Untitled Texas Attorney General Opinion ( 1944 )

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GROV?IFI
SELLERS
Hon. B. T. Walters
County Auditor
Smith County
Tyler, Texas
Dear Sir: Opinion No. o-5862
Re: Filing suits for the collection
of delinatientaersonal or insol-
vent tax& under the provisions
of Article 7297, R.C.S.
You submit for the opini.onof this department certkln
Questions contained in your letter of February 10, which reads
as follows:
“The flllng of suits In the JustIce and’cbunty
Courts for the collection of delinquent personal or
itinaolvent taxes due to the State and County for the
past several ‘years in contqnplatad by this County; I
and in this oqnneotion I wlah to submit the following
question8 for your opinion:
“1. Would the prbvislona of Article 7297 Revised
Civil Statutes, 1925, apply in oaae of suits fjled”~for
the oolleotion of taxes on personal property regulhrly
asaeaeed eaoh year by the Tax Asseaeor end plaoed~.on the
tax roll for that year, either on the unrendebed or’ r&n-
d&red portion thereof, where the oomblned total of such
taxes sued for does not exoeed the sum of $2g.OC; or does
that Artiole apply to suits brought to OOlleOt'~taXd#on
perlrbnal property diaoovered by the Tax Aeeeesor-Colleqtor
to have been unrendered and omitted from the roll for
previous yearn ‘end baok assessed for auoh omitted yeare?
.* “2 * Does the statutea veet the Tax AasesrrbP with
authority to add to R eigned’rendition auoh persohal
propert known by him to be owned by the lndlvidu~l ’
making t he rendition subjeot to ta’xati,on in the County,
when that individual has omitted bama from his r&ildition.
If, in your opinion, the Tax Assessor do&4 not,have’the
authority~to add the omitted personal property, ddsa he.
have the authority to refuse the algned, but incomplete,
rendition?
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Hon. B.T. Walters, page 2 o-5862
Your first question involves the construction of A,rt.
7297, R.C.S., which reads as follows:
"The di,strictor county attorney of the respective
counties of this State, by order of the commissjoneps
court, shall institute suit in the name of the State for
recovery of all money due the State and county as taxes
due and unpaid on unrendered personal property; and in
all suits where judgments are obta,Fnedunder this law,
the person owning the property on which there are taxes
due the State and county shell be liable for' all cost?.
The State and county shall be exempt from liabi,.l.lty
for
any costs growing out of such action. All suits brought
under this article for the recovery of texes due on per-
sonal property shall be brought against the person or
persons who owned the property at the time such property
should have been.listed or assessed for taxation. NO
suit shall be brought until after demand is made by the
collector for taxes due, and no suit shall be brought
for an amount less than twenty-five dollars'*Such suits
may be brought for all taxes so due and unpaid for which
such delinquent tax payer may be in arrears for and since
the year 1886.”
Your questlon No. 1 may be subdivided into two ques-
tions :
(1) Where assessments have been regularly made by the
Assessor each year, may suits'be filed as authorized under said
article when the combined total of delinquent taxes due and sued
for is less than $25.00?
(2). ~Does said article apply only to suits brought to
collect delinquenttaxes on personal Property discovered by"the
tax assessor to have been unrendered a::domItted from the tax
rolls for previous years and.by the assessor asses~sedfor such
omitted gears?.,
This article of the statute as observedby Its plain ~-
terms does not purport to deal with delinquent taxes on personal
property which has been regularly assessed either upon the ren-
dered or unrendered rolls by the a8sessor. The statute says
"for the recovery of all money due the State and County es taxes
due unpaid'on unrendered persona.1property: O . ; all suits
brought ulider this Article for the'recoverg of taxes due on per-
sonal'property shall be brought against the person or persons
who owned the property at the time su,chproperty should have been
listed or assessed 'for taxation." Thus it seems clear to us that
this article of statute deals only with unrendered, unlisted bnd
unassessed personal property, We do not meanto say, however,
that suit,for such delinquent taxes on personal property as this
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Hon. B. T. Walters, page 3 O-5862
article of the statute authorizes may be brought without an
assessment by the assessor; quite to the contrary, as we point
out in our answer to the second part of your first question to
follow-. In no event can suits be brought under this article of
the statute where the combined amount sued for i.sless than
25 .oo. This is expressed in the plain language of the statute.
tEmphasis added)
The answer to the second part of your questionNo. 1
brings us to a more detailed consideration of the~construction
to be given Article 7297, R.C.S., in its~general application as
the courts have construed it. It is apparent on the face of it
that the article deals with a method of enforcing the collection
of "taxes due and unpaid" on unrendered personal property, with
the limitation of course that no suit shall be brought for less
than'$25.00, as we have said in answer to the first part of your
question.
Article 7297 here under consideration was formerly ~.'
Article 5212a, R.C.S., 1895, and was first construed in the case
of Connell v. State, 55 S.W. 980, which was a'suit for delinquent
taxes on personal property. In that case the court said:
,I This suit was evidently brought under
article j2;2a, which makes it the duty of the district
or county attorney, by order of the commissioners court,
to institute in the name of the state a suit to recover
all money due the state and county as taxes on unrendered
personal property. It is further provided in that arti~cle
that all suits for the recovery of tflxesdue on personal
property shall be brought against the person or persons
who owned the property at the time the same should have
been listed or assessed for taxation. Our constructi~on
of this~artic'le,however, is not that it was intended to
create any liability for taxes, but only to,provide an
additional method of collecting taxes from the persons
already liable. That is to say, the taxes are not 'due'-
from the persons sued within the meaningsof this Article,
until there has been a valid assessment against him,
either as known or unknown owner. . . .'I
This article was subsequkntly reenacted and codified
as Article 7661, R.C,S., and again ceme up for construction In
the case of State v. Cage, 176 S.W. 928. This.was also e suit
by the State for delinquent taxes on personal property, not
rendered by the owner and assessed as such by the assessor on
the unrendered rolls. It must be kept in mind that while the
office of tax assessor is a constitutional office, the Consti-
tution does not define his powers and duties; but the Legisla-
ture, as it may do under the Constitution, has conferred certain
Hon. B, T. Walters, page Ir o-5862
duties and powers upon him, beyond which he cannot go. One of
these limitations is that he cannot assess personal property
which has been unrendered end omitted from the assessment rolls
for more than two years prior to the time he discovers such
omission. This is clearly the intent of Article 7208, R.C.S.
In other words, the tax essessor is wlthout authority to list
and assess personal property theretofore unrendered by the
owner, except for the two years i~mmedietelyprior to the dis-
covery of the omission from the rolls. This is made plain i,n
the case of State v. Cage, supra, in the following language:
"The provlsion in article 7661 'that no suit shall
be brought until after demand is made by the collector
for taxes due' necessarily destroys the contention that
by that article a right of action exists without en
assessment, because the tax collector could not make a
lawful demand for taxes due until the amount of such
taxes has been first determined by an assessment of
the'propertg for taxation. We are of the opinion fur-
ther that that article cannot be construed as impliedly
authorizing an assessor to assess personal property
for any year back to the year 1886, for, if it is so
construed, it would repeal by implication, or else
render useless, article 7566. . . . We are of the
opinion 'furtherthat it would be a stra,inedconstruc-
tion of article 7661 to sky that in enecti~ngit the
Legislature intended thereby‘to extend the powerof
the essessor to assess delinquent personal property
,back to the gear 1886. Our construction of article
7661 is that no more was intended than that suit should
be instituted for collection of such delinquent taxes
only as had been properly levied and assessed.
"We think it clear that by article 7566 it was
intended thetat any time after the ena~cbnent of that
statute the assessor could assess such personal property
which had been omitted for two yeers prior to the time
the assessor discovers such omission, and we overrule
appellant's contention that by that article two years
pri~orto its enactmen.iwas made the period to which
all assessments of personel property thereafter made
could extend.'!
In brief, the duty imposed upon the district or county
attorney to file suits u~nderArticle 7297, supra, when ordered
to do so by the commissioners court presupposes a pre-existing
valid assessment by the essessor of such persons1 property,~in
the absence of which no right of action exists, for as said in
the'cese of State v. Cage, surpe, said article provides: "That
no'sult shell be brought until efter demand is made by the col-
lector for taxes due, which necessarily destroys the contention
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Ron. B. T, Walters, page 5 o-5862
that by said article a right of acti~onexists without an a33ess:
ment, because the tax collector could not make a lawful demand
for texes'due until the amount of such taxes has been first deter-
mined by an assessment of the property for taxation. Moreover
this same case is an author!~tyfor the 1im:tation placed upon
the assescor by the two ycsr period prior to his discovery of
the omission of such personal property from the tax rolls in
making his assessment of such property. This is found in the
following language:
'We are of the opinion further that that article
could not be construed a3 impliedlg authorizing the
assessor to essess persona1 property for any year back
to the year 1886, for, if it 13 30 construed, it would
repeal by implication, or else render useless, Article
7566 (now Article 7'08). . . We ere of the opinion fur-
ther that it would be a strenge construction of Article
7661 to say that in enacting it the Legislature in-
tended thereby to extend the power of the assessor to
assess delinquent property beck to the year 1886."
In summing up the court said:
"Our construction of Article 7661 (now Art. 7297)
is that no more was intended then that suit should be
instituted for collection of'such delinquent texes only
as had been properly levied 'and assessed."
This case furtber makes'clear that by Article 7566 (now
Art. 729?) it was intended that any time after the enactment of
that statute the asses3or could assess such'personal property
wh!ch~had been omitted for two years prior to the time the assessor
discovered such omission, and not otherwise.
Passing nw to the consideration of your.second question,,
we have impliedly answered it in our discussion of the firstques-
tion submitted by you; but to be more specific we direct your
attention to other provisions of the statute dealing with the
duties end powers of the assessor in assessing unrendered prop--
erty? which of course,comprehends property intentionally or
inadvertently omitted by the owner from his rendition. Articles
7192-7193, R.C.S., cover3 such situations. They read as follows:
"In every causewhere eny person whose duty it 13
to list eny property for taxation has refused or neglected
to list the same when called on for that purpose by the
assessor of'taxes, or has refused to subscribe to the
oath in regard to the truth of his statement of property,
or any pert thereof, when required by the tax assessor,
the assessor shall not.2 in a book the name of such person
Hon. B. T. Walters, page 6 o-5862
who refused to list or to swear; and in every case where
any person required to iist property for taxation has
been absent or unable fr:omsickness to list the same,
the tax assessor shall note in a hook such fact, together
with the name of such person.
