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

826 S.W.2d 489, 35 Tex. Sup. Ct. J. 374, 1992 Tex. LEXIS 7

• Court: Texas Supreme Court
• Decided: January 30, 1992
• Docket: D-1469, et al
• Status: Published

Opinions

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”], 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.

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 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 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 HARV.J.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 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 HARV.J.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 op 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 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 Edge-wood 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, 777 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 G.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 Edge-wood 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 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 /, 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.

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 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.

GYA = (GL x WADA x DTR x 100) - LR Tex.Educ.Code § 16.302. "GL” is the dollar amount of state and local funds guaranteed for each weighted student for each cent of tax effort, "WADA” is the number of weighted students in average daily attendance, and "DTR” is the district enrichment and facilities tax rate of the school district, determined by dividing the total amount of taxes collected by the school district for the applicable school year by the quotient of the district’s taxable value of property as determined under Tex.Educ.Code § 11.86, divided by 100. "LR” is the local revenue, determined by multiplying "DTR” by the quotient of the district’s taxable value of property divided by 100.

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 valo-rem 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 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 valo-rem 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 valo-rem 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.

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.S.J.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 carrot- and-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 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.

Ill

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 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 district¹⁶ ... [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 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.R.J.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 BRA-den, supra, at 512-13. The section was 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. “[A]lthough non-use[ ] 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.

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 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 BRA-den, supra, at 521. In 1966, it was amended to apply to all school districts. Tex. H.J.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 here-inabove 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 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 3-b only once, in Freer Municipal Indep. Sch. 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 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 ... [rjegulating 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 gener-

al 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.

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 “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: “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.

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.

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.

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 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 Edge-wood, 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 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.

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 nonretro-actively 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 non-retroactivity.

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 Chevron test in resolving their own pros-pectivity 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

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 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 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 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

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 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.

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.

2 . Act of April 11, 1991, 72nd Leg., R.S., ch. 20, 1991 Tex.Gen.Laws 381, amended by Act of May 27, 1991, 72nd Leg., R.S., ch. 391, 1991 Tex.Gen. Laws 1475.

3 . Some of these school districts and individuals are the same parties who successfully contended in Edgewood I and Edgewood II that the school finance system violated article VII, section 1. In proceedings which remain pending in the district court, these parties persist in their claims that the school finance system fails to meet the constitutional standard of efficiency, even following the enactment of Senate Bill 351. They also contend, in the district court, that Senate Bill 351 violates the Voting Rights Act of 1965, 42 U.S.C. §§ 1973-1973bb-l (1981 & Supp.1991) and violates the mandate of article VIII, section 18(a) of the Constitution that taxation be equal and uniform. None of these issues are before us in the present appeals, and we intimate no view on any of them.

4 . Some funds for education are provided by the federal government, but they are a relatively small portion of the total funds spent. We do not include federal funds in our discussion.

5 . Funds were administered through the Available School Fund. Tex. Const, art. VII, § 5. The per capita distribution continues to this day, although it is absorbed into the Foundation Fund Program, and contributes a relatively small portion of school funds, about |300 per student annually. Edgewood II, 804 S.W.2d at 495 n. 10.

6 . Act of June 1, 1949, 51st Leg., R.S., ch. 334, 1949 Tex.Gen.Laws 625; Act of April 28, 1949, 51st Leg., R.S., ch. 335, 1949 Tex.Gen.Laws 647.

7 . Act of June 6, 1990, 71st Leg., 6th C.S., ch. 1, 1990 Tex.Gen.Laws 1.

8 . Many of these adjustments were added by House Bill 72, Act of June 30, 1984, 68th Leg., 2nd C.S., ch. 28, 1984 Tex.Gen.Laws 117.

9 . The formula is given in the statute as "LFA = TR x DPV”. Tex.Educ.Code § 16.252.

10 . Before it was amended by House Bill 2885, § 9, Senate Bill 351, § 2, actually set the very rate at which CEDs must levy. See Act of April 11,1991, 72nd Leg., R.S., ch. 20, 1991 Tex.Gen. Laws 381, 407, amended by Act of May 27, 1991, 72nd Leg., R.S., ch. 391, 1991 Tex.Gen.Laws 1475, 1478 (amending TexEduc.Code § 20.945). The change from prescribing the rate itself to prescribing a rate for estimated collections gives CEDs no more leeway in making this determination.

11 . The guaranteed yield allotment, or “GYA”, is calculated by the following formula:

12 . Before determining whether the total state and local funds per student available to a district exceed this limit, the commissioner subtracts therefrom the total funds per student required for the district’s debt service. Revenue collected in excess of the limit evidently triggers no consequences unless the commissioner, in his annual reviews, determines that the aggregate student population in districts exceeding their limits equals or exceeds two percent of the total student population. Then, for the next school year, no school districts — except for those already exceeding their revenue limits— may “levy a tax at a rate that would result in an amount of state and local funds, excluding funds required for debt service,” that "exceeds the revenue limit". Districts already exceeding the revenue limit, however, evidently may continue to do so, insofar as they may "maintain” the same amount of revenue. Section 16.009 at (c), (d), and (e).

