Can a Texas county levy a special tax dedicated to funding its county historical commission?

Texas AG Opinion JM-1022: Can a County Levy a Dedicated Tax for Its Historical Commission?

Plain-English summary

The Texas Historical Commission asked a clean tax-power question: can a county levy a special tax just to fund its county historical commission? The Attorney General was careful to pin down what was really being asked. This was not about whether a county can spend money on its historical commission out of the general budget. It was about a dedicated tax, a levy whose revenue is earmarked solely for the commission. On that, the answer was no.

The governing principle is old and firm in Texas law: a local government can only tax when the Legislature has handed it the power to do so. A commissioners court cannot invent a new dedicated tax on its own. So the question became whether any statute gives counties that specific power for historical commissions. The Attorney General went looking and did not find one.

The natural place to look is chapter 318 of the Local Government Code, which is the law on county historic preservation. That chapter does a lot. It lets a commissioners court appoint a county historical commission (and lets the state Historical Commission step in and appoint one if the county does not). It sets out the local commission's duties, like surveying historical sites and reporting each year. It lets the commission run county museums, lets the court contract with a private party to manage a designated landmark, lets the court make agreements with other agencies and spend county funds on historical markers and objects, and lets the court grant a property tax exemption for historic sites under section 11.24 of the Tax Code. Section 318.009 even says the commissioners court "may pay the necessary expenses of the commission." But paying expenses out of available funds is not the same as levying a dedicated tax, and nothing in chapter 318 authorizes such a tax.

The opinion also checked two other provisions that might look close. Section 318.021 lets commissioners courts in certain population-bracket counties appropriate general-fund money to a nonprofit historical foundation, but that is an appropriation, not a dedicated tax. And chapter 331, which covers county authority over parks, museums, and historic sites, lets a county issue bonds and levy taxes to acquire and maintain those sites and to pay off the bonds (section 331.004). That is a real taxing power, but it is tied to acquiring property and servicing bond debt, not to funding the operations of a historical commission. None of it adds up to authority for a dedicated commission-support tax.

So the conclusion is narrow but clear. A commissioners court cannot impose a special tax earmarked for the county historical commission. What it can do is fund the commission through ordinary appropriations and pay its necessary expenses. The difference matters for county budgeting: the money has to come through the normal channels, not through a new standalone tax.

Currency note

This opinion was issued in 1989. 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.

The Local Government Code chapters on county historic preservation (chapter 318) and on parks and historic sites (chapter 331), and the Tax Code exemption for historic sites (section 11.24), have all been amended since 1989, and population-bracket provisions like section 318.021 change as census figures change. A county considering how to fund a historical commission today should check the current statutes for any new taxing or appropriation authority rather than rely on this 1989 reading.

Who this opinion affected (as of 1989)

County commissioners courts: The opinion told them they could not create a special tax dedicated to a county historical commission, but could still appropriate general funds and pay the commission's necessary expenses.

County historical commissions: The opinion clarified that their funding had to come through ordinary county appropriations, not a dedicated tax stream of their own.

The Texas Historical Commission: The opinion answered the state agency's question about the scope of county taxing authority for local historic-preservation work.

Common questions

Can a Texas county levy a special tax just for its historical commission?
No. The Attorney General concluded that, absent specific statutory authorization, a commissioners court has no authority to levy a dedicated tax to support a county historical commission.

Can the county still fund the commission?
Yes. A commissioners court may appropriate county funds for historic-preservation activities and, under section 318.009, may pay the necessary expenses of the commission. It just cannot do so through a separate dedicated tax.

Why can't the county create the tax on its own?
Because a local government's power to tax must come from an act of the Legislature. The validity of any local tax depends on a statute conferring the taxing power and its proper exercise (Ripley v. Trinity River Canal & Conservancy Dist.).

Doesn't chapter 331 let counties tax for historic sites?
Chapter 331 (section 331.004) lets a county issue bonds and levy taxes to acquire and maintain parks and historic sites and to pay bond principal and interest, but the Attorney General concluded it does not authorize a dedicated tax for the support of a historical commission.

Background and statutory framework

The Texas Historical Commission asked whether county government has the power to levy a special tax for the support of county historical commissions. The Attorney General understood the question to be about a dedicated special tax rather than an appropriation of general county funds, and answered that, absent specific statutory authorization, a commissioners court has no authority to levy such a tax.

