Untitled Texas Attorney General Opinion ( 1958 )

Aprll'8, 1958
Honorable Glyndon M. Hague
County Attorney
Johnson County
Cleburne, Texas
Opinion No. WW-411
Re: P@.ythe Tax Assessor-
Collectorof Johnson County,
acting as an agent for the
Board of Fire Commissioners
of the Johnson County Rural
Fire PreventionDistrict,
voluntarilyand without
emolument, collect the tax
provided by law for said
,RuralFire PreventionDis-
trict after being properly
authorized to do so by said
Dear Mr. Hague: Board of Fire CornmIssIoners?
You have requested an opinion of this office on the
following question:
“May the Tax Assessor-Collectorof Johnson
County, acting as an Agent for the Board of Fire
Comfssioncrs of the Johnson County Rural Fire
(Prevention)Distrf.et, voluntarilyand without
emoi:umen t a collect the tax rovided by law for
said Rural Fire (Prev~ention P District after being
properly authorize& to do 80 by said Board of
PlPe Comml.ssionePs?" (Parenthesesoura).
"IheJohnson County Rural Fire PreventionDistrict
:?asbeen establishedpursuant to the provisions of Section
48-8. of .%rticleIII of the Constitutionof Texas and Senate
X.11 3'72,A&S of the 55th Legislature,Regular Session,
Chaptw 5Jy page 130. Attorney General's Opinion ``-308
(l.$?g)*
In Attorney General's Opinion ww-308 it was held
that the County Assessor and Collector of Taxes of Johnson
Honorable Glyndon M. Hague, Page 2 (UW-411).
County did not have authority under Senate Bill 372 of the
55th Leglalatureto oolleot the tax provided for therein.
It was pointed out In Opinion 1~308 that the office wan not
paeslng on the question of whether the governing board of the
District could set up Its own tax assessing and collection
system.
The questions presented In the instant case Involve:
(1) Whether the governing board of the District
may provide for the assessing and oollection of
taxes provided for in the Act; anil
(2) Whether the governing board can uae the aer-
vices of the Aaaeaaor and Collector of Taxes for
Johnson County ae agent for the collection of the
tax.
Seation 48-d of Article III of the Constitutionof
Texas provides:
“Sec. 48-d. The Legislatureshell have the
power to provide for the establishmentand creation
of rural fire preventlon districts and to authorize
a tax on the ad valorem property situated in said
dirtrlota not to exoeed Three (34) Cents on the One
Hundred ($100.00)Dollars valuation for the support
thereof; provided that no tax shall be levied In
support of said districts until approved by vote of
the people residing therein.”
Pursuant to the above provisions, the Legislature
enacted Senate Bill 372 and provided for the ore&ion and
organizationof rural fire prevention districts. Tfiepertl-
nent provisions of the Aot provide:
“Sec. 10. Such fire proteotlon districts are
hereby declared to be political subdivisionsof the
state, and shall have full authority to oarry out
%hs objects of their oreation and to that end are
authorized to aoqulre, purohaae, hold, leame, man-
age, oooupy and sell real and personal property or
any interest therein; to enter into and to perform
any and all neoessary contracts; to appoint and
employ the neoeaaary offio8rs, agents and employ-
sea; to aue and be sued; to levy and enforce the
mlectlon of taxes In the manner @-id aubjeot to
Honorable Qlyndon M. Hague, Page 3 (WW-411).
the limitationsherein proviUed against the lands
d ther property xithln,the distriot for the
~?a&& revenues; to accept and receive donationa;
and to do any and all lawful acts required and
expedfent to carpg out the purposea of,th$s Act.
"Sec. 11. Any fire proteation district organ-
l&d under the provisions of this Act shall further
have authority:
11. . .
“(5) To do and perform all things In its dis-
erttion proper and necessary to fully uarry out the
intent of this Act.
“Sec. 12. No indebtednessshall be contracted
in any one yeap in exoeaa of funds then on hand or
which may be satlafled out of current revenues for
the year. The Board of Fire Commissionersshall
annually levy and cause to be assessed and collected
a tax upon ,a11properties,real and personal, situ-
ated with1 th dl t I t and subjeot to taxation,
in an amouk n% tt zxzeed three ocnts (36) on the
One Hundred Dollars ($100.00)valuation for the
support of the district, and for the purposes
authorized In this Act.
"The values of property in the said distriat
shall be the same values as are sholm,in the county
tax ~011s.
"Sec. 15. The provisions of this Act and pro-
ceedings thereunder shall be liberally con&Fed
with a view to effect their objects. . . .
(Fmphasisours).
