How do you repeal a special county road tax in Texas?

Plain-English summary

A "special road tax" is a county property tax authorized by the Texas Constitution and the Transportation Code to pay for maintaining county roads. A county adopts one under section 256.052: a petition signed by at least 200 registered voters forces an election, and if the voters approve, the tax takes effect. The Goliad County Attorney asked the AG how a county goes about repealing such a tax, and in particular how many voter signatures a repeal petition needs.

The AG explained that repeal starts the same way adoption does. Section 256.053(a) says the commissioners court may order and conduct a repeal election "in the manner provided for an election to adopt the tax." Since adoption requires a petition signed by at least 200 registered voters, a repeal petition needs the same 200 signatures.

But the AG pointed to a difference between adopting and repealing. For adoption, the statute uses "shall": once a valid 200-signature petition comes in, the commissioners court has to call the election. For repeal, section 256.053(c) uses "may" and "only if." The court may grant a repeal petition only if it is shown "satisfactory proof" of two things: (1) that there is great dissatisfaction with the tax, and (2) that a majority of qualified county voters would probably vote to repeal it. So a repeal petition does not automatically force an election the way an adoption petition does; the commissioners court keeps some discretion.

On the evidence question, the county attorney suggested that a petition signed by more than half the county's registered voters should count as satisfactory proof. The AG agreed that could work, but said the statute does not require any particular number beyond the 200-signature threshold, and it would not read in a requirement the Legislature left out. A voter majority is one way to show satisfactory proof, but the standard could also be met by testimony or other forms of public support. In the end, what counts as satisfactory proof is a fact question for the commissioners court to decide in the first instance, subject to review by a court.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG 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

For a county commissioners court handling a repeal request, the opinion described a sequence: confirm the petition carries at least 200 valid registered-voter signatures, then decide whether the petitioners have shown satisfactory proof of both great dissatisfaction with the tax and a probable repeal majority. The AG's reading gave the court genuine discretion at the second step that it does not have for an adoption petition. For county residents pushing to repeal the tax, the opinion's significance was that gathering 200 signatures opens the door but does not by itself guarantee an election; they also have to make the dissatisfaction-and-probable-success showing, whether through a large petition, testimony, or other evidence of public support. The AG framed the satisfactory-proof determination as a first-instance fact call for the commissioners court, with the courts available to review it if challenged.

Common questions

Q: How many signatures does a petition to repeal a county road tax need?
A: At least 200 registered voters of the county, the same number required to petition for an election to adopt the tax, under Transportation Code sections 256.052 and 256.053(a).

Q: Does a valid petition automatically trigger a repeal election?
A: No. Unlike an adoption petition, a repeal petition only lets the commissioners court grant it "if satisfactory proof" is presented of great dissatisfaction with the tax and a probable repeal majority. The court has discretion.

Q: Do you need signatures from a majority of voters?
A: No. The AG said the statute requires no more than 200 signatures. A majority-voter petition is one way to show satisfactory proof, but testimony or other public support could also satisfy the standard.

Q: Who decides whether the proof is good enough?
A: The commissioners court decides in the first instance, and its determination is subject to judicial review.

Background and statutory framework

The special road tax is authorized by Texas Constitution article VIII, section 9(c), which lets the Legislature provide for it. Transportation Code section 256.052 governs adoption: subsection (c)(1) requires a petition signed by at least 200 registered voters of the county for a countywide tax, and subsection (c)(2) requires 50 signatures for a tax limited to a political subdivision or defined district. Section 256.053(a) authorizes a repeal election "in the manner provided for an election to adopt the tax," and section 256.053(c) adds that the commissioners court may grant a repeal petition "only if satisfactory proof is presented" of great dissatisfaction with the tax and the probable success of the repeal. The AG read the statutes together as a harmonious whole under Black v. Am. Bankers Ins. Co., 478 S.W.2d 434 (Tex. 1972), contrasted the mandatory "shall" of adoption with the discretionary "may" of repeal using Government Code section 311.016(1), (2), and declined to add an unstated signature requirement under Old Am. Cty. Mut. Fire Ins. Co. v. Sanchez, 149 S.W.3d 111 (Tex. 2004). It treated the satisfactory-proof question as a fact issue for the commissioners court subject to judicial review, citing Tex. Att'y Gen. Op. Nos. GA-0560 (2007) and JC-0506 (2002) and Wooten v. Crosby Cty., 219 S.W.2d 553 (Tex. App.-Amarillo 1949, writ ref'd). The current statute traces to former Revised Civil Statutes article 6702-1, section 4.102(c), recodified without substantive change by the Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, sec. 256.053, 1995 Tex. Gen. Laws 1025, 1184.

Citations and references

Statutory provisions:

• Tex. Transp. Code § 256.052; § 256.053
• Tex. Const. art. VIII, § 9(c)
• Tex. Gov't Code § 311.016
• Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, sec. 256.053, 1995 Tex. Gen. Laws 1025, 1184
• former Tex. Rev. Civ. Stat. art. 6702-1, § 4.102(c)

Cases:

• Black v. Am. Bankers Ins. Co., 478 S.W.2d 434, 437 (Tex. 1972)
• Old Am. Cty. Mut. Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 115 (Tex. 2004)
• Wooten v. Crosby Cty., 219 S.W.2d 553, 557 (Tex. App.-Amarillo 1949, writ ref'd)

Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0560 (2007)
• Tex. Att'y Gen. Op. No. JC-0506 (2002)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0286
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0286.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

January 21, 2020

The Honorable Rob Baiamonte
Goliad County Attorney
Post Office Box 24
Goliad, Texas 77963

Opinion No. KP-0286

Re: Procedure to repeal a special road tax (RQ-0298-KP)

Dear Mr. Baiamonte:

You ask what procedures a county must follow to initiate an election to repeal a special road tax adopted under section 256.052 of the Transportation Code for the maintenance of county roads.[1] See TEX. TRANSP. CODE § 256.052; see also TEX. CONST. art. VIII, § 9(c) (authorizing the Legislature to provide for a special road tax). Specifically, you focus on the number of voter signatures required on a petition calling for an election to repeal the tax. See Request Letter at 1; Brief at 1.

