Untitled Texas Attorney General Opinion ( 1987 )

Honorable Carlos Valdez Opinion No. JX-833
Nueces County Attorney .
901 Leopard, Room 206 Re: Collection of county
Corpus Christi, Texas 78401 taxes (RQ-962)
Dear Mr. Valdez:
You advise that a tax assessor collector has been
elected in Nueces County pursuant to article VIII, section
14, of the Texas Constitution, and ask about the validity
of two legislative enactments that would seemingly permit
the collection of county taxes by persons other than that
officer.
Article VIII, section 14, of the constitution reads:
Except as provided in Section 16 of this
Article, there shall be elected by the
qualified voters of each county, an Assessor
and Collector of Taxes, who shall hold
his office for four years and until his
successor is elected and qualified; and such
Assessor and Collector of Taxes shall ner-
form all the duties with reswect to
assessins wrowertv for the wurwose of taxa-
tion and of collectins taxes, as may be
prescribed bv the Lecrislature. (Emphasis
added.)
When the constitution was originally adopted in 1876,
the Assessor of Taxes and the Collector of Taxes were
separate officers. Article VIII, section 14, which
originally concerned only the tax assessor, then specified
no particular duties for that officer to perform, leaving
the matter to the legislature. The original provision
read:
There shall be elected by the qualified
electors of each county at the same time and
under the same law regulating the election
of State and county officers, an Assessor of
P. 3991
.
Honorable Carlos Valdez - Page 2 (JM-833)
Taxes, who shall hold his office for two
years and until his successor is elected and
qualified.
Tex . Const. art. VIII, 514 (1876).
The collection of taxes was treated in section 16, of
article VIII. It originally read:
The Sheriff of each county, in addition to
his other duties, shall be the collector of
taxes therefor. But in counties having ten
thousand inhabitants, to be determined by
the last preceding census of the United
States, a Collector of taxes shall be
elected to hold office for two years and
until his successor shall be elected and
qualified.
Tex. Const. art. VIII, 516 (1876).
While these original provisions of the constitution
were still in place, the Texas Supreme Court decided
Missouri. K & T Railwav Co. of Texas v. Shannon, 100 S.W.
138 (Tex. 1907). The court wrote:
It is argued that section 14, properly
construed, means, not only that there shall
be an assessor of taxes elected for each
county, but that he and no other officer
shall be intrusted with any part of the duty
of making the assessment. We think the
claim is too broad. The section contains no
language which expressly prohibits the
appointment of a board to assess taxes in a
particular case. Unlike other wrovisions of
the Constitution which create offices. it
does not define the duties of the officer,
from which we think it is to be inferred
that the scowe of his duties were left to
the determination of the Leaislature. While
we think that the Legislature could not
strip the assessor of all authority, and
probably that it was intended by the framers
of the Constitution that all ordinary
assessments of property for taxation should
be made by him, still we think it was not
intended to deprive the Legislature of the
power of devolving the duty upon another
p. 3992
.
Honorable Carlos Valdez - Page 3 (JM-833)
officer, or board to assess property in some
special case, where, as in the present
instance, the county assessors were clearly
unable from the means at their disposal to
ascertain with any reasonable degree of
approximation the value of the intangible
assets of the railroad company, and still
less capable of making intelligently the
apportionment due to their respective
counties. (Emphasis added.)
Later, after the Supreme Court in Shannon had
construed section 14 of article VIII to permit definition
by the legislature of the scope of the tax assessor's
duties and to permit its placement of some assessment
duties elsewhere, both sections 14 and 16 of article VIII
were amended. In 1932, section 14 was amended to change
the title of the officer to "Tax Assessor and Collector"
and to add the following language:
[A]nd such Assessor and Collector of Taxes
shall perform all the duties with respect to
assessing property for the purpose of taxa-
tion and of collecting taxes, as may be pre-
scribed by the Legislature.
See H.J.R. 21, Acts 1931, 42d Leg., at 942. At the same
time, section 16 was amended to make the sheriff the
"Assessor and Collector of Taxes!' for the county, but to
require the election of a separate Tax Assessor and
Collector "as provided in Section 14" in counties 'of
10,000 inhabitants or more. Id. at 943.1
It is possible to read the added language of section
14 in different ways. It can be argued that the provision
intends the words "all duties" to be read as "such
duties," so that the officer is to perform only such
duties as the legislature prescribes, much as article IV,
section 23, of the constitution specifies that the
comptroller of public accounts, the treasurer, and
the commissioner of the general land office are to
1. In 1954, section 16a was added to article VIII,
allowing the election of a separate assessor-collector of
taxes in counties having less than 10,000 inhabitants.
