Untitled Texas Attorney General Opinion ( 1945 )

L .
Honorable A. R. Hiokerson
County Auditor
Montgomery County
Conroe, Texas
Dear Sir: Opinion No. O-6380
Re: Valuation contract between
Montgomery County and the
firm of Pritchard and Abbott
We are in receipt of your communication of recent
date requesting the opinion of this department on the above
stated matter. Also, we have received briefs prepared by the
attorneys representing the County Judge.
We quote from your letter as follows:
"On Monday, January 8, the Commissioners' Court
of Montgomery County sitting in Regular Monthly Session
and conducting its regular monthly business, was presented
with an application from Pritchard & Abbott, Valuation
Engineers of Fort Worth, Texas
"In discussing the matter, the County Judge, after
expressing opposition to the contract, left the Court
Room. Then, the four remaining Commissioners organized
and elected one Commissioner to be Presiding Officer in
the absence of the County Judge, at which time they
approved a contract with Pritchard & Abbott.
"For your convenience, I am enclosing a copy of the
contract approved by the four Commissioners, also a copy
of the Docket Items covering the organization of the Court
and the approval of the Contract.
"1 am advised that the authority for four commissioners
to approve a contract in the absence of the county judge,
is in the case of Dalton vs. Alley, 215 S.W. 439; also
110 Texas, page 68.
"Will you please advise me whether I can legally
approve payments to Pritchard & Abbott on the contract.
Also advise me as to the legality of the construction of
the contract."
. .
Honorable A. E. Hickerson - page 2, O-6320
"The contract submitted by you reads as follows:
"STATE OF TEXAS
COUNTY OF MONTGOMERY t KNOW ALL MEN BY THESE
PRESENTS:
"That, WREREAS, the Commissioners' Court of
MONTGOMERY County, Texas, has dtermined that it would
be wise and to the best interest of said County for it
to employ experts skilled in the matter of appraising
and valuing oil and gas properties and public utility
properties in said County, said experts to compile and
furnish data and information to said Court sitting as
a Board of Equalization for the purpose of equalizing
valuations of such properties as compared with other
property valuations in said County for tax purposes for
the year 1945, and said data and information to b8 made
available in respect to all of such properties properly
and lawfully coming before it for consideration in the
equalization of values upon renditions made by the owners
thereof, or upon renditions made by the Tax Assessor
where the owner, or owners, may fail to render the same;
and,
"WHEREAS, said Court finds that Pritchard and Abbott,
a partnership of Fort Worth, Texas, are skilled in such
matters and have scientific and technical knowledge in
respect to the appraising and valuing of such properties
and many years experience in the matter of appraising and
valuing such properties; and
"WHEREAS, Pritchard and Abbott, have proposed to said
Commissioners' Court of MONTGOMERY County that they will
gather and compile information relating to the value of
oil and gas and public utility properties as of January 1,
1945, and make said information completely available to
said Court, to be used by it as it may see fit in d8t8rmin-
ing what values should be assigned to said properties
properly coming before it for consideration; and will
charge for their servSces a sum of $10,000.00 (Ten
Thousand Dollars).
*IITIS THEREFORE AGREED by and between MONTGOMERY
County, Texas acting herein by and through its Commissioners
Court, Party of the First Part, and Pritchard and Abbott,
of Tarrant County, Texas, Parties of the Second Part as
follows:
"Parties of the Second Part agree to compile a
complete list of the record owners of all oil and gas
producing properties wherever situated and located in
Montgomery County, Texas, and all undeveloped leases and
royalty interests adjacent thereto, as of January 1, 1945,
. .
Honorable A. E. Hickerson - page 3, O-6380
said compilation and record to show the particular
interest or interests therein owned,; and also a complete
list of all public utility properties located in said
County as of January 1, 1945.
"Parties of the Second Part also agree to secure and
make avs5lable for the use of Party of the First Part
information showing the values of said properties to be
considered by Party of the First Part as it may deem fit
in determining the proper values for tax assessment
purposes for 1945, to be assigned to such of said pro-
perties as may come before the Party of the First Part
sitting as a Board of Equalization for consideration upon
renditions made by the owners thereof, or upon renditions
made by the tax assessor where the owner, owners, fail or
refuse to render the.same.
