supreme Texas. Court of Moreover, to about two months. for action delay court that the trial criticized we Feb. 1992. permitted and declared that already had Opinion Nov. Dissenting in re- its discretion “clearly abused had Rehearing Motion for Dissent on of this Court fusing the mandate to enforce 26, 1992. Feb. II, 804 Edgewood I.” issued S.W.2d unjusti- more

Today the offers to a solution. delay as an alternative

fied (Tex. Ramirez, S.W.2d 712 encouragement the fed- of intrusion Terrazas This supra orig. proceeding). note 2. See recently judiciary worked echoes that most eral notes dictum relies "the D-1469; Edgewood Indep. Dist. v. Andrews Sch. Supreme consoli- that tax base the Texas Court D-1477; Dist., High- Indep. Cause No. Sch. Walker, Billy The Db- be effected." D. dation Dist., Indep. Sch. Cause No. D-1560— land Park Edgewood Inter- III: Promethean trict Court Levine, (hereinafter Tr.). Gail F. See abo at 724 Meeting (unpublished pretation or Procrustean Bed? Wave, Approaches Legblative the Third Appendix Consol- monograph O to attached as Rulings, 28 Judicial Finance to Recent School (hereinafter Reyes) of Eliodoro idated Brief ("The (1991) Legis. so court Harv.J. III). Court Dbtrict strongly emphasized consolidation [tax base]

Case Details

Case Name: Carrollton-Farmers Branch Independent School District v. Edgewood Independent School District

Court Name: Texas Supreme Court

Date Published: Jan 30, 1992

Citation: 826 S.W.2d 489

Docket Number: D-1469, et al

Court Abbreviation: Tex.