Can a Texas drainage district levy its own flood-control tax without a voter election?

Plain-English summary

This opinion sorts out who controls a county flood-control tax when both a county and a special drainage district claim a role. The Jackson County Criminal District Attorney, Pam Guenther, explained the setup: in 1967 county voters approved a 30-cent-per-$100 flood-control tax under article VIII, section 1-a of the Texas Constitution; the Legislature then created the Jackson County County-Wide Drainage District in 1969 (amending its authority in 1973); and the District and County contracted so the County would assess and collect the flood-control tax to fund the District. The District had banked tax revenue for larger capital projects, and feared the County intended to divert that money. The DA asked three questions.

First, does the District have independent authority to set the tax rate and levy and collect taxes without the commissioners court's approval? The AG said no. The 1969 act creating the District expressly stated the District "is not vested with taxing power," leaving its funding to taxes the commissioners court levies and to a contract between them. The 1973 amendment offered the District potential authority to levy up to 75 cents per $100, but only if voters approved it at an election called for that purpose. Because the DA described no election after 1967, the AG assumed none occurred, so the District never got taxing authority and only the commissioners court can levy the tax the 1967 voters approved.

Second, does the District operate independently of the commissioners court for general business, capital planning, and bonds? The AG explained the District is a distinct political subdivision, not a county department, and stands on the same footing as a county. The statutes do not give the commissioners court general supervision over the District's operations. That said, Transportation Code section 256.006(d) requires the county to approve plans for any improvement built with the constitutional flood-control tax, and the District can issue bonds only after calling its own election and obtaining voter approval.

Third, if the commissioners court disagrees with the District, can it re-appropriate the District's set-aside flood-control funds to other purposes, like the county general fund? Again no. Article VIII, section 1-a authorizes the tax only for farm-to-market roads and flood control, and the statutes require flood-control tax revenue to be segregated and used only for flood control. Diverting it would violate the Constitution, the enabling statutes, and the county's "contract with the voters" formed when they approved the 1967 proposition. So the commissioners court may not redirect those funds away from flood control.

Currency note

This opinion was issued in 2020 and rests on a 1967 election, a 1969 special act (amended in 1973), and constitutional and statutory provisions that may have changed. Treat this page as historical context, not current legal advice. Verify the current statutes, the District's enabling act, and any later elections before relying on any specific rule here.

What the opinion meant for those who asked

The opinion drew the authority lines for a county DA mediating a dispute between a county and a special district. For the drainage district, the reading at the time was that it had no taxing power of its own without a voter election, but it was a separate political subdivision the county could not generally supervise, and it controlled its own bonds (subject to an election). For the commissioners court, the opinion confirmed it was the body that levied the 1967-approved tax and had to approve improvement plans funded by that tax, but it could not seize or repurpose flood-control money for non-flood-control uses. The AG tied each answer to the constitutional tax provision, the District's enabling act, the Transportation Code fund rules, and the contract-with-the-voters doctrine. A footnote noted the District-County contract itself was not a question presented, so the opinion did not address it.

Common questions

Q: Could the drainage district set and collect its own flood-control tax?
A: Not without a voter election, the AG concluded. The 1969 act said the District "is not vested with taxing power," and the 1973 amendment's grant of up to 75 cents per $100 was contingent on an election that apparently never occurred. So the commissioners court, under the 1967 election, held the only authority to levy the tax.

Q: Does the county commissioners court run the drainage district?
A: No. The AG explained the District is a distinct political subdivision, not a county department, and the statutes give the commissioners court no general power to supervise the District's operations. The court does have to approve plans for improvements built with the constitutional flood-control tax, and the District must hold an election before issuing bonds.

Q: Can the county move the district's saved flood-control money into the general fund?
A: No. The AG said the Constitution, the enabling statutes, and the county's contract with the voters all restrict flood-control tax revenue to flood-control purposes. Diverting set-aside capital funds to non-flood-control uses would violate all three.

Q: Why is the 1967 vote treated as a contract?
A: Texas courts treat the terms of a resolution or order calling a tax or bond election, telling voters how the money will be used, as a contract with the voters. The AG cited that doctrine (and San Saba Cty. v. McCraw) to explain why the county could not later spend the flood-control money on something else.

