Carrollton-Farmers Branch Independent School District v. Edgewood Independent School District

826 S.W.2d 489 (1992)

CARROLLTON-FARMERS BRANCH INDEPENDENT SCHOOL DITRICT, et al., Appellants,

v.

EDGEWOOD INDEPENDENT SCHOOL DISTRICT and Alvarado Independent School District, et al., Appellees.

No. D-1469, et al. [1]

Supreme Court of Texas.

January 30, 1992.

*492 Michael L. Atchley, Earl Luna, Robert E. Luna, Dallas, for appellants in No. C-1469.

Richard E. Gray, III, David R. Richards, Crillion Payne, Austin, Albert H. Kauffman, San Antonio, Toni Hunter, Kevin T. O'Hanlon, Austin, for appellees in No. 1469.

R. James George, Jr., Austin, Schuyler B. Marshall, Dallas, Thomas I. Davies, Richard L. Arnett, Austin, Roger Rice, Sommerville, Mass., Truman Dean, Jr., Houston, Martha P. Owen, Austin, E. Ray Hutchinson, Dallas, Mark S. Partin, Toni Hunter, Austin, Albert H. Kauffman, San Antonio, Lonnie Hollingsworth, Jr., Kevin T. O'Hanlon, Austin, for appellants in No. C-1477.

David R. Richards, Crillion Payne, Austin, Jane Politz Brandt, Dallas, Hugh Lowe, Peter D. Kennedy, Austin, John H. Martin, Deborah G. Hankinson, Dallas, for appellees in No. C-1477.

Schuyler B. Marshall, Deborah G. Hankinson, John H. Martin, G. Luke Ashley, Dallas, for appellants in No. C-1560.

Jerry R. Hoodenpyle, Arlington, E. Ray Hutchinson, Dallas, Richard E. Gray, III, Crillion Payne, David R. Richards, Richard L. Arnett, Martha P. Owen, Austin, Albert H. Kauffman, San Antonio, Lonnie Hollingsworth, Jr., Kevin T. O'Hanlon, Toni Hunter, Austin, for appellees in No. 1560.

Hugh Lowe, Peter D. Kennedy, R. James George, Jr., Thomas I. Davies, Austin, for appellants in No. C-1493 and No. C-1544.

David B. Owen, A. Bruce Wilson, Fort Worth, for appellees in No. C-1493.

Stephen H. Suttle, David L. Buhrmann, Abilene, for appellees in No. C-1544.

OPINION ON DIRECT APPEAL

GONZALEZ, Justice.

We are again called upon to determine whether the state public school finance system violates the Texas Constitution. Article VII, section 1 of the Texas Constitution gives the Legislature the duty "to establish and make suitable provision for the support and maintenance of an efficient system of public free schools." We have twice recently held that the state public school system, because of the way in which it is financed, is not "efficient" as required by this provision of the Constitution. Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 398 (Tex.1989) ["Edgewood I "I 804 S.W.2d 491, 498 (Tex.1991) `Edgewood II"]. To try to cure the system's constitutional infirmity, the Seventy-Second Legislature enacted Senate Bill 351, as amended by House Bill 2885 ("Senate Bill 351"), [2] making various changes in the school finance scheme. At issue before us now is whether the method prescribed by this statute violates other provisions of the Texas Constitution.

*493 Appellants, composed of numerous school districts and individual citizens, challenge the constitutionality of the school finance system devised by Senate Bill 351 on three grounds: (1) that it levies a state ad valorem tax in violation of article VIII, section 1-e; (2) that it levies an ad valorem tax without approval of the voters in violation of article VII, section 3; and (3) that it creates county education districts ("CEDs") in violation of article VII, section 3 and article III, sections 56 and 64(a). Appellees include the State of Texas, certain CEDs created by Senate Bill 351, and other interested school districts and individual citizens. [3] In this proceeding, all appellees are aligned with the State in defending Senate Bill 351 against the challenges by appellants.

We are fully aware of the gravity of the issues raised by the present appeals and the singular importance of this litigation to the people of Texas. In Edgewood I, we stated:

[W]e have not been unmindful of the magnitude of the principles involved, and the respect due to the popular branch of the government.... Fortunately, however, for the people, the function of the judiciary in deciding constitutional questions is not one which it is at liberty to decline.... [We] cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution; [we] cannot pass it by because it is doubtful; with whatever doubt, with whatever difficulties a case may be attended, [we] must decide it, when it arises in judgment.

777 S.W.2d at 394 , citing Morton v. Gordon, Dallam 396, 397-398 (Tex.1841). In Edgewood II, we stated:

We do not undertake lightly to strike down an act of the Legislature. We are mindful of the very serious practical and historical difficulties which attend the Legislature in devising an efficient system [of public schools], and we recognize the efforts of the legislative and executive departments to achieve this goal.

804 S.W.2d at 498 .

The appellants must bear the burden of demonstrating that Senate Bill 351 is unconstitutional, because we presume state statutes to be constitutional. E.g., Vinson v. Burgess, 773 S.W.2d 263, 266 (Tex. 1989); Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 558 (Tex.1985), appeal dism'd, 475 U.S. 1001 , 106 S.Ct. 1170 , 89 L.Ed.2d 290 (1986). After careful consideration of the constitutional principles in issue, we sustain two of the appellants' challenges to Senate Bill 351. First, we hold that Senate Bill 351 levies a state ad valorem tax in violation of article VIII, section 1-e; and second, we hold that the Bill levies an ad valorem tax without an election in violation of article VII, section 3 of the Texas Constitution.

Appellees argue that in Edgewood II we in effect pre-approved the constitutionality of the finance structures later adopted in Senate Bill 351 and now under attack. Their argument, as we shall show, is disproved both by the text of Edgewood II and by the doubts raised before the Legislature concerning the validity of Senate Bill 351. We do not suggest that the Legislature has failed to act in good faith; we hold only that it has failed to enact a constitutional school finance system.

Our holding in this case does not conflict with our previous decisions in Edgewood I and Edgewood II, and we in no way withdraw from those opinions. None of the parties to this proceeding has urged us to reconsider our decisions in Edgewood I and Edgewood II, and we have not done so. We reaffirm our earlier holdings that unconstitutional *494 inefficiency in the public school system must be eliminated without delay. Yet we cannot brush aside the serious constitutional infirmities that affect Senate Bill 351 in the interest of expediting necessary changes in public school finance. It is not clear that upholding Senate Bill 351 would advance this goal. The appellee school districts and private citizens do not concede that Senate Bill 351 satisfies the constitutional standard of efficiency set out in our earlier opinions; but that issue is not now before us. This case broaches other constitutional standards which must be applied as scrupulously as we previously applied the standard of efficiency to the provision of public education.

We recognize "the vital role of education in a free society." San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 30 , 93 S.Ct. 1278, 1295 , 36 L.Ed.2d 16 (1972). We acknowledge "that `education is perhaps the most important function of state and local governments.'" Id. at 29 , 93 S.Ct. at 1295 ; Brown v. Board of Educ, 347 U.S. 483, 493 , 74 S.Ct. 686, 691 , 98 L.Ed. 873 (1954). Article VII, section 1 of the Texas Constitution enunciates these same principles:

A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.

The dissent implies that the Court's commitment to more equal educational opportunity has waned. The Court's commitment is to the Constitution, to each and every one of its provisions, and in that commitment we remain steadfast.

I

Although we have reviewed the nature and history of our school finance system in Edgewood I and Edgewood II, an understanding of these matters is so important to the proper assessment of the legal issues before us that we revisit the subject here. The history of Texas school finance has been one of a "`rough accommodation' of interests in an effort to arrive at practical and workable solutions." Rodriguez, 411 U.S. at 55 , 93 S.Ct. at 1308 (citations omitted). Texas has steadily progressed from a time when local ad valorem taxes for public education were seen as a supplement to state funding, to the point that local ad valorem taxes now are expected to provide most of the basic needs of education. [4] From 1906 to 1989, the portion of total state school funding contributed by local tax revenue increased from 24 percent to 53 percent. Billy D. Walker, The District Court and Edgewood III: Promethean Interpretation or Procrustean Bed? 21-22 (Oct. 23, 1991) (unpublished monograph, on file with record). Differences in the wealth in local tax bases created great disparities in the amount of revenue which varying locales could generate with the same tax effort, despite regular legislative adjustments to the system. In Edgewood I and Edgewood II we determined that these disparities are indicative of an inefficient system. It is within this historical context that the Legislature passed Senate Bill 351.

When our present Constitution was adopted in 1876, it provided for the meting out of state education funds on a per-student basis. [5] Tex. Const, art. VII, § 5. In 1883, the Constitution was amended so that local taxes could augment the required funding for education. The amendment allowed the Legislature to create local school districts and to authorize them to levy a tax within certain limits. Tex. Const, art. VII, § 3 (1876, as amended 1883).

School districts, and the tax revenue each could contribute to education, did not develop *495 at the same rate. By 1915, disparities in local tax resources had grown to the point that the Legislature made a special appropriation of equalization aid for rural school districts that were already taxing at the maximum legal rate. Act of May 26, 1915, 34th Leg., 1st C.S., ch. 10, 1915 Tex.Gen. Laws 22; see generally William P. Hobby & Billy D. Walker, Legislative Reform of the Texas Public School Finance System, 1973-1991, 28 HarvJ.Leg. 379, 380 (1991). This Court upheld rural equalization aid as being an appropriate means for the Legislature to discharge its duty to make "suitable provision for the support and maintenance of an efficient system of public free schools." Mumme v. Marrs, 120 Tex. 383 , 40 S.W.2d 31, 36 (1931), quoting Tex. Const, art. VII, § 1. The Court identified the very problem that persists to this day:

The inequality of educational opportunities in the main arises from natural conditions.... The type of school which any community can have must depend upon the population of the community, the productivity of its soil, and generally its taxable wealth.

Mumme, 40 S.W.2d at 36 .

The disparity of the wealth among local tax bases only increased as Texas moved towards an increasingly industrialized economy.

Sizable differences in the value of assessable property between local school districts became increasingly evident as the State became more industrialized and as rural-to-urban population shifts became more pronounced. The location of commercial and industrial property began to play a significant role in determining the amount of tax resources available to each school district. These growing disparities in population and taxable property between districts were responsible in part for increasingly notable differences in levels of local expenditure for education.

Rodriguez, 411 U.S. at 8 , 93 S.Ct. at 1283 . As we observed in Edgewood I:

If our state's population had grown at the same rate in each district and if the taxable wealth in each district had also grown at the same rate, efficiency could probably have been maintained within the structure of the present system. That did not happen. Wealth, in its many forms, has not appeared with geographic symmetry. The economic development of the state has not been uniform. Some cities have grown dramatically, while their sister communities have remained static or have shrunk. Formulas that once fit have been knocked askew.

777 S.W.2d at 396 . Limited resources were further strained by the creation of a large number of small, uneconomic school districts. In 1936, for example, 5938 of the 6953 school districts contained an average of 65 students each. Hobby & Walker, supra, 28 HarvJ.Leg. at 381, citing State Board of Education, Report of the Results of the Texas Statewide School Adequacy Survey 11 (1938). Although the total number of school districts has now declined to between 1000 and 1100, the crazy-quilt pattern of small school districts remains a significant feature of the Texas public education system. Edgewood II, 804 S.W.2d at 497 .

Public school finance was comprehensively overhauled in 1949 by the enactment of the Gilmer-Aikin Bills. [6] These statutes created the Minimum Foundation Program as the basic vehicle for allocating school funds and envisioned a guaranteed minimum amount of resources per student, with roughly 80 percent of the funds for the program to come from the State and only 20 percent to come from local tax bases. The exact amount of funds each district would receive from the State was dependent on a formula designed to measure each county's ability to contribute towards the share of the program for the school districts within its boundaries, or its "local fund assignment." The local fund assignment was deducted from the guaranteed *496 allotment, and the State made up the difference. No district was required to raise any revenue; each district would receive its share of state funds as determined by the formula, regardless of whether the district actually raised its portion of the local fund assignment. Once a district met its local fund assignment obligation, it was free to add additional funds to enrich its educational programs. Hobby & Walker, supra, 28 HarvJ.Leg. at 382. Support of schools by local taxes was thus encouraged but not mandated.

By the 1960's, the Legislature had amended the Gilmer-Aikin Bills to include a number of adjustments to their economic index formulae. The amendments encouraged the development of improved and special educational programs through matching funds. The property-rich school districts were more capable of implementing these special programs, and thus they generally took advantage of the newly earmarked state funds. This aspect of the Foundation School Program unfortunately undermined the Program's original aim of equalizing educational opportunities. Patricia A. Fry, Comment, Texas School Finance: The Incompatibility of Property Taxation & Quality Education, 56 Tex. L.Rev. 253, 256 (1978), citing Report of the Joint Senate Interim Comm. to Study Public School Finance at II-8 to II-9 (1973). This led a federal district court to observe in 1971 that the system of state "equalizing" actually benefited wealthier school districts more than the poorer districts, because only the wealthier districts could afford the programs which would generate state matching funds. Rodriguez v. San Antonio Indep. Sch. Dist, 337 F.Supp. 280, 282, 285 (W.D.Tex.1971), rev'd, 411 U.S. 1 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973). Because of these disparities, that court held that the Texas system of public school funding violated equal protection guarantees of the United States Constitution. 337 F.Supp. at 285 .

The United States Supreme Court reversed, holding that the statutory plan bore at least a rational relationship to furthering state goals of guaranteeing a minimum level of educational opportunity and at the same time encouraging local control. Rodriguez, 411 U.S. at 55 , 93 S.Ct. at 1308 . In reaching its decision, the Court did not pronounce the patient well:

We hardly need add that this Court's action today is not to be viewed as placing its judicial imprimatur on the status quo. The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax.... But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them.

Id. at 58-59 , 93 S.Ct. at 1309-10 .

In the wake of Rodriguez, the Legislature renamed the Minimum Foundation Program the Foundation School Program, reformed the economic index formulae, and based the local fund assignment directly on the wealth within a school district rather than the county. Act of June 1, 1975, 64th Leg., R.S., ch. 334, 1975 Tex.Gen.Laws 877-899; House Research Organization, Special Legislative Report, No. 157, An Introduction to School Finance at 4 (Feb. 23, 1990) [hereinafter Special Legislative Report]. The 1975 legislation created a second tier of financing, called State Equalization Aid, the purpose of which was to direct more state money to the poorer systems through the foundation program. 1975 Tex.Gen.Laws, supra, at 894. The stated policy was:

that each student enrolled in the public school system shall have access to programs and services that are appropriate to his educational needs and that are substantially equal to those available to any similar student, notwithstanding varying local economic factors.

Id. at 877-78. The State, however, did not fully supply its own share of the funding necessary to meet this goal. Fry, supra, 56 Tex.L.Rev. at 257 & n. 27.

In 1977, the Education Code was amended again. Act of July 15, 1977, 65th Leg., 1st C.S., ch. 1,1977 Tex.Gen.Laws 11. This time the Legislature lowered the local fund assignment which school districts were encouraged to contribute and adjusted the *497 second tier of state funding directed to poorer districts. Special Legislative Report, supra, at 4. The statute expressly provided that a qualified school district need not contribute its total local share of revenue to participate in the Foundation School Program and receive state funds. 1977 Tex.Gen.Laws, supra, at 26.

