Untitled Texas Attorney General Opinion ( 1988 )

P.
December 20, 1988
Honorable James M. Kuboviak Opinion No. JR-996
County Attorney
Brazos County Re: Construction of term
300 E. 26th St., Suite #325 "actual costs" in section
Bryan, Texas 77803 6.27 of the Tax Code, and
related questions
(RQ-1478)
Honorable Janelle Haverkamp
County Attorney
Cooke County
Gainesville, Texas 76240
Dear Mr. Kuboviak and Ms. Haverkamp:
There are three situations in which a county might
assess, collect, or assess and collect taxes for other
taxing units in the county. First, a county might do so if
the qualified voters by petition and election require the
county to do so, pursuant to section 6.26 of the Tax Code.
In that instance, the charge for performing such services is
governed by subsection 6.26(g) of the code, which provides:
"A taxing unit shall pay the actual cost of nerformance of
the functions to the office or entity that performs func-
tions for it pursuant to an election as provided by this
section." (Emphasis added.) Second, a county may assess or
collect taxes for other taxing units in that county if the
governing bodies enter into an Interlocal Cooperation Act
contract, pursuant to section 6.24 of the code. Neither
section 6.24 of the code nor the Interlocal Cooperation Act
itself, article 4413(32c), V.T.C.S., specify that charges
may be made for the performance of such services: they are
both silent on the matter. Third, a county may assess or
collect taxes for another taxing unit in that county if it
is required to do so by law. It is this last situation with
which you are concerned, and it is governed by section 6.27
of the Tax Code.
you ask first about the proper method for determining
the "actual costs" incurred under section 6.27 of the code
when the county tax assessor-collector assesses and collects
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Honorable James M. Kuboviak
Honorable Janelle Haverkamp
Page 2 (JM-996)
ad valorem taxes for another taxing unit, as required by
law. YOU also ask whether the county tax
assessor-collector, the county commissioners court, or the
governing body of the taxing unit for which such services
are performed is empowered to make such a determination.
Specifically, Mr. Kuboviak asks:
Does the phrase "actual costsW@ pursuant to
Section 6.27 of the Texas Property Tax Code
indicate &&& particular cost which is in
addition to existing costs of collecting
taxes for the county?
We conclude that the phrase "actual costs" set forth in
section 6.27 of the Tax Code refers to those costs that the
collecting taxing unit or appraisal district incurs over and
above that cost that it would incur if it were not
collecting for another taxing unit.1
Section 6.27 of the Tax Code governs the compensation
that may be imposed by a county for performing "assessing
and collectinglt services for another taxing unit and
provides the following:
(a) [Repealed]
1. We note that if the county tax assessor-collector
assesses and/or collects pursuant to a section 6.26
consolidation election, the fee that may be charged is set
forth in subsection (g) of section 6.26:
A taxing unit shall pay the actual cost of
performance of the functions of the office or
entity that performs functions for it pursu-
ant to an election as provided by this
section. (Emphasis added.)
We construe the meaning of the phrase *'actual cost" set
forth in section 6.26 of the Tax Code to be identical to
that of the phrase "actual costs" set forth in section 6.27
of the code. &g, e.a., Paddock Siemoneit, 218 S.W.2d
428 (Tex. 1949); .@eenwood v. CitvVof E 1 Paso, 186 S.W.2d
1015 (Tex. Civ. App. - El Paso 1945, no writ). Ww-3e
repeatedly used in statute will be presumed to have same
meaning throughout, unless context shows another meaning is
intended.)
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Honorable James M. Kuboviak
Honorable Janelle Haverkamp
Page 3 (JW-996)
P
(b) The county assessor-collector is
entitled to a reasonable fee. which mav not
exceed the actual costs incurred.2 for
assessina and collectina taxes for a taxinq
unit oursuant to Subdivisions 11) throuah (3)
of Subsection la) of Section 6.23 of this
(c) The assessor or collector for a taxing
unit other than a county is entitled to
reasonable compensation, which may not exceed
the actual costs incurred, for assessing or
collecting taxes for a taxing unit pursuant
to Subsection (b) of Section 6.23 of this
code. (Emphasis added.)