Subsection 256.053(a) of the Transportation Code provides that the commissioners "may order and conduct an election to repeal" the special road tax "in the manner provided for an election to adopt the tax." TEX. TRANSP. CODE § 256.053(a).[2] Thus, the procedure used by the commissioners court to order and conduct an election to adopt the tax also applies to an election to repeal. See id.; see also WEBSTER'S THIRD NEW INT'L DICTIONARY 1376 (2002) (defining "manner" as "the mode or method in which something is done or happens: a mode of procedure or way of acting"). To initiate an election to adopt the tax, section 256.052 provides that the commissioners court must receive a petition signed by "at least 200 registered voters of the county" requesting the election. TEX. TRANSP. CODE § 256.052(c)(1).[3] Accordingly, the procedure for initiating an election to either adopt or repeal the tax is the same: the commissioners must receive a petition signed by at least 200 registered voters of the county requesting the election. See id. §§ 256.052, .053; see also Black v. Am. Bankers Ins. Co., 478 S.W.2d 434, 437 (Tex. 1972) ("It is a cardinal rule of statutory construction that all sections, words and phrases of an entire act must be considered together; every provision should be construed with every other portion to produce a harmonious whole . . . .").

However, subsection 256.053(c) contains an additional requirement for calling an election to repeal the tax:

The commissioners court may grant a petition calling for an election to repeal the tax only if satisfactory proof is presented to the court that:

(1) there is great dissatisfaction with the tax; and

(2) it is probable that a majority of the residents of the county . . . who are qualified to vote for the tax would vote for repeal of the tax.

TEX. TRANSP. CODE § 256.053(c) (emphasis added). Section 256.053 therefore does not require the commissioners court to call for an election to repeal the tax upon receipt of a petition with 200 signatures. See id. Rather, the commissioners court may grant the petition only if it receives "satisfactory proof" of both great dissatisfaction with the tax and the probable success of the election. Id. This threshold contrasts with section 256.052, which provides that, for a petition seeking an election to adopt the tax, the commissioners court must grant a petition signed by 200 registered voters. Compare id. § 256.052(c) (providing that commissioners court "shall" order an election to adopt the tax if it receives valid petition), with § 256.053(c) (providing that commissioners "may" grant valid petition to repeal the tax "only" if it receives "satisfactory proof"); see also TEX. GOV'T CODE § 311.016(1), (2) (providing that the Legislature's use of the word "may" generally creates discretionary authority while "shall" imposes a duty). Thus, while the commissioners court must grant an adoption petition containing the requisite signatures, section 256.053 affords the commissioners court some discretion in determining whether to call an election to repeal the tax depending on whether it receives satisfactory proof. See TEX. TRANSP. CODE §§ 256.052, .053.

You next ask what evidence the commissioners court must receive to meet the "satisfactory proof" requirement; specifically, you suggest that a petition signed by more than 50% of the registered voters of the county constitutes such evidence. Request Letter at 1; Brief at 1. Section 256.053 does not require that the petition contain more than 200 signatures. TEX. TRANSP. CODE § 256.053; Old Am. Cty. Mut. Fire Ins. Co. v. Sanchez, 149 S.W.3d 111, 115 (Tex. 2004) ("[B]ecause we presume that every word of a statute has been included or excluded for a reason, we will not insert requirements that are not provided by law."). Rather, while a majority of registered voters could constitute satisfactory proof, the standard could be met by other means, including testimony or other forms of public support. See TEX. TRANSP. CODE § 256.053. Overall, what constitutes satisfactory proof of great dissatisfaction with the tax and the election's likely success is a fact question for the commissioners court to determine in the first instance, subject to judicial review. See Tex. Att'y Gen. Op. Nos. GA-0560 (2007) at 4-5, JC-0506 (2002) at 6; see also Wooten v. Crosby Cty., 219 S.W.2d 553, 557 (Tex. App.-Amarillo 1949, writ ref'd).

SUMMARY

To initiate an election to repeal a county road tax adopted under section 256.052 of the Transportation Code, a county commissioners court must receive a petition calling for the election signed by 200 registered voters of the county. However, under section 256.053, the commissioners court may grant the petition only if satisfactory proof is presented of (1) great dissatisfaction with the tax; and (2) probable success of the election. What constitutes satisfactory proof is a question of fact for the commissioners court to determine in the first instance, subject to judicial review.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

ASHLEY FRANKLIN
Assistant Attorney General, Opinion Committee

[1] See Letter and Brief from Honorable Rob Baiamonte, Goliad Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (July 24, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" & "Brief").

[2] The substance of section 256.053(a) of the Transportation Code was formerly codified as article 6702-1, section 4.102(c) of the Revised Civil Statutes. As part of a nonsubstantive recodification, those provisions were recodified in the Transportation Code. See Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, sec. 256.053, 1995 Tex. Gen. Laws 1025, 1184.

[3] A petition requesting an election to approve the tax for a political subdivision or other specified portion of the county, rather than the entire county, must be signed by 50 registered voters from the political subdivision or defined district. TEX. TRANSP. CODE § 256.052(c)(2).