Untitled Texas Attorney General Opinion ( 1968 )

AUSTIN. TEXAS 78711 December 16, 1968 Honorable Robert S. Calvert Comptrqller of Public Accounts Austin, Texas Opinion No. ~-318 Re: Effect of Subsection No. 5 of new Section l-e of Article 8-i& the Texas Constitution, known as Amendment No. 7, adopted at the General Election of November 5, 1968. Dear Mr. Calvert: Your request for an opinion reads, in part, as ': follows: "The electorate'of the State of Texas, at the General Election held November 5, 1968, passed Constitutional Amendment No. 7, which calls for the phasing out of certain sections of the State Ad Valorem Tax during the next several years. Sub-section No. 5 of Amendment No. 7 reads as follows: 'The fees paid by the State for both assessing and collecting state ad valorem taxes shall not e+zeed two per cent (2s) of the State taxes collected. This sub-section shall be self- executing.' "The,commission fees being paid at this date for State tax collections areeas follows: i,l) ARTICLE 3939 - Collecting Commission: F~:ic~20,00C.0C @ @ -1547- . HbnT Robe&S. Calvert, Page*2’(M-3x8) (2.) ARTICLE 7331.- Addition,al, Commiss.ion~on :.~ ,I Re'demptionCollections: Total amount @ '., ,'5$ " :, ,: '~ County) :, "Our first and primary question is - iWhat'effect:l'~' will:Sub-section No. 5 have on the commission fe,es,!, : listed above?' January'l, 1969, will be the 'dateeof.~' the beginning of the reductionin the StateTax'Rate land we would like for you to state.when a change in commission fees will be in effec.t;,ifyou,determine a change is in order. :, ~. ., .~' "My second'question is -~ 'Under Sub-section Ro. 5,; 1, can the Comptroller in 1969 pay the Assessing Commis- ,' sion Fee to the County Tax Assessor-Collector.as set : forth in ARTICLE 3937?' I list the following:schedule of assessing commissions paid prior to the,pas~sageof Amendment No. 7: First $5,000,000.00 z .95~ per 100.00 tax value Next. $95,000,000.00 .03i per 100.00.tax.~value' Baiance .02& per (One-half of the above ~ommi~ssionis 'and ,one-halfby County) '~, "Question No. 3 is - 1Can the State continue .to,ma,ke additional commission payment to an attorney who has.,~, Eontracted with the 'State and County for.the collection of delinquent taxes under the terms of Article 7335-a,?" In Attorney General Opinion No.'v-851 (1949), the Attorney General ruled on questions concerning amendments toArticles 3937 and 3939, Vernon's Civil Statutes, vihichincreased the : : compensation for assessing'and collecting taxes. These:statu- tory amendments became effective on June 19, 1949. The summary' of the opinionreads as follotis: "The assessor-collector should be compensatdd for taxes assessed and,collected:prior to ~.':: June 19, 1949, at the r~tes,provlded.in'4rtbcle.s" 3937 and 3939.before their s$endment,by~SL B::,. Hon. Robert S. Calvert, Page 3,.(M-318) . . 211, 51st Legislature. They’should be compen-’ ~’ : sated for taxes assessed and collected after June 18, at the rates prescribed in S.B. 211.” The returns of the General Election.of November 5, 1968, were canvassed on November 22, 1968,‘and it was asce.rtained that a majority of votes cast were in favor of Amendment NO. 7. Therefore, Amendment 7 became a part of the Constitu- tion’of the State of Texas on November 22, 1968; and subsection No. 5, being self-executing, became effective on that date. Attorney General Opinion Nos. M-296 (1968); o-6278 (1944); o- 2841 (1940); o-6821 (1945). The Constitution declares the organic law,of the,State, and its pronouncements are supreme. Thus, constitutional provisions are controlling over all.statutory provisions which are in conflict therewith, to the extent of the ~conflict. ‘f-12Tex.Jur.2d 359, Constitutional Law, 88 9 and 10. It is also the rule that unless the contrary is manifest, a consti- tutional provision will be construed to operate prospectively only. 12 Tex.Jur.2d 360, Constitutional Law, g 11. In applying these rules and precedents to your first two questions, it is the opinion of this office that the fees paid by the State to Tax Assessors-Collectors should,be governed as follows: (1) As to all State taxes which were both agsessed Andy collected before’the effective .date of the amendment, ~fees should be~paid in acoordance with the applicable assessment and,collection fee statutes.which were in eff,act‘immediately prior to such effective date. (2) As to all State taxes which are both asnessed and collected on and after,the effective date of the amendment, the .only fees paid by the State should be 2s of the amount of <;’ taxes actually collected. This rule applies to redemption and supplemental items as well as ordinary collections and assess-, merits. (3)’ As to all State taxes assessed but not collected before the effective date of the amendment, the fees paid for such a,ssessmentservice should be In accordance with the appll- cable assessment fee statutes which were,in effect immediately prior to such effective date. (4) ,,As to all State taxes assessed on and after the effective date of ttieamendment no fees should be paid for the assessment service alone, but a fee of 2% of the amount’of such -1549- .. Ron. Robert S. Calvert, Page 4 (M-318) assessed taxes which are actually collected should.be paid. as compensation for the complete service of both assessing and collecting such taxes. (5) As to all State taxes which were assessed before the effective date of the amendment but which are:collec:ted on and after that date, the State should pay 2$of the :~ amount of taxes collected, This conclusionsis.reached on ~.. grounds that'the amendment contemplates.that feesinA,some. 1. amount will be paid for tax money actually .collected~that/ the fees paid under ,the prkexisting:statutes for &s&ssmehts" were earned'before the effective date of the amendment';"that the amendment.provides no measure whatsoever whereby a specific part of the 2% fee can be allocated for collection alone; that a reasonable construction of the amendment should Abe given so as to do,equity and to give rise to as few questions inits application as possible. 12 Tex.Jr.2d, 362-368, Constitutional Law, f+814-22. We now proceed to your third question which has regard. to the effect of the amendment on Article 7335a, Vernon's Civil Statutes. Article'7335, Vernon's'Civil Statutes, provides for " commissioners' courts to contractwith,attorneys ,to enforce or assist in the 'enforcement of the .collectionof:delinquent:~State and'county taxes for a percentage of the,taxes, penaIty,and interest actually collected. Article 7335a,provides that no such contract shall be made where the compensation to be paid the attorney is more than 15% of the amount collected. The amendment in question speaks of fees to be paid by, the State for both assessing and collecting State Ad Valorem Taxes. The thrust of this language is toward the dual function f. of assessing and collecting State'taxes. This dual function can only be accomplished by county Tax Assessors-Collectors. In Texas there is no separate office of Tax Collector, and there is no separate office of Tax Assessor. The only office appli- cable to these tax functions is that of Assessor and.Collector.