See H.J.R. 8, Acts 1953, 53d Leg., at 1175.
p. 3993
Honorable Carlos Valdez - Page 4 (JIG833)
"perform such duties as are or may be required by law."
Alternatively, the language may be read to mean "all
duties with respect to assessing property for purposes of
taxation and of collecting taxes8' that the lesislature
prescribes are to be performed by that officer. It was
read in this way by Attorney General Letter Advisory No.
117 (1976), based on Green v. Stewart, 516 S.W.Zd 133
(Tex. 1974). See also Attorney General Opinion M-70
(1967).
In Green v. Stewart, m, the Texas Supreme Court
considered a Court of Civil Appeals decision holding that
deputy tax assessors-collectors performed governmental
functions in their own right, making them **officers*'
excluded from civil service coverage. The supreme court
began its review of the case by juxtaposing the
constitutional language and the statute:
Article VIII, Section 14 of the Texas
Constitution, Vernon's Ann. St., authorizes
the election of an assessor-collector of
taxes in each county who shall hold his
office for four years and until his suc-
cessor is elected and qualified. It then
states that 'such Assessor and Collector of
Taxes shall perform all the duties with
respect to assessing property for the
purpose of taxation and collecting taxes, as
may be prescribed by the Legislature.'
Article 7252 authorizes the assessor-
collector of taxes to appoint deputies 'to
assist himI and among other things provides,
'and the deputies appointed in accordance
with the provisions of this Article shall do
and perform all the duties imposed and
required by law of Assessors and Collectors
of Taxes: and all acts of such deputies done
in conformity with law shall be as binding
and valid as if done by the Assessor and
Collector of Taxes in person.' (Emphasis by
the court.)
Id. at 134-35. The supreme court then said:
Any possible conflict between the statute
and the Constitution which might arise by
reason of their different delegations of the
same totality of powers to the assessor-
collector and also to each one of his
p. 3994
Honorable Carlos Valdez - Page 5 (JP-833)
appointees is avoided by the additional words
of Article 7252 which state that the
assessor-collector may appoint deputies 'to
assist him.' The Constitution and statute
are thus harmonized since it is the assessor-
collector who is charsed with all the
duties. and it is the dewuties who 'assist
him' in the werformance of those duties.
(Emphasis added.)
Id. at 135.
The supreme court in Green v. Stewart apparently
construed article VIII, section 14, to mean that the
legislature could decide what needed to be done (what
duties should be performed) with respect to assessing
and collecting taxes, but that it could not usurp the
constitutional authority of the Tax Assessor-Collector to
discharge those duties himself. In other words, the
legislature might designate others to assist him, but it
could not supplant him.
The question in Attorney General Letter Advisory No.
117 (1976), was whether the legislature could, consistent
with section 14 of article VIII, vest the appraisal
function of the county tax assessor-collector in an office
or unit independent of that officer. After concluding
that the appraisal function was part of the assessment
duty, this office concluded, relying on Green v. Stewart,
that "the duties of the assessor-collector with regard to
the assessment of property for county taxation" could not
be transferred to another individual without amendment of
the constitution.
Thereafter, in 1980, a constitutional amendment
dealing with appraisals was adopted in response to
Attorney General Letter Advisory No. 117. Wilson v.
Galveston Countv Central Awwraisal District, 713~ S.W.2d 98
(Tex. 1986). Section 18 of article VIII, was changed to
read [with subsections (b), (c), and (d) representing new
language]:
(a) The Legislature shall provide for
equalizing, as near as may be, the valuation
of all property subject to or rendered for
taxation, and may also provide for the
classification of all lands with reference
to their value in the several counties.
p. 3995
Honorable Carlos Valdez - Page 6 W-833)
(b) A single appraisal within each
county of all property subject to ad valorem
taxation by the county and all other taxing
units located therein shall be provided by
general law. The Legislature, by general
law, may authorize appraisals outside a
county when political subdivisions are
situated in more than one county or when two
or more counties elect to consolidate
appraisal services.
(c) The Legislature, by general law,
shall provide for a single board of
equalization for each appraisal entity
consisting of qualified persons residing
within the territory appraised by that
entity. Members of the board of egualiza-
tion may not be elected officials of the
county or of the governing body of a taxing
unit.
(d) The Legislature shall prescribe by
general law the methods, timing, and
administrative process for implementing the
requirements of this section.
