Can a Texas county school district hold a petition election to raise the county equalization tax under the old chapter 18?

Plain-English summary

Former chapter 18 of the Education Code let the residents of a county create a countywide school district and adopt a countywide equalization tax to help fund the public schools. The Legislature repealed chapter 18 in 1995, but a savings provision, section 11.301(a), says a district or county system that was operating under former chapter 18 (and certain other chapters) on May 1, 1995 may continue to operate under that chapter as it existed on that date. The Harris County Department of Education operates as such a county system under former chapters 17 and 18.

Senator Dan Patrick, chair of the Senate Committee on Education, asked the Attorney General whether section 11.301 lets the citizens of Harris County use the repealed chapter 18 to increase the county equalization tax. The background was that in 1937 the voters of Harris County had approved an equalization tax at a rate below the statutory maximum, and the question was whether chapter 18's election machinery could now be used to raise it.

The Attorney General concluded a court would likely answer no. The right to hold an election has to be expressly authorized by the constitution or a statute. Chapter 18 once contained a provision (former section 18.31) that authorized an election to increase the permissive tax rate, but the Legislature repealed that provision in 1993, two years before the 1995 cutoff. Because section 11.301 freezes chapter 18 as it existed on May 1, 1995, the already-repealed rate-increase election is not available to a district operating under the savings provision. The AG read the remaining provisions of former chapter 18, which do address other kinds of follow-up elections (such as a second election after a proposition fails, or an election to revoke the tax), as not authorizing an election to increase an established rate. Pointing to tax statutes for other entities that expressly allow rate-increase elections, the AG reasoned that the Legislature knew how to authorize such elections and had not done so here. The AG did not reach the senator's remaining questions because they assumed the statutes authorized such an election.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Senate Committee on Education (as the opinion described it): The opinion answered that a court would likely conclude section 11.301 and former chapter 18 do not authorize a countywide school district to hold a petition-initiated election to increase the county equalization tax, and it declined to address the senator's remaining questions, which assumed such an election was authorized.

The Harris County Department of Education (as the opinion described it): The opinion described HCDE as a county system that section 11.301 lets continue operating under former chapters 17 and 18, but read those frozen chapter 18 provisions as not supplying authority for an election to raise the existing equalization tax rate.

Harris County voters and taxpayers (as the opinion described it): The opinion described former chapter 18, as preserved by section 11.301, as not providing a petition-initiated election to increase the county equalization tax that the voters had established in 1937, because the provision that once allowed a rate-increase election had been repealed in 1993.

Common questions

Can Harris County voters petition to raise the county equalization tax under chapter 18?
The AG concluded a court would likely say no. The provision that once authorized a chapter 18 election to increase the rate was repealed in 1993, and section 11.301 only preserves chapter 18 as it stood on May 1, 1995, so that election authority is no longer available.

Why does the 1995 date matter?
Section 11.301(a) lets a district that was operating under former chapter 18 on May 1, 1995 keep operating under the chapter "as that chapter existed on that date." Because the rate-increase election provision (former section 18.31) had already been repealed in 1993, it was not part of the chapter on that frozen date.

Does former chapter 18 allow any elections at all?
Yes, but not this one. The AG noted chapter 18 still addresses some follow-up elections, such as a second election after a proposition fails and an election to revoke the tax, but read it as not authorizing an election to increase an established tax rate.

Did the opinion answer the senator's other questions?
No. The AG did not address the remaining questions because they were conditioned on a determination that the statutes authorize such an election, which the AG did not reach.

Background and statutory framework

Former chapter 18 provided for creating and operating a countywide school district to adopt a countywide equalization tax for the public schools (Tex. Educ. Code Ann. § 18.01-App. (West 2012) (Title 2-Appendix)). Chapter 18 was repealed in 1995 (Act of June 2, 1969, 61st Leg., R.S., ch. 889, § 18.01, 1969 Tex. Gen. Laws 2735, 2849, repealed by Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 58(a)(1), 1995 Tex. Gen. Laws 2207, 2498), but section 11.301(a) lets a district or county system operating under it on May 1, 1995 continue under the chapter as it then existed (Tex. Educ. Code Ann. § 11.301(a) (West 2012)). The chapter's election machinery rested on a petition praying for authority to levy an equalization tax, with prescribed ballot language (Tex. Educ. Code Ann. §§ 18.07(a)-(b)-App., 18.07(c)-App., 18.09(c)-App., 18.12(b)-App.).