In 1979, the Legislature established county appraisal districts to afford more uniform local appraisal methods and increased state funds for education. Act of May 26, 1979, 66th Leg., R.S., ch. 841, 1979 Tex.Gen.Laws 2221, 2224; Act of May 28, 1979, 66th Leg., R.S., ch. 602, 1979 Tex. Gen.Laws 1300, 1318; Special Legislative Report, supra, at 4. Legislation in 1984, House Bill 72, made further adjustments in the formula, including refinements to the basic allotment, equalization aid, and the local fund assignment. Act of June 30, 1984, 68th Leg., 2nd C.S., ch. 28, 1984 Tex. Gen.Laws 117. In 1989, the Legislature changed significantly the qualifications for participation in the state system of school finance. For the first time the Legislature required that a local district raise the full amount of its local share before it could qualify for state aid from the program fund. Act of May 29, 1989, 71st Leg., R.S., ch. 816, 1989 Tex.Gen.Laws 3732, 3742.

Despite the periodic adjustments to the system, when Edgewood I was brought forward on appeal, the ratio of taxable property in the wealthiest district to that in the poorest school district was 700 to 1, which resulted in a range in per-student spending of $2,112 to $19,333. In Edgewood I, we held that the existing system of public school finance, which relied so heavily upon an ad valorem tax in local districts, failed to provide for an "efficient" system for the "essential" purpose of a "general diffusion of knowledge" in violation of article VII, section 1 of the Texas Constitution. Edgewood I, 111 S.W.2d at 398. The inefficiency was this gross disparity both in tax burden and in tax spending. To put it graphically, in some areas of the state, education resembled a motorcycle with a 1000-gallon fuel tank, and in other areas it resembled a tractor-trailer rig fueled out of a gallon bucket. Some vehicles were flooded, some purred along nicely, and some were always out of gas. A fleet of such vehicles is not efficient, even though a few of them may reach their destination. We did not hold that efficiency requires absolute equality in spending; rather, we said that citizens who were willing to shoulder similar tax burdens, should have similar access to revenues for education. Specifically, we said:

There must be a direct and close correlation between a district's tax effort and the educational resources available to it; in other words, districts must have substantially equal access to similar revenues per pupil at similar levels of tax effort. Children who live in poor districts and children who live in rich districts must be afforded a substantially equal opportunity to have access to educational funds.

Id. at 397.

Following Edgewood I, the Legislature enacted Senate Bill 1 as a remedy to the constitutional defects. [7] It codified a goal that equivalent tax effort should produce roughly the same yield regardless of the local property wealth for at least 95 percent of the school districts. It retained, however, the basic system of administration of funds for public education through the Foundation School Program. The Foundation School Program maintained the two levels of financing. The first tier provided the basic allotment per student as adjusted by a number of factors. 1990 Tex.Gen.Laws, 6th C.S., at 2. The second tier guaranteed a yield based on local tax effort. Id. at 5. In addition, local districts were entitled to supplement the first and second tiers of financing. Id. Senate Bill 1 provided for ongoing study so that state contributions to revenue could be adjusted biennially. Id. at 7.

Senate Bill 1 was challenged in Edgewood II. We held that it, too, failed to meet the requirements of article VII, section 1. "The fundamental flaw of Senate Bill 1," we said, "lies not in any particular *498 provisions but in its overall failure to restructure the system." 804 S.W.2d at 496 . Specifically, the heavy reliance upon disparate local ad valorem taxes had not changed at all. Senate Bill 1 did not change the boundaries of any of the 1052 school districts then in existence, or the basic funding allocation with more than half of all state education funds coming from local property taxes rather than state revenue. The great disparities in property wealth and spending among the school districts, though somewhat ameliorated, remained, and so did the resulting constitutional infirmities. Reiterating what we had said in Edgewood I, we concluded:

To be efficient, a funding system that is so dependent on local ad valorem property taxes must draw revenue from all property at a substantially similar rate.

Id. We ordered the trial court to enforce our mandate in Edgewood I, which was stayed until April 1, 1991, to provide the Legislature time to enact new legislation. Id. at 499 .

The Legislature responded with Senate Bill 351. Senate Bill 351 retains the same historical reliance upon local ad valorem taxes to fund most of the state cost of education. To ameliorate disparities among school districts due to local property wealth, Senate Bill 351 creates 188 county education districts. Most of these CEDs consist of school districts in a single county, although some of them include school districts in more than one county. Tex. Educ.Code § 20.941. CEDs have only tax functions; they perform no educational duties. They employ no teachers, provide no classrooms, and educate no children. CEDs do not even determine their own tax rate. That rate is effectively prescribed by statute. Id. at § 16.252(a). The CEDs' sole function is to levy, collect, and distribute property taxes as directed by the Legislature. Id. at § 20.942.

The complex provisions of Senate Bill 351 may be summarized as follows. Senate Bill 351 still provides a two-tiered program. The first tier "guarantees sufficient financing for all school districts to provide a basic program of education that meets accreditation and other legal standards." Tex.Educ. Code § 16.002(b). To this end, the statute entitles each district to a basic allotment for each student, which increases from $2200 for the 1991-1992 school year to $2800 for the 1994-1995 school year. Id. at § 16.101. This basic allotment, in addition, is subject to adjustment, e.g., for the district's local "cost of education," and supplementation by "special allotments" for matters ranging from special education to "technology funds." Id. at §§ 16.102-104 (cost of education, small districts, and sparsity); §§ 16.151-160 (special, compensatory, vocational, and bilingual education students; gifted and talented students; transportation costs; career ladder supplements; technology funds). [8] Each district is guaranteed these basic and special allotments.

Senate Bill 351, however, mandates that each CED shall raise for this first tier an assigned "local share," defined as the product of a specified tax rate and the taxable value of property within the CED. [9] The tax rate per hundred dollars of valuation is set for each school year: $0.72 for 1991-92, $0.82 for 1992-1993, $0.92 for 1993-1994, and $1.00 thereafter. Tex.Educ.Code § 16.-252; see also Id. at § 11.86 ("Determination of School District Property Values"). Senate Bill 351 also commands that each CED "shall levy" an ad valorem tax at a rate sufficient to collect its assigned local share. [10] Id. at § 20.945. The commissioner of education notifies each CED of the amount due each component school district under the statute and sets the schedule for distributions. Id. at § 16.501-.502.

*499 Tier two aspires "to provide all school districts with substantially equal access to funds to provide an enriched program and additional funds for facilities" with the "opportunity" to supplement as they should choose. Tex.Educ.Code §§ 16.002, 16.301. In simplified form, the tier two formula guarantees each school district a specified amount per student, ranging from $21.50 for the 1991-1992 school year to $28 for the 1993-1994 school year, for each cent of tax effort over that already assigned to the CED. [11] The State's guarantee, however, extends only to $0.45 of tax effort, and the statute caps a district's "enrichment and facilities tax rate," or "DTR," at $0.45. Id. at § 16.303. If a district's local revenue for the 1991-1992 school year, for example, should exceed $21.50 per student for each cent of the district's DTR, the district would get nothing more from the State. What it takes in excess of that amount, however, might be called "local enrichment."

There is a second, independent limit on each school district's tax rate provided in Tex.Educ.Code § 20.09. Except to the extent that they are authorized to collect taxes pledged for previously authorized debt, school districts may not tax at a rate exceeding $0.78 for 1991, $0.68 for 1992, $0.58 for 1993, and $0.50 for each subsequent year. Id. at § 20.09(a). These annual limits, if combined with the annually increasing CED tax rate, result in a maximum rate of $1.50 per $100 valuation in each tax year. Id.; see also § 16.252. The gap between the annually decreasing caps on school district tax rates, set by section 20.09, and the constant cap on each district's "DTR" in tier two, set by section 16.302, steadily decreases from $0.33 to $0.05. The effect of this is to reduce a district's ability to raise unequalized revenue—the so-called "third tier" of school finance.

There is an overall "revenue limit" for local school districts, defined as an amount equal to 110 percent of the state and local funds guaranteed under the Foundation School Program per student to each school district taxing at a rate of $0.25 per $100 of taxable value as calculated for the 1994-1995 school year. Tex.Educ.Code § 16.-009(a). This limit does not appear to be uniform, comprehensive or absolute. That is, it is not a single amount which applies equally to all school districts, nor does it encompass all local revenues, nor does it absolutely bar transgression. Each district evidently has its own revenue limit, annually estimated by and certified to that district by the commissioner of education. Id. at § 16.009(b). [12]

Finally, the commissioner of education determines the State's share of the costs of the Foundation School Program—both tiers one and two—by subtracting what the district is due from the CED funds and what the district has collected from state available school funds. He then grants and *500 approves a warrant for the difference. If state appropriations prove insufficient, however, the commissioner will reduce each district's allocation. Tex.Educ.Code § 16.254.

Thus, since Edgewood I, some aspects of the public school system have been changed, but others have not. The reliance on local ad valorem taxes for more than half of the revenue for education has not changed. However, the manner in which local funds are contributed to the system has changed dramatically. The State has moved from encouraging school districts to contribute local tax revenue, to conditioning state funds on such contribution, to mandating a specified contribution. This has reduced the geographical disparities in the availability of revenue for education. It has accomplished this, however, by requiring the taxpayers in one school district, without a vote of approval, to fund the schools in other districts over which they have no control. These changes present the constitutional issues now raised before us.

II

Article VIII, section 1-e of the Texas Constitution states: "No State ad valorem taxes shall be levied upon any property within this State." Appellants contend that the taxes which the CEDs are required by Senate Bill 351 to levy are state ad valorem taxes prohibited by this provision. We agree.

Senate Bill 351 mandates the tax CEDs levy. No CED may decline to levy the tax. The tax rate for all CEDs is predetermined by Senate Bill 351. No CED can tax at a higher rate or a lower rate under any circumstances. Indeed, the very purpose of the CEDs is to levy a uniform tax statewide. The distribution of the proceeds is set by Senate Bill 351. No CED has any discretion to distribute tax proceeds in any manner except as required by statute. Every function of the CEDs is purely ministerial. See Letter from John Hannah, Jr., Texas Secretary of State, to Assistant Attorney General, United States Department of Justice, Voting Section (May 3, 1991). If the State mandates that a tax be levied, sets the rate, and prescribes the distribution of the proceeds, the tax is a state tax, regardless of the instrumentality which the State may choose to use. [13]

Appellees advance several reasons why the tax should not be characterized as a *501 State ad valorem tax. First, the State points out that while the Legislature has mandated the yield, it is the CED that sets the rate to achieve that yield. A witness in the district court testified that Senate Bill 351 does not mandate a tax rate because a CED is allowed to take into account projected tax delinquencies in arriving at the rate necessary to obtain the CED's share. One district court concluded that because collection rates will vary, the State does not set the rate, and therefore it is not a state tax. As one commentator observes:

The court's logic is precarious because: (1) the state sets the amount of the local share at a fixed dollar figure, and (2) the CED taxable base is also fixed by the certified tax roll it receives from one or more appraisal districts. The rate, then, is self-calculating (levy divided by tax base). In effect, the state sets a de facto rate when it mandates a specific tax levy. The fact that each CED's collection rate will vary is a thin distinction to draw between a state-established tax rate and a locally-established tax rate.

Walker, supra, at 19 (footnotes omitted). The collection rate is based on objective facts, another fixed number in the formula mandated by the State.

Despite this contention that it does not set the CED tax rate, the State concedes, as it surely must, that if the proceeds of the tax levied by the CEDs under Senate Bill 351 were deposited into the state treasury, the tax would be a state tax prohibited by article VIII, section 1-e. But the State argues that because the proceeds are not deposited into the state treasury, the tax is not a state ad valorem tax. The distinction the State attempts to draw is not viable. If the State could avoid the prohibition of article VIII, section 1-e simply by requiring that tax proceeds be deposited in some lesser instrumentality's account, that provision would be essentially meaningless. The State could create County Highway Districts, or County Prison Districts, or all-purpose County Funding Districts to levy taxes at set rates for prescribed purposes, and by such means accomplish what it could not do itself. CEDs are mere puppets; the State is pulling all the strings. Though the hands collecting the tax be Esau's, the voice of authority is unmistakably Jacob's. The depository for CED taxes does not govern whether they are state or local.

By the same analysis, the dedication of the proceeds of each CED's tax to activities conducted wholly within its boundaries does not make the tax a local one outside the prohibition of article VIII, section 1-e. Again, were it otherwise, the State could simply divide itself into districts and prescribe the funding for activities conducted within each district. Although the activities funded by CED taxes are conducted within the district, their funding is part of the state public education scheme mandated by Senate Bill 351.

The State argues that the CED taxes required by Senate Bill 351 simply reflect the historical uses of both local and state funds for public education, authorized by article VII, section 3 of the Constitution. However, neither the plain language of article VIII, section 1-e nor its history reveals any exception that permits state ad valorem taxes for education. Prior to January 1, 1951, the State could levy ad valorem taxes for general purposes. Effective that date, article VIII, section 1-a proscribed state ad valorem taxes for general revenue purposes, still allowing such taxes for specific purposes, including education. Article VIII, section 1-a did not eliminate the state ad valorem tax for public schools authorized by article VII, section 3. However, when article VIII, section 1-e was adopted in 1968, this special state ad valorem school tax was repealed:

1. From and after December 31,1978, no State ad valorem taxes shall be levied upon any property within this State for State purposes except the tax levied by Article VII, Section 17, for certain institutions of higher learning.

*502 2. The State ad valorem tax authorized by Article VII, Section 3, of this Constitution shall be imposed at the following rates on each One Hundred Dollars ($100.00) valuation for the years 1968 through 1974: [setting forth a rate that declines in each of these years] and thereafter no such tax for school purposes shall be levied and collected.

Tex. Const, art. VIII, § 1-e (1968, amended 1982); see also, Tex.SJ.Res. 32, 60th Leg., R.S., 1967 Tex.Gen.Laws 2972 (emphasis added). In 1982, article VIII, section 1-e was amended to remove any remaining authority to impose state ad valorem taxes, resulting in the blanket prohibition now in effect. The history of article VIII, section 1-e thus establishes that its framers and ratifiers specifically intended to eliminate the state ad valorem tax as a source of funds for public education.

In the past, the State has taken a carrotand-stick approach in encouraging local funding for public education. For several years prior to 1989, a qualified school district was not required to contribute its total local share to obtain state funding from the Foundation School Program. See, e.g., Act of June 30, 1984, 68th Leg., 2nd C.S., ch. 28, 1984 Tex.Gen.Laws 143. School districts were encouraged to raise in excess of their local share; however, this was only so that they could be rewarded with increased aid under the guaranteed yield program. After changes in the law in 1989, a school district could not qualify for state aid from the program fund unless it raised its local share. Act of May 29, 1989, 71st Leg., R.S., ch. 816, 1989 Tex.Gen.Laws 3742. Although districts thus had some incentive to raise their local share for education, none was mandated to do so. Senate Bill 351 takes a final step away from local discretion, and for the first time, state law mandates local ad valorem taxes at a set rate for specified purposes. Senate Bill 351 is thus all stick with no carrot attached. [14]

The State argues that CED taxes uniform statewide are necessary to meet the requirement of article VII, section 1 that the public school system be efficient. Assuming that this argument is correct, it does not follow, nor does the State argue, that this system is the only one which would comply with article VII, section 1. While the Legislature has some latitude in the manner it chooses to discharge its duty to establish and maintain an efficient public school system, it cannot go so far as to violate another constitutional provision in attempting to comply with article VII, section 1.