13 . The dissent asserts that Florida caselaw construing a provision of the Florida Constitution similar to article VIII, section 1-e, supports the contention that the CED tax here is not a state ad valorem tax. That provision, article 7, section 1(a) of the Florida Constitution, states:

No tax shall be levied except in pursuance of law. No state ad valorem taxes shall be levied upon real estate or tangible personal property. All other forms of taxation shall be preempted to the state except as provided by general law.

The Florida cases cited by the dissent do not support its assertion. Unlike Senate Bill 351, none of the Florida cases cited by the dissent involved a statute which mandated the levy of ad valorem taxes, or prescribed the rate of such taxes, or required that they be used for specified purposes. St. Johns River Water Management District v. Deseret Ranches of Florida, Inc., 421 So.2d 1067 (Fla. 1982), holds that water districts, expressly authorized by one provision of the Florida Constitution to levy ad valorem taxes, could do so without violating the prohibition against state ad valorem taxes in another provision. In Sandegren v. Florida ex rel. Sarasota County Pub. Hasp. Bd., 397 So.2d 657 (Fla.1981), the court upheld a statute which required local governments to share in the cost of state-mandated mental health services furnished in the local area. In Board of Pub. Instruction v. State Treasurer of Florida, 231 So.2d 1 (Fla.1970) (per curiam), the issue was whether county districts, constitutionally authorized to control their own public schools and levy a local ad valorem tax to fund them, could be required by statute to support local junior colleges not under district control. The statute provided that if a county district which had promoted the establishment of a junior college later withdrew its support, the state would withdraw from that district a part of its financial support for the public schools in the district. Id. at 3. The Florida Supreme Court upheld the statute, rejecting the argument that the operation of a junior college was purely a state function, and therefore that requiring a county district to use local ad valo-rem tax revenue to support a junior college amounted to a levy of a state ad valorem tax. Id. The court held junior colleges served both local and state purposes.

The Florida statutes at issue in these three cases are clearly distinguishable from Senate Bill 351. The Florida statutes only authorized local water districts to levy taxes as allowed by the state constitution (St. Johns), or conditioned state support of local schools upon local support of junior colleges (Board), or required local funding of state mental health programs without prescribing the source of funds (Sonde-gren).

14 . The dissent contends that the public school finance system created by Senate Bill 351 is no different from other programs in which the State requires local participation. Invalidating Senate Bill 351, the dissent warns, "imperils the delicate balance of rights and responsibilities" between state and local government. Opinion at 554. The dissent exaggerates our ruling. We do not hold that any fiscal burden placed on local government by the State is unconstitutional. For example, the Indigent Health Care and Treatment Act, cited by the dissent, requires counties to provide a certain amount of health care for qualified indigent patients. Tex.Health & Safety Code §§ 61.001-.081 (1991). Under the Act, a county is the payor of last resort for health care to persons who do not reside in the service area of a public hospital or hospital district. Id. at § 61.022(b). The county is liable for the care of each eligible patient up to $30,-000 or 30 days of hospitalization or treatment, whichever comes first. Id. at § 61.035. When a county’s expenditures for indigent care reach 10 percent of the county’s general revenue levy for that year, the county is eligible for State assistance to the extent appropriated funds are available. Id. at § 61.036. Once those State funds are exhausted, the county that has expended 10 percent of its general revenue levy has no further liability. Id. at § 61.038. Unlike Senate Bill 351, the Health Code does not impose any tax. Counties may discharge their obligations using general revenue, including any sales and use taxes, raising property taxes, reducing expenses, or some combination of these. Id. at § 61.002(6). The statutory requirement that counties share in funding indigent health care does not approach the mandate of Senate Bill 351 that CEDs levy ad valorem taxes at a prescribed level from which the CEDs cannot deviate.

15 ."One-fourth of the revenue derived from the State occupation taxes and poll tax of one dollar on every inhabitant of the State, between the ages of twenty-one and sixty years, shall be set apart annually for the benefit of the public free schools; and in addition thereto, there shall be levied and collected an annual ad valorem State tax of such an amount not to exceed thirty-five cents on the one hundred ($100.00) dollars valuation, as with the available school fund arising from all other sources, will be sufficient to maintain and support the public schools of this State for a period of not less than six months in each year, and it shall be the duty of the State Board of Education to set aside a sufficient amount out of the said tax to provide free text books for the use of children attending the public free schools of this State; provided, however, that should the limit of taxation herein named be insufficient the deficit may be met by appropriation from the general funds of the State and the Legislature may also provide for the formation of school district by general laws; and all such school districts may embrace parts of two or more counties, 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, and 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; 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 not to exceed in any one year one ($1.00) dollar on the one hundred dollars valuation of the property subject to taxation in such district, but the limitation upon the amount of school district tax herein authorized shall not apply to incorporated cities or towns constituting separate and independent school districts, nor to independent or common school districts created by general or special law.”

16 . Although this word, "district,” is singular in the text, the context and history of the provision suggest that it should be plural.