In Wilson v. Galveston Countv Central Awwraisal
District, suwra, the Texas Supreme Court held that this
amendment separated the appraisal function from the
"express assessing function" of the county tax assessor-
collector and authorized the legislature to place the
appraisal function elsewhere. We conclude that the
Constitution of Texas, article VIII, section 14, continues
to mean that all duties with respect to assessing property
for purposes of county taxation and of collecting county
taxes that the legislature prescribes -- except the
appraisal function (now permitted by the constitution to
be placed elsewhere) -- are to be performed by the tax
assessor-collector of the county.
We turn now to the statutes about which you have
asked. The two statutory provisions in question are
sections 6.24 and 6.26 of the Tax Code. Section 6.24
states:
(a) The governing body of a taxing unit
other than a county may contract as provided
by the Interlocal Cooperation Act with the
governing body of another unit or with the
p. 3996
Honorable Carlos Valdez - Page 7 (m-833)
board of directors of an appraisal district
for the other unit or the district to per-
form duties relating to the assessment or
collection of taxes.
(b) The commissioners court with the
awwroval of the countv assessor-collector
may contract as provided by the Interlocal
Cooperation 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 collection of taxes for the county. If a
county contracts to have its taxes assessed
and collected by another taxing unit or by
the appraisal district, the contract shall
require the other unit or the district to
assess and collect all taxes the county is
required to assess and collect.
(c) repealed (by Acts 1983, 68th Leg.,
ch. 851, at 4829).
(d) A'contract under this section may
provide for the entity that collects taxes
to contract with an attorney, as provided by
Section 6.30 of this code, for collection of
delinquent taxes. (Emphasis added.)
A statute is to be given, if possible, a meaning that
is agreeable to the constitution. See 12 Tex. Jur. 3d
Constitutional Law 537, at 537. We think such a construc-
tion can reasonably be given section 6.24. Subsection (a)
of the statute exempts counties from those entities
authorized to contract (by "Interlocal Cooperation Act"
contract) to have another governmental body perform duties
relating to the assessment or collection of its taxes
except as provided in subsection (b). The latter sub-
section permits such a contract only "with the awwroval of
the countv assessor-collector."
We construe this language as authorizing a contract
to obtain assistance for the assessor-collector, not to
supplant him. Cf. Pritchard & Abbot v. McKenna, 350
S.W.2d 333 (Tex. 1961): Attornev General Owinion M-986
(1971). This reading. his reasonable in light of the
preceding section, section 6.23, which states, "m
p. 3997
Honorable Carlos Valdez - Page 8 (J’S833)
countv assessor-collector shall assess and collect taxes
on WrOWertv in the countv for the state and the county."
Although the "with the approval" phrase in section 6.24
could be given a different, broader meaning, a statute
should be construed in a restricted manner when necessary
to preserve its constitutionality, if it is reasonable to
do so. Citv of Waco v. Landinsham, 157 S.W.2d 631 (Tex.
1941).
We cannot assign to the legislative act an intent to
authorize the assessor-collector, by his "approval," to
divest himself of power, authority, and responsibility
invested in him by the constitution -- something the
legislature itself could not do. It must be assumed the
legislature intended to enact a valid law. Industrial
Accident Board v. O'Dowd, 303 S.W.2d 763 (Tex. 1957). cf.
Uwshur Countv Commissioners Court v. Central Education
Asency 697 S.W.Zd 443 (Tex. App. - Austin 1985, no writ).
As co&trued, section 6.24 of the Tax Code is valid, in
our opinion.
The other statute, section 6.26 of the Tax Code, is a
different matter. As amended in 1983, it reads:
(a) The qualified voters residing in an
appraisal district by petition submitted to
the county clerk of the county principally
served by the appraisal district may require
that an election be held to determine
whether or not to reouire the awwraisal
district. the countv assessor-collector, or
a swecified taxinc unit within the awwraisal
district to assess. collect, or assess and
Collect WrOWertV taxes on wrowertv awwraised
bv the district for all taxina units.
(b) The qualified voters of a taxing
unit that assesses, collects, or assesses
and collects its own property taxes by
petition submitted to the governing body of
the taxing unit may require that an election
be held to determine whether or not to
require the awwraisal district, the countv
assessor-collector, or another taxina unit
that is assessins and collectins wrowerty
taxes to assess. collect, or assess and
collect the unit's wrowertv taxes.
(c) A petition is valid if:
p. 3998
I
Honorable Carlos Valdez - Rage 9 (m-833)
-
(1) it states that it is intended
to require an election in the appraisal
district or taxing unit on the question
of consolidation of assessing or
collecting functions or both;
(2) it states the functions to be
consolidated and identifies the entit.
office that will be recuired to perform
the functions. . . .
. . . .
