ustxtxb_obs_1992_02_14_50_00017-00000_000.pdf

the Legislature was constitutionally empowered to implement tax base consolidation, the majority did not indicate, in any way, an election precondition. Rather it directly resolved this matter in the negative…. [The dissent then exposes the majority opinion’s duplicity in attempting to blame the Legislature for the failure of SB 351 by intentionally mischaracterizing and taking out of context remarks by Sen. Carl Parker.] Why did the majority go to such lengths to strain and misconstrue the public record? Because it is determined to shift responsibility for its own handiwork to anyone except itself…. The only change has been in the minds of the majority, as indicated by the doublespeak with which it unsuccessfully attempts to explain its own misdeed: ‘We did not say that tax base consolidation could not be unconstitutional; all we said was that it could be constitutional.’ The majority entrapped the Legislature, and now it blames the victim. Unfortunately, the children of Texas are the ultimate victims of this entrapment…. Rewriting Article VII of the Texas Constitution [Doggett shows how Article VII and a long line line of cases, culminating in Edgewood II, grant the Legislature “broad discretion to create school districts and define their taxing authority.”] ….Every penny of taxes the Legislature proposes to reallocate within the newly created CEDs has been authorized by local voters. In reaching the result that another vote is required, the court ignores clear authority under the Constitution allowing the transfer of taxing authority from school districts to the CEDs without further voter approval. Indeed, in its desire to ensure a veto power for the privileged, the court ignores not just one, but two previous tax approvals the vote amending the Texas Constitution in 1966 and the vote setting the tax rate in individual districts. [Doggett describes how in 1966 voters amended the Constitution to obviate the need for voter approval of consolidating school districts, which have declined in number to about onesixth the number that existed 60 years ago.] Section 3-b [of Article VII of the Constitution] eliminated the requirement of subsequent elections, easing consolidation and other changes for school districts…. Nevertheless, today’s opinion abruptly dismisses the applicability of this critical constitutional provision, by finding that SB 351 neither changes the boundaries of any school district nor consolidates whole school districts. … [The court ignores] the statute that create each CED as a new “independent school district established by the consolidation of the local school districts in its boundaries.” While recognizing that Senate Bill 351 works a bouridary change, the majority labels the boundaries of the 188 CEDs as “imaginary,” so it can ignore them. These boundaries are no more or less real than those of any governmental unit, including the territorial limitations on school districts’ governing power. Both can be drawn on a map. Residents within these boundaries can be identified without difficulty. The CEDs are not the Legislature’s imaginary friend; everyone can see them but a majority of this court. The “statewide property tax prohibition” [The majority opinion cited the Constitution’s prohibition on state ad valorem taxes as an obstacle to reform.] There is undoubtedly a superficial appeal to the argument that, by requiring school districts to levy a tax that the State cannot itself impose, the State has achieved directly what it cannot achieve indirectly.:.. Absent from the majority’s analysis is any consideration of whether the CEDs’ levy serves a local purpose, a key factor in classifying the tax as state or local. …. [E]ducation has undeniably significant local benefits and has traditionally been viewed as a joint responsibility shared by state and local governments. The Texas Constitution clearly permits the state share the burden of financing education with localities and the power to determine most of the terms of that relationship. “Prospective-Plus” Application Unwilling to live with the legal consequences of it s own improper action, the majority weaves a more tangled web by adopting a new rule: convenience dictates that taxpayers must pay the tax which this court just declared unconstitutional…. Those taxpayers [who] brought this suit are now rewarded for their efforts and expense with the pronouncement that they win, that from the outset they have been absolutely correct that the tax complained of violates the fundamental charter of this state, but nevertheless, “Keep paying.” … The majority is more than willing to inflict this wholesale injury in order to avoid the unhappy results of their maneuvering. Despite blusterings to the contrary, today’s rejection of a refund for taxpayers is not so much to avoid chaos in school financing as to distract attention from the broken promise of Edgewood II. By declaring the law they recommended unconstitutional yet refusing to enforce that declaration, the majority denies responsibility and diffuses resentment for having created the crisis in the first place. In the name of avoiding its self-inflicted chaos, the majority has in fact only prolonged and intensified it. Inviting collateral attacks in federal court, the majority may offer only a brief respite before the state sinks into the quagmire of federal law…. While inviting chaos, the majority has also ensured inequity, not only for the school children of Texas, but also for the taxpayers. It is wellestablished that when a tax statute is ruled unconstitutional, relief applies retroactively…. This court has never allowed an unconstitutional tax to be collected without permitting the taxpayers to seek a retroactive refund. [Doggett cites pages of authorities for all these propositions, and predicts a rash of taxpayer lawsuits in federal court.] Conclusion Today’s opinion concedes that Senate Bill 351 represents progress in securing a school finance system that would assure Texas students equal educational opportunity….Nevertheless, SB 351 is condemned for utilizing the very method of taxation which the majority contemplated in Edgewood II. With this alternative eliminated, counsel for the Appellant school districts have recognized that the only broad-based revenue source remaining under the present Constitution is an income tax. A further indication of the majority’s determination to nudge the Legislature toward an income tax is the rather clear indication that any attempt to revise property tax financing must be charted through a judicial minefield, with no map provided. Fully aware that its action today leaves only the option of an income tax as a major funding source, the majority then washed its hands of any personal responsibility for this result, effectively telling the Legislature: choose any method you desire excepting that which we last urged upon you. The majority is absolutely correct that “an income tax is.not the only remedy;” rather it is the only remedy the majority has left available to the Legislature. What will happen after today is a prolonged battle timed to coincide with an election year. … The majority’s remarkable willingness to abandon precedent so recently announced demonstrates not only disregard for the law and indifference to the taxpayer, but also abandonment of the children of this state. Our school children have long suffered from the failure of the school finance system. Today they suffer anew from the failure of the justice system to deliver on the promise of the Texas Constitution. The majority offers our children only delay, and they have already had plenty of that. A child who began the first grade when this cause was originally filed in state court is already in high school and will probably have graduated before any new finance plan becomes effective. …Tthe delay that will now ensue is attributable not only to the lengthy time frame provided for a legislative response, but in the unresolvable ambiguities created by today’s opinion. If there was ever a case to prove the old maxim “justice delayed is justice denied,” this is it. It was for the benefit of our children that the Constitution commanded that education be efficient. It was for their benefit that Demetrio Rodriguez sought relief. It was for their benefit that we decided Edgewood I and //. But now, for the benefit of the privileged, the court turns a deaf ear both to the commanding voice of the law and to the whispered pleas of the children. THE TEXAS OBSERVER 17 40~,Aw….ork