"FOR AND IN CONSIDERATION of the skilled services,
technical knowledge and experience of Parties of the
Second Part in the performance of the obligations devolv-
ing upon them hereunder, and in consideration of the in-
formation given and assistance furnished by them to Party
of the First Part in undertaking to value and equalize
the value of said properties properly coming before it for
consideration at its equalization hearings in the year
1945, Party of the First Part agrees and obligates itself
to compensate Parties of the Second Part as follows:
"FOR THE SERVICES HEREIN AGREED to be performed
Second Party shall receive the said sum of Ten Thousand
($lO,OOO.OO) Dollars, to be paid out of the General Fund
of Montgomery County.
"IT IS FURTHER AGREED AND UNDERSTOQD by both Parties
that Montgomery County, Texas, will issue, or cause to be
issued to Pritohard and Abbott warrants drawn against
the General Fund of said Montgomery County, Texas, and
payable out of the current revenues of 1945.
"PARTY OF THE FIRST PART hereby specially contracts
and obligates itself to, at any time same may become
necessary, pass and enter of record such orders as may be
proper and necessary to legalize and facilitate the pay-
ment of all sums due Party of the Second Part.
llSAID PRITCHARD AND ABBOTT, furtheragree that in no
way will the said M~ontgormry County be obligated to said
Prtichard and Abbott, ortheir assistants, for salaries,
expense, or material, except as above stated.
"WITNESS our hands in duplicate this the 8 day of
January, A.D., 1946.
. .
Honorable A. E. Hickerson - page 4, O-6380
COUNTY OF MONTGOMWY
Party of the First Part
BY
County Judge
signed: signed:
GUY STRIPLING FLOYD STEWART
Commissioner, Precinct #l Commissioner, Precinct #2
Presiding Officer.
signed: signed:
GUINN SANDERS H. C. FURLOW
Commissioner, Precinct #3 Commissioner, Precinct #4
ATTEST:
signed:
CORY A. BEARD
County Clerk, Montgomery
County, Texas
By-signed:
W. J. Graybill, Depty. PRITCHARD & ABBOTT
Parties of the Second Part.
BY
signed:
J. H. Abbott"
For the purpose of this opinion, our discussion shall
be confined to the validity of the contract submitted. We shall
not go into the circumstances under which the commissionersr
court entered its order withreferenee to this contract, for in
this matter a fact determination is involved, about which some
controversy is indicated, and it is not the policy of this
department to determine questions of fact.
In Opinion Nor o-5909, this depsrtment held that a
contract similar to the one submitted by you was valid. Herein
we shall give further consideration to the matters involved in
a contract of this nature.
Article 7206, VBrncJri'sAnnotated Civil Statutes,
provides:
"Each commissioners court shall convene and sit as
a board of equalization on the second Monday in May of
each year, or as soon thereafter as practicable before the
first day of June, to receive all the assessment lists or
books of the assessors of their counties for inspection,
correction or equalization and approval.
. .
Honorable A. E. Hickerson - page 5, O-6380
“1. They shall cause the assessor to bring before
them at such meeting al1 said assessment lists, books,
ets., for inspection, and see that every person has
rendered his property zt a fair market value, and shall
have power to send for persons, books and papers, swear
and qualify persons, to ascertain the value of such
property, and to lower or raise the value on the same0
"2. 'rhey shall have power to correct errors in
assessments.
"3 . They shall equalize improved lands in three
classes, first-class to embrace the better quality of
land and improvements, the second-class to embrace the
second quality of lands and improvements, and the third-
class to embrace lands of but small value or inferior
improvements. The unimproved lands shall embrace first,
second and third class, and all other property made as
nearly uniform as possible.
*rr
"4. After they have inspected and~equalized as
nearly as possible, they shall approve said lists of
books and return same to the assessors for making up the
general rolls, when said board shall meet again and
approve the same if same be found correct.
"5 . Whenever said board shall find it their duty
to raise the assessment of any person's property, they
shall order the county clerk to gi.Je the person who
rendered the same written notice that they desire to
raise the value of same.~ 'L'heyshall cause the county
clerk to give ten days written notice before their meeting
by publication in some newspaper, but, if none is published
in the county? then by posting a written or printed notice
in each justice?s precinct, one of which must be at the
court house door.