Under the provlaions above quoted, it is the duty
of the goveming board of the Rural Fire Ppeventlon District
to levy and,cause to be assessed and collected the taxes
provided therein. Since the governing board has the express
authoplty to levy and collect the taxes provided for in the
Act, it has a broad disoretion to aooomplish the purposea of
the Aot, Bexar County Y. Hatley, 136 Tex. 354, 150 S.W.2d
980 (1941). Furthermore,the Legislaturehaa specifically
Honorable Olyndon M. Hague, Page 4 (WW-411).
provided that the governing board shall have authority to do
any and all lawful acts rcqulred and expedient to carry out
the purposes of the Aot and haa also specifioallyprovided
that the Act shall be liberally aonstrued with a view to
effect its object. Therefore, it is our opinion that the
governing board ha4 the authority to request and receive the
services of the Assessor and Collecrtorof Taxes of Johnson
County in collecting the taxes levied by the governing boardp
provided, of eour4e, that the Assessor and Collector of Taxes
I.4not prohibited from performing such services for the Dis-
trict.
In determiningthe question of whether the Assessor
and Collector of Taxes I.sprohibited from rendering a service
to the District, we must consider the provisions of Section4
33 and 40 of Article XVI of the Constitutionof Texas and
determine whether the servioes performed for the District are
incompatiblewith the duties of the office of the County
Asae'ssorand Collector of Taxes.
Section 33 of Article XVI of the Constitutionof
Texaa provides:
"The AaoountlngOfficers of this State shall
neither draw nor pay a warrant upon the Treasury in
favor of any pereon, for salary or aompensationas
agent, officer or appointee,who holds at the same
time any other office or position of honor, trust
OP proeit, under this State or the United States,
. . . (Exceptionsnot applicable).
Section 33 of Artiole XVI of the Constitutionof
Texas applies only when an accounting officw o:.?
the State
draws a warrant upon the Treasury in f~or of a person for
his salary or compensation. Attorney OeneraI's Opinions
o-4628 (1942); o-7446 (lg46)J O-5087 (1943).
In Attorney Qeneral's Opinion 0-5087 it was held
that Section 33 of Article XVI of the Constitutionof Texas
was not applicable to a County Treasurer being employed as a
teacher in the oity 4choola, stating:
"The employmentof the County Treasurer as a
principal teacher in the oity sahools of Corsicana
is undoubtedly a 'positionof honor, trust and
profit under this State,' but it ha4 no application
because the proposed voucher to the Treasurer is
HonoxrableGlyndon M. Hague, Pa&~5 (MM-411).' ;
not 'for salary or compensationaa agent, oif.icer
or appointee,'whataoever. The am for whioh the
warrant issues to the County Treasurer is the.'~
State's contributionto the Officers' SalaryPsnd
of Navarro County, and the County Treasurer,. In
receiving and turning over to the Officers1 Salary
Fund the prooeeda thereof, is doing 80 in ,a.fidu-
aiary capacity. The warrant ahould Issue in the
ordinary course."
It Is, therefore, our opinion that Section 33 of
Article XVI, Conatitutlonof Texas, is not applicable to
your question.
Section 40 of Artiole XVI of the Constitutionof
Texas provides:
"No person shall hold or exercise, at the
same time, mzre than one Civil Office of emolu-
ment, .'. . (Fxoeptionsnot applicable).
Slnae the Assessor-Colleotorof Taxes will hold
only one civil office of emolument under the fact6 presented,
Section 40 of Article XVI la not applicable to ywr question.
Apart from the constitutionalprovlalaas'~reol;ted
herein, it Is a fundamentalrule that one person may not at
the same time hold two offices. the duties of which are not
compatible. State v. Brlnkerhoff,66 Tex. 45, 17 S.W. 109
(1886); Thomas v. Abernathy County Line Independent School
District, 290 S,W. 152 (C A 92) . PI-
ultt v. Qlen Rose
IndependentSchool Distrizy*12gPTe:. 5: 84 'S.W;2d~1004
(19351*
We fail to find any Incompatibilitybetween the
dut.iesof the office of Assessor-Collectorof Taxes and the
service to be performed for the District. You are, therefore,
advised that the governing board of the Johnson County Rural
Fire PreventionDistrict has the authority to request and
receive the services of the Johnson County Tax Asseseor and
Collector in collecting the taxes for the pistrict, but he
is not under a legal obligation to do so.
SUMMARY
The Board of Fire Commiaslonersof the
Johnson County Rural Fire E?evention
Honorable Glyndon M. Hague, Page 6 (WW-411).
District has the authority to appoint
the Assessor and Colleotor of Taxes of
Johnson County its agent in aollecting
taxes for the District, and the Asses-
sor ana Uollector of Taxes haa authority
to perform suah aervices~wlthoutcompen-
sation.
Yours very truly,
WILL WI&SON
Attorney General of Texas
JR:jl
APPROVED:
OPINION COMMITTEE
Qeo. P. Blackburn, Chairman
Ralph R. Rash
W. 0. Shultz
Riley Eugene Pletaher
RF3IEWEDFORTHE ATTORNEYGENERAL
BY:
W. V. Geppert