Section 6.23 of the code permits, and in some cases
requires, the county tax assessor-collector to assess and/or
collect taxes for other taxing units:
(a) The county assessor-collector shall
assess andrcollect taxes on property in the
county for the county. He shall aIso assess
and collect taxes on property for another
taxing unit if:
(1) the law creating or authorizing
creation of the unit requires it to use
the county assessor-collector for the
taxes the unit imposes in the county:
2. In spite of the phrase "which may not exceed the
actual costs incurred," we do not construe section 6.27 to
permit a county tax assessor-collector to impose a fee that
is less than the actual costs incurred. &gg, -, San
Antonio Ind eD . ch& Dist. v. Board of Trustees of San
Antonio Elec. & Gas Svstem, 204 S.W.2d 22 (Tex. Civ. App. -
El Paso 1947, writ ref'd n.r.e.); Tex. Const. art. III, §.$
51, 52; Attorney General Opinions H-1018 (1977): V-953
(1949): see also Acts 1987, 70th beg., H.J.R. No. 83, 51, at
4127 (text of proposed constitutional amendment that failed
to receive voter ratification, which would have permitted a
county to, inter alia, use county personnel to perform work
without compensation for another governmental entity under
certain conditions).
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Honorable James M. Kuboviak
Honorable Janelle Haverkamp
Page 4 (JM-996)
(2) the law creating or authorizing
creation of the unit does not mention who
assesses and collects its taxes and the
unit imposes taxes in the county;
(3) the governing body of th;,l;ikE
requires the county to assess and
its taxes as provided by Subsection (c) of
Section 6.22 of this code: or
(4) re ired by an intergovernmental
contract. !P
We understand you to ask whether "actual costs." means
the additional costs a county incurs for performing services
for another taxing unit, over and above the costs that it
would incur were it assessing or collecting only for itself,
or whether it means the cost that the contracting taxing
unit would itself incur if it were performing the functions
for itself. Perhaps an example will clarify your question.
Assume that a county incurs a cost of $3.75 per parcel for
assessing and collecting taxes on property on its own tax
roll, while an independent school district located within
the county incurs a cost of $4.00 per parcel for property on
its own tax roll. Assume further that the county could
assess and collect taxes for the independent school district
for an additional cost of $.25 per parcel for those parcels
on both tax rolls. You want to know whether the county is
limited to a fee equal to the additional costs it would
incur, i.e. $.25 per parcel, or whether it may impose a fee
equal to the cost that the independent school district would
incur if it performed the functions for itself, i.e. $4.00
per parcel. We conclude that the county may charge a fee
equal only to the additional costs that it incurs: in this
example, $.25 per parcel.
3. Section 6.24 of the Tax Code permits a taxing unit
to enter an Interlocal Cooperation Act contract to perform
duties relating to the assessment or collection of taxes.
Section 6.24 itself is silent as to the fee that may be
charged. The Interlocal Cooperation Act, article 4413(32c),
V.T.C.S., also is silent as to any fees that may be charged.
Section 6.27 does not govern such a contract, because it
specifically does not apply when assessing and collecting is
performed pursuant to subdivision (4) of subsection (a) of
section 6.23, i.e. when such services are performed by
virtue of "an intergovernmental contract."
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Honorable James M. Kuboviak
Honorable Janelle Haverkamp
Page 5 (JR-996)
We think that a plain, common sense reading of subsec-
tion 6.27(a) requires such a construction. Subsection (b)
of section 6.27 of the Tax Code provides:
The county assessor-collector is entitled
to a reasonable fee, which mav not exceed the
actual costs incurred, for assessing and
collecting taxes for a taxing unit pursuant
to Subdivisions (1) through (3) of Subsection
(a) of Section 6.23 of this code. (Emphasis
added.)
Subsection (a) of section 311.011 of the Government Code
provides: "Words and phrases shall be read in context and
construed according to the rules of grammar and common
usage." Reading the underscored phrase above in context and
according to rules of common usage, we conclude that the
phrase refers to the costs incurred bv the countv tax
assessor-collector for performing assessment and collection
functions for another taxing unit. If the legislature had
intended that the county tax assessor-collector impose a fee
equal to the cost that would have been‘incurred by the
contracting taxing unit if it had performed the services for
itself, it explicitly would have so provided.