Background and statutory framework

The dispute sits at the intersection of constitutional tax authority and special-district law. Article VIII, section 1-a of the Texas Constitution lets counties levy up to 30 cents per $100 for farm-to-market roads or flood control, implemented through Transportation Code sections 256.054, 256.004, and 256.006, which require a flood-control fund under commissioners court control, restrict its use to flood control, and require county approval of improvement plans. Article XVI, section 59 authorizes the Legislature to create conservation and reclamation districts, and the Act of 1969 (amended in 1973) created the District with the powers of a flood control, drainage, or section 59 district, while section 14 stated it "is not vested with taxing power" absent a voter-approved election. The AG applied the limited-authority principle that both commissioners courts and water districts have only powers granted or implied (City of San Antonio v. City of Boerne; Tri-City Fresh Water Supply Dist. No. 2 v. Mann), the separate-subdivision status of such districts (Harris Cty. Flood Control Dist. v. Mann; S. Plains Lamesa R.R., Ltd. v. High Plains Underground Water Conserv. Dist. No. 1), and the contract-with-the-voters doctrine (San Saba Cty. v. McCraw; Opinion GA-0156 (2004)).

Citations and references

Constitutional and statutory provisions:

• Tex. Const. art. VIII, § 1-a (county road/flood-control tax); art. XVI, § 59 (conservation and reclamation districts)
• Tex. Transp. Code ch. 256 (county road and flood-control taxes; §§ 256.004, 256.006, 256.054)
• Act of May 1, 1969, 61st Leg., R.S., ch. 200, 1969 Tex. Gen. Laws 587, amended by Act of May 24, 1973, 63d Leg., R.S., ch. 529, 1973 Tex. Gen. Laws 1378 (District enabling act)

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. 2003)
• Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945 (Tex. 1940)
• Harris Cty. Flood Control Dist. v. Mann, 140 S.W.2d 1098 (Tex. 1940)
• S. Plains Lamesa R.R., Ltd. v. High Plains Underground Water Conserv. Dist. No. 1, 52 S.W.3d 770 (Tex. App.-Amarillo 2001, no pet.)
• San Saba Cty. v. McCraw, 108 S.W.2d 200 (Tex. 1937)

Related opinion:

• Tex. Att'y Gen. Op. No. GA-0156 (2004) (terms of a tax/bond election become a contract with the voters)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0319
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0319.pdf

Original opinion text

July 1, 2020

The Honorable Pam Guenther
Jackson County Criminal District Attorney
115 West Main, Room 205
Edna, Texas 77957

Opinion No. KP-0319

Re: Authority of the Jackson County County-Wide Drainage District to set a tax rate and to levy and collect taxes without commissioners court approval (RQ-0328-KP)

Dear Ms. Guenther:

You ask about the respective flood-control tax authority of the Jackson County County-Wide Drainage District (the "District") and the county commissioners court.[1] You tell us that county voters approved a proposition in 1967 for the County to levy and collect a 30-cent tax per $100 value for flood control under article VIII, section 1-a of the Texas Constitution. See Request Letter at 1. The Legislature created the District in 1969 and amended provisions concerning its authority in 1973. See id. at 2; Act of May 1, 1969, 61st Leg. R.S., ch. 200, 1969 Tex. Gen. Laws 587 ("Act of 1969"), amended by Act of May 24, 1973, 63d Leg., R.S., ch. 529, 1973 Tex. Gen. Laws 1378 ("Amending Act"). You state that the District and the County entered into a contract by which "the District submits a budget to the County to enable the County to assess and collect [the flood-control] tax (up to $.30 statutory limitation) sufficient to meet the revenue requirements of the District." Request Letter at 2. You tell us the District has set aside funds from tax revenue in several budget years to accrue the necessary resources for larger capital expenditure projects. See id.

You state that the commissioners court requires the District to justify its budget, and that "[t]he District's perception is that the County has indicated an intent to divert funds set aside for these capital expenditures from the District for the use and benefit of the County." Id. You ask:

(1) whether the District has "the independent authority to set the District's tax rate, [and to] levy and collect taxes without the [commissioners court's] approval";

(2) whether the District has "the independent authority to determine the viability and priority of projects, including amounts set aside for capital expenditures that may exceed a budget year, issuing bonds or other forms of indebtedness and conducting all business operations necessary to accomplish flood control" without the commissioner court's approval; and

(3) whether the commissioners court, if it disagrees with the District's allocation of funds, has "the authority to re-appropriate the District's funds to purposes other than flood control, such as to supplement the County's general operating fund."