"In all cases of failure to obtain a statement of
real and personal property from any cause, the assessor
of taxes shall ascertain the amount and value of such
property and assess the same as he beli,evesto be the
true an3 full val~uethereof; and such assessment shall
be as valid and binding RS if such property had been
rendered by the proper owner thereof."
In construing the above Article 7193, Judge Speer of
the Fort Worth Court of Civil Appeals, in the case of Texas
Public Utilities Corporaticn v. Holland, 123 S.W. (2d) 1028,
said:
"However, as seen by Art. 7193, quoted above,
If for any cause the owner does not take advantage of
the priviiege given to ;;husrender his pro;?ertyand
have the benefits pointed out, it becomes the duty of
the assessor to ascertain the amount and value of the
property and assess it according to his own ideas of
values, under which condition the assessment so made
hisas binding upon the ownerand ,theproperty assessed
as if 5-t.
found Its way to the tax rolls by means of
the first provision discussed. . e .I'
To the same effect is the holding in Town of Pleasanton
v. Vance, 4 S.W. (2d) 247, (San Antonio Court of Civil Appeele)
from which we quote as fol;ous:
?i
. . . Whjle it is true that the law mekes i~t
the duty of the owner to.render his property f~or
taxation (article 7152, Revise&Statutes 1925) it Is
also the duty of the assessor io render it Iancases
where the owner fails from any cause +;odo so. Article
7193, Revised Statutes 1925."
The case -ofFerguson, et ux, v. Steen. Tax Assessor,
et al.; 253 S.W. 313, (El P:'roCourt of ;:1~ilAp&;:ls) affirmed
the right ,ofthe assessor, by virtue of Articles 7190, 7192 and
7193, R.C.S., to assess property omi,tteUfrom the owner's rendl-
tion. The property owners in this case rendered their interest
in the surface of the land ;nvolved, but refused to render the
mi,neralor royalty interest. The court said:
We think, u~nder tne authority of articles
7190, j1.92:and 7193; Revised Statutes of 1925,'the tax
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Hon. B. T. Walters, page 7 o -5862
assessor had the right to assess appellants' royalty
interest in said land, as the court found he did do,
at $30,870. . . . ."
True, the royalty or mi~neralinterest here involved
constituted an interest in land; the court held in effect that
if treated as personal pro;:erty,in which e:lentit would have
been listed and valued seoarately, no harm resulted to the tax-
payer for the amount of his taxes would not be diminished or
decreased thereby, for in any Event he would pay on the same
assessed value. The matter of increasj~ngthe value of property
listed and assessed by the assessor, or the rendition voluntar-
ily made by the owner, is altogether a different matter. This
cannot be done in any event without notice to the owner and
consequent right to be heard; Hoffling v. City of San Antonio,
3g S.W. 919, by the Supreme Court of Texas. Summarizing, your
second question is answered as follows: Articles 7190, 7192 and
7193, R.C.S., are sufficient authority for the tax assessor to
assess personal property omitted by the property owner from hits
rendi~tion. We are of the oilinionthat the assessor would not
have the authority to refuse the renditicn by the property owner
of such property as he, in the exercise of his statutory rights,
personally renders; but such property owner cannot circumvent,
by rendering only 8 part of h's property, the statutory duties
imposed upon the tax assessor to list, value, and assess such
personal property as he may intentionally or otherwise omit from
his rendition. It would appear, however, from the language of
the court in the case of W.T. Waggoner Estate v. Electra Inde-
pendent'Schoo1 District, 1.57S.W. (2d) 721. that the assessor
should assess property omitted by the owner from his rendition,
whether intentional or otherwise, on the unrendered rolls; rather
than by adding it to the voluntary rendi~tionof the owner. In
this case the court said:
"In its petition the school dlstrj.ctseems to
allege that the Estate did not render its mineral
interests, and that the board of equalization added
the mineral interests to the rendition. If it did do
this, i.thad no legal right to do so. The board of
equalization may, under prooer procedure, change the
valuations, but it may not add, to the rendition, proper-
ties not included in the rendition. Such unrendered
prooerties could only be nlaied on the unrendered rolls
by the assessor. Cracker v. Santa Consol. Independent
School District, Tex. Civ. App., 1.16S.W. 2d 750, and
cases therein cited." (Emphasis added)
We trust we have made sufficiently clear our snswers to
your questions.
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Hon. B. T. Walters, page 2 O-5862
Yours very truly
ATTORNEY GENERAL OF TEXAS
By: s/L.P. Lollar
L. P. Lollar
Assistant
LPL:AMM:wc
APPROVED MAR 17, 1944
s/Gee. P. Blackburn
(Acting) ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/A.W. Chairman