An ad valorem tax is a state tax when it is imposed directly by the State or when the State so completely controls the levy, assessment and disbursement of revenue, either directly or indirectly, that the authority employed is without meaningful discretion. How far the State can go toward encouraging a local taxing authority *503 to levy an ad valorem tax before the tax becomes a state tax is difficult to delineate. Clearly, if the State merely authorized a tax but left the decision whether to levy it entirely up to local authorities, to be approved by the voters if necessary, then the tax would not be a state tax. The local authority could freely choose whether to levy the tax or not. To the other extreme, if the State mandates the levy of a tax at a set rate and prescribes the distribution of the proceeds, the tax is a state tax, irrespective of whether the State acts in its own behalf or through an intermediary. Between these two extremes lies a spectrum of other possibilities. If the State required local authorities to levy an ad valorem tax but allowed them discretion on setting the rate and disbursing the proceeds, the State's conduct might not violate article VIII, section 1-e. It is difficult, perhaps impossible, to define for every conceivable hypothetical precisely where along this continuum such taxes become state taxes. Therefore, if the Legislature, in an effort to remedy Senate Bill 351 with as few changes as possible, chose to inject some additional element of leeway in the assessment of the CED tax, it is impossible to say in advance whether that element would remove the tax from the prohibition of article VIII, section 1-e. Each case must necessarily turn on its own particulars. Although parsing the differences may be likened to dancing on the head of a pin, it is the Legislature which has created the pin, summoned the dancers, and called the tune. The Legislature can avoid these constitutional conundra by choosing another path altogether.

Two things are clear, however, among many which are not. One is that local revenue may play a role in achieving an efficient system of free public schools. The other is that article VIII, section 1-e prohibits the State from doing indirectly through CEDs what it cannot do directly, that is, levy an ad valorem tax. We have not attempted to dictate to the Legislature what part local revenue should play in funding public education, viewing that decision as properly the Legislature's prerogative in the first instance. Although the Constitution requires the Legislature to "establish and make suitable provision for" free public schools, it contains no specific requirement that public education be funded completely with state revenue. The Constitution prohibits, however, heavy reliance on grossly disparate local revenue to provide the funding essential for public schools. Edgewood II, 804 S.W.2d at 496-97, 500 . Were local revenue but an insubstantial part of the total funding, the disparities in school district property wealth might be inconsequential to the system as a whole. But when local revenue pays a very significant part of the cost of a fundamental education—now more than half— those disparities dominate the entire system.

In sum, we conclude that the tax mandated by Senate Bill 351 is a state ad valorem tax prohibited by article VIII, section 1-e of the Constitution.

III

Independently of their argument based upon article VIII, section 1-e, appellants argue that Senate Bill 351 violates article VII, section 3, because the CEDs levy a tax without first gaining the approval of the affected voters. Appellees counter that local taxes may be levied under article VII, section 3 without voter approval, or alternatively, that article VII, section 3-b excuses the voting requirement because Senate Bill 351 has "consolidated" school districts. We consider first the article VII, section 3 argument, and then the article VII, section 3-b argument.

A

Article VII, section 3 is a constitutional wilderness. "[A] rather patched up and overly cobbled enactment," Shepherd v. San Jacinto Junior College Dist, 363 S.W.2d 742, 744 (Tex.1962), it has been cited as an example of how not to write a constitution, George Braden, 2 The Constitution of the State of Texas: An Annotated and Comparative Analysis 519 (1976). In its present form, it is a single sentence *504 of 393 words. [15] It retains obsolete provisions such as the poll tax and state ad valorem tax, and covers subjects as disparate as the provision of free text books and the procedure for forming school districts. Our focus is on the following four consecutive clauses:

[1] the Legislature may also provide for the formation of school district [16] ... [2] and the Legislature shall be authorized to pass laws for the assessment and collection of taxes in all said districts and for the management and control of the public school or schools of such districts... [3] and the Legislature may authorize an additional ad valorem tax to be levied and collected within all school districts... [4] provided that a majority of the qualified property tax paying voters of the district voting at an election to be held for that purpose, shall vote such tax....

Tex. Const, art. VII, § 3.

Senate Bill 351 "nominally" creates CEDs as "independent school districts," although as we have noted, they do not perform any of a school district's traditional functions. Tex.Educ.Code § 20.942. The Constitution does not prescribe the functions for a school district, and we have long regarded the Legislature to have plenary power to constitute and regulate school districts. Love v. City of Dallas, 120 Tex. 351 , 40 S.W.2d 20, 26 (1931); State v. Brownson, 94 Tex. 436 , 61 S.W. 114, 115 (1901). We therefore consider it to be within the Legislature's power to create entities like the CEDs before us as school districts.

Appellees acknowledge that the tax authorized by the third of the clauses quoted above must, according to the fourth clause, be approved by the voters. The issue is whether the second clause imparts upon the Legislature a power to tax that is independent of the third clause and free of the proviso in the fourth.

The history of article VII, section 3 helps resolve this issue. The original section 3 simply limited the amount of the State's general revenue to be spent on schools and established a poll tax. [17] Other sections of the article provided additional funding mechanisms for public schools. However, no provision of the original article VII expressly authorized local school districts to *505 levy taxes. In City of Fort Worth v. Davis, 57 Tex. 225 (1882), this Court rejected the argument that the Legislature had the inherent power to authorize school districts to levy taxes under former article VII, section 3. The Court reasoned that the Constitution manifested an intention to limit the power of the government to tax; because the Constitution spoke on the matter of school funding in article VII, there was no room for implied authority. Id. at 231-32 . The Court stated that:

Taxation by school districts was familiar to the framers of the present constitution. It was the system generally prevailing in other states, by which the deficiencies of a general or state school fund were supplemented. The omission of a provision authorizing that system was plainly intentional, for, in addition to what has been said, the journals of the convention show that all propositions embracing that system were voted down.

Id. at 232 .

In response to Davis , article VII, section 3 was amended and greatly expanded in 1883. The amendment authorized a state ad valorem tax to fund the public schools and then added what eventually became the first, third and fourth clauses which we quoted above. This amendment empowered the Legislature to authorize school districts to levy local ad valorem taxes as long as the taxes were approved by local voters.

In 1908, this Court held in Parks v. West, 102 Tex. 11 , 111 S.W. 726 (1908), that article VII, section 3, as amended, did not allow the creation of school districts that crossed county lines. The Court also suggested that even if section 3 authorized such districts, they nevertheless might lack the power to tax:

it is not true that the Constitution gave or has ever given the Legislature unlimited power to levy or to authorize the levy of taxes to provide the school fund. On the contrary, the Constitution has, itself, said what the fund should consist of and how it may be raised....

Id. Ill S.W. at 727. Parks prompted another amendment in 1909 to article VII, section 3. This amendment principally allowed the creation of school districts that crossed county lines and removed any doubt that such districts had the power to tax. Of note, the 1909 amendment added the substance of the second clause on which we focused above:

[1] the Legislature may also provide for the formation of school districts ..., and all such school districts ... may embrace parts of two or more counties. [2] And the Legislature shall be authorized to pass laws for the assessment and collection of taxes in all said districts and for the management and control of the public school or schools of such districts, whether such districts are composed of territory wholly within a county or in parts of two or more counties. [3] And the Legislature may authorize an additional ad valorem tax to be levied and collected within all school districts ..., [4] provided that a majority of the qualified property taxpaying voters of the district, voting at an election to be held for that purpose, shall vote such tax....

Tex.H.RJ.Res. 6, 31st Leg., R.S., 1909 Tex. Gen.Laws 251. [18]

Amendments to article VII, section 3 were proposed in 1915 and 1916 to allow for increased county school taxes, but they were both defeated. See generally 2 Braden, supra, at 512-13. The section was *506 again amended in 1918, [19] in part to raise the state ad valorem tax, and in 1920, [20] to remove the limit on local taxation. The final amendment, adopted in 1926, removed the authority of the State to create school districts by special law, and edited the language to the form now in effect. [21]

The history of article VII, section 3 thus indicates that what we have called clause two was added in response to Parks to ensure that school districts which crossed county lines could tax. There is no suggestion of support for appellees' conclusion that clause two authorizes imposition of a local ad valorem tax without an election. Their argument rests upon two questionable premises. First, appellees assert that the word "assessment" in clause two means levy; thus clauses two and three would have an identical effect. While we have some doubt that the two words are synonymous, at least in this context, we assume that they are and confront the second premise necessary to appellees' argument, which is that the condition of an election in clause four does not apply to clause two.

Appellees' reading of article VII, section 3 would allow a local ad valorem tax to be imposed either with or without an election. If a district can impose a tax without the burden of an election under clause two, there is no reason why it should choose instead to impose the tax only after calling an election under clauses three and four. Thus, the effect of appellees' reading of clause two, independent of clause four, is to nullify clauses three and four altogether. One fundamental provision of constitutional construction is that effect must be given to all its provisions if possible. Hanson v. Jordan, 198 S.W.2d 262, 263 (Tex.1946). Applying that principle here, we construe article VII, section 3 to condition the imposition of a local ad valorem tax upon the approval of the electorate.

We are supported in this construction by the additional fact that in the eight decades since ratification of the 1909 amendment, the Legislature has never acted as if this amendment authorized local ad valorem taxes without voter approval. To the contrary, every time the Legislature has sought to alter the power of districts to levy an ad valorem tax, it went to the trouble of seeking constitutional amendments. If appellees' reading of article VII, section 3 were correct, the Legislature could simply have passed a statute. [22] Not until Senate Bill 351 has the Legislature asserted such power. "[Although nonuse[ ] will not defeat the power to exercise rights expressly delegated in a written Constitution, an established practical construction `should not be disregarded unless the terms of the provision furnish clear and definite support for a contrary construction.' " Walker v. Baker, 145 Tex. 121 , 196 S.W.2d 324, 327 (1946). [23] Not only is there no clear and definite support for a construction of article VII, section 3 contrary to the view of the provision that the Legislature apparently held for over eighty years, we think the more plausible reading of the provision is consistent with that view. Accordingly, we conclude that a CED may not be authorized to levy an ad valorem tax under article VII, section 3, without the approval of the voters in the CED.

*507 The dissent cynically refers to this right to vote as a "veto," transposing the vowels. But the right to vote cannot be brushed aside with word tricks; the people have insisted upon this right as a prerequisite to ad valorem taxation by school districts by establishing it in article VII, section 3. The right is no less deserving of protection simply because there may be votes cast against a public school finance plan that the Legislature has passed and of which the dissent strongly approves, or because some who vote against this plan may be wealthier, or in the dissent's words, more "privileged," than some who vote for it. The record shows that although a school district may be property rich, it does not necessarily mean that its citizens are "privileged." [24] It is of course axiomatic that the votes cast by all persons, regardless of their circumstances, count equally. The vote which the Constitution vouchsafes under article VII, section 3, is a veto of the CED tax mandated by Senate Bill 351 only if there are more voters against the tax than for it; and if there are, they are no less entitled to vote simply because they do not favor a tax that the dissent favors. The dissent seems to assume that the CED tax mandated by Senate Bill 351 would not be approved by the voters. This assumption leads the dissent to first disparage and then deny the constitutional right to vote to save the statute from the people's will. The people may surrender their right to vote under article VII, section 3, by amending that provision; but they ought not to have the right taken from them by judicial fiat, or ignored by the Legislature.

B

Appellees further contend that article VII, section 3-b excuses an election by the CEDs created under Senate Bill 351. The legislature adopted this provision, [25] which *508 is nearly as cumbersome as section 3 of the same article, in 1962 but limited its application to "any independent school district, the major portion of which is located in Dallas County." Tex.S.J.Res. 6, 57th Leg., R.S., 1961 Tex.Gen.Laws 1301. It appears to have been prompted by the necessity of having a tax authorization election every time the boundaries of a school district changed. See Crabb v. Celeste Indep. Sch. Dist., 105 Tex. 194 , 146 S.W. 528 (1912); Parks, 111 S.W. 726 ; Davis, 57 Tex. 225 ; Burns v. Dilley County Line Indep. Sch. Dist, 295 S.W. 1091 (Tex.Comm'n App. 1927, judgm't adopted); Millhollon v. Stanton Indep. Sch. Dist, 231 S.W. 332 (Tex.Comm'n App.1921, holding approved). It is not clear why the provision was originally restricted to Dallas County. 2 Braden, supra, at 521. In 1966, it was amended to apply to all school districts. Tex. HJ.Res. 65, 59th Leg., R.S., 1965 Tex.Gen. Laws 2230.

The first sentence of section 3-b has no application in this case. Appellees base their argument upon the following portions of the second and third sentences of the provision:

After any change in boundaries, the governing body of any such district, without the necessity of an additional election, shall have the power to assess, levy and collect ad valorem taxes on all taxable property within the boundaries of the district as changed, for the purposes of the maintenance of public free schools... in the amount, at the rate, or not to exceed the rate, and in the manner authorized in the district prior to the change in its boundaries.... In those instances where the boundaries of any such independent school district are changed by the annexation of, or consolidation with, one or more whole school districts, the taxes to be levied for the purposes hereinabove authorized may be in the amount or at not to exceed the rate theretofore voted in the district having at the time of such change the greatest scholastic population according to the latest scholastic census....

Tex. Const, art. VII, § 3-b. These provisions do not fit the creation of CEDs. No physical boundaries of school districts are changed by Senate Bill 351, only the imaginary boundaries of their taxing power. It is stretching somewhat to regard a school district's ceding of taxing power as a change in its "boundaries." Even so, the first sentence quoted above does not apply to CEDs, because the change in imaginary boundaries occurs only in existing school districts, not in the newly created CEDs. The first sentence would allow existing school districts to go on exercising their taxing power irrespective of the creation of CEDs. But it is the taxing power of the CEDs, not of existing school districts, that is in question. There has been no change in the boundaries of CEDs, imaginary or otherwise, because they are newly created by Senate Bill 351. The first sentence relied upon by appellees does not confer taxing authority on CEDs. Nor does the second. *509 sentence. It applies to boundaries changed by "the annexation of, or consolidation with, one or more whole school districts." Tex. Const, art. VII, § 3-b. Senate Bill 351, as appellees admit, does not consolidate whole school districts, but only a portion of their taxing power. [26]

The purpose of article VII, section 3-b is to obviate the necessity of a tax authorization election every time a school district's boundaries are changed. If boundaries are changed, the prior electoral authorization is unaffected. If whole districts are consolidated, the effective authorization is that approved by the voters in the prior district with the largest scholastic population. In either situation, the changed district exercises a power to tax authorized by the electorate to support schools in the district. When school districts are consolidated, the power of the new district may be somewhat more or less than that previously authorized in one or more of the consolidated districts; the use of the power, however, remains to support the schools in the district. Neither the purpose nor the language of article VII, section 3-b authorizes a newly created CED to siphon off the taxing power of its constituent school districts and exercise it to take revenue from one school district and spend it in another.

We have construed article VII, section 3b only once, in Freer Municipal Indep. Sck. Dist. v. Manges, 677 S.W.2d 488 (Tex. 1984) (per curiam), rev `g 653 S.W.2d 553 (Tex.App.—San Antonio 1983), after remand, 728 S.W.2d 842 (Tex.App.—San Antonio 1987, writ ref'd n.r.e.), and 775 S.W.2d 774 (Tex.App.—San Antonio 1989, no writ). In that case, the inhabitants of the City of Freer voted to withdraw from the Benavides Independent School District, of which Freer was a part, and form a separate independent school district. Freer, 677 S.W.2d at 489 . This Freer did, and later annexed additional area which had also been part of the Benavides district. Property owners in this annexed area refused to pay taxes assessed by the newly formed Freer district because the voters in the district had never authorized it to levy taxes. Id. This Court held that despite the Freer district's failure to have a tax authorization election, under article VII, section 3-b it derived the same power to levy taxes that the voters, including the property owners in the annexed area, had approved for the Benavides district when Freer was a part of it. Id. at 490 . The Court concluded:

Article VII, section 3-b authorizes independent school districts to tax for school purposes in those instances in which the subject district was formed wholly by disannexation from an existing independent school district that possessed the power to tax.

