Untitled Texas Attorney General Opinion ( 1952 )

August 28.1952
lion. John R. Lindsey Opinion No. V-1517
County Attorney
Jack County Re: Authority of the Commia-
Jacksboro, Texas . sioners’ Court to remit
penalty and interest on
taxes delinquent for the
years 1932 and 1933 under
Dear Mr. Lindsey: the submitted facts.
You request the opinion of this office upon two qw,s-
tions and give us 8 stat#ment of the facta which prompt4
your questions. The facts as stated by you are as follows:
-
‘The County has given notice to owners of 8
certain tract of land in Jack County stating
that delinquent taxes are due and that suit will
be instituted for their collection. The taxes
delinquent on this tract are for the years 1932
and 1933.
“The tax collector failed to mail out tax notices
on this tract of land to the owners thereof be-
cause the tracts were erronewsly carried on
the tax rolls under the names ‘unknown owwrs.’
Notice of deiinquency for the years of 1932 and
i 1933 had wver been given to these owners.
,
‘The owners’ position is that the tax office w&s
negligent in rendering the l8nds to lrnknown
owners’ and its faUure for twenty years to give
notice to them of any notice of delinquency.
From 1934 to the present d&e, the land has
been rendered to these owners and they haw
paid the taxes each year before they bewe de-
linquent. They ask the Commissioners Court to
remit the penalty and intereat and 8llow tbem to
pay the amo+nt of 8dwl:taxW.n
.
I
4: .
Hon. John R. Lindsey, page 2 (V-1517)
; : _
t
Your questions are:
“1. Does the Commissioners* Court of Jack
County have power tider law to remit per&.?
ty and interest on these delinquent taxes and
allow taxpayer to pay only amount of taxes ?
‘2. Does the Commissioners* Court of the
County by virtue of Art. 7345d. Vernon’s Ann.
Statute, haw the power to remit penalty and
interest and allow payment of only the origin-
al tax?”
Regardless of the reason for the delinquency of
the taxpayer, the commissioners’ court does not haw any
constitutionsl or statutory authority to remit or forgive
I the penalty or interest which accrues against delinquent :
i% taxes. The commisstoners’ court is a court of limited
i-i. jurisdiction under the, Constitution of this State. Section
18 of Article V of the Constitution with reference to the
!. commissioners* court, ~provides in part aspfollows:
i!’
I . . . shall exercise such powers and
jurisdiction over all county business as 1s
conferred by this Constitution and the laws
of the State or as may be hereafter prey-
scribed..
Under this constitutional provision it has been
uniformly held that the commissioners* court possesses
and exercises only’such power as the Constitution itself
or the Legislature, consistent with ‘the Constitution, ‘may
confer upon it; Bland v. Orr, 90 Tex. 492, 39 S.W. 558,
., 139 S.W. 662 (Tex.
man v. State, 97 S.Wi
2d 264 (Tex. Civ. App. 1936).
Gslwston, H.. & S. A. Ry. Co. v. Uvalde County,
167 S.W.2d 305 (Tex. Civ. App. 1942, error ref.:w.o.m.) ,
states the rule colrcisely in th” language:
‘The ,Commissioners’ Court of a county
has only such powers as are expressly or by
Hoa. John R. Lindsey, page 3 (V-1517)
I
necessary implication given it by the Consti-
tution .and’statutes ofthis State. .[ Citing Cases]
. . . .I
:’
A comparatively recent case b; the Supreme Court,
‘Canales v. Laughlin, 147 Tex. 169. 214 S.W. 451 (1948). has
stated substantially the same sing in the following language:
*The Constitution does not confer on the
commissioners courts ‘generai authority over
the county business* and such courts can exer-’
cise only such powers as the Constitution itself
.or the statutes haw ‘specifically conferred upon
them’. See Mills County v. Lampasas Cow9
90 Tex. 603, 606, 40 S.W. 403,404; Anderson ‘v.
WA, 137 Tex, 201. 203. 152 S.W.td 1084, 1085.
While the commiss%oners courts have a broads
discretion ja exerc$sing powers expressly con-
ferred on them, nevertheless the’legal basis for
any action by any such court must be ultimately
found in the Constitution or the statutes.”
An examination of the Constitution and the statutes
reveals that no expressed power has been conferred upon the
commissioners* court to forgive or remit the penalty and
interest upon delinquent taxes. Nor does this power arise
from necessary implication from any power expressly con-
ferred. Therefore, the answer to your first question is in
the negative.
-We next pass to the sec:ond question which has here? :
tofore been answered by previous opinions of this office, cop-
ies of which are enclosed for your information. See opinions
numbered O-936, O-7251, O-6257,and O-7412, as well as let-
ter opinion to Hon. W. R. Allen dated August 13, 1947.
These ‘obinions hold ‘that Article. 73453 is unconsti- .j’
tutional. It may therefore not be relied upon for any pur-
pose. We have held, however, that upon a hearing and suffi-
cient testimony before the commissionera’ court, an assess-
ment may be declared void and a new assessment made by the
tax assessor-collector upon the orders of the court. From the
facts submitted by you, we do not perceive any reason why the
Hon. John R. Lindsey, page 4 (V-1517)
assessment for the years involwd should be coMidered void,
~The mcrc fact that several years* penalty and interest had
i”T, accrued against the ,delinquent taxes would not in any manner
,; F-1 affect the validity of the assessment.
.-/..I
SUMMARY
The commissioners’ court does not have autb-
ority to remit or forgiw the penalty and interest
which have accrued against delinquent ad valorem
taxes. Article 7345d, V.C.S., is unconstitutional,
and may not be relied upon for any purpose. Att’y
Gen. Op. O-903, O-7251, O-6257, and O-7412. and
letter opinion R-635 (August 13, 1947).
APPROVED: Yours wry truly,
.W. V. Geppert PRICEDANIEL
Taxation Division Attorney General
E. Jacobson
Reviewing Assistant
BY
Charles D. Mathews L.
4?C?.Lo r
First Assistant Assistant \
LPL mm
.