Id. at 1.

The Legislature created the District as a conservation and reclamation district with the authority of a flood control district, drainage district, or other article XVI, section 59 district. Act of 1969, § 1 at 587; see TEX. CONST. art. XVI, § 59(b). A commissioners court and a water district both have limited, defined authority, in that each has only the powers expressly granted by the Constitution or statute or implied from such a grant. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex. 2003) (concerning commissioners court authority); Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945, 946 (Tex. 1940) (orig. proceeding) (concerning special water district authority). Thus, we look to the Constitution and statutes to determine the respective authority of the District and the commissioners court.

Article VIII, section 1-a of the Texas Constitution provides:

[C]ounties of the State are authorized to levy ad valorem taxes upon all property within their respective boundaries for county purposes, . . . not to exceed thirty cents (30¢) on each One Hundred Dollars ($100) valuation, in addition to all other ad valorem taxes authorized by the Constitution of this State, provided the revenue derived therefrom shall be used for construction and maintenance of Farm to Market Roads or for Flood Control.

TEX. CONST. art. VIII, § 1-a. The implementing statutes authorize counties to impose a tax under the provision through an election containing a proposition for farm-to-market and lateral road purposes, flood control purposes, or both. See TEX. TRANSP. CODE § 256.054(a), (c). If the proposition passes, the commissioners court "shall impose the tax each year in the same manner as other county ad valorem taxes." Id. § 256.054(e). Taxes authorized by a flood-control proposition must be placed in a separate flood-control fund. Id. § 256.004. The "flood control fund of a county is under the jurisdiction and control of the commissioners court." Id. § 256.006(a). "Money in the fund may be used only for flood control purposes in the county and political subdivisions of the county." Id. "All or part of the money in the fund may be used in connection with the plans and programs of . . . [a] flood control district." Id. § 256.006(c)(3). Finally, "[p]lans for an improvement constructed with money from the fund must be approved by the county." Id. § 256.006(d).

Article XVI, section 59 of the Texas Constitution authorizes the Legislature to create conservation and reclamation districts as "governmental agencies and bodies politic and corporate with such powers of government and with the authority to exercise such rights, privileges and functions concerning the subject matter of this amendment as may be conferred by law" and to provide for the levy and collection of taxes. TEX. CONST. art. XVI, § 59(b), (c). The Act of 1969 creates the District as a conservation and reclamation district with the general powers of a flood control, drainage, or other article XVI section 59 district. Act of 1969, § 1 at 587. In addition to general powers, the Act of 1969 provides in section 11:

The District may devise plans and construct facilities to:

(1) lessen and control floods and excess waters;

(2) provide drainage facilities and improvements for the reclamation of the lands in the District;

(3) remove natural or artificial obstructions from the streams and watercourses in the district; and

(4) clean, straighten, widen, and maintain the free flow of streams and watercourses in the District.

Id. § 11(b) at 589. The District is authorized to contract with the commissioners court "to carry out flood control and drainage projects." Id. § 11(e) at 590.

Although later amended, sections 14 and 15 concern the District's funding through taxes and bonds. Id. §§ 14, 15 at 590-91. Section 14 of the Act of 1969 provides that the "District is not vested with taxing power." Id. § 14(a) at 590. The section further states that the District's purposes are to be carried out by funds "acquired through a levy of taxes and the issuance of bonds . . . by the commissioners court," and the District is to contract with the commissioners court for the appropriation of the funds. Id. § 14(b), (c) at 590; see also id. § 11(e) at 590 (concerning contracting). Section 15 authorizes the District to issue bonds contingent on a bond election and secured by revenue from the contract with the commissioners court and other funds. Id. § 15 at 590-91; Amending Act § 2 at 1379.

Section 14 and subsection 15(a) were amended to give the District the authority to levy and collect a tax up to 75 cents on each $100 valuation and secure bonds with revenue from the tax, distinct from the article VIII, section 1-a tax authority. Amending Act §§ 1, 2 at 1378-79. But the District's potential taxing authority is contingent on approval of the voters at an election called for that purpose. Id. You do not tell us of any elections following the original 1967 election. Assuming no subsequent elections occurred, the voters never granted taxing authority for the District. Thus, the commissioners court, not the District, possesses the only authority to levy a tax, as approved by the voters in 1967. See TEX. TRANSP. CODE § 256.054(e); see also Act of 1969 § 14(b), (c) at 590.[2] To answer your first question, the District does not possess independent authority to set the flood control tax rate and to levy and collect taxes absent an election granting it such authority. See Request Letter at 1.

