*1 876 judgment of the trial court is af-
firmed. Johnson, Waxahachie,
Ron B. appel- for lant. WINBORNE,
Marilyn Appellant, G. Gregg Perdue, McLaughlin, M. Brandon Fielder, Arlington, & appellees. The COMMISSIONERS' COURT OF EL OPINION COUNTY, TEXAS, Acting By LIS and McDONALD, Chief Justice. Through Following Elected Offi appeal by plaintiff This is an Winborne BLAKEMORE, County cials: James grant from the trial court’s refusal Judge; Gilespie, Commissioner; Ron compelling writ of mandamus the Commis- Sims, Commissioner; J.B. Cliff Womm sioners’ Court of Ellis to order a ack, Commissioner; Jones, and David provisions “rollback” election under the Commissioner, Appellees. Property Section 26.07 of the Tax Code.
No. 10-88-078-CV. 27, 1987, August On Appeals Court of County adopted Court of Ellis tax rates Waco. amounting to a increase in the effec- 32.8% 1, adopted pur- tive tax rate. The taxes Sept. were 1988. suant to the Texas Rehearing 22, Sept. Denied 1-a, providing funds Farm control; to Market roads and flood funds providing section Fund, Improve- the General Permanent Fund, Fund, Bridge ment the Road Jury Fund. On November plaintiff’s name and the with 6,999 Ellis names of other voters of This presented was the Commissioners. 26.- requirement met of Section sought Property Tax Code and question calling of an election reducing year the tax rates for the accordance Section 26.07. Com- missioners did not call the election on the grounds Property that Section 26.07 of inapplicable Tax to taxes Code pursuant to Article 1-a and 9 Sections of the Texas Constitution. sought
Plaintiff mandamus writ of compel from the district court to the Com- a “rollback” missioners’ Court to order stipulated hearing on election. After a facts, following court made the trial Findings of Law: of Fact and Conclusions *2 FINDINGS OF FACT 3. That the Texas Sections 1-a and plainly Article VIII adopted a. That by tax rate clearly in County vests Commis- Commissioners’ in Court is excess of authority sioners the to annually as- the stated limit over effective tax sess ad valorem taxes in an amount subject adopted rate which would not to exceed the by limits set provisions tax rate to the of Section Further, Constitution. it is within 26.07 of the Property Texas Tax County sole discretion of the (i.e. 32.8%). Code adopt Commissioners to the tax rate b. That by the needed for the pur- Constitutional Commissioners’ Court of Ellis Coun- poses set forth. ty, Texas, is within the maximum 4. That since the adopted by tax rate VIII, limits authorized the Commissioners’ Court of Ellis Sections 1-a and 9 of the Texas Con- County for 1987 is within the Consti- stitution. tutional limits set in forth Sections Plaintiff, c. That the Marilyn G. Win- VIII, 1-a and Article this Court is borne, is a resident of Ellis County, authority without to order an election Texas. to reduce that provided tax rate as petition d. That the containing sig- by Section 26.07 of the Tax Code. calling natures for the election six 5. That the Court finds Section 26.07 of bound volumes was introduced and Property Texas Tax Code is not said requisite contained the applicable to the taxes signatures number of authorized accordance Sections with the 1-a and 9 of statute. the Texas Constitution. e. That the presented was to the Commissioners’ Court of Ellis request 6. That Plaintiffs for a Writ of prescribed within the time in Mandamus is denied as a matter of accordance with the statute. law. f. That the Commissioners’ Court El- appeals Plaintiff points on 5 of error lis County, refused to call a asserting the trial court erred as a matter rollback election pre- within the (1) in holding: of law that it is within the scribed time in accordance with [Sec- sole discretion of the Commission- tion 26.07 of the Property Texas Tax adopt rate; (2) ers’ Court to the tax that Code], the tax rate was within lim- constitutional
g. That question the sole before the its; (3) that it is within discretion of the is, Court “Does Section 26.07 of the Commissioners’ Court whether to address
Texas Property apply Tax Code plaintiff’s (4) petition; that Section 26.07 of the taxes authorized Sections 1-a the Property Tax Code applicable is not and Article VIII of the Texas Con- pursuant taxes assessed to Article stitution?” Sections 1-a and 9 of the Texas Constitu-
tion; (5) that the trial court erred in CONCLUSIONS OF LAW denying plaintiff’s request for a writ of mandamus. 1. That the Texas Constitution is the fundamental law of the State of Tex- This suit applicability concerns the as and the Court cannot enforce a Section 26.07 of the Property Tax statute contrary that is to the Consti- Code to taxes authorized
tution. Sections 1-a and 9 of the Texas Constitu- 2. That a statutory statute cannot tion. provision authorize the Section 26.07 a
assessment of
authorizing
procedure
a tax which the Con-
to allow an elec-
prohibits
stitution
repeal
nor can
tion
a statute
a tax rate increase which is in
prohibit the assessment of
provided by
a tax au-
excess of the rate calculated as
thorized
the Constitution.
Section 26.04 of the Code
more than
(80$)
Eighty
eight (8%) percent.
26.07 reads in
Cents
on
the One Hundred
($100)
part:
Dollars
(1)
year.