We are required, moreover, to construe a statute or
code provision so as not to ascribe to the legislature
intent to do an unreasonable thing if the provision
reasonably is susceptible of such a construction. State
Hiahwav DeD't v. Gorham, 162 S.W.2d 934 (Tex. 1942):
Anderson v. Penix 161 S.W.2d 455 (Tex. 1942). The
legislature clearly'intended that taxing units in certain
instances assess and collect taxes for other taxing units in
order to promote efficiency and economy in the performance
of governmental functions. It has permitted, or in some
instances, required such consolidation of services. See Tax
Code, 55 6.23, 6.24, 6.26. Because one of the means by
which the legislature effected such a consolidation is by
Interlocal Cooperation Act contract, we think that it is
reasonable to assume that the legislature intended that the
Tax Code provisions promote the same public policy as the
Interlocal Cooperation Act itself promotes. The purpose of
the Interlocal Cooperation Act is set forth in that act's
first section:
It is the purpose of this Act to imorove
the efficiencv and effectiveness of local
aovernments by authorizing the fullest
possible range of intergovernmental
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Honorable James M. Kuboviak
Honorable Janelle Haverkamp
Page 6 (JM-996)
contracting authority at the local level
including contracts between counties and
cities, between and among counties, between
and among cities, between and among school
districts, and between and among counties,
cities, school districts, and other political
subdivisions of the state, and agencies of
the state. (Emphasis added.)
V.T.C.S. art. 4413(32~), 5 1.
Under our construction of "actual costs,80 the county
would be reimbursed only for the additional expenses that it
incurs for assessing and collecting taxes for another taxing
unit, while that taxing unit would save a portion of the
expenses that it would incur were it to perform such
functions for itself. On the other hand, if we were ;to
construe *'actual costs*' in section 6.27 to refer to the
costs incurred by the taxing units when they assess and
collect their own taxes, the county would receive a fee
greater than the cost that it had actually incurred, while
the other taxing unit would incur the same expense that Iit
would have incurred had it performed those functions for
itself. We fail to see how such a construction would
promote public policy. Accordingly, we conclude that the
underscored phrase of subsection (b) of section 6.27 refers
to the additional costs incurred by the county tax
assessor-collector to perform such functions.
you both ask whether the county tax assessor-collector,
the county commissioners court, or the taxing units for
which the county performs assessment and collection
functions is empowered to determine just what are the
"actual costsl' incurred. Specifically, Mr. Kuboviak asks:
Pursuant to Section 6.27 of the Texas
Property Tax Code, & determines the amount
of actual costs and fees to be charged[?]
Ms. Haverkamp asks:
When the responsibility of assessing and
collecting property taxes for taxing units in
the Appraisal District for a County *
transferred from the Appraisal District ::
the County Tax Assessor-Collector office by a
countywide election pursuant to 5 6.26 of the
Property Tax Code, does the County
Commissioners Court or do the individual
taxing units approve that portion of the
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Honorable James M. Kuboviak
Honorable Janelle Haverkamn
Page 7 (JM-996)
C
budget of the Tax Assessor-Collector which
relates to the assessing and collecting of
property taxes?
It has been suggested that, based upon Attorney General
Opinion JM-833 (1987), the county
. tax assessor-collector is
empowered by the Texas Constitution to determine the "actual
costs" involved. We disagree.4 In Attorney General Opinion
JM-833, we concluded that section 6.26 of the Tax Code,
which purported to authorize the electorate to divest the
county tax assessor-collector of the duties of assessing and
collecting taxes for the county, was unconstitutional. We
so concluded because article VIII, section 14, of the Texas
Constitution placed in the county tax assessor-collector
"all the duties with respect to assessing property for the
purpose of taxation and of collecting taxes [for the
county], as mav b or scribed bv the Leaislature."
