AUSTIN. TEXAS 78711 December 

### 16,1968

Honorable Robert S. Calvert Comptrqller of PublicAccounts Austin, Texas Opinion No. 

### ~-318
Re: Effect of SubsectionNo. 

### 5 of new Section l-e of Article 

### 8-i&the Texas Constitution,known as Amendment No. 7, adopted at the General Election of November 5, 

### 1968.
Dear Mr. Calvert:
Your request for an opinion reads, in part, as ': follows: "The electorate'of the State of Texas, at the General Election held November 

### 5,1968,passed Constitutional Amendment No. 

### 7,which calls for the phasing out of certain sections of the StateAd Valorem Tax during the next severalyears. Sub-sectionNo. 

### 5 ofAmendment No. 

### 7 reads as follows: 'The fees paid by the State for both assessing and collecting state ad valorem taxes shall not e+zeed two per cent (2s) of the State taxes collected. This sub-section shall be selfexecuting.' "The, commission fees being paid at this date for State tax collections areeas follows: i,l)ARTICLE 3939 - Collecting Commission: F~:ic~20,00C.0C @ @



### -1547-.

HbnT Robe&S. Calvert, Page*2 ’(M-3x8)
(2.)ARTICLE 7331.- Addition,al, Commiss.ion~on :.~ ,I Re'demption

Collections: Total amount @ '.,,'5$ " :, ,:

'~

County) :, "Our first and primary question is - iWhat'effect:l'~' will:Sub-sectionNo. 5 have on the commission fe,es,!, :listed above?' January'l, 1969, will be the 'dateeof.~' the beginning of the reductionin the StateTax'Rate landwe would like for you to state.when a change in commission fees will be in effec.t;,if you,determine a change is in order. :, ~.

., .~' "My second'question is -~'UnderSub-section Ro. 5,; 1,
can the Comptroller in 1969 pay the Assessing Commis- ,' sion Fee to the County Tax Assessor-Collector.asset : forth in ARTICLE 3937?' I list the following:schedule of assessing commissionspaid prior to the,pas~sage of Amendment No. 7: First $5,000,000.00 z .95~ per 100.00 tax value Next. $95,000,000.00 .03iper 100.00.tax.~value' Baiance .02&per (One-half of the above ~ommi~ssionis 'and ,one-half

by County) '~, "QuestionNo. 3 is - 1Can the State continue .to,ma,ke additional commission payment to an attorney who has.,~, Eontractedwith the 'Stateand County for.the collection of delinquent taxes under the terms of Article 7335-a,?"
In Attorney General Opinion No.'v-851 (1949), the Attorney General ruled on questions concerning amendmentstoArticles 3937 and 3939, Vernon's Civil Statutes,vihichincreased the : : compensation for assessing'and collecting taxes. These:statutory amendmentsbecame effective on June 19, 1949. The summary' of the opinionreads as follotis:

"The assessor-collector shouldbe compensatdd for taxes assessed and,collected:priorto ~.' :: June 19, 1949, at the r~tes,provlded.in'4rtbcle.s" 3937 and 3939.before their s$endment,by~ SL B::,.Hon. Robert S. Calvert, Page 3,.(M-318) .