Chapter 318 of the Local Government Code governs historic preservation by counties. It permits a commissioners court to appoint a county historical commission to initiate and conduct preservation programs suggested by the court and the Texas Historical Commission (Local Gov't Code § 318.002), and authorizes the Texas Historical Commission to appoint a local commission if the commissioners court fails to do so (§ 318.004). The county commission must meet at least annually, conduct a continuing survey of historical buildings and sites, and report its activities to both the commissioners court and the Texas Historical Commission (§§ 318.005-318.008). The local commission may operate and manage any county-owned or leased museum; alternatively, the commissioners court may, on the commission's recommendation, contract with a private person to lease or manage county-owned real estate or a structure designated as a landmark (§§ 318.010, 318.013). A commissioners court may enter into agreements with other governmental agencies or private organizations and may appropriate county funds for historical markers and monuments and for objects of historical significance (§ 318.011), and may grant a tax exemption for historical sites under section 11.24 of the Tax Code (§ 318.012). Section 318.009 provides that "[t]he commissioners court may pay the necessary expenses of the commission" (see Attorney General Opinion M-680 (1970)). No section of chapter 318 even arguably empowers a commissioners court to levy a special tax dedicated to the support of a county historical commission.

The validity of any local taxation depends on an act of the Legislature conferring the power to tax and the proper exercise of that power by the designated body (Ripley v. Trinity River Canal & Conservancy Dist.; Manges v. Freer Independent School Dist.). The Attorney General noted that section 318.021 lets a commissioners court in a county with a population of 160,000 to 170,000 appropriate general-fund money to a nonprofit historical foundation or organization for purchasing, constructing, restoring, preserving, maintaining, or reconstructing historical landmarks and furnishings of significance to the county, but that provision does not authorize a dedicated tax (and the request was about commissioners courts generally, not only population-bracket counties). The opinion also examined chapter 331, which governs municipal and county authority to acquire and maintain parks, museums, and historic sites. Section 331.004 lets a municipality or county issue negotiable bonds to acquire or improve land, buildings, or historically significant objects for park or historic-preservation purposes, and to assess, levy, and collect ad valorem taxes to pay the bonds' principal and interest and to provide a sinking fund (with issuance and levy governed by Chapter 1, Title 22, Revised Statutes, article 701, V.T.C.S., and no limit on operation-and-maintenance or debt-service taxes except constitutional limits). While section 331.004 authorizes acquiring historic sites, issuing bonds, and taxing to pay those bonds, nothing in it confers authority to impose a dedicated tax for the support of a historical commission. Finding no statute (and none pointed out in the request) that confers such authority, the Attorney General concluded a commissioners court has no authority to impose a special tax whose revenues are dedicated to the support of a county historical commission.

Citations

Statutory authority:

• Local Gov't Code § 318.002 (appointment of county historical commission); § 318.004 (Texas Historical Commission may appoint if county fails); §§ 318.005-318.008 (duties, survey, reports); §§ 318.010, 318.013 (museums; management of landmarks); § 318.011 (agreements and appropriations for markers and objects); § 318.012 (historic-site tax exemption); § 318.009 (payment of the commission's necessary expenses); § 318.021 (population-bracket appropriation to a historical foundation)
• Local Gov't Code § 331.004 (bonds and taxes to acquire and maintain parks and historic sites; Chapter 1, Title 22, Revised Statutes, art. 701, V.T.C.S.)
• Tax Code § 11.24 (tax exemption for historic sites)

Cases:

• Ripley v. Trinity River Canal & Conservancy Dist., 88 S.W.2d 752 (Tex. Civ. App. - Dallas 1935, writ ref'd) (validity of local taxation depends on a legislative grant of taxing power)
• Manges v. Freer Independent School Dist., 653 S.W.2d 553 (Tex. App. - San Antonio 1983), rev'd on other grounds, 677 S.W.2d 488 (Tex. 1984)

Related opinion:

• Attorney General Opinion M-680 (1970) (payment of a county historical commission's expenses)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1022
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1022.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL OF TEXAS

February 27, 1989

Mr. Curtis Tunnell
Executive Director
Texas Historical Commission
P. O. Box 12276
Austin, Texas 78711

Opinion No. JM-1022

Re: Authority of a county to levy a tax for support of a county historical commission (RQ-1632)

Dear Mr. Tunnell:

You ask:

Does county government have the power to levy a special tax for support of county historical commissions?

We do not understand you to ask whether a commissioners court may appropriate county funds for the support of a county historical commission. Rather, we understand you to ask whether a commissioners court may impose a special tax, the revenues of which are dedicated solely for the support of such a commission. We answer your question in the negative: absent specific statutory authorization, a commissioners court has no authority to levy a dedicated tax for the support of a county historical commission.

