February 10, 1989

Honorable Donald M. Keith Opinion Wo. JM-1015 Criminal District Attorney Polk County Courthouse Re: Validity under article Livingston, Texas 77351 VIII, section 14,of the Texas Constitution, of section 6.30 of the Tax Code (RQ-1479)

DearMr. Keith:

you ask the following question:

Does section 6.30 of the Texas Property Tax Codeviolate articleVIII, section 14, of the Texas Constitution insofar as it **attempts** to ascribe duties incident to tax collections to persons other than the County Tax AssessorCollector?

Section 6.30 ofthe Tax Code provides as follows:

(a) The county attorney or, ifthere isno county attorney, the district attorney shall represent the county to enforce the collection ofdelinquent taxes ifthe commissioners court does not contract with aprivate attorney as provided by Subsection (c)of this section.
(b) [applies to taxing unit other than a county]
(c) The governing body of ataxing unit may contract with any competent attorney to represent theunit to enforce the collection ofdelinquent taxes. . . . (d) [repealed]
(e) A contract with an attorney that does not conform to the requirements of this section isvoid.

Section 6.30pertains to representation of the county inenforcing delinquent tax collections. It provides no

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role for the county tax assessor-collector, and for this reason, youwish toknow whether itviolates article VIII, section 14,of the Texas Constitution. This constitutional provision reads as follows:

Except asprovided in Section 16of 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 fouryears anduntil his successor iselected and qualified; and Such Assessor. ani2Collector ofTaxes shall all the uties with resnect to assessj,Banrouertv for

ose of taxation and of collectinq taxes. asmav b or cribed bv the Leaislaw.1 (BmphasTs adizd.)

Tex. Const. art.VIII, S14.

The offices of tax assessor and tax collector were formerly separate offices established respectively by sections 14and 16of article VIII. H.J.R. NO. 21, Acts 1931, 42d Leg., at 942;Acts 1933, 43d Leg. atxix. In 1932 these constitutional provisions were amended to consolidate the two offices into a single office of tax assessorcollector. The same amendment added the underlined clause to article VIII, section 14. &

The commissioners court had statutory authority to contract forattorneys to enforce delinquent tax collections before the 1932 amendment consolidated the tax collector's and tax assessor's offices. See Acts 1923, 38th Leg., 3d C.S., ch. 13,at 31;Acts 1923, 38th Leg., 2dC.S., ch. 35, at 78 (enacting predecessor of section 6.30 ofTax Code, formerly codified asarticle 7335,V.T.C.S. (Vernon 1960)). Judicial discussions of the relative powers of the commissioners court and the constitutional tax collector in collecting delinquent taxes provide some insight into which tax collection functions the legislature could at that time allocate toother officers. See aenerallv Attorney General Opinion JR-911 (1988)at 17 ("core functionsn of county

1. The second clause of article VIII, section 14 should be read as if itstated: Hallduties with respect to assessing property . . .and to collecting taxes, asmay be prescribed by the Legislature." G. Braden, The d Comoarativq m, 638 (1977).Honorable Donald M. Keith -Page 3 (JM-1015)

treasurer's office): Attorney General Opinion JW-833 (1987) (countytax assessor-collector).

In&J& Countv v.Maloney, 38S.W.2d 868 (Tex. Civ. APP. -Texarkana 1931,writ ref'd), the court stated that the tax collector*8 statutory authority to receive and collect taxes meantthat hewas "to demand and enforce in the ordinary way" thepayment of taxes on the assessmt;: roll, but he did not have exclusive authority over collection of delinquent taxes. 38 S.W.Zd at 871. The commissioners court had authority to employ other persons to assist inenforcing the collection ofdelinquent taxes. &

In upholding a provision of former article 7335, V.T.C.S., which authorized the commissioners court to Vw foran abstract of property assessed orunknown and unrendered" from the taxes, interest andpenalty collected on such lands, the Texas Supreme Court rejected theview of the Court ofCivil Appeals that allduties regarding the collection of delinquent taxes were vested by the constitution ina constitutional officer. Cherokee Countv v. Odom, 15 S.W.Zd 538 (Tex. 1929). The Supreme Court quoted the following statement made by the court below:

The Constitution provides forthe election of atax assessor ineach county. . . . The Constitution has also provided forthe election ofa tax collector in each county, to whom iscommitted the duty ofperforming all the duties, gther than those involved in alnroceedinas, which are necessary in the collection of taxes. It has likewise provided for the election of county and district attorneys, whose duty it is to represent the state and county in filing and prosecuting suits necessary forthe collection ofdelinquent taxes. (Emphasisadded.)