Id. As we have seen, no part of article VII, section 3-b addresses specifically the creation of new districts. However, in Freer, the new school district was created by a change in the boundaries of an existing school district, a situation contemplated by article VII, section 3-b. But by no stretch of the language or history of article VII, section 3-b can that section be read as permitting half or more of the districts' allotted tax authorization to be stripped away and redeposited in a new state-controlled entity without voter participation.

This case is quite different from Freer. In Freer, the voters in the Benavides district, including Freer, voted to authorize the district to levy an ad valorem tax for support of the schools within the district. 677 S.W.2d at 489 . The creation of the Freer district out of the Benavides district, with the same power to tax, did not fundamentally alter what the voters had authorized. The residents of both districts continued to be subject to an ad valorem tax for local schools. In the present circumstances, however, transferring a portion of the taxing power of a school district to a CED fundamentally changes the tax burden approved by the voters of the school district. Now they are subject to being taxed not only to pay for the schools in *510 their own school district, but they must share the cost of schools in all the other school districts in the CED. They are entitled to no voice in the affairs of these other districts, yet they are obliged to pay their expenses. The residents of a CED may choose to vote to do this, that is, they may vote to authorize the CED to levy taxes that will be disbursed among the school districts in the CED to be expended at the discretion of the school boards of those districts. Here, however, the residents of the CEDs have never voted to take this course. Rather, Senate Bill 351 thrusts it upon them.

The dissent attempts to justify the consolidation of taxing power in CEDs as "less intrusive" than school district consolidation, which the Legislature might have undertaken in order to remove the enormous disparities in property wealth on which school finance so heavily relies. It is difficult to measure which course is more "intrusive" or "disruptive." Certainly, general consolidation of whole school districts would dilute a community's control over its own schools and alter the entire structure of the education system, but consolidation of taxing power in CEDs without a vote forces taxpayers to pay for schools over which they have nothing to say. The effects of the former alternative are hardly minimal, but neither are the effects of the latter.

In sum, article VII, section 3-b does not allow CEDs created by Senate Bill 351 to levy the ad valorem tax mandated by the statute on all the property in the CED, based solely upon the prior approval of the voters in each constituent school district to allow their district to levy a tax. Article VII, section 3, requires that before CEDs may levy the statutory tax, it must be approved by the voters in the CED.

IV

Some appellants contend that the creation of CEDs as school districts violates article III, sections 56 and 64(a) and article VII, section 3. We examine each of the provisions in turn.

Article III, section 56 provides in pertinent part that "[t]he Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law... [r]egulating the affairs of ... school districts...." Appellants argue that Senate Bill 351 is such a special law. However, a special or local law is one that applies to a limited class of persons as distinguished by geography or some other special characteristic. Clark v. Finley, 93 Tex. 171 , 54 S.W. 343, 345 (1899). By this definition, Senate Bill 351 is clearly not a special or local law: it applies generally to the entire State. The fact that sections of the statute assign particular school districts to CEDs does not make the law a special one inasmuch as it affects school districts throughout the state. Lower Colorado River Authority v. McCraw, 125 Tex. 268 , 83 S.W.2d 629, 636 (1935). Thus, Senate Bill 351 does not violate article III, section 56.

Alternatively, appellants argue that if Senate Bill 351 is not a special law then it violates article III, section 64(a), which states:

The Legislature may by special statute provide for consolidation of governmental offices and functions of government of any one or more political subdivisions comprising or located within any county. Any such statute shall require an election to be held within the political subdivisions affected thereby with approval by a majority of the voters in each of these subdivisions, under such terms and conditions as the Legislature may require.

Appellants contend that this provision requires that consolidation of school districts be by special statute. When article III, section 64(a) was first adopted in 1968, it applied only to El Paso and Tarrant Counties. As such, it was obviously not intended to restrict the Legislature's authority to create or consolidate school districts under article VII, section 3. Nor is there evidence of any such intention when it was amended to apply generally in 1970.

Article VII, section 3 provides in part that "the Legislature may also provide for the formation of school district[s] by general *511 laws." Tex. Const, art. VII, § 3. This Court has interpreted that provision as granting the Legislature a "free hand in establishing independent school districts" including the abolition and consolidation of districts. State v. Brownson, 94 Tex. 436 , 61 S.W. 114, 115 (1901); see also Prosper Indep. Sch. Dist. v. County Sch. Trustees, 58 S.W.2d 5, 6 (Tex.Comm'n App.1933, judgm't adopted); Neill v. Cook, 365 S.W.2d 824, 829 (Tex.Civ.App— Eastland 1963, writ ref'd n.r.e.), appeal dism'd and cert denied, 376 U.S. 202 , 84 S.Ct. 698 , 11 L.Ed.2d 650 (1964) (the Legislature has the power to change the boundaries of or abolish school districts, to consolidate them and to annex school districts to other school districts). Article VII, section 3 applies to school districts specifically. Inasmuch as article III, section 64(a) deals with the consolidation of governmental functions generally, it must give way to the specific provisions of article VII, section 3. "In construing apparently conflicting constitutional provisions, a general provision must yield to a special provision." San Antonio & A.P. Ry. Co. v. State, 128 Tex. 33 , 95 S.W.2d 680, 686 (1936); see also County of Harris v. Shepperd, 156 Tex. 18 , 291 S.W.2d 721, 726 (1956); City of San Antonio v. Toepperwein, 104 Tex. 43 , 133 S.W. 416, 417 (1911).

We have held above that even though CEDs are merely tax redistribution mechanisms with no educational functions, in constituting them as school districts, the Legislature has not exceeded its long recognized, broad authority to create and empower school districts. Our decision in City of Weatherford v. Parker County, 794 S.W.2d 33 (Tex.1990), does not limit the Legislature's power to consolidate school districts under article VII, section 3. There we held a general statute providing for the consolidation of the tax assessing and collecting functions for all taxing units within an appraisal district unconstitutional because such consolidation could be authorized only by special law, as required by article III, section 64(a). That section dictated the result in City of Weatherford because no other constitutional provision specifically authorized the consolidation of tax collecting and assessing functions. As we have noted, this is not the case with the consolidation of school districts. The tax base consolidation affected by Senate Bill 351 does not violate article III, section 64(a), or article VII, section 3.

V

Appellees argue that our holding today invalidating Senate Bill 351 conflicts with what we said in Edgewood II. The dissent expands this argument going so far as to accuse the Court in Edgewood II of deliberately misleading the Legislature into thinking that Senate Bill 351 was valid. This accusation is wholly without merit. In Edgewood I and Edgewood II, this Court did not confront the specific constitutional issues presented in this case. Nor has this Court ever determined the constitutionality of a school finance system like that embodied in Senate Bill 351. In both Edgewood I and Edgewood II, we insisted that change in the public school system itself was essential to meet the constitutional standard of efficiency in article VII, section 1. Edgewood I, 777 S.W.2d at 397 ; Edgewood II, 804 S.W.2d at 496 . However, we refrained from directing the Legislature to take a particular course in effectuating the required change. In Edgewood I, we said:

Although we have ruled the school financing system to be unconstitutional, we do not now instruct the legislature as to the specifics of the legislation it should enact; nor do we order it to raise taxes. The legislature has primary responsibility to decide how best to achieve an efficient system. We decide only the nature of the constitutional mandate and whether that mandate has been met.

777 S.W.2d at 399 . In Edgewood II, after concluding that the Legislature's action following Edgewood I did not "restructure the system," 804 S.W.2d at 496 , the Court mentioned two examples of the kind of systemic change necessary to correct the constitutional defect.

Consolidation of school districts is one available avenue toward greater efficiency in our school finance system.

*512 Another approach to efficiency is tax base consolidation.

804 S.W.2d at 497 . We did not suggest that there were no other alternatives, or that one of these two options was preferred. To the contrary, after discussing each option briefly, we reiterated: "We do not prescribe the means which the Legislature must employ in fulfilling its duty." Id. at 498 .

Our discussion of the viability of tax base consolidation was restricted to questions that had been raised in the district court regarding the effect of our decision in Love v. City of Dallas, 40 S.W.2d 20 (Tex. 1931). We said:

We disagree with the district court's observation that [tax base consolidation] "appears to run afoul of certain constitutional provisions related to taxation." The district court was apparently concerned that consolidation of tax bases violated this Court's opinion in Love.

804 S.W.2d at 497 . After reviewing our holding in Love , we concluded:

Article VII of the Constitution accords the Legislature broad discretion to create school districts and define their taxing authority. The Constitution does not present a barrier to the general concept of tax base consolidation, and nothing in Love prevents creation of school districts along county or other lines for the purpose of collecting tax revenue and distributing it to other school districts within their boundaries. While consolidating tax bases may not alone assure substantially equal access to similar revenues, the district court erred in concluding that it is constitutionally prohibited.

Id. at 497-98 (footnote omitted). In saying that neither the Constitution nor Love prohibited "the general concept of tax base consolidation," we did not exempt such action, regardless of how it might be undertaken, from all other requirements of the Constitution. We did not say that tax base consolidation could not be unconstitutional; all we said was that it could be constitutional. Our discussion of Love simply was not concerned with any of the constitutional issues of this case.

We observed that tax base consolidation might be implemented under existing statutes with voter approval.

Since this constitutional grant of power [to create school districts and define their taxing authority under article VII] does not specify the details of statutory implementation, a number of alternatives are available to the Legislature. One such method, already in place, allows voters to "create an additional countywide school district which may exercise in and for the entire territory of the county the taxing power conferred on school districts by Article VII, Section 3, of the Texas Constitution." Tex.Educ.Code § 18.01. The voters are permitted to implement such a taxing scheme "without affecting the operation of any existing school district within the county."

804 S.W.2d at 497 n. 14 (emphasis added). We recognized that this one method was not the Legislature's only alternative. Nevertheless, in the limited context of our discussion, we obviously contemplated that approval of the voters of the county would be required. Moreover, Love itself suggests that an election would be necessary:

Since the Constitution does not permit the taxation of the people of a school district for the support of that district, except upon a vote of the people of the school district, it is not debatable that the Legislature cannot compel one district to use its funds and properties for the education of scholastics from another district, without just compensation.

Love, 40 S.W .2d at 29-30 (emphasis added).

On rehearing, we were asked to overrule Love "or interpret that case `in a manner that would permit the [state-wide] recapture of local ad valorem revenues for purposes of equalization.'" 804 S.W.2d at 499 . A majority of the court refused to do so, stating: "We believe Love is sound and decline to overrule or modify it." Id. (emphasis added). [27] Rejecting the argument *513 "that all school districts are mere creatures of the state, and `in reality, all taxes raised at the local level are indeed State taxes subject to state-wide recapture for purposes of equalization'," a majority of the court stated:

Our Constitution clearly recognizes the distinction between state and local taxes, and the latter are not mere creatures of the former. The provision that "[n]o State ad valorem taxes shall be levied upon any property in this State," Tex. Const, art. VIII, § 1-e, prohibits the Legislature from merely recharacterizing a local property tax as a "state tax." Article VII, section 3, however, states that "the Legislature may authorize an additional ad valorem tax to be levied and collected within all school districts heretofore formed or hereafter formed, for the further maintenance of public free schools, and for the erection and equipment of school buildings therein." Tex. Const, art. VII, § 3 (emphasis added). These constitutional provisions mandate that local tax revenue is not subject to state-wide recapture.

Id. By holding that the State could not reclassify a local tax to be a state tax, the court did not authorize the State to call a state tax a local tax. In disapproving statewide recapture of local taxes, we did not approve the state-mandated local taxes levied by CEDs under Senate Bill 351. The latter mechanism was not considered in Edgewood II.

In Edgewood II, we simply did not address the issues now raised in this proceeding, which have resulted from the manner of tax base consolidation fashioned by the Legislature in Senate Bill 351. The legislative history of Senate Bill 351 reveals that the members of the Legislature were confronted within sharply conflicting testimony concerning the many difficult constitutional issues presented by this case. Contrary to what the dissent argues, they were not fooled into thinking that this Court had preapproved the system enacted by Senate Bill 351. In clarifying the views of one of the witnesses, the chairman of the conference committee stated that an attorney would in all probability "come back and file suit and say, well, that's, that's a legal fiction, that's just really a state tax and you created a district to collect the state tax, that's all that is." Hearings of Conference Committee on Senate Bill 351, Tex.S.B. 351, 72nd Leg., R.S., (Mar. 7, 1991) (Tr. 330). One witness who testified concerning the conflict between Senate Bill 351 and article VIII, section 1-e, was asked by the chairman, "Do you see any legal problem with the Legislature assigning a minimum tax or a tax rate?" The witness answered, "Yes, I do." Id. at 17.

Concerning the right of the people to vote on the imposition of local taxes for schools, an assistant attorney general testified before the conference committee: "you can steal the authorization [from existing school districts for CEDs] if you will under article VII, section 3-b, ... can we guarantee that this is going to meet a constitutional challenge, the answer is, is no." Id. at 3-4. [28] Another witness testified: *514 "article VII, section 3 says before that new [CED] school district can levy that tax it's got to be a vote as by a majority of the voters authorizing that tax." Id. at 18. The chairman observed: "Wouldn't be anybody against it, but the people." Id. at 20. One committee member summarized: "Without passing a constitutional amendment there, we almost have a hundred percent assurance that we're going to have future litigation from one side or another on this." Id. at 11.

The chairman stated in an earlier proceeding: "I think almost everybody is now of a mind that it will require constitutional revision to allow recapture, redistribution, and kind of state-wide equalization plan where you take money from one district and use it in another." Hearings of Senate Education Committee on Senate Bill 351, Tex.S.B. 351, 72nd Leg., R.S., 9 (Feb. 13, 1991). The conference committee chairman also stated: "[D]o you truly believe the Supreme Court of the State of Texas has the guts to shut the school system down? ... Well, I want to state here publicly and send them a message across there, I don't believe they have the guts to do it.... The question is whether we have the guts to challenge the Supreme Court to shut the schools down." Hearings of Conference Committee on Senate Bill 351, Tex.S.B. 351, 72nd Leg., R.S., 16-26 (Mar. 7, 1991) (Tr. 345-355).

While we do not fault the Legislature for reaching the wrong answers to the difficult constitutional questions of school finance, we cannot ignore the unconstitutionality of Senate Bill 351. We cite its proceedings to demonstrate that it was not misled by our prior opinion to think that Senate Bill 351 was free from the challenges now raised against it.

VI

Having concluded that provisions of Senate Bill 351 violate the Constitution, we now turn to the effect of our ruling.

A

In addressing the issues raised today our focus has been on the provisions of Senate Bill 351 which create CEDs and require them to levy taxes. These provisions, though relatively few among the many matters covered by Senate Bill 351, are an integral part of the statutory school finance system. Indeed, the CED tax levied by Senate Bill 351 is the very cornerstone of the entire school finance structure.

Like many statutes, Senate Bill 351 contains a savings clause, the purpose of which is to isolate any infirmity that may be found to individual provisions and preserve uninfected the remainder of the statute. That savings clause, section 29 of the statute, states:

If any provision of this Act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.