The AG applied the rule that the right to hold an election must be expressly authorized (Countz v. Mitchell, 38 S.W.2d 770, 774 (Tex. 1931)). The provision that once authorized an election to increase the permissive rate, former section 18.31, was repealed in 1993 (Act of May 26, 1971, 62nd Leg., R.S., ch. 994, § 5, 1971 Tex. Gen. Laws 3007, 3008; Act of May 28, 1993, 73rd Leg., R.S., ch. 347, § 1.02(b), 1993 Tex. Gen. Laws 1479, 1491). The remaining provisions address only other elections (Tex. Educ. Code Ann. §§ 18.10(e)-App., 18.11-App.). Drawing on the principle that the Legislature knows how to enact laws effectuating its intent (FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000)), the AG pointed to other tax statutes that expressly authorize rate-increase elections (Tex. Health & Safety Code Ann. § 283.122(b) (West 2010); Tex. Loc. Gov't Code Ann. § 383.104(a) (West 2005); Tex. Tax Code Ann. § 321.106(c) (West 2008)), and relied on a prior opinion reaching the same conclusion about an election to establish, rather than increase, a maximum rate (Tex. Att'y Gen. Op. No. JC-0247 (2000) at 3-4).

Citations

Statutes and session laws:

• Tex. Educ. Code Ann. § 18.01-App. (West 2012) (Title 2-Appendix) (countywide school district and equalization tax)
• Tex. Educ. Code Ann. § 11.301(a) (West 2012) (savings provision for chapter 18 as it existed May 1, 1995)
• Tex. Educ. Code Ann. §§ 18.07(a)-(b)-App., 18.07(c)-App., 18.09(c)-App., 18.12(b)-App. (West 2012) (petition, ballot, and rate provisions)
• Tex. Educ. Code Ann. §§ 18.10(e)-App., 18.11-App. (West 2012) (second election after failure; election to revoke the tax)
• Act of June 2, 1969, 61st Leg., R.S., ch. 889, § 18.01, 1969 Tex. Gen. Laws 2735, 2849 (enacting chapter 18)
• Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 58(a)(1), 1995 Tex. Gen. Laws 2207, 2498 (repealing chapter 18)
• Act of May 26, 1971, 62nd Leg., R.S., ch. 994, § 5, 1971 Tex. Gen. Laws 3007, 3008 (former section 18.31, rate-increase election)
• Act of May 28, 1993, 73rd Leg., R.S., ch. 347, § 1.02(b), 1993 Tex. Gen. Laws 1479, 1491 (repealing section 18.31)
• Tex. Health & Safety Code Ann. § 283.122(b) (West 2010); Tex. Loc. Gov't Code Ann. § 383.104(a) (West 2005); Tex. Tax Code Ann. § 321.106(c) (West 2008) (other entities' rate-increase elections)

Cases:

• Countz v. Mitchell, 38 S.W.2d 770, 774 (Tex. 1931)
• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000)

Other authority:

• Tex. Att'y Gen. Op. No. JC-0247 (2000) at 3-4 (election to establish maximum rate did not authorize election to increase it)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1047
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1047.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

March 24, 2014

The Honorable Dan Patrick Opinion No. GA-1047
Chair, Committee on Education
Texas State Senate Re: Whether Education Code section 11.301
Post Office Box 12068 authorizes the citizens of Harris County to use
Austin, Texas 78711-2068 repealed chapter 18 of the Education Code to
increase the county equalization tax
(RQ-1152-GA)

Dear Senator Patrick:

You ask whether section 11.301 of the Education Code authorizes the citizens of Harris County to use repealed chapter 18 of the Education Code to increase the county equalization tax.[1] Former chapter 18 provides for the creation and operation of a countywide school district ("CSD") "for the purpose of adopting a countywide equalization tax for the maintenance of the public schools." TEX. EDUC. CODE ANN. § 18.01-App. (West 2012) (Title 2-Appendix). Although former chapter 18 was repealed in 1995,[2] section 11.301(a) of the Education Code provides that "[a] school district or county system operating under former Chapter 17, 18, [or other specified chapters] on May 1, 1995, may continue to operate under the applicable chapter as that chapter existed on that date and under state law generally applicable to school districts that does not conflict with that chapter." TEX. EDUC. CODE ANN. § 11.301(a) (West 2012). We have been informed that the citizens of Harris County created a CSD or county system, the Harris County Department of Education ("HCDE"), which currently operates under former chapters 17 and 18.[3] Thus, section 11.301 of the Education Code authorizes the HCDE to continue to operate under former chapters 17 and 18.