17 . “There shall be set apart annually not more than one-fourth of the general revenue of the State, and a poll tax of one dollar on all male inhabitants in this State between the ages of twenty-one and sixty years, for the benefit of the public free schools.” Tex. Const, art. VII, § 3 (1876).

18 . In its present form, the condition of an election in what we have called clause four follows a semicolon. Preceding clauses two and three, separated by a comma, also follow a semicolon. One might argue that this grammatical construction favors applying the condition in clause four to both antecedent clauses two and three. The 1909 version of the provision, however, was quite different grammatically. There, clauses three and four were in the same sentence, but clause two in a separate, preceding sentence. The more plausible construction of that version is that clause four applied only to clause three. Nothing in the history of either version suggests that either the punctuation or the change in grammatical form of the provision was intended to affect its meaning. Under the circumstances, we decline to rest our construction of the provision on its grammar. See Sears v. Bayoud, 786 S.W.2d 248, 251 fn. 5 (Tex.1990).

19 . Tex.H.RJ.Res. 27, 35th Leg., R.S., 1917 Tex. Gen.Laws 503.

20 . Tex.SJ.Res. 17, 36th Leg., R.S., 1919 Tex.Gen. Laws 356.

21 . Tex.H.RJ.Res. 9, 39th Leg., R.S., 1925 Tex. Gen.Laws 682.

22 . Tex.H.RJ.Res. 9, 34th Leg., R.S., 1915 Tex. Gen.Laws 286; Tex.H.RJ.Res. 30, 34th Leg., R.S., 1915 Tex.Gen.Laws 287; Tex.SJ.Res. 17, 36th Leg., R.S., 1919 Tex.Gen.Laws 356; Tex. S.J.Res. No. 6, 57th Leg., R.S., 1961 Tex.Gen. Laws 1301; Tex.H.RJ.Res. 65, 59th Leg., R.S., 1965 Tex.Gen.Laws 2230; see generally 2 Braden, supra, at 512-13.

23 .In Walker, the issue was whether the Senate had the power to convene on its own motion. In holding that the Senate lacked such power, the Court noted that "it is significant that forty-eight legislatures passed before it occurred to the Senate that the power to confirm or reject the Governor’s appointments implies a duty to convene at will for that purpose....” Id. 196 S.W.2d at 327.

24 . The dissent’s insinuations that only the wealthy and "privileged" oppose Senate Bill 351 are refuted by the record. During the floor debates in the Legislature, Representative Uher from Bay City described the adverse effect Senate Bill 351 would have on the Palacios School District in Matagorda County:

In my district I have a school system that, fifteen years ago, was an extremely poor school system. It is a school system that is about 65% minority; and it is a school system that has had some good fortune in that a nuclear plant was built within its boundaries. The result of that has been, over the last fifteen years, they have gone from a property poor school system to a property rich system; and they now have a current tax rate of about $0.42. Now under the substitute under 351 we would go just like every other school system to the level of $0.80, and then the other factors that kick in. The problem that we have with this generic approach to how we deal with each school system is that while we are having to raise and double our tax rate to get to the $0.80 rate — we are now $0.42 — what it means is we are going to have to bring down expenditures that we are now spending on our young people. And it is not the idea of this bill, I don’t believe, and I know it is not the idea of our Governor, when we approach this very difficult subject matter, to reduce the learning qualities that are there — as the Governor said, "the dumb down syndrome.” We don’t want that.

But the problem of it is, that we will reduce expenditures in a system that is heavily minority and that is going forward at a very good scholastic pace. For instance, we have just competed in the academic decathlon; for the first time a small school in South Texas competed very well and won many first and second places, not only at the regional level but at the state level. So it is very important that we are able to continue a quality program that is heavily invested in the well-being of the young people who live in the Palacios school district.

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Here is a school district that is 65% minority. It is a fishing village primarily, that is the way most people make their livings. Young men and women will leave school at the third and fourth grade level to go and work on shrimp boats and other fishing vessels as young people, and they drop out of the school system. But what we have done by the good fortune that we have had, we have been able to keep those youngsters in school. And today we have got Yale University, we’ve got Stanford University_ Debate on Tex.S.B. 351 on the Floor of the House, 72nd Leg., R.S., 14-16 (Feb. 28, 1991).

25 . "No tax for the maintenance of public free schools voted in any independent school district and no tax for the maintenance of a junior college voted by a junior college district, nor any bonds voted in any such district, but unissued, shall be abrogated, cancelled or invalidated by change of any kind in the boundaries thereof. 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 or the maintenance of a junior college, as the case may be, and the payment of principal of and interest on all bonded indebtedness outstanding against, or attributable, adjusted or allocated to, such district or any territory therein, 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, and further in accordance with the laws under which all such bonds, respectively, were voted; and such governing body also shall have the power, without the necessity of an additional election, to sell and deliver any unissued bonds voted in the district prior to any such change in boundaries, and to assess, levy and collect ad valorem taxes on all taxable property in the district as changed, for the payment of principal of and interest on such bonds in the manner permitted hy the laws under which such bonds were voted. 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 and only the unissued bonds of such district voted prior to such change, may be subsequently sold and delivered and any voted, but unissued, bonds of other school districts involved in such annexation or consolidation shall not thereafter be issued.”