*515 Act of April 11, 1991, 72nd Leg., R.S., ch. 20, § 29, 1991 Tex.Gen.Laws 381, 415. Applying this provision, we do not hold Senate Bill 351 unconstitutional and therefore invalid in its entirety; rather, we limit our holding to the finance system it creates. We cannot, however, restrict our holding to only those portions of the statute which create CEDs and require them to tax. Were we to do so, the finance system that remained—if a system could be discerned in the remnants at all—would bear no resemblance to that which the Legislature intended, and would do nothing to remedy the disparities in school funding condemned in Edgewood I and Edgewood II. The finance scheme envisioned by Senate Bill 351 cannot be given effect without the CED tax.

We therefore conclude, as we have in both those prior school funding decisions, that the constitutional defects we have found pertain not to individual statutory provisions but to the scheme as a whole. It is the system that is invalid, and not merely a few of its components.

B

When we held that the school funding system violated the Constitution in Edgewood I and Edgewood II, we stayed the effect of our ruling in order to allow the Legislature to respond. We must consider whether it is appropriate to follow the same course here because in one respect, at least, this case is different. In our prior decisions, we dealt more with the operation of the system as a whole rather than with any specific element of it. Our ruling that the system was invalid could not be given retroactive effect because the past could not be corrected. We did, however, delay its prospective effect for a period of time, allowing the system to continue in operation until it could be changed. In this proceeding, by contrast, our ruling invalidating the CED tax could be given retroactive effect by requiring that the tax be refunded to the taxpayers.

Generally, judicial decisions apply retroactively. Sanchez v. Schindler, 651 S.W.2d 249, 254 (Tex. 1983). This rule is not without exceptions, however, and we have occasionally departed from it to apply a decision prospectively. [29] In this we are not alone. The United States Supreme Court also has recognized that certain cases require prospective application. [30] *516 Numerous other state supreme courts have invalidated state taxes and applied their decisions prospectively, refusing to grant refunds. [31] And as we have done in Edgewood I and Edgewood II, numerous other state supreme courts which have invalidated their school finance systems on state constitutional grounds have nevertheless allowed the systems to continue to operate while legislatures constructed new finance plans. [32]

The United States Supreme Court has recognized that whether a state court's rulings of state law are to be given prospective or retroactive application is a matter for the state court to decide. Great Northern Ry. Co. v. Sunburst Oil & Ref. Co., 287 U.S. 358 , 53 S.Ct. 145 , 77 L.Ed. 360 (1932). In Sunburst, the United States Supreme Court reviewed a decision of the Supreme Court of Montana. In an earlier case the Montana Supreme Court had held that persons who paid intrastate shipment rates later determined to be excessive were entitled to refunds. When Sunburst sued Great Northern and obtained a refund against it, Great Northern appealed. The Montana Supreme Court reversed its earlier decision and held that in the future persons who paid excessive rates could not obtain refunds. However, the court refused to apply its decision to Sunburst or any other person who had paid excessive rates prior to its decision. Great Northern appealed, contending that the decision violated the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Rejecting this contention, the United States Supreme Court in a unanimous opinion stated:

This is a case where a court has refused to make its ruling retroactive, and the novel stand is taken that the Constitution of the United States is infringed by the refusal.

We think the Federal Constitution has no voice upon the subject. A state in *517 defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions. Indeed there are cases intimating, too broadly ... that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hardship will thereby be averted.... On the other hand, it may hold to the ancient dogma that the law declared by its courts had a Platonic or ideal existence before the act of declaration, in which event the discredited declaration will be viewed as if it had never been, and the reconsidered declaration as law from the beginning.... The alternative is the same whether the subject of the new decision is common law ... or statute.... The choice for any state may be determined by the juristic philosophy of the judges of her courts, their conceptions of law, its origin and nature. We review not the wisdom of their philosophies, but the legality of their acts. The State of Montana has told us by the voice of her highest court that with these alternative methods open to her, her preference is for the first. In making this choice, she is declaring common law for those within her borders. The common law as administered by her judges ascribes to the decisions of her highest court a power to bind and loose that is unextinguished, for intermediate transactions, by a decision overruling them. As applied to such transactions we may say of the earlier decision that it has not been overruled at all. It has been translated into a judgment of affirmance and recognized as law anew. Accompanying the recognition is a prophecy, which may or may not be realized in conduct, that transactions arising in the future will be governed by a different rule. If this is the common law doctrine of adherence to precedent as understood and enforced by the courts of Montana, we are not at liberty, for anything contained in the constitution of the United States, to thrust upon those courts a different conception either of the binding force of precedent or of the meaning of the judicial process.

Id. at 364-66 , 53 S.Ct. at 148-49 (citations omitted).

The Supreme Court has recently reaffirmed Sunburst in American Trucking Associations, Inc. v. Smith, 496 U.S. 167 , 110 S.Ct. 2323 , 110 L.Ed.2d 148 (1990). There the Court stated:

When questions of state law are at issue, state courts generally have the authority to determine the retroactivity of their own decisions.

Id. 110 S.Ct. at 2330 (citing Sunburst). Likewise, the Court stated, it has the sole authority to determine the retroactivity of its own decisions. The Court had previously held that certain unapportioned highway use taxes violated the Commerce Clause of the U.S. Constitution. In American Trucking the Court held that its prior decision should not be applied retroactively to require the State of Arkansas to refund the revenue collected under such a tax before the Supreme Court's initial decision.

The same day American Trucking was decided, the Court held in another case that the State of Florida was required to refund preferential liquor excise taxes levied in violation of the Commerce Clause of the U.S. Constitution. McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, 496 U.S. 18 , 110 S.Ct. 2238 , 110 L.Ed.2d 17 (1990). The difference between the two cases, the Court explained in American Trucking, was that the Florida tax in McKesson had been levied after such taxes had been held to be unconstitutional, and Florida was thus on notice of the Court's holding before the tax was authorized. Thus, the issue was not retroactivity but the failure of Florida to follow Court precedent in fashioning its tax laws. As the Court stated: "Of course, we had no occasion to consider the equities of retroactive application of new law in McKesson because that case involved only the application of settled Commerce Clause precedent." 110 S.Ct. at 2332.

*518 American Trucking recognizes that some judicial decisions, including decisions invalidating taxes, should be applied only prospectively. [33] Its reaffirmance of Sunburst establishes that when the issue is whether the decision of a state court should be retroactive, that issue is to be decided by the state court. Our Court has also recognized that whether to apply a state law decision retroactively or prospectively is well within our discretion. Huston v. FDIC, 800 S.W.2d 845, 849 (Tex. 1990); see also Sanchez, 651 S.W.2d at 254 (citing Sunburst ). Other jurisdictions likewise have adopted this same position. E.g., Board of Comm'rs of Wood Dale Pub. Library Dist. v. County of Du Page, 103 Ill.2d 422 , 83 Ill.Dec. 224, 226 , 469 N.E.2d 1370, 1372 (1984); Jacobs, 560 S.W.2d at 14; Metropolitan Life, 373 N.W.2d at 408; Soo Line, 286 N.W.2d at 466; Rio Algom, 681 P.2d at 195.

Although we have the authority to determine the effect of our decisions and have frequently exercised it, we have not clearly articulated the factors which bear upon such decisions. Twenty years ago the United States Supreme Court first adopted a three-part analysis to help resolve questions of civil prospectivity:

First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed.

Second, ... [the court] must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.

Finally, [the court must] weig[h] the inequity imposed by retroactive application, for where a decision of [the court] could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the injustice or hardship by a holding of nonretroactivity.

Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07 , 92 S.Ct. 349, 355 , 30 L.Ed.2d 296 (1971). [34] A number of states have used the *519 Chevron test in resolving their own prospectivity questions. [35] We have applied the test in matters involving federal constitutional law. Wessely Energy Corp. v. Jennings, 736 S.W.2d 624, 628 (Tex.1987), and we consider it to be equally useful in matters of state law. Accordingly, we consider whether our decision today should be applied retroactively in light of Chevron's three factors. [36]

*520 First, today's decision involves issues of first impression whose determination was not clearly foreshadowed. There is, as we have noted, a dearth of caselaw interpreting the constitutional provisions in issue, and none of those cases involve circumstances like those presented in this case. No Texas court has previously addressed a challenge brought under article VIII, section 1-e. In only one previous instance has this Court spoken on article VII, section 3-b, and that case did not address the issues presented by the case at bar nor did it foreshadow our decision today. Witnesses who testified before the Legislature concerning the same issues were in vigorous disagreement. The first Chevron factor favors a prospective application of our decision. [37]

The second factor of the Chevron test is the "prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." The "rule in question" in this case is not a simple one because more than one constitutional provision is involved. Part of the purpose of article VII, section 3 is to provide for the creation and funding of school districts. The CED tax levied by Senate Bill 351 will provide an essential part of public school funding for the school year now half past. If we should apply our decision retroactively and require a refund of those taxes, the effect upon the school system would be devastating. Many schools, we are assured by the parties, would not be able to operate through the end of the year. Another part of the purpose of article VII, section 3, however, is to condition school districts' power to levy on the approval of the electorate. By applying our decision prospectively, we allow the collection of a tax without voter approval, in derogation of this constitutional provision. We also allow levy of a state ad valorem tax in violation of article VIII, section 1-e. There is no need to attempt a detailed analysis of all the purposes served by the constitutional provisions at issue here, and how those various purposes would be affected by a retroactive or prospective decision in this case. Suffice it to say that the effect of a retroactive application of our decision would be so damaging *521 to the school system it could not further any purpose of the Constitution.

The third element of the Chevron test calls us to examine the equitable considerations involved in applying a decision prospectively or retroactively. In particular, the court should consider the injustice or hardships that would result from a retroactive application. Again, a retroactive holding would severely disrupt school finances during the current school year. It would cause wasteful school closings, delays in payments to teachers and administrators, and inestimable damage to the children whose education could be interrupted for an indeterminable amount of time. The Legislature should not be permitted to impose an illegal tax on the citizens of this State. As onerous as this burden is, however—and it is very onerous, indeed—we believe that equitable considerations favor avoiding a very serious disruption in the education of Texas' children. Although the considerations on both sides of this factor are significant, we believe that the balance clearly favors a prospective application of our decision.

Based upon all three of the Chevron factors, we conclude that our decision in this case should be applied prospectively. The dissent argues that a decision applied prospectively is advisory. Opinion at 524 (citing Wessely, 736 S.W.2d at 628 ("[t]o declare [a statute] unconstitutional and then not apply the holding [in the same case] would transform our pronouncement into mere advice")). In some respects, of course, every prospective decision is advisory. Nevertheless, this Court, and every other jurisdiction of which we are aware, has recognized the necessity of prospective decisions in some circumstances. By applying our decision in this case prospectively, we do not leave the parties before us unaffected. We only limit that relief because it is impossible to give full retroactive effect to our decision without destroying the constitutionally guaranteed interests that it serves. [38]

C

In Edgewood I, we announced our decision on October 2, 1989, but stayed its effect for about seven months, until May 1, 1990, to give the Legislature an opportunity to respond. 777 S.W.2d at 399 . There was no regular session of the Legislature during this time period, but the subject of school finance was considered in four called sessions. Edgewood II, 804 S.W.2d at 493 n. 3. [39] The Legislature enacted Senate Bill 1 on June 6, 1990, a little more than a month after the deadline we set. Act of June 6, 1990, 71st Leg., 6th C.S., ch. 1,1990 Tex.Gen.Laws 1. In Edgewood II, we announced our decision on January 22, 1991, and stayed its effect until April 1, 1991, or just over two months, for enactment of tax until our decision becomes effective is no more a denial of due process than denying Great Northern recovery of the rates it refunded to Sunburst in that case. *522 legislation to be effective by September 1, 1991. Edgewood II, 804 S.W.2d at 498 -499 nn. 16-17. Although this time period was appreciably shorter than the deadline we had earlier prescribed, the Legislature was then in regular session. Senate Bill 351 was enacted April 11, 1991, and amended May 27, 1991. ante, at 492 n. 2. Other courts which have required revisions in their state's school finance laws have allowed time for their legislatures to respond ranging from an indefinite period to six months. [40]

In both of our prior cases, an important consideration in setting a reasonable deadline was the annual cycle of public school operations. Appraisal rolls must be certified by July 25, Tex.Tax Code § 26.01, and submitted to taxing units by August 1, Id. at 26.04. School budgets must be prepared. Tex.Educ.Code § 23.42, and tax rates must be adopted by September 1, Tex.Tax Code § 26.05. All of these deadlines could, of course, be adjusted by the Legislature. However, in order to cause as little disruption as possible to contracts, ordinary operations, and the public's expectations, we set a deadline that would give the Legislature as much time as possible to act before the beginning of the next school year.

Although we have repeatedly urged that school finance reform not be delayed, Edgewood I, 111 S.W.2d at 399, Edgewood II, 804 S.W.2d at 498-499 , we recognize that the task is not an easy one. While the Governor could call the Legislature into special session at any time, the Legislature will not meet in regular session until January 1993. We wish to provide the Legislature sufficient opportunity to consider comprehensive reform to the public education system. However, as in the past, the Legislature must take corrective action as soon as it is possible to do so without unduly disrupting the orderly functioning of the schools. [41]

Accordingly, we hold Senate Bill 351 invalid, but defer the effect of this ruling so as not to interfere with the collection of all 1991 and 1992 CED taxes. Our ruling is not to be used as a defense to the payment of any such taxes. We extend the Legislature *523 a longer period in which to act that it may have sufficient time to consider all options fully. We do not, however, encourage it to exhaust the time we have allotted. The Governor may well consider that the best interests of the people require that the Legislature be called immediately into session to adopt a constitutional school finance plan for the coming school year. Legislators, too, may believe that the best interests of their constituents mandate immediate action. We simply urge the other two branches of government not to delay. We require only that corrective measures be adopted before the 1993-1994 school year, specifically by June 1, 1993. To assure enforcement of this deadline, we modify the injunction previously issued by the 250th District Court as set out in the footnote. [42]

VII

A

As before, we do not prescribe the structure for "an efficient system of public free schools." The duty to establish and provide for such a system is committed by the Constitution to the Legislature. Tex. Const, art. VII, § 1. Our role is only to determine whether the Legislature has complied with the Constitution. We have not, and we do not now, suggest that one way of school funding is better than another, or that any way is past challenge, or that any member of this Court prefers a particular course of action (other than what those Justices writing separately today have expressed for themselves), or that one measure or another is clearly constitutional. Unlike the dissent, we do not contemplate that our review of the school finance system in this litigation will continue indefinitely. Rather, we hope and expect that the Legislature will immediately make sound changes in the system that will withstand constitutional challenge.

We offer only two additional observations. The first is that the consensus for at least two decades has been that systemic change is essential to correct the deficiencies *524 in the school finance system. In Rodriguez, the U.S. Supreme Court observed:

The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax. And certainly innovative thinking as to public education, its methods, and its funding is necessary to assure both a higher level of quality and greater uniformity of opportunity. These matters merit the continued attention of the scholars who already have contributed much by their challenges. But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them.