15S.W.Zd at 540 (guotingaerokee County v. Odom, 297 S.W. 1055 (Tex.Civ.App. -Texarkana 1927),m 15 S.W.2d 530 (Tex.1929)). The Supreme Court disagreed 'with the lower court, stating the the duty,of "performing these arduous, laborious, and technical services fora county" is not placed by the constitution or the statutes upon the county tax assessor, the county tax collector, the county or district attorney, oranyother officer ofgovernment. Id. at 541.

Ofparticular interest in addressing your question is the lower court*s exclusion ofduties involved in judicial proceedings from the tax collector*8 area of responsibility.

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Although that court believed that abroad range of tax collection functions may beperformed only by the county tax collector, it did not include duties involving judicial proceedings among his constitutionally mandated duties. Section 6.30 of the Tax Code concerns the legal **representa** tion of the county by an attorney inenforcing the collection of delinquent taxes, u, tax collection duties which may involve judicial p;;eedings. &=Rwn v. Earne t 8 , 34S.W.2d 685 (Tex. . ALP. - SanAntonio 1930, writ dism'd) (attorney could be compensated for collecting delinquent taxes even though he did not bring suit therefor).

The 1932 amendment to article VIII, section 14,of the Texas Constitution was submitted to the voters under the following ballot proposition:

'Foramendment to the Constitution of the State ofTexas, combining into one office of Assessor and Collector ofTaxes, the offices ofAssessor and Tax Collector*: and . . . *Against the amendment to the Constitution of the State ofTexas, combining into one office of assessor and collector of taxes, the offices ofassessor and tax collector.#

H.J.R. No. 21,Acts 1931, 426 Leg., f 3, at 943. Thus, according to the ballot proposition and also the caption to the resolution proposing the amendment, the reason for adopting this provision was to consolidate the offices. Neither the caption nor the ballot proposition mentioned the clause stating that the tax assessor-collector "shall perform all the duties with respect to assessing prope*y . . . and of [sic] collecting taxes as may be prescribed by the I.egis1ature.w

This clause may onlyhave been intended tomean that the new tax assessor-collector would perform all the duties formerly performed by the two separate officers, even ifthe statutes placed such duties on the "tax assessor'*or the "tax collector.n Duties with respect to tax assessment and tax collection had in the past been prescribed by the legislature andwould still be prescribed by the legislature. The added clause isnot thebasis ofany limits on the legislature*8 power to change "core functions" of the tax assessor-collector; these limits already existed with respect to the separate offices and after 1932 applied to the combined office of tax-assessor collector. See fissouri. K. &T.Rv. Co. ofTevas v. Shannon 100 S.W. 138 142 (Tex. 1907). The explicit statement 'that the tak assessor-collector "shall perform all the dutiesw with

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respect to tax assessment and collection ineffect codifies theview that the constitution delegates acertain body of tax assessment and tax collection functions to the county tax assessor-collector so that the legislature may not delegate themby statute to other persons. Green
**Stewart,** 516 S.W.2d 133 (Tex. 1974); AttoEy **V.** General Opinion JW-833 (1987);Letter Advisory No. 117 (1976): S&Z

v. Galveston Countv Central Dist&& 713 S.W.2d 98 (Tex. 1986) (discussing article VIII, sectio;l 18,ofTexas Constitution, which mandates single appraisal and single board of equalization ineach county).

Neither the legislature nor the courts treated the 1932 amendment as repealing existing law on contracts for delinquent tax collections or otherwise radically changing the legislature's power to define tax assessment and collection duties. The first legislative session to meet after the amendment was approved by thevoters adopted the following provision to implement it:

Hereafter, whenever thewords *Assessor,* *Assessor ofTaxes,* 'Collector,* 'Collector of Taxes,* or 'Tax Collector' are used, either inArticles 7181 to 7359 . . .aswell
as the Revised Code of 192.5. .'.same shall be applicable to and mean the one office or officer ofAssessor and Collector of Taxes, and shall be soconstrued as to accomplish the object and intent and carry out the purpose of Sections 14 and 16ofArticle 8, of the Texas Constitution, as the same was amended onNovember 8, 1932.