26 . No school district is divided between more than one CED, as the quote from appellees’ brief cited by the dissent suggests. Nevertheless, only part of each district — its taxing power — is consolidated.

27 . The court was not unanimous on the question of whether an opinion should issue on rehearing. I, along with Justices Mauzy, Dog-gett and Gammage were of the opinion that the motion for rehearing should be overruled without opinion. See Edgewood II, 804 S.W.2d at 500, (Gonzalez, J., concurring); Id. at 501 (Gammage, J., concurring); Id. (Doggett, J., concurring).

28 . The dissent asserts that this quotation has been taken out of context and that Mr. O’Han-lon clearly indicated that Senate Bill 351 was constitutional. In fact Mr. O’Hanlon’s testimony is indicative of the intense debate and uncertain conclusions surrounding Senate Bill 351. We cite it at length:

[T]he problem here is that, that we appear to be in a situation either repeated references to tax base consolidations and things of that nature of being led down the road by the Texas Supreme Court, that which, that no one has yet fought. The notion of tax base consolidation is not something that you’ve done before, that’s why we can’t tell you, we cannot predict the outcome of the, a challenge to the mechanics of how we set, set about doing it. We have never done a limited purpose consolidation which is what the Supreme Court has said over and over and over again is the way to fix the problem. They’re directing us into the, into an area where, where there are no answers. But they have, on each occasion in which they have chosen to write on this, endorsed the concept of tax base consolidation, they have word, they’ve called it another base-tax sharing, and appear to be leading us down this road. I will reiterate that every time that they mention Love and they, and Love still exists out there, that they talk about it in terms of statewide recapture. Love prohibits statewide recapture of funds. And they go on to say in Edgewood III [Edgewood II motion for rehearing] that we can still do tax base consolidations through the creation (implementing) school districts. That’s what we're doing. The question then becomes is, is this recaptured district amount to it, some kind of a sham because it's not a school district. I refer you to Chapter 18. Chapter 18 is not a school district as we know it either. Chapter 18 is an entity that exists solely for the purposes of collecting, levying taxes when they refer to the levy in that footnote 14 that I talked to you a little while ago. [Mr. O'Hanlon explained footnote 14 of Edgewood II to the committee twice]. They said that was one method that the legislature provided that it’s constitutionally appropriate. They didn’t say that was the exclusive method. And I take again that their choice of language in that regard to be significant. If they’d a said that was the only method that you had to provide for only collection of taxes by the local levy of this now larger unit, they could have told us that and they chose not to. So in sum, this is a bit of a chancy prospect. There’s no question about. But there is no guidance. Anybody that gets up there and, and tells you that there is a clear path and that we can only do it one way or another has got to be talking about their own opinion because there’s (two) other than Love.

Id. at 4 (emphasis added).

29 . E.g., Reagan v. Vaughn, 804 S.W.2d 463, 468 (Tex. 1990) (adopting cause of action for loss of parental consortium); Moser v. United States Steel Corp., 676 S.W.2d 99, 103 (Tex. 1984) (construing "other minerals” in mineral conveyanc- , es); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 434 (Tex.1984) (adopting comparative causation); Friendswood Dev. Co. v. Smith-Southwest Indus. Inc., 576 S.W.2d 21, 30-31 (Tex. 1978) (rule imposing liability for negligent use of groundwater applied prospectively); Whittle-sey v. Miller, 572 S.W.2d 665, 669 (Tex. 1978) (adopting cause of action for loss of consortium); Felderhoff v. Felderhoff, 473 S.W.2d 928, 933 (Tex.1971) (limiting parental immunity).

30 . American Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167, 110 S.Ct. 2323, 2332, 110 L.Ed.2d 148 (1990) (held state highway use tax unconstitutional, but refused to require refunds for pre-1987 tax years); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 88, 102 S.Ct. 2858, 2880, 73 L.Ed.2d 598 (1982) (prospectively invalidated statute granting Article III judicial powers to non-Article III bankruptcy judges, and stayed judgment to allow Congress to act); Buckley v. Valeo, 424 U.S. 1, 142, 96 S.Ct. 612, 693, 46 L.Ed.2d 659 (1976) (stayed for 30 days that part of judgment affecting authority of Federal Election Commission); Lemon v. Kurtzman, 411 U.S. 192, 199, 93 S.Ct. 1463, 1468-69, 36 L.Ed.2d 151 (1973) (permitted state to reimburse nonpublic sectarian schools under invalidated state aid statute); Chevron Oil Co. v. Huson, 404 U.S. 97, 107-09, 92 S.Ct. 349, 355-57, 30 L.Ed.2d 296 (1971) (prospectively applied state limitations period to action under Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq.); Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S.Ct. 1897, 1900-01, 23 L.Ed.2d 647 (1969) (prospectively invalidated state statute permitting only property owners to vote on municipal bonds); Linkletter v. Walker, 381 U.S. 618, 628, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965) (prospectively applied exclusionary rule announced in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)); Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 1394, 12 L.Ed.2d 506 (1964) ("where an impending election is imminent and a State’s election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case, even though the existing apportionment scheme was found invalid”); England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 422, 84 S.Ct. 461, 468, 11 L.Ed.2d 440 (1964) (declined to apply new interpretation of Government & Civic Employees Organizing Comm., CIO v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894 (1957)); Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 318-19, 84 L.Ed. 329 (1940) (rejected any "principle of absolute retroactive invalidity”).