411 U.S. at 58-59 , 93 S.Ct. at 1309-1310 . In Edgewood I, we stressed, "the system itself must be changed." 777 S.W.2d at 397 . As long as our public school system consists of variations on the same theme, the problems inherent in the system cannot be expected to suddenly vanish. [43]

The second observation we would offer is that, although the issues brought before us in Edgewood I, Edgewood II, and now Edgewood III, have all been limited to the financing of the public schools, as opposed to other aspects of their operation, money is not the only issue, nor is more money the only solution. Contrary to the dissent's suggestion, an income tax is not the only remedy. In Edgewood I we stated: "More money allocated under the present system would reduce some of the existing disparities between districts but would at best only postpone the reform that is necessary to make the system efficient." 777 S.W.2d at 397 . We are constrained by the arguments raised by the parties to address only issues of school finance. We have not been called upon to consider, for example, the improvements in education which could be realized by eliminating gross wastes in the bureaucratic administration of the system. The Legislature is not so restricted.

B

In summary, we hold that the public school finance system enacted under Senate Bill 351 levies a state ad valorem tax in violation of article VIII, section 1-e, and levies an ad valorem tax without an election in violation of article VII, section 3 of the Texas Constitution. However, we defer the effect of our ruling as stated in part VI C of this opinion, and direct the Judge presiding in Cause No. 362,516-A, docketed in the 250th District Court, Travis County, Texas, to re-issue the injunction previously issued, (see footnote 42 of this opinion and Edgewood II, 804 S.W.2d at 498, n. 16 ,) as modified in this opinion. The causes are remanded to the respective courts for further proceedings consistent with this opinion.

There remains for the Legislature and the Governor the responsibility for reforming the public school system to comply with the sovereign will of the people expressed in our Constitution. We trust that they will make the necessary structural changes without unnecessary delay.

Concurring and dissenting opinions by CORNYN and GAMMAGE, JJ.

Dissenting opinion by DOGGETT, J., joined by MAUZY, J.

CORNYN, Justice, concurring and dissenting.

Each time this court has held Texas' system of public school finance unconstitutional we have prospectively enjoined the payment of state funds used to finance the system. The reason we have eschewed an immediate effect of our ruling, in favor of prospective relief, has been a desire to ameliorate any unduly disruptive impact of our ruling on our school children. Today, the court holds that the CED tax enacted by Senate Bill 351 is unconstitutional, a decision which I join. Furthermore, in an effort to alleviate the harm to school children *525 whose schools would be closed were it not for the revenue produced by that tax, we hold that 1991-92 taxes are nevertheless still due. I agree that a proper balancing of the equities compels this result too.

But the court veers from the straight and narrow path of judicial propriety and into a constitutional ditch by, in effect, telling taxpayers that an unconstitutional CED tax must be endured for an additional tax cycle because this is an election year. The court apparently believes that citizen opposition to the available legislative alternatives to Senate Bill 351 will be too irresistible to permit the type of fundamental reforms which this court has repeatedly held are indispensable to an efficient system of public education. However, this simply is not an equitable or legal basis for the court to refuse to perform its clear duty. Political pressures, the reason for delaying the effect of today's judgment for two tax cycles, do not rise to the same level in equity as the potential disruption of the school system which is the reason for the correct holding that the 1991-92 taxes are still due.

Moreover, the purported justification the court offers for delaying the effect of today's ruling an additional year simply cannot withstand scrutiny. Even if one assumes that the purported justification is valid, the court can offer taxpayers no reassurance that similar political pressures will not likewise be present in the next general session of the legislature. There is something fundamentally wrong with the court's logic when it can so dramatically and decisively strike down one constitutional violation, as we have done in Edgewood I ( Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex.1989)) and Edgewood II ( 804 S.W.2d 491 (Tex.1991)), only to abide another constitutional violation for two years because of political expediency. Furthermore, the court itself unnecessarily contributes to the delay, and resulting confusion, in establishing a constitutional school system by its two-year postponement of the effect of its judgment. Does the court really expect the legislature to react in advance of any deadline we might set? Experience should tell us that any such expectation is unwarranted. The wound that the court self-inflicts today will be slow to heal. The court's disparate treatment of two different violations of the same constitution is a starkly unacceptable abdication of its constitutional responsibility. We either have a constitution which is the fundamental law of our state or we do not. Out of due regard for the rule of law, the constitution must be enforced or it must be amended—the law simply cannot be ignored or its enforcement delayed for reasons of expediency. For these reasons, although I join in the court's judgment and opinion in all other respects, I dissent from section VI, C of the court's opinion and decline to join in that portion of the judgment that delays the effect of today's decision until 1993.

I.

Moreover, I believe that the exigencies of this case, particularly the likelihood that the constitutionality of our public school finance system will remain in doubt and unsettled for at least two more years, warrants a description of some of the key attributes of the kind of school finance system that would pass constitutional muster. In failing to describe those attributes, the court practically insures that public school finance litigation will remain unresolved anytime in the foreseeable future. Since this state-court litigation began in 1984, equitable funding for our public schools has dominated our three opinions and the ensuing legislative debate. Only in passing has the quality of the public education system in Texas been addressed. Yet our system of public education languishes in mediocrity with no improvement in sight. If educational achievement, by constitutional means, is not the solitary goal of our system of public education, there is a different battle being waged in the name of public education from that which has been generally argued and popularly assumed. See n. 8, infra. Equitable funding can only be one means to that end. An "efficient" education requires more than elimination of gross disparities in funding; it requires the inculcation of an *526 essential level of learning by which each child in Texas is enabled to live a full and productive life in an increasingly complex world. There comes a time when patience to permit the legislative process to run its course ceases to be a virtue. I am convinced that the extraordinary nature of these proceedings demands that the court discard its collective mask of inscrutability and describe the basic elements of an efficient system of public education in Texas. I am convinced that we do not serve the school children of our state well by merely reversing this case and, in effect telling the legislature to "try, try again," without guidance. Otherwise, given the history of school funding in Texas, recounted in alltoo-painful detail in JUSTICE GONZLEZ'S opinion, the constitutional requirements of the public school system in Texas are certain to be litigated for years to come. [1] Surely, no one can contend that interminable litigation serves the best interests of our school children. Nor does it solve the fundamental defects in our schools. Many, far too many, of our children are educationally crippled by illiteracy due to the lack of a basic education when they exit the public school system. I am concerned that we will ultimately conclude, like New Jersey's Supreme Court did after 17 years of litigation, that we have not laid these issues to rest. See Robinson v. Cahill, 62 N.J. 473, 514 , 303 A.2d 273 (1973), cert, denied sub nom., Dickey v. Robinson, 414 U.S. 976 , 94 S.Ct. 292 , 38 L.Ed.2d 219 (1973); Abbott v. Burke, 119 N.J. 287 , 575 A.2d 359, 404 (1990). Or, finally, in the words of one of the judges below, we may begin

to wonder if [w]e ha[ve] been assigned to some judicial purgatory where [w]e must hear the same case over and over.

Edgewood III, slip op. at 36.

The fact that this court has never given more than a hint of the substantive level of education our constitution requires [2] has not been met with universal aplomb. [3] As a consequence,

[g]iven the passions, entrenched bureaucracies, scarcity of resources, and conflicting interests, informed political horsetrading and not rational models have and will continue to carry the day in education finance.

Yudof, School Finance Reform at 597.

In the rough and tumble of another attempt to resolve this crisis, it is fundamentally important that the legislature be mindful of all of the elements of the efficiency standard we announced in Edgewood I. That standard deals with more than money, it mandates educational results. Otherwise, we may end up like Connecticut, for example, where after years of "legally successful" school finance litigation which increased the state's financial support to public schools by 35%, student performance has not significantly improved. Liebman, Implementing Brown in the Nineties: Political Reconstruction, Liberal Recollection, and Litigatively Enforced *527 Legislative Reform, 76 VA.L.REV. 349, 392-93, n. 144 (1990). Or, we may ultimately conclude, like New Jersey, which spends more per student than any other state except Alaska, that: "[B]eyond doubt... money alone has not worked." [4] Abbott v. Burke, 119 N.J. 287 , 575 A.2d 359, 404 (1990). Accordingly, in addition to its anticipated efforts to address financial aspects of educational efficiency the Legislature should forthrightly embrace the equally difficult issue of how the educational dollar in Texas is spent. A focus on results is required by this court's opinions in Edgewood I and Edgewood II and requires the legislature to articulate the requirements of an efficient school system in terms of educational results, not just in terms of funding. Although the legislature currently requires testing of student competence in reading, writing, social studies, science and mathematics, overall performance of Texas' school children on these tests has been despairingly poor.

Texas does not start with a blank slate. Other states have struggled, successfully, with similar constitutional mandates for "efficient" schools. The example of other states points to the need for the legislature to clearly define, and then fund, a minimally adequate education for all Texas school children. This means that for those districts which cannot do so based on local tax effort, the state must provide sufficient means. For those students and schools who are not getting a minimally adequate education because they speak English as a second language, because of learning disabilities—for whatever reason—the state must fund remedial instruction and programs, triggered by substandard performance, to bring them up to the legislatively articulated standard. Only then will the Texas public school system be constitutionally efficient.

II.

In Edgewood II, in an opinion denying plaintiff-intervenors' motion for rehearing, we wrote:

[Plaintiff-intervenors] position raises the question of whether the Legislature may constitutionally authorize school districts to generate and spend local taxes to enrich or supplement an efficient system (footnote omitted). [T]he Constitution does permit such enrichment, without equalization....

Edgewood II, 804 S.W.2d at 499 . In other words, we implied—but did not expressly state—that the Constitution does not require equalization of funds between students across the state. This means that the educational system in Texas is not constitutionally required to have equal funding per student. Further, implicit in the concept of an efficient school system is the idea that the output of the system should meet certain minimum standards—it should provide a minimally "adequate" education. Billy D. Walker, Intent of the Framers in the Education Provisions of the Texas Constitution of 1876, 10 REV. OF LITIG. 625, 661, n. 289-290 (1991) (hereinafter, Intent of the Framers). This was directly addressed in Edgewood I, when a unanimous court held:

[efficient conveys the meaning of effective or productive of results and connotes the use of resources so as to produce results with little waste. [5]

777 S.W.2d at 395 .

This is precisely the approach taken by the Supreme Court of Kentucky, for example, in requiring that "[e]ach child, every child, in this Commonwealth must be provided with equal opportunity to have an adequate education." Rose v. Council for Better Educ, 790 S.W.2d 186, 211 (Ky. *528 1989). But the state's obligation to provide an adequate education does not seek equalization of school funds as its primary goal. Once a uniform, basic education is provided by the school system, equalization of funding is not necessary. As the Kentucky court noted:

In no way does this constitutional requirement act as a limitation on the General Assembly's power to create local school entities and to grant to those entities the authority to supplement the state system.... [I]t may empower them to enact local revenue initiatives to supplement the uniform, equal educational effort that the General Assembly must provide. * * * Such [a] system will guarantee to all children the opportunity for an adequate education, through a state system. To allow local citizens and taxpayers to make supplementary effort in no way reduces or negates the minimum quality of education required in the statewide system.

Id. at 211-12 . [6] Implicit in the Kentucky Supreme Court's rationale is the preservation of "local control." Indeed, "local control" by parents translates, at least in part, to "the freedom to devote more money to the education of [their] children." San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 49 , 93 S.Ct. 1278, 1305 , 36 L.Ed.2d 16 (1972). It is not difficult to discern how "equality of funding" took center stage in this drama. In the trial of Edgewood I, Judge Harley Clark held H.B. 72, the public school finance system then in place, unconstitutional as violative of Texas Constitution, art. I, section 3 (equal rights guarantee); art. I, section 19 (due course of law), and the "efficiency" mandate of art. VII, section 1. On appeal, because this court agreed that the system was unconstitutional under art. VII, section l's "efficiency clause," it did not reach the other constitutional arguments. [7] 777 S.W.2d at 398 .

In the trial of one of the consolidated causes, Edgewood III, Judge McCown nevertheless appears to have engrafted an equal rights (art. I, section 3) requirement on our Edgewood decisions. For example, Judge McCown wrote that "the constitutional rights of children to `a substantially equal opportunity to have access to educational funds' are so strong that they cannot be thwarted by a local election." Slip op. at 8-9. I agree with one commentator who has written that "[t]his particular statement hints strongly at equal educational opportunity as a `fundamental right,' an issue studiously avoided by the Texas Supreme Court in Edgewood I and not even mentioned in Edgewood II and Edgewood Ha (majority opinion on Motion for Rehearing)." Billy D. Walker, The District Court and Edgewood III: Promethean Interpretation or Procrustean Bed? at 12 (Oct. 1991) (unpublished monograph, on file with record).

In the trial court's defense, however, this court in Edgewood I concentrated on the disparity of educational funding in the state rather than educational results. Though that decision was based on the efficiency provision of our constitution, the *529 court did on occasion use equal rights terminology. For example, the court stated:

[i]t is apparent from the historical record that those who drafted and ratified article VII, section 1 never contemplated the possibility that such gross inequalities could exist within an `efficient' system.

Id. (emphasis added). This word choice was unfortunate because the court expressly did not reach the equal rights issue; the court was addressing the 700-1 disparity in revenue available for education when the richest and poorest school districts were compared, ranging in expenditures per student from $2,112 to $19,333. In fact, the trial court, by subtly changing the court's "efficiency" rationale in Edgewood I, has contributed to the legislative dilemma. By mandating strict equality in funding as the solitary goal of efficiency rather than requiring a system that is productive of results, the trial court has in my opinion skewed our holdings in Edgewood I and II. [8]

Fiscal input alone offers no guarantee of a quality education. This is because pure "equality of input" requirements do not require a positive correlation between dollars spent (input) and quality of education realized (output). A school system where so few children demonstrate mastery of basic educational skills cannot be constitutionally efficient, no matter what level of funding is provided. Elimination of gross funding disparities alone will not result in an efficient school system.

The unwelcome constitutional responsibility of attempting once again to enact a constitutional school finance system following rendition of the present judgment presents the legislature with the formidable duty to enact and to fund a school system that meets minimum standards of academic achievement. [9]

III.

An efficient school system cannot be achieved through simple control of the inputs to the system (and certainly not through control of funding alone); the outputs of the system must be monitored and measured against a standard and the inputs must then be adjusted to correct any deficiencies.

A.

In Edgewood I the court assumed as true a conclusion that is, in fact, widely disputed by experts when it wrote:

The amount of money spent on a student's education has a real and meaningful *530 impact on the educational opportunity offered to that student.

777 S.W.2d at 393 . Significantly, the court offered no citation of authority for this conclusion. On the other hand, most educational experts agree that there is no direct correlation between money and educational achievement. Seventeen years before Edgewood I, the United States Supreme Court referred to an assumed correlation between money and academic achievement as a matter of "considerable dispute among educators and commentators." San Antonio Independent School District v. Rodriguez, 411 U.S. 1 , 24 n. 56, 43 n. 86, 46-47 n. 101, 93 S.Ct. 1278 ,1291 n. 56, 1302 n. 86, 1303 n. 101 (1972) ("[T]he extent to which the quality of education varies with expenditure per pupil is debated inconclusively by the most thoughtful students of public education"). Significantly, the debate over the unproven assumption that equal money means equal education rages still today, notwithstanding this unfortunate statement in Edgewood I.

For example, one commentator who recently published a survey of 187 educational studies, performed between 1967-1988, in an attempt to correlate expenditures with student achievement flatly concludes: "There is no systematic relationship between school expenditures and student performance." Eric A. Hanushek, When School Finance "Reform" May Not Be Good Policy, Vol. 28, No. 2 HARV.J. ON LEGIS. 423, 425 (Summer 1991). Indeed, if equal money meant equal education, it would be impossible to explain why some schools, operating on a fraction of the money, consistently out perform other betterfunded schools. [10] Even among those experts that harbor hopes that increased money will result in increased academic achievement there are those who concede it does not do so across the board.