"6. The assessors of taxes shall furnish said board
on the first Monday in May of each year, or as soon there-
after as practicable, a certified list of names of all
persons who either refuse to swear or to qualify or to
have signed the oath required by law, together with the
assessment of said person's property made by him through
other information; and said board shall examine, equalize
and correct assessments so made by the assessor, and when
so revised, equalized and corrected, the same shall be
approved. Acts 1879, p. 44; Acts 1909, p. 373; G.L. vol.
8, p. 1344."
Article 7211, V. A. G. S., provides:
"Hereafter when any person, firm or corporation
. .
Honorable A. E. Hickerson - page 6
renders his, their or its property in this State for
taxation to any tax assessor, and makes oath as to the
kind, character, quality and quantity of suah property,
and the said officer accepting said rendition from such
person, firm or corporation of such property is satisfied
that it is correctly and properlyvalued according to the
reasonable cash market value of such property on the
market at the time of its rendition, he shall list the
same accordingly; but, if the assessor is satisfied that
the value is below the reasonable cash market value of
such property, he shall at once place on said rendition
opposite each piece of property so rendered an amount
equal to the reasonable cash market value of such property
ht the time of its rendition, and if such property shall
be found to have no market value by such officer, then
at such sum as said officer shall deem the real or in-
trinsic value of the property; and if the person listing
such property or the owner thereof is not satisfied with
the value placed on the property by the assessor, he shall
so notify the assessor, and if desiring so to do make
oath before the assessor that the valuation so fixed by
said offioer on said property is excessive: such officer
to furnish such rendition, together with his valuation
thereon and the oath of such person, firm or officer of
any corporation, if any such oath has been made, to the
commissioners~ court of the county in which said rendi-
tion was made, which court shall hear evidence and
determine the true value of such property on January First,
19 (here give year for which assessment is made) as is
herein provided; such officer or court shall take,into
consideration what said property could have been sold for
any time within six months next before the first day of
January of the year for which the property is rendered.
48 and 382, 39th Leg., ch. 20, 3 2, and
Article $212, V.A.C.S., provides:
*The boarde of equalization shall have power, end
it is made their official duty, to-supervise the assess-
ment of their respective counties, and if satisfied that
the valuation of any property is not in accordance with
the laws of the State, to increase or diminish the same
and to affix a proper valuation thereto, as provided for
in the preceding article; and, when any assessor in this
State shall have furnished said court with the rendition
as provided for in the preceding article, it shall be the
duty of such court to oallbefore it such persons as in
its judgment may know the market value or true value of
such property, as the case may be, by proper process, who
shall testify under oath the character, quality and
quantity of such property, aa well as the value thereof.
. -
Honorable A. E. Hickeraon - page 7, O-6380
Said court, after hearing the evidence, shall fix the
value of such property in acoordance with the evidence
so introduced and as provided for in the preceding
article; and their action in such case or cases shall be
final. Id."
The foregoing provisions authorize the organization
of the Commissioners 1 bourt as a Board of Equalization and
define the Board's powers and duties with reference to its
consideration of the assessments brought before it- by
the Assessor and Collector of Taxes, the Board's hearing of
evidence as to the value of property assessed for taxation,
and, as to its authority, when satisfied that any property
is not properly valued, to increase or diminish same and to
fix a proper valuation for said property. Under said provi-
sions, the Commissioners' Court, sitting as a Board of Equali-
zation, is fully and expressly empowered to equalize and set
a final value on all property reported to it by the Assessor
and Collector of taxes. It is mandatory that the Court, sitt-
ing as a Board of Equalization, %a11 before it such persons
as In its judgment may know the market value, or true value
of such property" ("rticle 7212, formerly Article 7570, Rev.
St. 1911). In the case of Brundrett v+ Lucas, 194 S.W. 613
(writ refused), the Court in setting aside a valuation fixed
by the Board of Equalization, said:
"The action of the board in disregarding the
testimony introduced, which testimony was not disputed,
nor impeached by documentary evidence, was arbitrary and
directly in the face ofa mandator statute (formerly Art.
