Untitled Texas Attorney General Opinion ( 1948 )

Hon. Geo. H. Sheppard
Comptroller of Public Accounts
Austin, Texas Opinion No. V-524
Re: The collection of delin-
quent taxes on lands aft-
er cancellation of subdi-
visions under Art. 7227,
V.C.S.
Dear Mr. Sheppard:
You request our opinion as to the correct amount of
penalty and interest to be collected where a subdivision has been
canceled under the provisions of Article 7227, V.C.S., and the
property included therein reassessed on an acreage basis for
the years for which it is delinquent.
Article’7227, V.C.S., reads in part as follows:
“Any person, firm, association or corporation
owning lands in this State which lands have been
subdivided into lots and blocks or small subdivisions,
may make application to the commissioners court of
the county wherein any such lands are located for
permission to cancel all or any portion of such sub-
division or subdivisions, so as to throw the said lands
back into acreage tracts as it existed before such sub-
divisions were made. When such application is made
by the owner or owners of such land, and it is shown
that a cancellation of such subdivisions, or portion
thereof, will not interfere with the established rights
of any purchaser owning any portion of such subdivi-
sions; or if it be shown that said person or persons
agreed to such cancellation, said commissioners court
shall enter an order, which order canceling said sub-
division shall be spread upon the minutes of suchcourt
authorizing such owner or owners of such lands to can-
cel the same by written instrument describing such
subdivisions, or portions thereof so cancelled as des-
ignated by said court. When such cancellation is filed
and recorded in the deed records of such county, the
tax assessor of such county shall assess such proper-
ty as though it had never been subdivided . . . If such
.-
.
2x;
Hon. Geo. H. Sheppard, Page 2 (V-524)
lands are delinquent for taxes for any preceding
year, or years, and such application is granted as
hereinbefore provided, the owner or owners of
said land shall be permitted to pay such delinquent
taxes upon an acreage basis, the same as if said
lands had not been subdivided, and for the purpose
of assessing lands for such preceding years the
county assessor of taxes shall back assess such
lands upon an acreage basis.. . .”
In order to determine what penalty and interest should
be collected on the back assessments, it is necessary to deter-
mine whether the reassessment as authorized in Article 7227 is
valid. If the taxes delinquent under the original assessment have
become a liability to the State and other subdivisions thereof,
then that portion of said Article in releasing such liability is vio-
lative of Section 55 of Article III of the Texas Constitution, which
in 1919 read as follows:
“The Legislature shall have no power to re-
lease or extinguish, or to authorize the releasing
or extinguishing, in whole or in part, the indebted-
ness, liability or obligation of any incorporation or
individual, to this State, or to any county or other
municipal corporation therein.”
This Section of the Constitution was amended in 1932, so as to ex-
cept from the provisions thereof “delinquent taxes which have been
due for a period of at least ten years.”
The Texas Constitution in Section 15 of Article VIII further
provides:
“The annual assessment made upon landed ’
property shall be a special lien thereon; and all
property . . . shall be liable to seizure and sale
for the payment of all taxes and penalties.. . .*
The Commission of Appeals in State v. Pioneer Oil 61 Re-
fining Company,‘292 S.W. 869, after quoting Section 55 of Article III,
supra. said:
‘We do not stop to consider whether a delin-
quent tax is an ‘indebtedness’ or ‘obligation.’
within the meaning of the language quoted, for
that it is a ‘liability’ cannot be doubted. Olliver
v. City’of Houston, 93 Tex. 206, 54 S.W. 940, 943;
City of Henrietta v. Eustis, 87 Tex. 14, 26 S.W.
619.”
Hon. Geo. H. Sheppard,‘Page 3 (V-524)
The Supreme Court of Texas in Rowan Drilling Company
v. Sheppard, 87 S.W. (2d) 706 held:
“When we read the various tax provisions of
our Constitution singly, and in the light of each
other, we are convinced by necessary implication,
if not by direct language, it prohibits more than
one valuation of property for ad valorem tax pur-
poses for the same tax year.. . .”
It is clear to us that under the above Constitutional pro-
visions the Legislature is inhibited from passing any act that in
effect releases or extinguishes, or authorizes the extinguishing
of any taxes due the State or other subdivisions thereof, except
those which have been due more than ten years. It is equally clear
that Article 7227’attempts to extinguish the fixed tax liability of the
owners of the property and create another tax liability in a lesser
*mount.
Of course, if the prior assessments are invalid the Com-
missioners Court has the authority under Articles 7346 and 7347,
V.C.S.. to refer same to the tax assessor for reassessment. A
void or invalid assessment is a nullity and amounts to no assess-
ment. In this connection we quote from the Supreme Court in State
v. Mallet Land and Cattle Co,, 08 S.W. (2d) 471:
“The rule has been repeatedly announced that,
in the absence of fraud or illegality, the action of a
board of equalization upon a particular assessment
is final; and, furthermore, that such valuation will
not be set aside merely upon a showing that the same
is in fact excessive. If the board fairly and honestly
endeavors to fix a fair and just valuation for taxing
purposes, a mistake on its part, under such circum-
stances, is not subject to review by the courts. (Cit-
ing authorities). However, the rule has been declar-
ed that if a board of equalization adopts a m&hod
that is illegal, arbitrary, or fundamentally wrong,
the decision of the board may be attacked and set
aside. *
It is therefore our opinion that the portion of Article 7227
which purports to extinguish a fixed tax liability is unconstitutional;
and the tax collector should collect taxes.on the property involved
as shown by the delinquent tax records based upon the original as-
sessments, together with eight per cent penalty and six per cent in-
terest as levied by Article 1336, V.C.S.
Hon. Geo. H. Sheppard,. Page 4 (V-524)
We are enclosing herewith Attorney General’s Opinions
O-930 and O-7412 which were considered by us in holding said por-
tion of Article 7227 unconstitutional.
SUMMARY
That portion of Article 7227 which permits the
owner of land in a subdivision to pay his delinquent
taxes upon a reassessment on an acreage basis, in
lieu of taxes delinquent on original assessments,
after the subdivision has been canceled as provided
in Art. 7227, V.C.S.. is unconstitutional because in
violation of Sec. 55 of Art. UI of the Texas Consti-
tution. The tax collector should collect taxes on
the land as shown by the delinquent tax records,
based upon the original assessments together with
S% penalty and 6% interest. Art. 7336, V.C.S.;
State v. Pioneer Oil 81 Refining Co., 292 S.W. 869;
State v. Mallet Land and Cattle Co., 88 S.W. (2d) 471.
Yours very truly
ATTORNEYGENERALOFTEXAS
W. V. Geppcrt
Assistant
WVG/JCP
ENCLS. (2)
APPROVED
ASSISTANT