W’ILL WILSON

A1TORNEY #3EnmRA+ August 39 i962

Hon. R. L. Lattimore Criminal DistrictAttorney OpinionNo. Hidalgo County Re: Whether a tax assessor and Edinburg, Texas collector of an independent schooldistrictmust reside Dear Mr. Lattimore: within such district.

You have requested'an opinion from this office upon the question of whether a tax assessor and collector of an independent school district must reside within such district, or as stated in similar terms:

"Whethera tax assessor and collector of an independent school district is a public officer within the terms of ArticleXVI, Section 14 of the Texas Constitution."

You have pointed out in your letter that there ap ears to be a conflict betweenAttorney General"s Opinion No. (19421, Odt 63 8 and the case of Aldine IndeoendentSchool Districtv. andlev, 1% Tex. %7? Z80W02d 5'78(1955).

Section 14, Article XVI of the Constitution of Texas provides that:

"All civil officers shall residewithin the State; and all district or county officerswithin their districts or counties,and shallkeep their officesat such places as may be required by law; and failure to complywith this condition shall vacate the office so held." Attorney General's OpJ.nion No, C-4663 (1942)held that:
II

. . . the tax assessor and collector of taxes of an independent schooldistrictmust residewi,thin the district and that a failure to complywith that conditions

shall constitutea vacation of the office," This conclusionwas based upon the foilowing reasoning set forth in Attorney General's Opinion No. O&+6:63(1942):Hon. R. L. Lattimore, page 2 (WW-1412)

"Froma considerationof the foregofngauthoritiesand in view of the duties imposed upon the tax assessor and collectorby the statutes referred to above we think that-it is clear that D accointe

b to that office is such an of- &c~~~~~ comeswithin the scope ofArticle XVI, Section 14 of the Texas Constitution. 0

. D ' (Emphasisadded)
However in the recent case of &dine Indeoendent School District v. Standlee, suura, the Supreme Court of Texashad before It the auestion of whether the tax assessor and collector of a school districtwas a public offfcerwithin the contemplationof Section 24 of ArticleV; of the Constitutionof Texas and Section 30 of Article XVI of the Constitutionof Texas, The bupreme Court in its opinion stated that:

"We think it apparent from a reading of the above statutes, that an assessor-collectorof taxes auoointed bv a school board is not only not of equal power and prfvilegeswith the trustees; 

### be, -onthe contrary, is onlv an asent or emulovee of such SC

hool board,

at its discretion, The board alone has the cower to levv and cause to be collected the annuai taxes and.to determinewhether such office exists. 0 a o I,

. . . "We hold that respondent is not a Pouhl.ic officer'within the contemplationof Article Section 24 or Article XVI, Section 30 of our V,
State Cons itution.

t o 0 OtI (Emphasisadded)

InAldine IndependentSchool Districtv. Standlev, mg the Supreme Court quotes the following from the case of Dunbar v Brazoria County, 224 S.W.2d 738 (Clv,App,1949, erro,r ref, v tlFrom the above authorities, it is apparent, we think, that the determining factor which distinguishes a public officer from an employee is whether any sovereign functfon of the government is conferred upon the individual to be exercised by him for the benefit of the public deoendent of the control of others, tl kwidded)

In applying the rdyeein Dunbarv. Brazoria Coun&, Fucra, the Supreme Court in Al n IndependentSchool Districtv. Standley, a- =, states that:

### Hon. R. L. Lattimore, page 3 (~+1&12)

"It is claimed by respondent that the assessing and collecting of taxes is a part of the sovereign power of the State. That is correct, but a reading of the statutes relative to the assessment and collection of taxes, as above set forth, shows that this power is iodged by the Legislatureand Constitution in the school board, and not in the office of the assessor-collector, He is but an agent or emolovee of the Board to dEcharge 'the clericalduties necessarv to carrv out the school Board's nowers of taxation." (Emphasisadded)

In view of the dee+- .,Jcn of the Supreme Court of Texas in the case ofAldine IndeuendentSchocl Di.strict v, Stan-, mq we are of the opinion that as the tax assessor and collector of an independent schooldistrict is mereiy an employee or agent of the Board of Trustees of such schooidistrict he is thereforenot a "civil officer"within the contemplationof Section 14 of Arti,cle XVI of the Constitution of Texac, and thereforewould not have tc reside within the territorial confines of silch schooldistrict, Attorney General's OpinionNo. O-G?f;j(;%.;: j 1s hereby overruled. insofar as it conflictswith the decision reached herein.

The tax assessor and collector cf an indepandent school district is not a %ivl,l. office:rts

wfthi.n the contempiation of Section 14 of Arti.cS,e XVI of the Constitution of Texas and wol~ld. not h.aveto reside within the territorial co- *sines of such school, d,:is,- trict.

Yours ve?y ‘!;rul.y,
WILL WILSON PB:mkh:wb APPROVED: OPINION COMMITTEE W. V. Geppert, BillAllen Bob Shannon CecilRotsch Chairman Attorney General of Texas

REVIEWED FOR THEATTORNEY GENERAL
BY: Leonard Passmore