31 . E.g., Gulesian v. Dade County Sch. Bd., 281 So.2d 325, 326 (Fla.1973) (refused to order refund of ad valorem taxes collected under unconstitutional school funding bill because it would cause fiscal chaos, and school boards had relied in good faith on presumptively valid statute); Southern Pac. Co. v. Cochise County, 92 Ariz. 395, 403, 377 P.2d 770, 778 (1963) (prospectively invalidated tax assessment procedure to avoid "great economic hardship”); Strickland v. Newton County,. 244 Ga. 54, 258 S.E.2d 132, 133-34 (1979) (prospectively applied invalidation of sales tax to avoid "unjust results”); Jacobs v. Lexington-Fayette Urban County Gov’t, 560 S.W.2d 10, 14 (Ky.1977) (refused to retroactively apply holding invalidating unconstitutional personal property tax, to avoid a "chaotic disruption of services” and "a hardship upon all the citizens of that local government”); Salorio v. Glaser, 93 N.J. 447, 461 A.2d 1100, 1111 cert, denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983) (prospectively applied invalidation of tax as of six months after decision); Foss v. City of Rochester, 65 N.Y.2d 247, 491 N.Y.S.2d 128, 136, 480 N.E.2d 717, 724-25 (1985) (refused to retroactively invalidate tax because city "would suffer an undue burden if it had to refund the taxes collected”); Hurd v. City of Buffalo, 41 A.D.2d 402, 343 N.Y.S.2d 950, 953-54 (App.Div. 1973) (refused to require refund of unconstitutional tax collected before date of decision), aff’d, 34 N.Y.2d 628, 355 N.Y.S.2d 369, 311 N.E.2d 504 (1974); Metropolitan Life Ins. Co. v. Commissioner of Dep’t of Ins., 373 N.W.2d 399, 412 (N.D.1985) (refused refund of unconstitutional state tax,, to avoid "significant hardship upon the state’s existing financial requirements”); Soo Line R.R. v. State, 286 N.W.2d 459, 465 (N.D.1979) (prospectively invalidated property tax method prospectively to avoid "chaos”); Rio Algom Corp. v. San Juan County, 681 P.2d 184, 196 (Utah 1984) (invalidated ad valorem taxes prospectively, except as to plaintiffs); Bond v. Burrows, 103 Wash.2d 153, 690 P.2d 1168, 1174 (1984) (denied refund of unconstitutional sales tax to avoid "great financial and administrative hardship”); Gottlieb v. City of Milwaukee, 33 Wis.2d 408, 147 N.W.2d 633, 646 (1967) (prospectively applied holding on unconstitutional property tax law to avoid creating fiscal problems).

32 . E.g., Serrano v. Priest, 5 Cal.3d 584, 96 Cal. Rptr. 601, 626, 487 P.2d 1241, 1266 (1971), cert, denied, 432 U.S. 907, 97 S.Ct. 2951, 53 L.Ed.2d 1079 (1977); Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 216 (Ky.1989); Helena Elementary Sch. Dist. No. 1 v. State, 236 Mont. 44, 769 P.2d 684, 693 (1989); Seattle Sch. Dist. No. 1 v. State, 90 Wash.2d 476, 585 P.2d 71, 104-OS (1978) (en banc); Washakie County Sch. Dist. v. Herschler, 606 P.2d 310, 337, 340 (Wyo.), cert, denied sub nom., Hot Springs County Sch. Dist No. 1 v. Washakie County Sch. Dist. No. 1, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980).

33 . In American Trucking, Justice Scalia concurred with four other members of the Court in holding that Arkansas was not required to refund the taxes in issue. However, Justice Scalia refused to join the analysis employed by the plurality, arguing instead that courts should never engage in prospective decision making. Because only four members joined in the plurality opinion refusing to give retroactive effect to a decision that taxes like Arkansas’ are unconstitutional, the dissent suggests that a majority of the U.S. Supreme Court no longer favors applying some judicial decisions prospectively only, and that we therefore cannot consider doing so in this case. The dissent’s argument is without merit for several reasons. First, precedent is more binding than prognosis. What the Supreme Court may do in future cases involving retroactivity issues is not as significant as what it has already done in decided cases. Second, the Supreme Court’s recent retroactivity discussions have evoked substantial discussion, raising many considerations which have not yet received full attention. See Fallon & Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv.L.Rev. 1733, 1832 (1991). Finally, the ongoing debate in the Supreme Court over what retroactive effect its decisions must be given does not dictate our own resolution of this issue. Throughout the debate, Sunburst, which allows each court to arrive at its own resolution of the issue, has not been questioned.