Once
Court has
(a)
levied
governing body
taxing
rate,
annual tax
the same shall
adopts
remain
unit other than a school district
during
force
effect
taxable
that exceeds the
rollback
Legislature may
and the
year;
also au-
provided by
calculated
*3
an
thorize
additional ad valorem tax to
code,
qualified
26.04
this
the
voters of
of
be levied and collected
the
taxing
require
may
the
unit
for
further
roads;
public
pro-
maintenance
the
to
that
election be held
determine
an
of
vided,
majority
qualified
that a
the
or
whether
not to reduce
of
property taxpaying voters
the coun-
year
roll-
for the current
to the
of
ty voting at an election to be held
provided by
rate
as
back tax
calculated
for
tax,
purpose shall vote such
not to
that
26.04 of this code.
(15$)
the
exceed
cents
on
One
fifteen
hearing
stipulated
the
that
the
It was
at
($100)
Dollars
Hundred
of
adopted by
tax
property subject
the
to taxation
such
eight percent
of
in excess
the
Court was
county. Any
county may put all tax
allowed
Section 26.07.
county
the
money collected
into one
pro-
Constitution contains two
Texas
regard
general fund,
pur-
to the
without
which were the basis
visions in Article VIII
pose
of
the
or source
each tax. And
adopted by
the
the Ellis
for
taxes
may pass local
for
Legislature
laws
the
Article
Sec-
Commissioners’ Court.
public roads
of the
and
maintenance
part:
1-a,
pertinent
provides
tion
the local notice re-
highways, without
* *
state are
the
several counties of
the
or local laws. This
quired
special
for
levy
ad valorem taxes
authorized
a
not be construed as
Section shall
respec-
upon
property
their
all
within
delegated to coun-
powers
limitation of
county purposes
tive boundaries
* *
for
or
any other Section
Sec-
ties
* *
(30$)
thirty
on
not to exceed
cents
(Emphasis
Constitution.
tions
this
of
($100)
each
Hundred Dollars
valu-
One
added).
ation,
to all other ad
in addition
valo-
constitutionality of a
passing upon
In
the
by the
rem
authorized
taxes
Constitu-
begin
we
passed
legislature,
statute
the
State, provided
this
tion of
the revenue
validity. Smith
presumption
with
of its
a
shall
used for con-
derived therefrom
be
Davis,
v.
426 S.W.2d
S.Ct.
and
of Farm to
struction
maintenance
legis
Control,
strong presumption
A
exists
ex-
Market Roads or for Flood
constitutional,
legislative
is
cept
provided.
lative act
herein otherwise
not
declared unconstitutional
act will
be
added).
(Emphasis
constitution
provision of the
unless some
9, provides:
Section
invalidity of such act.
clearly
the
shows
county, city
levy a
or town shall
[N]o
to a statute’s validi
And if doubt exists as
(80<t)
Eighty
on
rate in excess of
Cents
unless
ty,
should
held valid
such statute
be
($100)
the
Hundred Dollars
valua-
One
of
provision
clearly
it
conflicts with some
(1)
fund,
year
general
any
tion in
National Guard
the constitution. fund, road and
permanent
improvement
McCraw,
S.Ct.,
126 S.W.
Armory Board
bridge
jury
purposes;
fund
fund
2d 627.
the time the
provided
that at
further
Constitution,
the
levy
unlike
meets to
The Texas
Commissioners Court
constitution,
grant
in no sense
county it shall
is
annual
each
federal
a limita
power,
operates solely as
may
needed
of
levy whatever tax rate
be
but
is not
(Jf)
powers.
power
All
which
purposes;
tion of
constitutional
four
* *
inheres in the
constitution
long
impair
limited
as the Court does not
so
legislature is
of
state
people, and an act
any outstanding bonds or other obli-
pro
contains no
legal
long
of the
when the constitution
gations
so
as the total
to hold an
against it.
a court
For
foregoing tax levies does not exceed
hibition
legislature unconstitutional,
promoting
prompt
act of the
it
of
conduct of busi-
point
specific
commencing
provi
rate-fixing process.
must be able to
out the
ness
legislature.
sion which inhibits the
9, provides
it shall
express,
limitation is not
then it should be
powers
not be considered a limitation of
clearly implied. Shepherd v. San Jacinto
counties,
delegated
(i.e.,
qualified
Dist., S.Ct.,
College
Jr.
Tex.
In we think Article 26.07 such situation validity (which exists as to
valid. doubt see) be such is to resolved
we do not doubt validity of the statute. We
in favor of the 26.07 to be conflict
declare Article not constitution. or forbidden points are sustained.
Plaintiff’s court is re- judgment the trial ordering the judgment
versed and rendered mandamus the Commission-
trial court to Ellis to call an elec-
ers’ Court of 26.07, provisions of Article
tion under the days more
on a date not less than 30 or days judgment after this becomes
than
final, to roll to determine whether back Ellis
ad valorem tax & RENDERED.
REVERSED J.,
THOMAS, respectfully dissents for Op.Tex.Att’y stated in Gen.
the reasons *5 (1987).
No. JM-792 MILLER, Appellant, Anthony
James Texas, Appellee. The STATE Dallas, appellant. Stephen Cooper, J. No. 05-87-00445-CR. Joosten, Dallas, appellee. M. Yolanda Appeals Court DEVANY, LAGARDE Before Dallas. THOMAS, JJ. Sept. 1988. LAGARDE, Justice. Rehearing Denied Oct. from a appeals Anthony Miller James trial, aggra-
conviction, following jury Punishment, en- vated sexual assault. convictions, was as- prior two hanced imprisonment. life jury at sessed appellant’s second agree we Because was denied that he points of error and third guar- of counsel assistance the effective States by the United anteed Constitutions, conviction we reverse