Untitled Texas Attorney General Opinion ( 1989 )

February 10, 1989
Honorable Donald M. Keith Opinion Wo. JM-1015
Criminal District Attorney
Polk County Courthouse Re: Validity under article
Livingston, Texas 77351 VIII, section 14, of the Texas
Constitution, of section 6.30
of the Tax Code (RQ-1479)
Dear Mr. Keith:
you ask the following question:
Does section 6.30 of the Texas Property Tax
Code violate article VIII, section 14, of the
Texas Constitution insofar as it attempts to
ascribe duties incident to tax collections to
persons other than the County Tax Assessor-
Collector?
Section 6.30 of the Tax Code provides as follows:
(a) The county attorney or, if there is no
county attorney, the district attorney shall
represent the county to enforce the collection
of delinquent taxes if the commissioners court
does not contract with a private attorney as
provided by Subsection (c) of this section.
(b) [applies to taxing unit other than a
county]
(c) The governing body of a taxing unit
may contract with any competent attorney to
represent the unit to enforce the collection
of delinquent taxes. . . .
(d) [repealed]
(e) A contract with an attorney that does
not conform to the requirements of this sec-
tion is void.
Section 6.30 pertains to representation of the county
in enforcing delinquent tax collections. It provides no
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Honorable Donald M. Keith - Page 2 (JM-1015)
role for the county tax assessor-collector, and for this
reason, you wish to know whether it violates article VIII,
section 14, of the Texas Constitution. This constitutional
provision reads as follows:
Except as provided in Section 16 of this
Article, there shall be elected by the
qualified voters of each county, an Assessor
and Collector of Taxes, who shall hold his
office for four years and until his successor
is elected and qualified; and Such Assessor.
ani2 Collector of Taxes shall all the
uties with resnect to assessj,Ba nrouertv for
ose of taxation and of collectinq
taxes. as mav b or cribed bv the Leaisla-
w.1 (BmphasTs adizd.)
Tex. Const. art. VIII, S 14.
The offices of tax assessor and tax collector were
formerly separate offices established respectively by
sections 14 and 16 of article VIII. H.J.R. NO. 21, Acts
1931, 42d Leg., at 942; Acts 1933, 43d Leg. at xix. In 1932
these constitutional provisions were amended to consolidate
the two offices into a single office of tax assessor-
collector. The same amendment added the underlined clause
to article VIII, section 14. &
The commissioners court had statutory authority to
contract for attorneys to enforce delinquent tax collections
before the 1932 amendment consolidated the tax collector's
and tax assessor's offices. See Acts 1923, 38th Leg., 3d
C.S., ch. 13, at 31; Acts 1923, 38th Leg., 2d C.S., ch. 35,
at 78 (enacting predecessor of section 6.30 of Tax Code,
formerly codified as article 7335, V.T.C.S. (Vernon 1960)).
Judicial discussions of the relative powers of the commis-
sioners court and the constitutional tax collector in
collecting delinquent taxes provide some insight into which
tax collection functions the legislature could at that time
allocate to other officers. See aenerallv Attorney General
Opinion JR-911 (1988) at 17 ("core functionsn of county
1. The second clause of article VIII, section 14
should be read as if it stated: Hall duties with respect to
assessing property . . . and to collecting taxes, as may be
prescribed by the Legislature." G. Braden, The
d Comoarativq
m, 638 (1977).
Honorable Donald M. Keith - Page 3 (JM-1015)
treasurer's office): Attorney General Opinion JW-833 (1987)
(county tax assessor-collector).
In &J& Countv v. Maloney, 38 S.W.2d 868 (Tex. Civ.
APP. - Texarkana 1931, writ ref'd), the court stated that
the tax collector*8 statutory authority to receive and
collect taxes meant that he was "to demand and enforce in
the ordinary way" the payment of taxes on the assessmt;:
roll, but he did not have exclusive authority over
collection of delinquent taxes. 38 S.W.Zd at 871. The
commissioners court had authority to employ other persons to
assist in enforcing the collection of delinquent taxes. &
In upholding a provision of former article 7335,
V.T.C.S., which authorized the commissioners court to Vw
for an abstract of property assessed or unknown and un-
rendered" from the taxes, interest and penalty collected on
such lands, the Texas Supreme Court rejected the view of the
Court of Civil Appeals that all duties regarding the collec-
tion of delinquent taxes were vested by the constitution
in a constitutional officer. Cherokee Countv v. Odom, 15
S.W.Zd 538 (Tex. 1929). The Supreme Court quoted the
following statement made by the court below:
The Constitution provides for the election
of a tax assessor in each county. . . . The
Constitution has also provided forthe elec-
tion of a tax collector in each county, to
whom is committed the duty of performing all
the duties, gther than those involved in
al nroceedinas, which are necessary in
the collection of taxes. It has likewise
provided for the election of county and
district attorneys, whose duty it is to
represent the state and county in filing and
prosecuting suits necessary for the collec-
tion of delinquent taxes. (Emphasis added.)