Chapter 318 of the Local Government Code governs historic preservation by counties. The chapter permits a commissioners court to appoint a county historical commission "for the purpose of initiating and conducting programs suggested by the commissioners court and the Texas Historical Commission for the preservation of the historical heritage of the county." Local Gov't Code § 318.002. In the alternative, the Texas Historical Commission is authorized to appoint such a local commission in the event that a commissioners court fails to appoint such a commission. Local Gov't Code § 318.004.

The county historical commission is required to meet at least annually, to conduct a continuing survey to determine the existence of historical buildings and other historical sites, and to make reports of its activities both to the commissioners court and to the Texas Historical Commission. Local Gov't Code §§ 318.005 - 318.008. The local commission may operate and manage any museum owned or leased by the county. Alternatively, the commissioners court may, on the recommendation of the historical commission or other interested persons, contract with a private person for the lease or management of any county-owned real estate or structure duly designated as a landmark. Local Gov't Code §§ 318.010, 318.013. A commissioners court may enter into agreements with other governmental agencies or private organizations and may appropriate county funds for the erection of historical markers and monuments, as well as for the purchase of other objects and collections of objects of historical significance. Local Gov't Code § 318.011. A commissioners court also is authorized to grant a tax exemption for historical sites under section 11.24 of the Tax Code. See Local Gov't Code § 318.012. And finally, section 318.009 of the code provides: "The commissioners court may pay the necessary expenses of the commission." See Attorney General Opinion M-680 (1970). No section in chapter 318 of the Local Government Code even arguably empowers a commissioners court to levy a special tax, the revenues of which are to be dedicated for the support of a county historical commission.[1]

The validity of any act of local taxation depends upon an act of the legislature conferring the power to tax and the proper exercise of such power by the designated body.

[1] We note that section 318.021 of the Local Government Code provides the following:

The commissioners court of a county with a population of 160,000 to 170,000 may appropriate money from the general fund of the county to a historical foundation or organization in the county for the purpose of purchasing, constructing, restoring, preserving, maintaining, or reconstructing historical landmarks, buildings, and furnishings that are of historical significance to the county. The foundation or organization must be incorporated under the law of this state as a nonprofit corporation.

Your question regarding the authority of commissioners courts is not limited to counties whose populations fall within certain brackets; you ask about the authority of commissioners courts in general. But section 318.021 does not authorize commissioners courts in those counties to which the section applies to levy a dedicated tax.

Ripley v. Trinity River Canal & Conservancy Dist., 88 S.W.2d 752 (Tex. Civ. App. - Dallas 1935, writ ref'd). See, e.g., Manges v. Freer Independent School Dist., 653 S.W.2d 553 (Tex. App. - San Antonio 1983), rev'd on other grounds, 677 S.W.2d 488 (Tex. 1984). We have not found any statute, nor have you directed us to one, that confers upon a commissioners court the authority to impose a special tax whose revenues are to be dedicated to the support of a county historical commission.[2]

[2] Chapter 331 of the Local Government Code governs municipal and county authority to acquire and maintain parks, museums, and historic sites. The chapter specifically empowers a county to acquire historic buildings, sites, and objects. Section 331.004 of the code provides the following:

(a) A municipality or county may issue negotiable bonds for the purpose of acquiring or improving land, buildings, or historically significant objects for park purposes or for historic or prehistoric preservation purposes, and may assess, levy, and collect ad valorem taxes to pay the principal of and interest on those bonds and to provide a sinking fund.

(b) The issuance of the bonds and the levy of the taxes shall be in accordance with Chapter 1, Title 22, Revised Statutes [article 701, V.T.C.S.].

(c) There is no limit on the amount of taxes that may be levied for the operation and maintenance expenses of parks or for the payment of the principal of and interest on the bonds except for the limits provided by the Texas Constitution.

While section 331.004 of the code authorizes a commissioners court to acquire, inter alia, historical buildings, sites, and objects; to issue bonds for those purposes; and to impose a tax for the purpose of paying the principal and interest on such bonds, nothing in the section purports to confer on the commissioners court the authority to impose a dedicated tax for the support of a county historical commission.

We conclude that a commissioners court has no authority to impose a special tax whose revenues are to be dedicated to the support of a county historical commission.

SUMMARY

A commissioners court, absent specific statutory language conferring such power, has no authority to impose a special tax whose revenues are to be dedicated to the support of a county historical commission.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General