34 . The dissent mistakenly interprets James B. Beam Distilling Co. v. Georgia, — U.S.-, 111 S.Ct. 2439, 2448, 115 L.Ed.2d 481 (1991), as casting doubt on the Chevron test. In fact, Justice Souter, who announced the Court's decision in that case, joined by Justice Stevens, took care to state that his opinion did not limit Chevron: "The grounds for our decision today are narrow. They are confined entirely to an issue of choice of law: when the Court has applied a rule of law to the litigants in one case it must do so with respect to all others not barred by procedural requirements or res judicata. We do not speculate as to the bounds or propriety of pure prospectivity." (Emphasis added). Justice White, concurring in the judgment, stated: ”[t]he propriety of prospective application in this Court, in both Constitutional and statutory cases, is settled by our prior decisions.” Id. Ill S.Ct. at 2449. Justices O’Connor, Kennedy, and the Chief Justice affirmed the vitality of pros-pectivity, noting that "it is precisely in determining general retroactivity that the Chevron Oil test is most needed.... The inquiry the Court summarized in Chevron Oil represents longstanding doctrine on the application of nonre-troactivity to civil cases.” Id. Ill S.Ct. at 2452. Furthermore Justice Stevens, the author of the dissent in American Trucking, refused to join Justices Blackmun, Scalia, and Marshall’s dissents or to question Chevron’s vitality.

35 . E.g., Ex parte Coker, 575 So.2d 43, 52 (Ala. 1990) (noted usefulness of the Chevron test and applied it to state law question); Alaskan Village, Inc. v. Smalley, 720 P.2d 945, 949 (Alaska 1986) (new rule could be applied prospectively if "(1) the rule is one of first impression ... (2) defendant justifiably relied on prior interpretations, (3) undue hardship would result, and (4) the purpose and effect of the holding is best served by a purely prospective application”); Chevron Chem. Co. v. Superior Court, 131 Ariz. 431, 641 P.2d 1275, 1280 (1982) (en banc) (noted its approval of the Chevron test and applied it in the case); Woods v. Young, 53 Cal.3d 315, 279 Cal.Rptr. 613, 807 P.2d 455, 463 (1991) ("Particular considerations relevant to the retroactivity determination include the reasonableness of the parties’ reliance on the former rule, the nature of the change as substantive or procedural, re-troactivity¹ s effect on the administration of justice, and the purposes to be served by the new rule"); Wood Dale, 83 Ill.Dec. at 226-28, 469 N.E.2d at 1372-74 (applied Chevron to determine whether decision invalidating county practice of retaining interest on investment of tax receipts should be applied retroactively); Schrottman v. Bamicle, 386 Mass. 627, 437 N.E.2d 205, 209 (1982) (applied test almost identical to the Chevron test in determining whether to apply libel rule prospectively); Moorhouse v. Ambassador Ins. Co., Inc., 147 Mich.App. 412, 383 N.W.2d 219, 223 (1985) (examined "(1) the purpose of the new rule, (2) the general reliance upon the old rule, and (3) the effect of full retroactive application of the new rule on the administration of justice.”); Sumners v. Sum-ners, 701 S.W.2d 720, 724 (Mo.1985) (en banc) (adopted a test closely resembling Chevron)', Orleans v. Commercial Union Ins. Co., 133 N.H. 493, 578 A.2d 360, 362 (1990) (declined to adopt Chevron test outright but noted its usefulness and applied it); Rutherford Educ. Ass’n v. Board of Educ., 99 N.J. 8, 489 A.2d 1148, 1155-56 (1985) (test contained "virtually the same factors” as the Chevron test); Gurnee v. Aetna Life & Casualty Co., 55 N.Y.2d 184, 448 N.Y.S.2d 145, 433 N.E.2d 128, 130-31 (1982) (court used Chevron test to determine if state insurance law decision should be given retroactive effect); Fountain v. Fountain, 214 Va. 347, 200 S.E.2d 513, 514-15 (1973) (explained that "consideration should be given to the purpose of the new rule, the extent of the reliance on the old rule, and the effect on the administration of justice of a retroactive application of the new rule”). In the most recent application of the Chevron test by a state court, the North Carolina Supreme Court noted that "we might conclude from American Trucking that a majority of the Supreme Court is moving away from the non-retroactive application of constitutional decisions. We do not believe we should so conclude. In Beam the Court had an opportunity to say that the rule of Chevron should no longer be applied in civil cases and declined to do so.” Swanson v. State, 329 N.C. 576, 407 S.E.2d 791, 795 (1991); see Stroh Brewery Co. v. Department of Alcoholic Beverage Control, 112 N.M. 468, 816 P.2d 1090, 1093-94 (1991).