Former chapter 18 authorizes an election initiated by a "petition legally praying for the authority to levy and collect an equalization tax," signed by the requisite number of voters. TEX. EDUC. CODE ANN. § 18.07(a)-(b)-App. (West 2012) (Title 2-Appendix). The "petition may pray for authority to levy and collect an equalization tax at any specified rate not in excess" of the county's maximum statutory rate. Id. § 18.07(c)-App. Former chapter 18 specifies the requisite ballot language:

The form of the ballot shall be substantially as follows: If no specific tax rate was set in the petition, the proposition shall read: "For county tax" and "Against county tax." If a specific tax rate was incorporated in the petition, the proposition shall read: "For county tax not exceeding _ cents on the $100 valuation" and "Against county tax not exceeding ___ cents on the $100 valuation."

Id. § 18.09(c)-App. We understand that in 1937, the voters of Harris County authorized and established a county equalization tax rate that is less than the statutory maximum rate.[4] See id. § 18.12(b)-App. (providing that the voters may approve a rate less than the statutory maximum). You wish to know if former chapter 18's election provisions authorize an election initiated by petition to increase the established county equalization tax rate. Request Letter at 1-2.

The right to hold an election must be expressly authorized by the constitution or by statute. See Countz v. Mitchell, 38 S.W.2d 770, 774 (Tex. 1931). At one time, former chapter 18 authorized an election for certain districts "to increase the permissive rate of tax to be levied." Act of May 26, 1971, 62nd Leg., R.S., ch. 994, § 5, 1971 Tex. Gen. Laws 3007, 3008 (former section 18.31, Education Code, now repealed). The Legislature repealed this provision in 1993, and therefore it is not available to those districts operating under former chapter 18 as it existed on May 1, 1995. Act of May 28, 1993, 73rd Leg., R.S., ch. 347, § 1.02(b), 1993 Tex. Gen. Laws 1479, 1491 (repealing section 18.31); TEX. EDUC. CODE ANN. § 11.301(a) (West 2012) (savings provision for chapter 18 as it existed on May 1, 1995). The remaining provisions of former chapter 18 do not authorize an election to increase an established tax rate, even though the chapter addresses subsequent elections for other purposes. TEX. EDUC. CODE ANN. §§ 18.10(e)-App. (West 2012) (Title 2-Appendix) (authorizing a second election when a proposition fails), 18.11-App. (prescribing the time when an election to revoke the tax may be held).

Tax statutes for other entities demonstrate that when the Legislature wishes to authorize subsequent elections to increase a tax rate, it knows how to do so.[5] See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000) (relying on principle of statutory construction that the Legislature knows how to enact laws effectuating its intent). Because the Legislature has not authorized an election for the purpose of increasing a tax rate of a CSD, a court would likely conclude that section 11.301 and former chapter 18 of the Education Code do not authorize a CSD to hold a petition-initiated election to increase the county equalization tax.[6] We do not address your remaining questions because they are conditioned on a determination that the statutes authorize such an election.

SUMMARY

A court would likely conclude that section 11.301 and former chapter 18 of the Education Code do not authorize a countywide school district to hold a petition-initiated election to increase the county equalization tax.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Dan Patrick, Senate Educ. Comm., to Honorable Greg Abbott, Tex. Att'y Gen. at 1-3 (Sept. 23, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] See Act of June 2, 1969, 61st Leg., R.S., ch. 889, § 18.01, 1969 Tex. Gen. Laws 2735, 2849, repealed by Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 58(a)(1), 1995 Tex. Gen. Laws 2207, 2498.

[3] Brief from Sarah W. Langlois, Harris Cnty. Dep't of Educ. at 1 (Oct. 16, 2013) (on file with the Op. Comm.) ("HCDE Brief").

[4] Brief from Vince Ryan, Harris Cnty. Att'y at 1 (Aug. 9, 2013) (attached to RQ-1144-GA), http://www.texasattorneygeneral.gov/opn.

[5] See, e.g., TEX. HEALTH & SAFETY CODE ANN. § 283.122(b) (West 2010) (authorizing certain hospital districts to call a tax rate increase election by order or voter petition); TEX. LOC. GOV'T CODE ANN. § 383.104(a) (West 2005) (authorizing county development district board to call an election to increase sales and use tax rate); TEX. TAX CODE ANN. § 321.106(c) (West 2008) (authorizing a fire control district to call a tax increase election).

[6] On similar analysis, this office previously determined that a statute authorizing an election to establish a maximum tax rate did not authorize an election to increase the existing maximum tax rate. Tex. Att'y Gen. Op. No. JC-0247 (2000) at 3-4 (determining that a hospital district that had established its maximum tax rate by a statutory election was not authorized to hold a subsequent election to increase the maximum rate).