7570, Rev, St. 1911, new d V. A. Co S.) and
furnished a sufficient basis for a'auit in the district
court to enjoin the collection of taxes upon the in-
creased values thus made in the assessments.
rr . . We do no think the failure of the board
to c0rnil.i
with the terms of a mandatory statute can be
justified by showing that, if the same witnesses had been
summoned and the same evidence introduoed as upon the
hearing in the district court, the order of the board
would have been sustained by evidence. D . .-'I(Under-
scoring and parentheses ours)
Holdings to the same effect are found in Harlingen
Independent School District v. Dunlap, 146 S.W. (26) 235
(writ refuaed)~; City of Comanche v. Brightman, 88 S.W. (2d)
74; Netherland Independent School District v. Carter, 73
S. W. (2d) 935; and Ernest v. Standefer, 54 S.W. (2d) 229.
The Commiasionerst Court has the implied authority
to employ reasonable means to enable it to exercise the powers
and discharge the duties imposed upon it by law. In numerous
Honorable A. E. Bickerson - page 8, O-6380
instances, our courts have sustained contracts which involved
expert and professional assistance to the Commissioners*
Court in carrying out its statutory powers and duties (Cottle
County v. McClintock & Robertson, Civ. App., 150 S. W. (2d)
134, error dismissed; Galveston County v.'Gresham, 220 S.W.
560, writ refused; Hidalgo County Water Improvement District
No. 2. v. Feick, Tex. Civ. App., 111 S.W. (2d) 742, writ
dismissed; Cherokee County v. Odom, Tax toll., 118 Tex. 288,.
15 S. W. (2d) 538; Von Rosenburg v. Lovett, 173 S.W. 580;
Roper v. Hall, 280 S.W. 298; and Federal Royalty Co. v.
state , 42 S. W. (2d) 670.
In the c ase of Roper v. Hall, supra, the Court
held, in effect, that the County Commissioners' Court has
implied power to contract for the compilation of date for
its use, while sitting as a Board of Equalization, in de-
termining taxable value of oil and gas properties in the
county. In this case the Court said:
"The general powers so given to the Commissioners
Court are of little practical value, without the further
authority to use adequate means to insure the proper,
intelligent, and effective exercise thereof."
The holding in the foregoing ease with reference to
the authority of the Commissioners' 'ourt to make such con-
tracts under its implied power was followed in the case of
Federal Royalty Co. vI State, supra.
In the case of Von Rosenburg v. Lovett, supra, the
Court, in sustaining an implied power, used this very cogent
language:
"When the law requires the performance of a duty
by anyone it impliedly grants him the power to do the
things reasonably necessary to discharge such duty.
It would be a vain thing to impose upon anyone a duty,
and deny him the means whereby he could perform such
duty."
A reading of the instant contract reflects that its
object is the compilation and furnishing of data for the use
of the Commissioners' 'ourt, while sitting as a Board of
Equalization, in its determination of the taxable value of
oil and gas properties in the oonnty. The Contraotorts
function is to ascertain, compile and furnish data and informa-
tion to the Board of Equalization pertaining to the appraisal
and valuation of properties of the kind mentioned in the con-
tract, for the purpose of assisting the court in effectively
exercising its powers and performing its duties as a Board of
Equalization. In view of its nature and purpose, such informa-
tion or data would pertain to the character, quantity and
.
Honorable A. E, Hiokerson - page Q. O-6300
quality of the properties men,tioned in the contract.
In view of the time fixed by law for the assessment
and equalization of values for tax purposes, it might prove
to be inexpediat and impracticable for the CommissionersP Court
to wait until the Assessor and Collector of Taxes had returned
the assessment lists to the Board of Equalization and then
have such information or data prepared as to the ap,praisal and
valuation of the properties shown on such lists. When the
information and data as to the pertinent facts in determining
the valuation of such property and'for equalizing
same, requires scientific knowledge, technical skill and as-
sistance, such date could not be properly ascertained in so
short a time. Such information as to each piece of property
of the kind and character mentioned appears to be unrelated
to the rendition or assessment of said property, but rather
it is prep.aratory to valuation and equalization by the Board at
such time as the Assessor and Collector submits the renditions
and assessments for its consideration in equalizing and fixing
a final valuation on such property.
The Commissioners' Court, sitting as a Board of
Equalization, is authorized and it is charged by law with the
duty of equalizing the values of. all properties returned to it
by the Assessor and Collector of taxes; and, in view of the
authorities heretofore submitted, we think that is has the
implied power and authority to prepare itself in advance to
the end that it may properly and effectively perform the duties
imposed upon it by law, in respect to the properties lawfully
coming before it for consideration, provided that it does not
exercise said powers in such a manner as to usurp or delegate
the powers and duties imposed by law upon the Tax Assessor and
Commissionersr Court.