36 . Conflict exists among the various courts that use the Chevron test concerning the weight each Chevron factor should be given in applying the test. See Cameron S. Delong, Note, Confusion in Federal Courts: Application of the Chevron Test in Retroactive-Prospective Decisions, 1985 U.Ill.L.Rev. 117, 128 (1985). Some federal courts require the proponent of prospective application to demonstrate that each of the Chevron factors favors a prospective decision. See, e.g., Lowary v. Lexington Local Bd. of Educ., 903 F.2d 422, 427 (6th Cir.1990); Schaefer v. First Natl Bank, 509 F.2d 1287, 1294 (7th Cir.1975). We decline to follow these cases and instead adopt the approach followed by the majority of federal courts which allows a broader balancing among the three Chevron factors. Silverman v. Barry, 845 F.2d 1072, 1085-86 (D.C.Cir.1988) (court applied decision prospectively despite fact that second prong did not favor prospectivity); Iones v. Consolidated Freightways Corp., 776 F.2d 1458, 1460 (10th Cir.1985) (“A proper assessment under Chevron Oil focuses upon the relative significance of the individual Chevron factors. It is not necessary that each factor compel prospective application"); Barina v. Gulf Trading & Transp. Co., 726 F.2d 560, 564 (9th Cir.1984) (prospective application allowed because "the strength of the considerations relating to the first and third factors outweigh[ed] that relating to the second factor ...’’); Stretton v. Penrod Drilling Co., 701 F.2d 441, 445-46 (5th Cir.1983) (court allowed prospective holding despite concluding that the second prong favored a retroactive holding); Simpson v. Director, Office of Workers’ Compensation, 681 F.2d 81, 85 (1st Cir.1982); Cash v. Califano, 621 F.2d 626, 629 (4th Cir.1980) ("The application of [the Chevron ] factors is not accomplished through a discrete reference to each separate factor, but by an analysis of how they interact with one another”). We share the view of the First Circuit, that “[t]he [Chevron] factors are not discrete, disembodied tests, but rather offer three perspectives on the central question of retroac-tivity: was reliance on a contrary rule so justified and the frustration of expectation so detrimental as to require deviation from the traditional presumption of retroactivity.” Simpson, 681 F.2d at 85.

37 . The dissent is logically inconsistent in its analysis of this Chevron factor. On the one hand, the dissent argues that the Court plainly told the Legislature in Edgewood II that the plan embodied in Senate Bill 351 was constitutional. On the other hand, the dissent argues that today’s decision exactly to the contrary is nothing new. In fact, the dissent is wrong on both counts: we did not pre-approve Senate Bill 351 in Edgewood II or otherwise so foreshadow today’s decision that it must be applied retroactively.

The flaw in the dissent is the “fallacy of the excluded middle": the dissent argues that the Court must take one of two extreme positions because there is no ground between them. Thus, according to the dissent, the Court must hold that Edgewood II clearly foreshadowed that a school finance system like that adopted in Senate Bill 351 either would be constitutional, so that the Court has now misled the Legislature, or would be unconstitutional, so that today’s decisions cannot be made to apply prospectively only. The truth, however, is that Edgewood II did neither; it simply did not address the issues here because they were not raised in that proceeding. The issue is Edge-wood II was whether the Legislature had adopted an efficient school finance system. Tax base consolidation and its possible problems were discussed simply as one alternative the Legislature might consider. We said only that it is possible to consolidate school district tax bases without violating the Constitution. In that very limited context, we obviously contemplated tax authorization elections and said so. But we were not asked by any party to decide, and we did not hold that voter approval either would or would not be required; the issue was not properly before us.

The dissent also contends that prospective application of our decision in this case is inconsistent with our recent opinion in Caller-Times Publishing Co. v. Triad Communications, Inc., 826 S.W.2d 576 (Tex.1991). There we determined for the first time the elements required to prove predatory pricing, but refused to remand the case for retrial. Although the issue was one of first impression for us, it has been addressed by dozens of courts and commentators throughout the country for years. We were not writing on a clean slate; rather, our state antitrust statute requires us to construe it in harmony with federal antitrust law. See Tex. Bus & Com.Code § 15.04. By contrast, the constitutional issues raised in the present case, and their peculiar application to public school funding in Texas, are unique.

38 . The dissent criticizes the Court for affording only prospective relief when, of course, it would afford no relief at all, prospective or otherwise. Its professions of sympathy for taxpayers tire thus most disingenuous. The dissent’s position, in brief, is that Senate Bill 351 is constitutional, and that it should not be possible for the Court to reach a contrary conclusion without being compelled to destroy the public school system of Texas.

The dissent contends that the Court's decision forces taxpayers to pay an illegal tax in violation of their due process rights under the federal constitution. Our decision has no such effect because it is prospective only. We delay the effect of our holding until after collection of the 1991 and 1992 CED tax, as we are permitted to do under Sunburst. Enforcement of the CED 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.

39 . "We noted when we issued our opinion in Edgewood I that the Governor had called the Legislature into special session beginning November 14, 1989. 777 S.W.2d at 399 n. 8. The school funding system was not included in the call, however, until the third special session of the Legislature, which began February 27, 1990. That session adjourned without adopting corrective legislation, as did the fourth special session, which immediately followed and adjourned on May 1, 1990. At the fifth special session, which began May 2, 1990, a school finance bill was passed by both houses of the Legislature but was vetoed by the Governor on May 22, 1990. Tex.S.B. 1, S.J. of Tex., 71st Leg., 5th C.S. 145 (1990). Senate Bill 1 was enacted during the sixth special session.”