In your second question, you ask whether the District possesses authority independent of the commissioners court for conducting general operations and business, planning capital improvements, and issuing bonds. See id. The District is not a department or subdivision of the County. Although it may share the same geographic jurisdiction with the County, a county-wide flood control district is a distinct political subdivision, separate from the County. See Act of 1969, §§ 1, 2 at 587-88; Harris Cty. Flood Control Dist. v. Mann, 140 S.W.2d 1098, 1101 (Tex. 1940). An article XVI, section 59 water "district is a political subdivision exercising State powers and such districts stand upon the same footing as a county." S. Plains Lamesa R.R., Ltd. v. High Plains Underground Water Conserv. Dist. No. 1, 52 S.W.3d 770, 774 (Tex. App.-Amarillo 2001, no pet.). The Act of 1969 grants the District the general powers of a constitutional drainage district or water control and improvement district and the powers necessary to accomplish its purpose. Act of 1969, § 1 at 587. The statutes do not give the commissioners court the authority to generally supervise the District's operations and business. Under the Act's terms, the District possesses specific authority to plan and construct facilities for drainage control and other specified projects. Id. §§ 11(b), 12 at 589-90. However, section 256.006(d) of the Transportation Code specifically authorizes the commissioners court to approve "[p]lans for an improvement constructed with money" derived from the constitutional tax. TEX. TRANSP. CODE § 256.006(d). And while the District has potential authority to issue bonds, to do so it must first call an election and obtain the voter's approval. See Act of 1969, § 15(b)-(j), (17) at 591-92; Amending Act § 2 at 1379.

Finally, you ask whether the commissioners court may re-appropriate District funds set aside for capital expenditure projects to purposes other than flood control, such as to supplement the county general fund. Request Letter at 1. Article VIII, section 1-a of the Constitution authorizes a tax only for farm to market and flood control purposes. See TEX. CONST. art. VIII, § 1-a. By statute, revenue derived from a flood control tax proposition must be segregated and used solely for flood control purposes. TEX. TRANSP. CODE §§ 256.004, .006. In the 1967 election, the voters approved a proposition authorizing a special tax "for flood control purposes." See Request Letter at 1.[3] Diverting funds derived from the flood control tax to non-flood control purposes would violate not only article VIII, section 1-a and enabling statutes, but also the County's constitutional contract with the voters. See San Saba Cty. v. McCraw, 108 S.W.2d 200, 203 (Tex. 1937); see also Tex. Att'y Gen. Op. No. GA-0156 (2004) at 7 (stating "Texas courts have held that the express terms of resolutions and orders calling a tax or bond election, at which voters are asked to approve financial undertakings of a governmental body relating to the purposes for which funds shall be used, become a contract with the voters"). Thus, the commissioners court may not re-appropriate District funds set aside for capital expenditure projects to purposes other than flood control.

[1] See Letter from Honorable Pam Guenther, Jackson Cty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Dec. 20, 2019) ("Request Letter").

[2] The Act of 1969 leaves District funding primarily to the contract between the District and the commissioners court. See Act of 1969 §§ 11(e), 14(b), (c) at 590. You do not raise, and we do not address, any issues concerning the contract.

[3] See also Jackson Cty. Comm'rs Ct., Order Canvassing Returns & Declaring Results of Special County Election (Nov. 13, 1967) (attached to Request Letter as "Exhibit D" and on file with the Op. Comm.).

S U M M A R Y

The county commissioners court possesses the authority to levy and collect the flood control tax authorized by article VIII, section 1-a of the Texas Constitution. Absent an election granting it authority, the Jackson County County-Wide Drainage District does not possess authority to levy, set the rate, and collect a flood control tax. The county commissioners court does not possess general authority to supervise the District's operations and business, but the commissioners court must approve District plans for improvements constructed with revenue derived from the article VIII, section 1-a tax. The Texas Constitution, enabling statutes, and the County's contract with the voters prohibit the commissioners court from diverting District funds derived from the flood control tax to non-flood control purposes.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee