Untitled Texas Attorney General Opinion ( 1949 )

~KEATII-ORN~Y GENERAL
OF v?JcuAs
AUWTIN 11. TExAe
February 1.6, 1949
Hon. William N. Hensley
Criminal District Attorney
San Antonio, Texas
Dear Mr. Bensleyr Opinion No. V-776
Rer Several quest Ions
relating to ren-
dition and assess-
ment of property
for ad valorem
taxation.
You request the opinion of this office upon
the questions set out below as follows:
“(1) What Is the percentage of the
fair cash market value of property upon
which a taxpayer may make a sworn rendl-
tion* In other words, can the taxpayer
legally render his property at, say,
Flg*percent of the fair cash mai%et
“(2) Should the Tax Assesso? ad-
vise persons making renditions th.:ct the
rendition must be on the true and full
value that Is to say, the fair cash
markei value of the property? Is It the
duty of the Tax Assessor to tier to the
Board of Equalization such r endltions as
are not made at the fair cash market
value?
“(3) At what percentage of fair cash
market value may the Tax Assessor assess
unrendered properties when he makes his
assessment on such unrendered properties?
“(4) At what values can the Board of
Equalization set the assessed values of
property before them for consideration?
May the Board of Equalization set a value
of less than the fair cash market value?
Hon. William N. Hensley, Page 2, v-776
What Is the effect of the ‘uniformity! pro-
vision of the statutes? In other words,
may the Board set a value on a particular
piece of property at the fair cash market
value while the standard for property as-
sessments generally Is at forty percent of
the fair cash market value?”
We shall not attempt to answer your questions
categorically, for as we perceive your primary concern
is: What significance is to be attached to the several
constitutional and statutory provisions pertaining to
the value at which property is to be assessed for ad
valorem taxes?
Preliminary to our discussion of this ques-
tion, it may be observed that the duties of the tax-
the Tax Assessor-Collector and the Board of
gt%&ation have been definitely’deflned by statute.
An excellent summary from which may be gathered the
narrw function of an “assessment ‘I Is contained in the
case of Cracker v. Santo Consolidated Independent
School District, 116 S.. W. (2d) 750 (C.C.A. . . . 1938)
expressed in the following language:
“Some confusion Is manifest. . . regard&
ing the nature and functions of renditions of
property and assessments of property, particu-
larly manner of listing or otherwise evidenc-
ing rendition and assessments.
“It should be borne in mind that a tax-
payer never assesses his property for taxas.
Not even a commissionerst court has author-
ity t0 a0 that. The assessment of property
Is peculiarly the duty and responsibility of
a tax assessor. The jurisdiction of the com-
missioners’ court with r eference to assess-
ments Is confined to raising or lowering
assessments as incident to Its duties as a
board of equalization. It has no power to
add property to the tax rolls not previously
assessed, nor to take property from them . . .
‘#The taxpayer lists or Inventories pro-
perty by describing it and placing a value
upon same. He may make the list himself, or
merely furnish the information to the assessor.
If the assessor agrees to the rendered valua-
tions he the assessor, makes the rendered
valua 4 ion the assessed valuation, or, If he
Hon. William N. Hensley, Page 3, v-776
does not agree, he Is required to note the
assessed value on the same list, subject
in either case. to final action bv the
board of equalization as to &sing or low-
ering it. B. S. 1925, Art. 7211. Thus
the r enditlon lists become also assessment
lists. When after legal levy such assess-
ment lists are corrected and approved by
the board of equalization the liability of
a taxpayer is thereby fixed.”
In addition to the provisions .of Article 7211,
v. c. s., other statutory provisions direct the Assess-
or-Collector to transmit to the Commissioners’ Court,
sitting as a Board of Equalization, assessments of ren-
dered and unrendered property which have been made to
him. After the .Board of: Equalization has equalized the
values, the Assessor-Collector then proceeds to assess
;llcuniSendered property as required by Article 7218,
. * to prepare rolls or books of all rendered or
&rende&. real and personal property as required by
Article 7218 and 7219, V. C. S.; on or before August 1
to transmit to the Board of Equalization his rolls or
assessment books with his affidavit attached thereto
in the form directed by Article 7222, V. C. S.; and
the Board of Equalization after it has examined and
approved the rolls or assessment books trsnsmlt copies
to the Comptroller, County Clerk and the Assessor-
Collector as prescribed in Article 7224. The Assessor-
Collector’s tax rolls, as finally equalized and ap-
proved by the Board of Equalization and delivered,
constitute the assessment upon which the Tax Collector
proceeds to collect the taxes assessed by the Assessor
and as equalized by the Board of Equalization.,
We now pass to the question in which we think
you are primarily interested. That Is, the standard of
fixing the value upon which taxes are ultimately as-
sessed and collected. There are three constitutional
provisions which should be noted. Article VIII, Sec-
tion 1, of the. Constitution provides:
“Taxation shall be equal and unlf orm.
All pr~operty. . . shall be taxed in propor-
tion to Its value, which shall be,,ascer-
tained m~mav be Drovided bv law.
Section 11 of the same Article provided:
“And all lands and other property, . .
Hon. William N. Bensley, Page 4, v-776
shall be assessed at Its fair value.”
Section 20 of the same Article provides:
“No property of any kind in this State
shall ever be assessed for ad valorem taxes
at a rester value than wair cash
&JJ~ nor shall any board of equalization of
any county or political subdivision or tax-
ing district within this state fix the value
of any property at more than its
market-”
The following statutory provisions also deal
with the quest ion of value.
Article 7149 provides in partz
“The term ,ltrue and full value f wher--.
ever used shall be held to mean the fair
market value, in cash, at the place where
the roperty to which the-m is applied
shal P be at the time of assessment being
the price which could be obtained {herefor
at private sale, and not at forced or auc-
t ion sale .‘I
Article 7174 provides:
“Personal property of every descrip-
tion shall be valued at its true and full
value In money.”
We think that the apparent confusion as to
value which would seem to arise by these numerous
statutory provisions for the guidance of tax admin-
istrative officials is dispelled by the case of West
Texas Hotel Company v. City of El Paso, 83 S- W. (2d)
772 (C. C. A.) holding that there is no substantial
difference In 4he terms (1) market value, (2) fair
market value, (3) cash market value, (4) fair cash
market value, (5) reasonable cash market value, and
(6) true and fu3.1 value in money, which terms appear
In various constitutional and statutory provisions
pertaining to value for the assessment of taxes.
Since our courts have held that the various terms
used in the Constitution and Statutes as a basis of
value for assessing taxes are synonymous we shall
use for the purpose or this opinion the 4 erm “fair
,
Hon. William N. Hensley, Page 5, v-776
cash market value" used in Section 20 of Article VIII
of the Constitution, supra, and the term used in
Article 7149, V. C. S., "fair market value in cash",
which clearly are equivalent terms. Ko provision
similar to Section 20 of ?rticle VIII was in the
Constitution prior to its adoption ,$ugust 23, 1937,
and it did not become effective under its express
terms until January 1, 1939.
Clearly, from the Constitutional and statu-
tory provisions above mentioned, it is lawful for the
Tax Assessor-Collector to assess and the Commissioners1
Court to equalize property assessments at the full
cash market value. If there were not court interpre-
tations to the contrary, one would conclude from the
above provisions that ,this was the only legal stand-
ard which could be used. However there have been
numerous court decisions which hoid that the ,taxing
authorities may use'8 lesser value if the standard is
uniformly applied to all taxable property. Therefore,
in the light of the court decisions, the taxing auth-
orities are free to elect whether they will assess and
equalize at the full cash market value or a lesser
percentage thereof, so long as the percentage is uni-
formly applied to all taxable property. It is worthy
to note that Section 20 of Article VIII of the Con-
stitution, which became effective January 1, 1939,
does not specifically forbid an assessment at less
than the fair cash market value, but expressly forbids
an assessment upon a valuation greater than such value.
Uniformity of assessment is the end to be achieved
the absence of which is forbidden by the Constitution.
Our Supreme Court so held in the case of Lively v.
?.fissouri ,Kansas Texas Railway Company of Texas, 120 S.
W. 852, speakin:. through Justice r.::a;rn, in the follow-
ing language:
"But, as stated before in this opin-
ion the wrong which was inflicted upon the
appellee was not in requiring it to pay
taxes upon the full value of its property,
but In denying to it the equality of taxa-
;hec Constitution, %
i n n cessa ilv deD n 9
yoon yniformitv of assessment."
n this case the Railroad Company objected
to the 10 4 o valuation upon its intangible assets for
the purpose of assessing taxes against it in Dallas
:.
. 1
Ron. William N. Hensley, Page 6, V-776
County, which county adopted a 66 2/3$ value applic-
able to property generally in the County, and in
settling this difficulty, the Supreme Court said:
nIn administering the remedy the
court must take the course which 1s most
practical to secure uniformity of valua-
tion of the property to be taxed. This
may be done either by Increasing the as-
sessment of each property owner in the
county to its full value and to collect
from each the taxes upon this full value,
or to reduce the assessment of the intan-
ible assets of the railroad company to
t 6 2/j per cent on the $100 of its assess-
ed value. The court will adopt that plan
which is most feasible and calculated to
secure justice to the parties. . . The
Court is placed in a dilemma, from which
it can only escape by taking that path
which while it involves a nominal depar-
ture irom the letter of the law, does
injury to no ane, and secures that uni-
formity of tax burden which was the sole
end of the Constitv~tion. To hold other-
wise is to make the restrictions of the
Constitution instruments for defeating
the very purpose they were intended to
subserve. It is to stick in the bark,
and to be blind to the substance of
things. It Is to sacrifice justice to
it 9 incident :
“It would be utterly impracticable to
increase the assessment of all other pro-
perty owners in Dallas County to its full
value, therefore a court of equity will
adopt the other method--reducing the as-
sessment made by the state board tomthe
same proportion of value as was placed up-
on the masS of property in the county. . .”
The principle laid down by Judge Brown in
this case bas not been departed from but uniformly
adhered to as will appear from quota 1,ions from the
following cases:
In city of El Paso et al. v. Howze, 248
5. W. 99 (writ of error denied), which dealt with a
City Charter provision requiring rendition and as-
sessment at a “fair market value”, the Court said:
Hon. William N. Hensley, Page, 7, v-776
“Then assessor a@ ,collector oft the
city of El Paso is ~the office* tiji6ri whom
is impo.sed the duty of making’the ini-
;p;t;:;uatlon of property r~endered for
The .law, has established the ,~
basis o?‘the’ valuation td be “its true
and full value in money” .(article ‘753’0,
R. S.:) or as it is termed in article
7569. 6. S.,: “its reasonable cash mar-
ket value. n
“in the valuation of property the
function of the city council is limited
to that of a board of equalization..
When exerci,siag such function, it has
the authority not only to equalize val-
ues but to see that all property has
been assegsed at its falr market :value.
But before such board can increase the
value of property theretofore~ assessed
it must give notice to the owner and
afford him a hearing.
.“In this case Howse. rendered his
property to the asses’sor asd that offi-
cer approved and accepted the valua-
tions placed thereon. This valuation
by the assessor was a quasi judicial
act and wasp not subject to increase
except by the board of equaliaation
after notice and hearing. No notice
was given, 90 shearing was afforded, and
without the consent of the taxpayer the
valuation was changed and increased by
the assessor, acting under the order of
the city council made in i.ts legida-
tlve capacity, on August 14th. We are
of the opinion that such incregs,e was
invalid. . .
~“The~.
edidence- shows that for a
I’& t.ime ,it. has been .the custom of the
..oltp.:t~o a&ss property. upon the basis
oC.64 per cent, Of it.% ~ptual, or market ~.
va$ue and the value which the assessor ‘,
placed upon the plalnt$ffls property in
the qriginal assessment was 6stimat.ed
upon that basis.,, ‘But an assessment
made by the assessor upon ,that basis
. . .
Hon. William N. Hensley, Page 8, V-776
when uniformly to all okE+h;nt;x.+L
;b$e FoRpert.: is not Invalid.
244 u. s. 499, 37 sup:ct:
673' 6i L: Ed:'1280 Ann. Gas. 1917s aa-
Taylor v. L. % N. R: R. Co., 88 Fed.'305:
31 Cow. C. A. 537; Cam Phosphate Co. v.
Allen, 77 Fla. 341, gl South. 503.
"On the contrary it Is valid and
must stand as made u&l1 corrected by the
proper reviewing authority and in the man-
ner prescribed by law."
See also the statement by the Waco Court of
Civil Appeals in Duvall v. Clark, 158 S. W. (26) 565,
from which we quote as follows:
"And It Is well settled that an as-
sessment at less than actual or market
value when uniformly applied is valid."
To the same effect, the Supreme Court of the
UniteilSEatg in the case of Greene v. Louisville R.R.
co., u. S. 242, 1280, stated In the follow-,
ing la&go**
"It Is equally plain that it makes
no difference what basis of valuation-
that Is what percentage of full value-i
ma be adopted,, provided it be applied
to L 11 alike. The adoption of full value
has no different effect in dlstrlbuti
the burden than would be gained by ad 7 p$-
lng 75 per cent< or 50 per cent, or even
10 per cent as he basis--so long as
either was applied uniformly."
It is therefore apparent that the custom
of fixing valua120 S.W. 852.
Duvall v. Clark, 158 S. 4. (2d) 565; ci$y of
El Paso w. v. Howze, 248 S.W.
v. Louisville R
w; Texas Conik
tions 1, 11 and 20;...-
Articles 7149, 7174, 7211, 7218, '7219, 7222
and 7224.Y.c.5
Yours very truly,
ATTORNEY
GENERALOF TEXAS
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