[T]here seems little question that money could count, but within the current organization of schools, it does not do so systematically.

Id. at 439 (emphasis added). However, it seems highly unlikely that judges are more qualified to discover a positive correlation between public school spending and academic achievement than the experts in the field. [11] In fact, to the contrary, student *531 performance as measured by the Scholastic Aptitude Test (SAT) has actually fallen during recent periods of increased school spending in the United States indicating an inverse relationship (illustrated by the attached Figure 1 extracted from Eric A. Hanushek, When School Finance "Reform" May Not Be Good Policy, 28 HARV.J. ON LEGIS. 423, 427 (1991)). Critically important too is the fact that by concentrating on money alone, the current school finance debate overshadows reforms designed to produce results. And if student performance is not our goal, we are engaged in a perverse exercise that will likely have ramifications uncontemplated and unintended by a majority of the court.

Thus, any correlation between funding and educational results is tenuous at best. [12] So it is with CEDs under S.B. 351 that dutifully turn over funds to independent school districts, governed by independent boards of trustees, who make whatever use of the funds—good or bad or indifferent— as they, in their virtually unlimited discretion, see fit. Unless some way is found to change the districts that would merely squander the additional funds into districts that would use the money effectively, added funds alone are not likely to improve student performance. Moreover, the failure to educate students effectively in basic skills is very costly to society.

If concern for "results" gives way to equality of funding as an end all, our schools will continue to languish in mediocrity, forever, with the consequent loss of human dignity and competitiveness and added burden to our state's already overloaded social service system.

Functionally illiterate adults make up a disproportionately large percentage of the unemployed, depriving the country of valuable contributions to the gross national product and corresponding tax revenue. Furthermore, functional illiterates who are employed can be dangerous to employers. Disproportionately high percentages of this group commit crimes. Society not only suffers the direct financial, physical, and emotional losses caused by crime, but also pays billions of dollars per year to imprison the criminals. In addition, disproportionately high percentages of illiterate adults need welfare and other forms of government assistance, for which society pays billions of dollars per year.

Ratner, A New Legal Duty for Urban Public Schools: Effective Education in Basic Skills, 63 TEX.L.REV. 777, 784 (1985).

IV.

Setting measurable standards for student achievement is part of a nationwide educational reform effort in response to study after study that concludes that ours is a nation at risk due to the failure to teach at least minimal skills to our nation's school children. Chambers, Adequate Education for All: A Right, and Achievable Goal, 22 HARV.C.R.-C.L.L.REV. 55, 60 (1987) (hereinafter Chambers, Adequate Education for All). As part of this nationwide effort, several state courts have ventured to describe the contours of the basic minimum adequate education their state constitutions require. See Rose v. Council for Better Educ, 790 S.W.2d 186 , *532 212 (Ky.1989); Abbott v. Burke, 119 N.J. 287 , 575 A.2d 359, 374 (1990); [13] Seattle School Dist. No. 1 v. State, 585 P.2d 71, 94 (1978); Pauley v. Kelly, 255 S.E.2d 859, 877 (1979). For example, in Rose v. Council for Better Educ , the Kentucky Supreme Court held that an "efficient" system of education must have as its goal to provide, at minimum, each and every child with at least the following seven capacities:

(i) Sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable students to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.

790 S.W.2d 186, 212 (Ky.1989). But the Kentucky court reiterated that what was required was results not equal expenditure of money.

The court definitions demand substantive rather than financial improvements, they ensure the education of disadvantaged youth by guaranteeing an education, rather than a sum of money, and they leave in the hands of educators and legislators the responsibility for designing a plan that will deliver the required education.

McUsic, 28 HARV.J. ON LEGIS. at 332.

B.

Obviously, a strict results test for efficiency is not a panacea because the court and legislature can disagree on whether the standards are being met. But the proper goals of education, or the results sought to be achieved by a public school education are not new subjects. [14] For instance, the following components have been suggested as the basic requirements of "minimally adequate education" legislation: (1) requirements for minimum curriculum; (2) minimum competency tests; (3) testing requirements that trigger remedial assistance, and (4) programs designed to identify failing schools and to generate plans to improve them. Liebman at 433-34. Indeed, "[wjhile no single nation-wide definition of a legally sufficient education is discernable, the ingredients of such a definition are coalescing." Chambers, Adequate Education for All at 61. "Achievement levels required for entrance into the military, societally accepted reading and math norms as reflected by newspapers and modes of exchange, and basic competency standards might all be applied to the task of defining adequate education." [15] Id. at n. 27.

*533 Obviously, if standards are too vague they can and will be circumvented. On the other hand, specific standards have the benefit of certain application. Arkansas, for example, conclusively presumes that schools in which 15% of the students fall below standard on state-mandated tests are failing schools and must participate in a state-mandated school-improvement program. Liebman at 391 n. 140; see also Molly McUsic, The Use of Education Clauses in School Finance Reform Litigation, 28 HAR.J.ON LEGIS. 307, 333 (Summer 1991). Texas, which currently employs similar state-mandated competency testing, has already legislatively mandated minimum literacy standards and the means of assessing performance. However, what is missing is the remediation element of the formula, properly funded, adequate to accomplish that objective in all schools.

One commentator has proffered his answer to the purported justifications for failure to educate—they are false.

Effective education ... is possible. Successful schools do have important characteristics in common. These characteristics are capable of being replicated. And success is affordable. The proof that public schools can educate the vast majority of their students in basic skills is that many have already done so. Enough public schools serving sizable populations of poor and minority students in enough different locations nationwide have successfully taught the vast majority of these students basic skills within existing budgets, and the evidence of common characteristics and replicability is so strong, that the purported justifications for failure are no longer defensible.

Ratner, A New Legal Duty for Urban Public Schools: Effective Education in Basic Skills, 63 TEX.L.REV. 777, 795-96 (1985). Ratner cites the characteristics of successful schools as follows: (1) the principal's leadership and attention to the quality of instruction; (2) a pervasive and broadly underestood instructional focus; (3) an orderly, safe climate conducive to teaching and learning; (4) teacher behaviors that convey the expectation that all students are expect to obtain at least minimum mastery; and (5) the use of measures of pupil achievement as the basis for program evaluation. Id. at 801 (which he refers to as the "new catechism of urban school improvement," originated by the late Professor Ronald Edmonds of Michigan State University); see also Billy D. Walker, Intent of the Framers at 662-63 (listing generally accepted input-oriented measures of adequacy in education and citing E. CUBERLEY, SCHOOL FUNDS AND THEIR APPORTIONMENT 17, 23 (1905)).

V.

The advantages of an efficiency standard that requires results are self-evident:

(1) The remedy puts the money where the problem is, where it is more likely to deal with the disadvantaged child; it does not pour money into a school district for no specific purpose other than to equalize spending. Such a policy will help ensure that spending that is not essential to the schools' proper mission— enhancing student academic achievement—is far less likely. For example, expenditures on superfluous administrators, or Astroturf, or the like will be minimized. More importantly, a refocusing of resources where the need is greatest will result in increased funding to substandard schools. See e.g., Connecticut to Link Aid, Test Scores, Education Week, May 25, 1988, at 10 (Connecticut plan to distribute aid to school districts based on number of students scoring below the remedial level and on test-score improvement rates). Furthermore, the remedy is not overbroad;

(2) The remedy addresses the reality that education costs differ across districts, especially as the needs of rural and urban schools are considered in a state as immense *534 and geographically diverse as Texas;

(3) The remedy can be implemented without harming healthy school districts because minimum standards call for a minimum education not interference with all school districts, healthy or not;

(4) The remedy will produce no disruption of "local control" and will allow maximum local creativity as long as results meet standards;

(5) The remedy promotes accountability;

(6) The remedy ties input to output; and

(7) Finally, the remedy leaves the means of accomplishing efficiency to representative departments of state government.

It is my profound hope that the public school finance debate not eclipse the urgent need for schools that actually work. Otherwise, yet another generation of school children will be denied the benefits of their constitutional rights. For the reasons stated, I join the majority opinion in holding Senate Bill 351 unconstitutional, but dissent to that portion of the court's judgment which stays the judgment beyond the 1991-92 tax year.

*535

*536 GAMMAGE, Justice, concurring and dissenting.

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

The Federalist No. 62 (James Madison).

Madison's admonition may be a fitting epitaph for this episode in the continuing saga of public school finance.

While I concur in the portion of the judgment holding that Senate Bill 351 is unconstitutional and agree that this judgment should be applied prospectively, I cannot join in the majority's overwritten opinion and do not agree that it is either necessary or desirable to inflict an unconstitutional tax on the citizens of this state for more than one taxing cycle.

I agree generally with the majority's historical account, in Part I of its opinion, of the development of Texas school finance and the recent challenges it has faced. I also agree generally with Parts III and Via of the majority's opinion, but with the qualifications expressed below. The fatal defect in Senate Bill 351 is its failure to submit newly proposed taxing authorities to local voters, as required by Article VII, sections 3 and 3-b of our State's Constitution. The issues addressed in Parts II, IV, VIB, and VIIA of the majority's opinion are unnecessary to the decision in this case. I disagree with making the court's judgment prospective for two taxing cycles as provided for in Parts VIC and VIIB. Moreover, I disagree with Part V, wherein the court insists on once more wading into the advisory opinion swamp—a constitutionally proscribed journey, Tex. Const, art. V, § 3; Morrow v. Corbin, 122 Tex. 553, 563 , 62 S.W.2d 641, 646 (1933), criticized in my concurrence in overruling the motion for rehearing in Edgewood II. 804 S.W.2d at 501 .

I

The history of Article VII, section 3 reveals that the legislature and the courts have consistently given it a practical construction requiring a vote of local citizens to authorize the levy of an ad valorem tax for a school district's support when such a district is created by the legislature. See generally 2 G. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 512-13 (1976). Article VII, section 3-b does not authorize creation of CEDs with taxing authority, absent voter approval, because a newly-created CED is not a change in "boundaries" of an existing school district. In Freer Municipal Indep. School Dist. v. Manges, 677 S.W.2d 488 (Tex.1984) (per curiam), this court held that when an existing school district splits into two completely separate school districts by disannexation of a portion of the original district, that is a "boundaries" change for both of the resulting districts, id. at 490 , and Freer could continue to tax at the rate authorized by the Benavides district, of which it had been a part. Freer simply does not apply to this case. Further, the new CEDs are not boundary changes by "the annexation of, or consolidation with, one or more whole school districts." Tex. Const, art. VII, § 3b (emphasis added). Senate Bill 351 does not consolidate whole school districts, but rather creates a new taxing authority purporting to utilize a portion of the existing districts' taxing power.

II

Our decision should be applied prospectively because school districts, their students and patrons have relied on the presumption of constitutionality of Senate Bill 351, and because the equitable considerations apparent in disruption of the Texas public school system favor only a prospective remedy. Senate Bill 351 violates a constitutional provision unique to the Texas *537 Constitution, and its invalidity is a question only of state law. No federal legal issues are involved. Whether to make this court's decision prospective or retrospective is a decision for this court. American Trucking Associations, Inc. v. Smith, 496 U.S. 167 , 110 S.Ct. 2323, 2330 , 110 L.Ed.2d 148 (1990); Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364 , 53 S.Ct. 145, 148 , 77 L.Ed. 360 (1932). We need not and should not adopt any federal test for prospectivity, because federal law is not involved. Our decision in Reagan v. Vaughn, 804 S.W.2d 463, 467-68 (Tex.1990) ("considerations of fairness and policy preclude full retroactivity when the court's decision establishes a new principle of law that either overrules clear past precedent on which litigants may have relied or decides an issue of first impression whose resolution was not clearly foreshadowed"), controls. We should not engage in legal gymnastics to make our test fit the federal formula under Chevron Oil Co. v. Huson, 404 U.S. 97 , 92 S.Ct. 349 , 30 L.Ed.2d 296 (1971), or try to rationalize factors as if we were applying federal law. Nor should we be distracted by election-year political considerations from our earlier recognition of the urgency of resolving the issues of public school finance. For these reasons I agree with the majority that the effect of the court's judgment should be prospective, but would withhold its effect only until June 1, 1992.

III

I strongly object to Part V of the court's opinion. Whether the legislature speculated that the act might be unconstitutional is irrelevant. This court's role in this cause, where we have actual parties contesting the constitutionality of the statute, is to decide whether the act suffers from the constitutional infirmities alleged. The court goes further to defend its writing on rehearing in Edgewood II, by arguing it "did not say that tax base consolidation could not be unconstitutional; all we said was that it could be constitutional." Ante, at 512 (emphasis in original). The court imprudently tried to give advice, but once undertaking the task failed to give complete advice. Legislatures enact statutes; courts decide cases. Even when this court has before it an actual case involving a specific constitutional complaint, we have no business speculating for the legislature, the executive department, or anyone else, what may or may not be otherwise constitutionally done. Our duty is to address the questions presented to the extent necessary to dispose of the case—no more and no less.

IV

Justice Doggett's dissent correctly characterizes the requirement of a local vote on the CED taxation issue as a "veto" in the following sense: unless the voters in each CED approve the tax, the whole state system fails to meet the Edgewood I mandate requiring substantially the same educational opportunity for the same tax effort. For the entire system to meet this efficiency requirement, all of its CED components must have substantially the same tax system. Consequently, any one of the 188 CEDs can, in effect, "veto" the statutory school tax scheme for the entire state.

But the issue presented for our decision is indeed whether to enforce this specific right to vote on taxation, a right the people of Texas expressly reserved to themselves in Article VII, sections 3 and 3-b of our Constitution. We may not ignore the express words of the Constitution, nor may we shirk our duty to construe section 3 and the exceptions of section 3-b consistent with precedent and sound legal analysis. We should not bend the words of the Constitution beyond their reasonable construction to suit our convenience, nor even to meet our own perceptions of what is "good" for educating Texas school children. Our oath is to uphold the Texas Constitution, including the people's right, expressly reserved therein, to vote on such tax matters.

DOGGETT, Justice, dissenting.

So many words—so little justice! What does it all mean to the ordinary Texan—the lofty prose, the footnotes and citations, the multiple opinions, the charges and countercharges? *538 It means that the New Year brings an immense new wrong. For the school children, there is delay—perhaps infinite delay—in achieving equal educational opportunity; for the taxpayers, most probably an income tax. This is the unspoken but very real message announced here. A majority of this court has led the Legislature down the primrose path. Today's unconstitutional legislation is only yesterday's judicial vision; it is nothing more than the natural response to the majority's previous encouragement of tax base consolidation. The Legislature, the Governor, and three separate Texas trial judges all followed accurately the prior judicial instructions; now the majority unjustifiably changes the instructions. Its new opinion is a morass of contradictions and excuses. I dissent.

The wrong inflicted on Texans today is aggravated by the majority's deliberate delay. Public announcement of this improper decision could and should have been made long ago. [1] With each passing day, the majority denied the legislative and executive branches an opportunity to respond to the new judicial instructions for assembling a constitutional school finance system. Surely school boards, teachers, and administrators deserved a year without constant budgetary uncertainty; surely the school children deserved better. Instead, the majority creates another election year crisis [2] with an impact far beyond the educational system alone. Taxpayers who awaited a clear indication of their obligations are astonishingly told that they have forfeited their illegally collected 1991 taxes and must continue to pay unconstitutional taxes into 1993.