Acts 1933, 436Leg., ch. 197, 5 5, at 600 (codified as V.T.C.S. art. 7181a (1925), repealed by Acts 1979, 66th Leg., ch. 841, 5 6(a)(l), at 2329). In determining the meaning of a constitutional provision, a court will give weight to a legislative construction, particularly to a contemporaneous construction which has been acquiesced in and adhered to for a longperiod of time. Director of ntv. P&tina Indus P80): mer v. we8 Ass~, 600 S.W.2d 264 (Tex. Bal& 196 S.W.Zd 324 (Tex.1946).

In 1938, the Texas Supreme Court, in holding a 1937 county contract for collection ofdelinquent taxes invalid because it was not approved by the comptroller and the attorney general as required by statute, stated as follows:

The Legislature has the sole power to provide for the collection of delinquent

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taxes and to fixthe compensation tobe paid for such services. It isalso true that the commissioners~ courts derive their power to execute contracts with respect to the collection of delinquent taxes exclusively from the statutes. -mterwood v. Ii- $&!,&y, Tex. Corn.App., 62S.W.Zd 65.

White v.McGm, 114 S.W.2d 860, 863 (Tax.1938). Neither the parties nor the court raised anyquestion as to the validity of the statute under article VIII, section 14. Nonetheless, the court's unqualified statement about the legislature's power and its citation of Fasterwood v. Henderson, 62 S.W.Zd 65 (Tex. Comm'n App. 1933, judgmt. adopted), acase involving apre-1932 contract for delinquent tax collections, suggest that no such constitutional issue evenvaguely troubled the court.

InPritchard &Abbott v.MclQhh& 350 S.W.2d 333 (Tex. 1961), the Supreme Court determined that the commissioners court had implied authority to contract forthe appraisal of allproperties inthe county to assist .itincarrying out itsduties as a board of equalization forthe county. In upholding the contract the court rejected the argument that itresulted in the commissioners court taking over the functions of the county tax assessor and collector. 350 S.W.Zd at 336-338. The court also rejected the argument that the contract was invalid under the reasoning of White
v.McGill, stating that:

[T]hecontract between Galveston County and Pritchard &Abbott was not entered into in connection with the collection of delinquent taxes and so for that reason did not require the approval of the State Comptroller. Consequently the decisions inMar- v. Harris
are not inpoint.

350 S.W.Zd at 338. Thus, even ina casewhere the Supreme Court explicitly dealt with an issue ofusurpation of the tax assessor-collector's authority, the court matter-offactly referred to the collection of delinquent taxes pursuant toa contract authorized by the commissioners court under apredecessor of section 6.30 of the Tax Code.

The authorities discussed inthis opinion show that the legislature and the courts have long assumed the contractual procedure authorized by section 6.30 and itspredecessors to be consistent with the constitutional authori.ty of the county tax collector and tax assessor-collector. Such constructions ofconstitutional provisions are entitled to

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greatweight. &S Director of Deoartment ofAariculture h Environment v. Printina Industries Assnc, zunra. Moreover, section 6.30 of the Tax Code pertains to collection efforts by the district orcounty attorney orby aprivate attorney withwhom the commissioners court has contracted. As the court of civil appeals inme Countv v. Odom suggested, legal representation inthe collection ofdelinquent taxes is outside the scope of the tax assessor-collector's constitutional functions. 297 S.W. 1055 (Tex. Civ.App. - Texarkana 1927), rev'd onother aroul& 15 S.W.2d 538 (Tex. 1929). The courts have notdecided wh& powers and duties comprise the county tax assessor-collector's non-delegable duties, S.Q~Green v. Stewart, sunra, andwe need not address that question. The courts' long acceptance of the contracts now authorized by section 6.30 and the history of the amendment to article VIII, section 14, of the Texas Constitution convince us that theprocedures authorized by section 6.30 of the Tax Code do notviolate that constitutional provision. See also Tex. Const. art. V, 0 18; ?ritchard G m ,m; Cherokee Countv **V.** sT!asm, 3u2mr (authority of commissioners court to make contracts forthe county).

SUMMARY
Section 6.30 ofthe Tax Code does not violate article VIII, section 14,of the Texas Constitution.

# dzyh

MATTOX Attorney General ofTexas

WARYKELLER First Assistant Attorney General

Lou l4ccREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Susan L.Garrison Assistant Attorney General

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