15 S.W.Zd at 540 (guoting aerokee County v. Odom, 297 S.W.
1055 (Tex. Civ. App. - Texarkana 1927), m 15 S.W.2d 530
(Tex. 1929)). The Supreme Court disagreed 'with the lower
court, stating the the duty,of "performing these arduous,
laborious, and technical services for a county" is not
placed by the constitution or the statutes upon the county
tax assessor, the county tax collector, the county or
district attorney, or any other officer of government. Id.
at 541.
Of particular interest in addressing your question is
the lower court*s exclusion of duties involved in judicial
proceedings from the tax collector*8 area of responsibility.
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Honorable Donald Al. Keith - Page 4 (JW-1015)
Although that court believed that a broad range of tax col-
lection functions may be performed only by the county tax
collector, it did not include duties involving judicial
proceedings among his constitutionally mandated duties.
Section 6.30 of the Tax Code concerns the legal representa-
tion of the county by an attorney in enforcing the collec-
tion of delinquent taxes, u, tax collection duties which
may involve judicial p;;eedings. &=R wn v. Earne 8t ,
34 S.W.2d 685 (Tex. . ALP. - San Antonio 1930, writ
dism'd) (attorney could be compensated for collecting
delinquent taxes even though he did not bring suit there-
for).
The 1932 amendment to article VIII, section 14, of the
Texas Constitution was submitted to the voters under the
following ballot proposition:
'For amendment to the Constitution of the
State of Texas, combining into one office of
Assessor and Collector of Taxes, the offices
of Assessor and Tax Collector*: and . . .
*Against the amendment to the Constitution of
the State of Texas, combining into one office
of assessor and collector of taxes, the
offices of assessor and tax collector.#
H.J.R. No. 21, Acts 1931, 426 Leg., f 3, at 943. Thus,
according to the ballot proposition and also the caption to
the resolution proposing the amendment, the reason for
adopting this provision was to consolidate the offices.
Neither the caption nor the ballot proposition mentioned
the clause stating that the tax assessor-collector "shall
perform all the duties with respect to assessing pro-
pe*y . . . and of [sic] collecting taxes as may be
prescribed by the I.egis1ature.w
This clause may only have been intended to mean that
the new tax assessor-collector would perform all the duties
formerly performed by the two separate officers, even if the
statutes placed such duties on the "tax assessor'* or the
"tax collector.n Duties with respect to tax assessment and
tax collection had in the past been prescribed by the
legislature and would still be prescribed by the legisla-
ture. The added clause is not the basis of any limits on
the legislature*8 power to change "core functions" of
the tax assessor-collector; these limits already existed
with respect to the separate offices and after 1932 applied
to the combined office of tax-assessor collector. See
fissouri. K. & T. Rv. Co. of Tevas v. Shannon 100 S.W. 138
142 (Tex. 1907). The explicit statement 'that the tak
assessor-collector "shall perform all the dutiesw with
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Honorable Donald W. Keith - Page 5 (JM-1015)
respect to tax assessment and collection in effect codifies
the view that the constitution delegates a certain body of
tax assessment and tax collection functions to the county
tax assessor-collector so that the legislature may not
delegate them by statute to other persons. Green V.
Stewart, 516 S.W.2d 133 (Tex. 1974); AttoEy General
Opinion JW-833 (1987); Letter Advisory No. 117 (1976): S&Z
v. Galveston Countv Central Dist&&
713 S.W.2d 98 (Tex. 1986) (discussing article VIII, sectio;l
18, of Texas Constitution, which mandates single appraisal
and single board of equalization in each county).
Neither the legislature nor the courts treated the 1932
amendment as repealing existing law on contracts for
delinquent tax collections or otherwise radically changing
the legislature's power to define tax assessment and
collection duties. The first legislative session to meet
after the amendment was approved by the voters adopted the
following provision to implement it:
Hereafter, whenever the words *Assessor,*
*Assessor of Taxes,* 'Collector,* 'Collector
of Taxes,* or 'Tax Collector' are used,
either in Articles 7181 to 7359 . . . as well
as the Revised Code of 192.5 . .' . same shall
be applicable to and mean the one office or
officer of Assessor and Collector of Taxes,
and shall be so construed as to accomplish
the object and intent and carry out the
purpose of Sections 14 and 16 of Article 8,
of the Texas Constitution, as the same was
amended on November 8, 1932.