Disregarding a constitutional provision permitting consolidation of school districts without a vote, the majority announces a new principle—the privileged must be accorded a veto of any sharing of the state's resources with the underprivileged. Indeed, whenever referencing a local "vote," today's opinion really means "veto". The further declaration that the County Education Districts' (CEDs') tax levy is an unconstitutional state ad valorem tax injects confusion in the overall relationship between state government and its subdivisions. Future litigation can be expected over any state mandate that can be satisfied only by the expenditure of revenues generated by local property taxes. After causing this havoc in both education and intergovernmental relations, the court then compounds its errors by compelling Texas taxpayers to pay an unconstitutional tax.

Given the verbosity with which the majority has cloaked its injustice, I have written at length to respond thoroughly to the misinterpretations and to clarify the true consequences of each. This dissent includes the following:

*539

I. The Long Struggle for Justice Page 539

II. Judicial Entrapment by Advisory Opinion 540

III. Rewriting Article VII of the Texas Constitution 547

IV. The "statewide property tax prohibition" 551

V. "Prospective-Plus" Application of Today's Ruling 557

VI. Response to Justice Cornyn's Opinion 569

VII. Any Glimmer of Hope? 574

VIII. Conclusion 575

Confronted with one substantive point after another to which it cannot effectively respond, the majority undoubtedly finds this dissent highly distressing. Incredible inconsistencies, repeated rejection of precedent, and an ever-present elitist philosophy permeate the majority's writing.

It was not always this way. In two prior opinions on this same case, the court worked together to follow the rather clear command of the Constitution without regard to the political consequences of its decision. Through compromise and consensus-building, the court spoke with one firm voice in what many have recognized as the most important case it has ever considered. Tragically, this has all been lost.

In its last writing, the majority concluded that justice demanded too much. Reasoned constitutional determination gave way to political calculation; precedent gave way to partisanship as an interpretive guide. As the Supreme Court, our responsibility is to assure justice by upholding the supreme law of our state—our Constitution. We cannot pick and choose to apply only favored provisions; we cannot invoke its provisions only at times deemed convenient and comfortable for the members of this court; we must consistently and regularly enforce all of its terms. The damage the majority insists on today is not just to our children's education but to the very credibility of our system of justice.

I. The Long Struggle for Justice

The history of this case is reflected in the efforts of Demetrio Rodriguez and the experiences of thousands of other concerned parents and students from all regions and ethnic groups in Texas. In 1968, Mr. Rodriguez sought relief from the inequities of the state school finance system in federal court. Three federal judges in Texas said that it was inequitable and unconstitutional. All nine members of the United States Supreme Court said this school finance system was inequitable, but only four of them were willing to declare it unconstitutional. Rodriguez v. San Antonio Indep. Sch. Dist, 337 F.Supp. 280 (W.D.Tex.1971), rev'd, San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973).

In many ways today's ruling is quite similar to this 1973 writing upon which it relies. Pronouncements of compassionate generalities abound, but are unaccompanied by enforcement of constitutional rights. True, five judges of the United States Supreme Court "recognize[d] `the vital role of education in a free society.'" Majority Op. at 494 (quoting Rodriguez, 411 U.S. at 29 , 93 S.Ct. at 1294 ). They recognized it just before they refused thousands of school children any remedy for a denial of this same "vital" element. As Justice Thurgood Marshall eloquently responded:

[T]he majority's holding can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens.

*540 Rodriguez, 411 U.S. at 70-71 , 93 S.Ct. at 1316 (Marshall, J., dissenting).

After this federal failure and further unsuccessful attempts to obtain state legislative redress, Demetrio Rodriguez and others returned to state court. [3] In Edgewood Independent School District v. Kirby, 111 S.W.2d 391 (Tex. 1989) (Edgewood I) , they obtained it. After two decades of persistently opposing his claims, attorneys for the state and attorneys for its richest school districts have finally conceded the injustice of which Demetrio Rodriguez complained. In oral argument before this court, they have belatedly indicated agreement [4] with the principle unanimously announced in Edgewood I that:

There must be a direct and close correlation between a district's tax effort and the educational resources available to it; in other words, districts must have substantially equal access to similar revenues per pupil at similar levels of tax effort. [All] [c]hildren ... must be afforded a substantially equal opportunity to have access to educational funds.

Id. That is the only good news from this case. But it is good news that comes too late for the children of Demetrio Rodriguez; [5] it is good news that comes too late for some of the grandchildren of Demetrio Rodriguez. The bad news of today is that with its disposition the majority ensures that the benefits of the reform of the Texas school finance system may not be fully enjoyed even by Mr. Rodriguez's greatgrandchildren. Nearly a quarter of a century after Demetrio Rodriguez began his journey for justice, the end is nowhere in sight.

II. Judicial Entrapment by Advisory Opinion

To understand more completely the injustice which the majority has today accomplished, a review of recent developments in this litigation is necessary. The arguments made in the instant proceeding—that there are constitutional barriers to school districts sharing resources and that restructuring the property tax system would impose an unconstitutional statewide property tax—are not at all new; they were raised in opposition to the principles advanced in Edgewood Z [6] In its first opinion, this court declined to address these arguments or to mandate a method by which the Legislature could remedy the unconstitutional features of the school finance system.

Confronting a most recalcitrant Governor William Clements and multiple forces which refused to accept this court's unanimous writing in Edgewood I, the Legislature initially produced Senate Bill l, [7] only after Judge Scott McCown appointed a master and indicated a willingness to proceed with a court-imposed plan. This inadequate legislation was challenged by prop *541 erty-poor school districts who urged judicial substitution of the Uribe-Luna Plan, consolidating each county's tax base without an election. [8] They urged the trial judge to recognize that the Constitution "do[es] not require elections to create county taxing districts." [9] Judge McCown rejected this contention, concluding that three constitutional deficiencies precluded the proposed alternative: [10]

Because of the resistance to district consolidation, some have advocated tax base consolidation or sharing or recapture. All of these terms mean essentially the same thing. Senate Bill 9 and House Bill 34, the Uribe-Luna Plan, was based on county-wide tax base consolidation and produced significant equity. The Texas Research League has developed a similar plan. Tax base consolidation, however, appears to run afoul of certain constitutional provisions related to taxation. See Tex. Const, art. VII, § 3, and art. VIII, § 1(e); Love v. City of Dallas, 120 Tex. 351 , 40 S.W.2d 20 (1931).

It is precisely these three obstacles referenced by the trial court in its opinion of September 1990 that govern the issues of the present appeal: (1) whether article VII, section 3 requires a vote, (2) whether a levy by the CEDs is an unconstitutional state tax under article VIII, section 1-e, [11] and (3) whether Love prohibits the creation of the CEDs and the sharing of resources.

On appeal those same challengers urged "that this Court [in rejecting Senate Bill 1] order the District Court to implement the Uribe/Luna plan as a practicable and just alternative and the only method to assure protection of plaintiffs rights in the 1991-92 school year." [12] They claimed that Judge McCown had erred in rejecting tax base consolidation and again maintained that the Constitution "do[es] not require elections to create county taxing districts." [13] In response, the State insisted during oral argument that to implement tax base consolidation, "you have to have the local option election. You have to let the citizens vote to impose this new taxing authority on themselves or not." [14]

Addressing these arguments and concerned that the trial judge had misinterpreted our prior silence on the subject, we unanimously wrote in Edgewood Independent School District v. Kirby, 804 S.W.2d 491, 497-98 (Tex.1991) (Edgewood II) , to override all of the constitutional barriers ascertained by the trial court:

Another approach to efficiency is tax base consolidation. Senate Bill 1 expressly provides that future legislatures may use other methods to achieve fiscal neutrality, including "redefining the tax base." Tex.Educ.Code § 16.001(d). We disagree with the district court's observation that this option "appears to run afoul of certain constitutional provisions related to taxation." ... While consolidating tax bases may not alone assure substantially equal access to similar revenues, the district court erred in concluding that it is constitutionally prohibited.

If this court had desired to remove some but not all of the three barriers raised by the trial court to tax base consolidation, it could easily have done so. Instead, this *542 court unanimously concluded that Judge McCown had misinterpreted our prior silence with reference to all three constitutional provisions, not just one.

Unfortunately the majority's commitment to our Constitution yielded as the pressure of external forces intensified. See Opinion on Motion for Rehearing {Edgewood Two Minus or Edgewood II-), [15] 804 S.W.2d at 502 (Doggett, J., concurring) and 804 S.W.2d at 507 (Appendix A). Engaging in a "conscious manipulation," the majority improperly utilized an unrelated motion for rehearing to issue an advisory opinion. Id. at 506. "[Rjacing to publish this opinion before the other branches provide] their own solution," the majority sought to guide the legislative process, [16] "to legislate rather than adjudicate." Id.

The opinion on rehearing addressed whether statewide recapture of local taxes was permitted under article VIII, section 1-e of the Texas Constitution:

Our Constitution clearly recognizes the distinction between state and local taxes.... Tex. Const, art VII, § 1-e, prohibits the Legislature from merely recharacterizing a local property tax as a "state tax.".... These constitutional provisions mandate that local tax revenue is not subject to state-wide recapture.

Id. at 499 (emphasis added). The majority nonetheless offered a ringing endorsement of local recapture in the form of tax base consolidation:

Focusing on the Legislature's power to create school districts and define their to generate local property tax revenue for all of the other school districts within their boundaries.

Id. (emphasis added). It further dispensed the unsolicited advice that:

[T]he Legislature ... may, so long as efficiency is maintained, authorize local school districts to supplement their educational resources if local property owners approve [17] an additional local property tax.

Id. at 500 (footnote added).

In short, the majority's message to the Legislature concerning constitutionally permissible

1. You have independent power to define the taxing authority of school districts;

2. Statewide recapture of local taxes is prohibited;

3. Property tax revenue may, consistent with the constraints of the Texas Constitution, be recaptured locally— through redistribution among school districts—so long as this is confined within the boundaries of the new school districts that are superimposed upon existing districts;

4. Within reasonable limits, districts may supplement or enrich their educational resources with approval of additional taxes by local voters.

*543 As the majority envisioned, the Legislature attempted to draw the precise type of reorganization recommended. Nor is it surprising that, after diligent study of these prior writings, three Texas trial judges found the tax authorized by Senate Bill 351 constitutional, with Judge McCown concluding specifically that "the Supreme Court has already approved tax-base consolidation." [18] No one has been able to explain how the CEDs created by Senate Bill 351 differ in the slightest from the "new school districts ... given the authority to generate local property tax revenues for all other school districts within their boundaries," as specified in Edgewood II-804 S.W.2d at 499. Virtually mirroring the majority's directions, Senate Bill 351 provides:

Each county education district is an independent school district established by the consolidation of the local school districts in its boundaries for the limited purpose of exercising a portion of the taxing power previously authorized by the voters in those school districts nd of distributing revenue of the county education district to those districts.

Tex.Educ.Code § 20.942. After following the majority's road map, the Legislature is now told it has come to a dead end.

The majority responds to this situation with contradiction and excuses. First, we are told that the decision reached today could not have been "foreshadowed" or suggested beforehand. Op. at 518. Indeed, the majority is correct in this particular, since today's decision adopts a view directly opposite of that announced previously. But then the majority claims that the vote requirement had been "obviously contemplated" in its earlier writing. Id. at 520 & n. 37. Surely these two conflicting propositions cannot co-exist.

Let us examine how the majority made its prior declaration so "obvious" that it should have been understood immediately by any ordinary person. In short, it is claimed "obvious" for two reasons: (1) the content of the fourteenth footnote to Edgewood II and (2) certain language to which the court never referred in one of the many authorities it cited.

Assuming a magnifying glass was employed to study the fine print of the footnote, the reader would learn only that the "constitutional grant of powers does not specify the details of statutory implementation [and that accordingly] a number of alternatives are available to the Legislature." 804 S.W.2d at 497 n. 14. This language demonstrates an understanding that the Legislature enjoys a broad range of options. "One such method," mentioned by way of example, "allows voters to create an additional countywide school district." Id. This was certainly not the only constitutionally permissible course, nor does this example suggest that this or any other choice would require a voting prerequisite. Moreover, the text explicitly referred to Tex.Educ.Code § 16.001(d), a statute that contained no additional voting prerequisite to "redefining the tax base." If this court had desired an election precondition for all constitutionally allowable tax base consolidation, it could have said so clearly and unequivocally. Moreover, not even this single, indirect footnote reference to voting was employed by the majority in its Edgewood II- opinion.

*544 The second excuse is even more peculiar. Previously uncited language is now relied upon from Love v. City of Dallas, 120 Tex. 351, 372 , 40 S.W.2d 20, 29-30 (1931), suggesting a vote of the people of one district is necessary before using their "funds and properties for the education of scholastics from another district." This 1931 opinion was issued several decades before the people of Texas amended the Constitution by adding the current language of article VII, section 3-b in 1966, as discussed in section III, infra. Perhaps even more importantly, a significant objective of the court's writing about Love in Edgewood II was to correct the mistaken impression that it presented an obstacle to tax base consolidation. We held unanimously and unequivocally that it presented no such barrier. Edgewood II, 804 S.W.2d at 497-98.

Neither a magnifying glass nor a glass of another type—a crystal ball—would have revealed that the reference to Love in Edgewood II- without discussion of any voting requirement, meant a vote was necessary. In Edgewood II- the majority did find a way to make its views on voting known: it wrote what it wanted the reader to know. It did not mystically communicate that a vote was required through some obscure reference to an ambiguous footnote or to uncited language in an outdated opinion. There is but one mention of a voting requirement in Edgewood II- Describing the circumstances under which further voter action would be mandated, it said plainly that the voters must be consulted if a local district wished to supplement its resources. Although indicating that 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.

Having charted the legislative course through the murky waters of Texas constitutional law, it is no minor matter that the majority now claims its map failed to detail the sharp rocks and swift current near the shore. The essence of the peculiar position now adopted is that by formerly providing guidelines for tax base consolidation without saying that a vote was unnecessary, the majority, upon further reflection, finds that it is necessary.

Disavowing paternity of the CED offspring of its prior writing, the majority tries vainly to shift the blame to the Legislature. In doing so, it exercises extreme caution in an attempt to protect itself on another front [19] by professing the "good faith" of the Legislature in enacting Senate Bill 351. Maj. Op. at 493. Once again contradicting itself, the majority then paints a picture of the conference committee chairman, as ringleader, urging the Legislature to confront the court by embarking on the audacious course of implementing tax base consolidation pursuant to this court's writings. Id. at 493 . This attack on the Chairman, Senator Carl Parker, is both nasty and unfounded. [20] It also makes clear that despite lip service to the contrary, the majority truly feels that the Legislature acted in bad faith.

The Senator's comments are misconstrued to create the false impression that the Legislature purposefully disregarded a vote requirement for CEDs in Senate Bill 351 because of fear of voter disapproval. Id. at 493 . In fact, his remarks concerned a different alternative—full consolidation of all functions of school districts, described in the transcript as "true consolidation"—that was rejected by the Legislature as unacceptable to the public. [21] In a further unfair attack, the majority quotes the chairman's comments on statewide recapture, *545 id. at 493 made prior to its pronouncements on this issue in Edgewood II-. After that advice was received, his views were changed, as evidenced by his assessment at the later conference committee hearings. Similarly, the chairman's question regarding any future state tax challenge has been wrongfully distorted by the majority into a statement. Upon receiving a response to this query from a witness who supported the legislation as constitutional, Senator Parker stated: "I tend to agree with you about that." [22]

Particularly revealing is the majority's excerpt from the conference committee testimony of an unnamed assistant attorney general that

you can steal the authorization [from exi

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