(Emphasis added.) TEe op&ion held that the language of
4. It also has been suggested that section 6.24 of
the code confers joint authority on the commissioners court
and the county tax assessor-collector to determine what are
"actual costs. " The purportedly relevant language of
section 6.24 provides:
(b) The commissioners court with the
anoroval of the countv assessor-collectoy may
contract as provided by the Interlocal coop-
eration Act with the governing body of
another taxing unit in the county or with the
board of directors of the appraisal district
for the other unit or the district to perform
duties relating to the assessment or collec-
tion of taxes for the county. (Emphasis
added.)
We noted in the third footnote that the reach of
section 6.27 specifically does not extend to a section 6.24
contract, because section 6.27, by its terms, does not
apply when assessing and collecting is performed pursuant to
subdivision (4) of subsection (a) of section 6.23, i.e. when
such services are performed pursuant to "an intergovern-
mental contract." Therefore, reliance upon section 6.24 of
the code in support of the proposition that a county tax
assessor-collector may determine, whether jointly
independently, what are "actual coststl as set forth Tz
section 6.27 of the code is misplaced.
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Honorable James M. Kuboviak
Honorable Janelle Haverkamp
Page 8 (JM-996)
section 14 quoted above should be COnStNed to mean "'all
duties with respect to assessing property for purposes of
taxation and of collecting taxes* that the leaislature
prescribes are to be performed by that officer." Attorney
General Opinion JM-833 (1987) at 4.
We do not construe "all duties" to encompass the duty
to determine the llactual costs" of performing such services,
because the legislature has not imposed such a duty upon
county tax assessor-collectors. No provision of either
chapter 26 of the Tax Code, which sets forth the duties
comprising assessment, or chapter 31 of the Tax Code, which
sets forth the duties comprising collection, confers any
such authority on the county tax assessor-collector. There
are, however, statutory provisions that we think implicitly
confer such authority on the county commissioners court.
Article V, section 18, of the Texas Constitution
provides in relevant part:
The County Commissioners so chosen, with the
County Judge as presiding officer, shall
compose the County Commissioners Court, which
shall exercise such powers and jurisdiction
over all county business, as is conferred by
this Constitution and the laws of the State,
or as may be hereafter prescribed.
Among those powers conferred by the laws of this state
is the power to determine and adopt the county#s budget.
The determination and adoption of the county budget is
governed by chapter 111 of the Local Government Code.
Subchapters A, B, and C of chapter 111 govern counties of
different population levels. Each subchapter requires the
counties to prepare itemized budgets. See Local Gov't Code,
55 111.003, 111.004, 111.033, 111.034, 111.062, 111.063.
Each empowers the county commissioners court to require of
the various other county officers any information necessary
for the proper preparation of the county budget. m Local
Gov't Code 55 111.005, 111.036, 111.065. Each subchapter
rests authority to adopt the budget with the commissioners
court of each respective county. See Local Gov't Code,
55 111.008, 111.039, 111.068.
Pursuant to his responsibility to submit to the
commissioners court information necessary for the proper
preparation of the county budget, the tax assessor-collector
has the authority to make the initial determination
regarding what are llactual costs" under subsection 6.27 (b)
of the Tax Code. Because the authority to prepare and adopt
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‘
Honorable James M. Kuboviak
Honorable Janelle Haverkamp
; Page 9 (JM-996)
the budget necessarily includes the authority to determine
and budget the expenditures for the various counties'
offices, we conclude that the county commissioners court is
empowered to determine as a final matter, in conjunction
with its authority regarding the budget, what are "actual
coststl incurred by the county pursuant to section 6.27 of
the code.
SUMMARY
The phrase "actual costs" set forth in
section 6.27 of the Tax Code refers to those
costs that the collecting taxing unit or
appraisal district incurs over and above the
cost that it would incur if it were not
collecting for another taxing unit. The
county commissioners court has implicit
authority, derived from explicit authority
regarding the preparation and adoption of a
county's budget conferred by chapter 111 of
the Local Government Code, to determine as a
final matter what are the "actual costs"
incurred by the county pursuant to section
6.27 of the Tax Code.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCRKARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
p. 5104