Acts 1933, 436 Leg., ch. 197, 5 5, at 600 (codified as
V.T.C.S. art. 7181a (1925), repealed by Acts 1979, 66th
Leg., ch. 841, 5 6(a)(l), at 2329). In determining the
meaning of a constitutional provision, a court will give
weight to a legislative construction, particularly to a
contemporaneous construction which has been acquiesced in
and adhered to for a long period of time. Director of
nt v. P&tina Indus
P80):
we8 Ass~, 600 S.W.2d 264 (Tex. mer v. Bal&
196 S.W.Zd 324 (Tex. 1946).
In 1938, the Texas Supreme Court, in holding a 1937
county contract for collection of delinquent taxes invalid
because it was not approved by the comptroller and the
attorney general as required by statute, stated as follows:
The Legislature has the sole power to
provide for the collection of delinquent
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Honorable Donald H. Keith - Page 6 (JM-1015)
taxes and to fix the compensation to be paid
for such services. It is also true that the
commissioners~ courts derive their power to
execute contracts with respect to the
collection of delinquent taxes exclusively
from the statutes. -mterwood v. Ii-
$&!,&y, Tex. Corn. App., 62 S.W.Zd 65.
White v. McGm, 114 S.W.2d 860, 863 (Tax. 1938). Neither
the parties nor the court raised any question as to the
validity of the statute under article VIII, section 14.
Nonetheless, the court's unqualified statement about the
legislature's power and its citation of Fasterwood v.
Henderson, 62 S.W.Zd 65 (Tex. Comm'n App. 1933,
judgmt. adopted), a case involving a pre-1932 contract for
delinquent tax collections, suggest that no such constitu-
tional issue even vaguely troubled the court.
In Pritchard & Abbott v. MclQhh& 350 S.W.2d 333 (Tex.
1961), the Supreme Court determined that the commissioners
court had implied authority to contract for the appraisal of
all properties in the county to assist .it in carrying out
its duties as a board of equalization for the county. In
upholding the contract the court rejected the argument that
it resulted in the commissioners court taking over the
functions of the county tax assessor and collector. 350
S.W.Zd at 336-338. The court also rejected the argument
that the contract was invalid under the reasoning of White
v. McGill, stating that:
[T]he contract between Galveston County and
Pritchard & Abbott was not entered into in
connection with the collection of delinquent
taxes and so for that reason did not require
the approval of the State Comptroller. Con-
sequently the decisions in Mar- v. Harris
are not in point.
350 S.W.Zd at 338. Thus, even in a case where the Supreme
Court explicitly dealt with an issue of usurpation of the
tax assessor-collector's authority, the court matter-of-
factly referred to the collection of delinquent taxes
pursuant to a contract authorized by the commissioners court
under a predecessor of section 6.30 of the Tax Code.
The authorities discussed in this opinion show that the
legislature and the courts have long assumed the contractual
procedure authorized by section 6.30 and its predecessors to
be consistent with the constitutional authori.ty of the
county tax collector and tax assessor-collector. Such
constructions of constitutional provisions are entitled to
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Honorable Donald M. Keith - Page 7 (JM-1015)
great weight. &S Director of Deoartment of Aariculture h
Environment v. Printina Industries Assnc, zunra. Moreover,
section 6.30 of the Tax Code pertains to collection efforts
by the district or county attorney or by a private attorney
with whom the commissioners court has contracted. As the
court of civil appeals in me Countv v. Odom suggested,
legal representation in the collection of delinquent taxes
is outside the scope of the tax assessor-collector's
constitutional functions. 297 S.W. 1055 (Tex. Civ. App. -
Texarkana 1927), rev'd on other aroul& 15 S.W.2d 538 (Tex.
1929). The courts have not decided wh& powers and duties
comprise the county tax assessor-collector's non-delegable
duties, S.Q~ Green v. Stewart, sunra, and we need not address
that question. The courts' long acceptance of the contracts
now authorized by section 6.30 and the history of the
amendment to article VIII, section 14, of the Texas
Constitution convince us that the procedures authorized by
section 6.30 of the Tax Code do not violate that constitu-
tional provision. See also Tex. Const. art. V, 0 18;
?ritchard G m , m; Cherokee Countv V.
sT!asm,3u2mr (authority of commissioners court to make
contracts for the county).
SUMMARY
Section 6.30 of the Tax Code does not
violate article VIII, section 14, of the
Texas Constitution.
dzyh
MATTOX
Attorney General of Texas
WARYKELLER
First Assistant Attorney General
Lou l4ccREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
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