Article 8, Section 14, Constitution of Texas, as
amended, in part, provides:
"And such assessor and collector of taxes shall
perform all the duties with respect to assessing property
for the purpose of taxation and of collecting taxes, as
may be prescribed by the Legislature."
By virtue of this constitutional authority, the
Legislature may, in its discretion, by general law, impose
additional powers, functions Andy duties upon the Assessor and
Collector of Taxes (Harris County v. Hal&, 1732 S. W. (2d) 691.)
The contract under consideration discloses no attempt to
extend its obligations to usurp powers theretofore imposed
upon either the Assessor and Collector of Taxes or the
Commissioners' Court, sitting as a Board of Equalization. The
obligation imposed on and assumed by the contractor to furnish
data and information to said Board for the purpose of assisting
Honorable A. E. Hickerson - page.10, O-6360
It in equalizing the values of properties of the kind mentioned
constitutes no interference with the Assessor and Collector of
'Taxes In the due , proper and full performance of the powers,
functions and duties committed to hlm by law, and constitutes
no attempt to Initially assess (without authority of law)
properties not reported to the Board of F,quallzatlon by the
Assessor and Collector of Taxes; nor does it evidence any
attempt to evade or refuse to perform any of the duties lm-
posed by law upon said Board.
Article 7335a, V. A. C. S., makes special provision
with reference to contracts In connection with delinquent taxes,
and said article sets the maxlmum compensation for such
services and requires that such contracts shall be approved by
the Comptroller and Attorney General. We do not think that the
contract under consideration comes under the provisions of
Article 7335a.
It was held In the case of White v. McGill, 114
S.W. (Zd) 860, that the words "delinquent taxes I'in Article
7335a are not used in a technYca1 sense.
In a strict or technical sense, delinquency results
from non-payment of taxes after the property has been validly
assessed. In a broader sense, the owner of property may be
delinquent in respect to payment when his property has not
been assessed, and under the holding in White v. McGill, supra,
"delinquent taxes", as used in Article 7335a, may result from
failure to render 'or assess as well as from failure to pay
after a valid assessment.
The instant contract discloses no obligation on the
part of the contractor to secure information as to whether
property is rendered or unrendered or woul.d in any way be
considered delinquent as of January 1, 1946. The obligation
assumed 1s to collect facts as to the ownership and value of
property of the kind mentioned In the contract as of January
1, 1945, and to report same with supporting data to this
Board of Equalization for its use in connection with equali-
zation and fixing proper values on any such property submitted
to it for equalization for the year 1945.
We have carefully considered the cases of white v.
McGill, supra; Sylvan Sanders Co. v. Scurry Co., 77 S. W.
(2d) 709; Easterwood v. HbndbrSOn County, 62 S. W. (2d) 85;
McQuart v. Harris County, 117 S. W. (2d) 494; Aldrich v.
Dallas County, 167 S. W. (2d) 560, and the authorities cited
in said oases in connection with the matters under consldera-
tion. Apparently the contracts involved In these cases were
the same kind or type of contracts as the contract under con-
sideration. The instant contract imposes no obligation to
furnish any facts irith reference to unrendered property, or
. . . -
Honorable A. E. Hick&son - page 11, O-6380
with reference to the collection of any taxes. All of the
obligations assumed by the contractor will be performed
prior to the time any taxes beCOmb due and before the process
of collection of taxes can begin; therefore, we think that
the instant contract does not come within the purview of-said
cases.
In view of the foregoing, It is our opinion that
the above quoted contract is valid, and that it Is within the
scope of the authority of the Commissioners' Court to make and
execute such a contract.
The necessity of maklng and execution of such a
contract is 'a matter wholly within thb discretion of the Com-
mIssloners* Court. Also, this department cannot pass upon the
amount of the consideration involved In said contract, for
that matter Involves a fact determination which this department
Is not authorized to make.
You are further advised that before any funds should
be paid out under said contract, such expenditures must have
been authorized in the county budget.
Trusting that the foregoing satisfactorily answers
your inquiries, we are
Yours very truly
ATTORNEY GENERAL OF TEXAS
s/ J. A. Ellis
BY J. A. Ellis
APPROVED FEB. 26, 1945 Assistant
s/ Carlos C. Ashley
FIRST ASSISTANT ATTORNEY GENERAL
Approved opinion committee By CFG, Chairman
JAE:ddt/cg