40 . The United States District Court which invalidated Texas’ school finance system in 1971 allowed the Legislature two years to take corrective action. Rodriguez v. San Antonio Indep. Sch. Dist., 337 F.Supp. 280, 286 (W.D.Tex.1971). Those states that have held their systems to be unconstitutional have granted prospective relief of varying duration based upon the realization that the enormity of the task of restructuring the system would take some time. E.g., Serrano v. Priest, 18 Cal.3d 728, 135 Cal.Rptr. 345, 557 P.2d 929, 940, 958 (1976) (trial court judgment setting a period of six years from the date of entry of judgment as a reasonable time for bringing the system into constitutional compliance affirmed); Horton v. Meskill, 172 Conn. 615, 376 A.2d 359, 376 (1977) (stayed judicial intervention to afford the General Assembly an opportunity to take appropriate legislative action); Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 216 (Ky.1989) (withheld finality of the judgment issued June 8, 1989 until 90 days after the adjournment of the General Assembly at its regular session in 1990); Helena Etem. Sch. Dist. No. 1 v. State, 236 Mont. 44, 784 P.2d 412, 413 (1990) (delayed effective date of February 1, 1989, judgment until July 1, 1991); Robinson v. Cahill, 62 N.J. 473, 303 A.2d 273, 298 (1973) (issued no deadline: "some period of time will be needed to establish another statutory system, obligations hereafter incurred pursuant to existing statutes will be valid in accordance with the terms of the statutes”); Robinson v. Cahill, 63 N.J. 196, 306 A.2d 65, 66 (per curiam) (court would not disturb the statutory scheme unless the Legislature failed to enact by December 31, 1974, legislation compatible with decision and effective no later than July 1, 1975), cert, denied sub nom., Dickey v. Robinson, 414 U.S. 976, 94 S.Ct. 292, 38 L.Ed.2d 219 (1973); Seattle Sch. Dist. No. 1 v. State, 90 Wash.2d 476, 585 P.2d 71, 105 (1978) (en banc) (opinion issued September 28, 1978, deemed all acts taken under existing statutes valid until July 1, 1981); Washakie County Sch. Dist. No. 1 v. Herschler, 606 P.2d 310, 337 (Wyo.) (court ordered that the conversion be in effect and underway not later than July 1, 1982), cert, denied sub nom., Hot Springs County Sch. Dist. No. 1 v. Washakie County Sch. Dist. No. 1, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980).

41 . We categorically deny the dissent’s allegation that the court has deliberately delayed its decision. To the contrary, we have expedited consideration of this case and announced a decision as soon as we could complete our deliberations. The dissent’s insinuation that the issuance of this opinion is related in any way to any other event is totally unfounded.

42 . The 18th District Court and the 32nd District Court denied injunctive relief in the proceedings before them, respectively. The 250th District Court previously issued the following injunction:

INJUNCTION

It is hereby ORDERED that William N. Kirby, Commissioner of Education, and Robert Bullock, Comptroller of the State of Texas and their successors, and each of them, be and are hereby enjoined from giving any force and effect to the sections of the Texas Education Code relating to the financing of education, including the Foundation School Program Act (Chapter 16 of the Texas Education Code); specifically said Defendants are hereby enjoined from distributing any money under the current Texas School Financing System (Texas Education Code § 16.01, et seq., implemented in conjunction with local school district boundaries that contain unequal taxable property wealth for the financing of public education).

It is further ORDERED, that this injunction shall in no way be construed as enjoining Defendants, their agents, successors, employees, attorneys, and persons acting in concert with them or under their direction, from enforcing or otherwise implementing any other provisions of the Texas Education Code. In order to allow Defendants to pursue their appeal, and should this decree be upheld on appeal, to allow sufficient time to enact a constitutionally sufficient plan for funding public education, this injunction is stayed until September 1, 1989. It is further ORDERED that in the event the legislature enacts a constitutionally sufficient plan by September 1, 1989, this injunction is further stayed until September 1, 1990, in recognition that any modified funding system may require a period of time for implementation. This requirement that the modified system be in place by September 1, 1990, is not intended to require that said modified system be fully implemented by September 1, 1990.

In Edgewood II, we modified this injunction to extend the date September 1, 1989, to April 1, 1991, and the date September 1, 1990, to September 1, 1991. 804 S.W.2d at 499 n. 17. We now modify this injunction to extend the original date September 1, 1989, to June 1, 1993, and the original date September 1, 1990, to September 1, 1993. We also modify the injunction to include the CEDs and to change the names of the parties. We do not direct the 18th and 32nd District Courts to issue identical injunctions; the modified injunction of the 250th District Court is sufficient to effectuate relief.

The modified injunction will not bar suits for collection of delinquent taxes, penalties and interest.

43 . It should go without saying that the Court does not endorse in any way the dissent’s suggestion that voters could be forced to choose between approval of CED taxes and school district consolidations. Without relaxing the mandatory nature of the tax imposed by Senate Bill 351, voter approval alone would not avoid the obstacle of article VIII, section 1-e.

1 . This case will, if it has not already, become like the notorious, albeit fictional, case of Jarn-dyce and Jarndyce:

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, gotten so complicated that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises.

Charles Dickens, BLEAK HOUSE 52 (Penguin classics ed. 1971)