(e) If the commissioners court or the
governing body finds that the petition is
valid, it shall order that an election be
held in the district or taxing unit on the
next uniform election date prescribed by the
Texas Election Code that is more than 60
days after the last day on which it could
have acted to approve or disapprove the
petition. At the election, the ballots
shall be prepared to permit voting for or
against the proposition: 'Requiring the
(name of entity or office) to (assess,
collect, or assess and collect,
applicable) property taxes for (all taxi::
units in the appraisal district for
county or, name of taxing
unit or units, as applicable).' (Emphasis
added.)
Although it is the duty of the courts -- and this
office -- to strive to adopt a construction that supports
the constitutionality of the statute, Uwshur County
Commissioners Court, 697 S.W.2d at 447, it is not proper
to ascribe to a statute a meaning at variance with its
plain import so as to conform it to constitutionality
or wisdom. Citv of Austin v. Cahill, 88 S.W. 542 (Tex.
1905).
The plain import of section 6.26 of the Tax Code is
to permit the electorate, if it chooses, to place the
assessment and collection duties of the county tax
assessor-collector elsewhere, contrary to the intent of
article VIII, section 14, of the Texas Constitution.
Section 6.26 could be saved by reading it to encompass
only the awwraisal function of the tax assessor-collector,
because the amendment of section 18, article VIII, had
P
p. 3999
Honorable Carlos Valdez - Page 10 W-833)
separated the appraisal function from the assessment and
collection functions of the county assessor-collector
before section 6.26 was amended to embrace counties.2
Wilson v. Galveston Countv Central Awwraisal District,
suwra. But such a reading would restrict the functions
other taxing units are allowed by the statute to place in
the hands of an appraisal district, and would not be a
reasonable conclusion to draw from the words of the
statute; we cannot give it that construction. See County
School Trustees of Orance Countv v. District Trustees of
Prairie View Common School District No. 8, 153 S.W.2d 434
(Tex. 1941).
We conclude that section 6.26 of the Tax Code is
unconstitutional as applied to the assessment and
collection duties of county tax assessors-collectors --
except as the appraisal function of the office has been
separated from those duties by the amendment of article
VIII, section 18, of the constitution. But the entire
statute need not fail if its provisions are not so
connected in subject matter, so dependent on each other,
or otherwise so connected together in meaning that it can
be presumed that the legislature would have passed the law
without the provision found unconstitutional. Countv -,
School Trustees of Oranae Countv v. District Trustees of
Prairie View Common School District No. 8, suwra.
In this case, the legislature, in 1979, did enact
section 6.26 without unconstitutionally including the
section 14 assessment and collection duties of county tax
assessors-collectors within its scope,3 and nothing about
2. Section 6.26 was originally enacted as part of
Title 1 of the Tax Code in 1979, to take effect January 1,
1982. See Acts 1979, 66th Leg., ch. 841, at 2217. It was
amended in 1981, see Acts 1981, 67th Leg., ch. 13, at 125,
effective January 1, 1982, and again amended in 1983, see
Acts 1983, 68th Leg., ch. 785, at 4612. The amendment to
article VIII, section 18, of the constitution was adopted
in 1980 pursuant to a legislative proposal made in 1979.
See H.J.R. No. 98, Acts 1979, 66th Leg., at 3229.
Orisinallv. section 6.26 awwlied onlv to taxins units
"other than a county." The exception was removed by the
1981 amendment to the statute.
3. See note 2.
p. 4000
Honorable Carlos Valdez - Page 11 (JM-833)
the subsequent amendments to the section suggests that
changes affecting other taxing units would not have been
approved if counties had remained entirely outside the
ambit of the statute. We do not believe section 6.26 is
rendered invalid in its entirety by its unconstitutional
attempt to embrace the assessment and collection duties of
the county tax assessor contemplated by article VIII,
section 14, of the constitution.
Your questions concerned the validity of placing
elsewhere the assessment and collection duties of county
assessors-collectors regarding county taxes. In view of
our resolution of the matter based on article VIII,
section 14 of the constitution, we do not address other
constitutional arguments. cf. Tex . Const. arts. I, 528:
II, 91.
SUMMARY
The legislature may not authorize the
electorate to divest the county tax assessor-
collector of duties respecting the assessment
and collection of county taxes, other than
appraisal functions. Tex. Const. art VIII,
5514, 18. Section 6.24 of the Tax Code, as
construed, is valid, but section 6.26 is
unconstitutional insofar as it contravenes
article VIII, section 14, of the constitu-
tion.
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Bruce Youngblood
Assistant Attorney General
p. 4001