. 211, 51st Legislature. They’should be compen-’ ~’ : sated for taxes assessed and collected after June 18, at the rates prescribed in S.B. 211.” The returns of the General Election.of November 5, 1968, were canvassed on November 22, 1968,‘and it was asce.rtained that a majority of votes cast were in favor of Amendment NO. 7. Therefore,Amendment 7 became a part of the Constitution’of the State of Texas on November 22, 1968; and subsection No. 5, being self-executing,became effective on that date. Attorney General Opinion Nos. 2841 (1940);o-6821 (1945). M-296 (1968); o-6278 (1944); oThe Constitutiondeclares the organic law,of the,State, and its pronouncements are supreme. Thus, constitutional provisions are controlling over all.statutoryprovisionswhich are in conflict therewith, to the extent of the~conflict. ‘f-12 Tex.Jur.2d 359, ConstitutionalLaw, 88 9 and 10. It is also the rule that unless the contrary ismanifest, a constitutionalprovisionwill be construed to operate prospectively only. 12 Tex.Jur.2d 360, ConstitutionalLaw, g 11.
In applying these rules and precedents to your first two questions, it is the opinion of this office that the fees paid by the State to Tax Assessors-Collectors should,be governed as follows: (1) As to all State taxes which were both agsessed Andy collectedbefore’the effective .dateof the amendment,~fees shouldbe~paid in acoordance with the applicable assessment and,collection fee statutes.whichwere in eff,act‘immediately prior to such effective date. (2) As to all State taxeswhich are both asnessed and collected on and after,the effective date of the amendment, the .onlyfees paid by the State shouldbe 2s of the amount of <;’ taxes actually collected. This rule applies to redemption and supplemental items as well as ordinary collectionsand assess-, merits. (3)’As to all State taxes assessed but not collected before the effective date of the amendment, the fees paid for such a,ssessment

service should be In accordancewith the appllcable assessment fee statuteswhich were,in effect immediately prior to such effective date. (4),, As to all State taxes assessed on and after the effective date of ttie amendmentno fees shouldbe paid for the assessment service alone, but a fee of 2% of the amount’of such

-1549-..

Ron. Robert S. Calvert, Page 4 (M-318)

assessed taxeswhich are actually collected should.bepaid. as compensation for thecomplete service of both assessing and collecting such taxes. (5) As to all State taxeswhich were assessed before the effective date of the amendment but which are:collec:ted on and after that date, the State shouldpay 2$of the :~ amount of taxes collected, This conclusions is. reached on ~.. grounds that'the amendment contemplates. that feesinA,some.1. amount will be paid for tax money actually .collected~that/ the fees paid under ,theprkexisting:statutesfor &s&ssmehts" were earned'before the effective date of the amendment';"that the amendment.providesno measure whatsoever whereby a specific part of the 2% fee can be allocated for collection alone; that a reasonable construction of the amendment shouldAbegiven so as to do,equity and to give rise to as few questions inits application as possible. Law, f+814-22. 12 Tex.Jr.2d, 362-368, Constitutional

We now proceed to your third questionwhich has regard. to the effect of the amendment on Article 7335a, Vernon's Civil Statutes. Article'7335,Vernon's'Civil Statutes, provides for " commissioners' courts to contractwith,attorneys ,toenforce or assist in the 'enforcementof the .collectionof: delinquent:~State and'county taxes for a percentage of the,taxes,penaIty,and interestactually collected. Article 7335a,provides that no such contract shall be made where thecompensation to be paid the attorney is more than 15% of the amount collected. The amendment in question speaks of fees to be paid by, the State for both assessing **and** collecting State Ad Valorem Taxes. The thrust of this language is toward the dual function f. of assessing and collecting State'taxes. This dual function can only be accomplishedby county Tax Assessors-Collectors. In Texas there is no separate office of Tax Collector, and there is no separate office of Tax Assessor. The only office applicable to these tax functions is that of Assessor and.Collector. <Article

~VIII,Sections 14, 16 and 16a.of the Constitliti,on of Texas. Therefore; we construe the,amendment as applying 'only to'fees to be paid by the State to county Tax Assessors7 ~~ Collectors. Of course, a delinquent tax attorney is notan Assessor in any sense of the word.

-l&o-.

.’ ‘~, ,’ ,.

,, ,, /,“i

. ., ,,’Hon. Robert S. Calvert, Page 

### 5 (M-318)
Furthermore, we interpretArticles 

### 7335and 7335a as having to do with legal services rendered (in,thewords of Article 

### 7335) "To enforce or assist in the enforcement of the collection of any delinquent State and c'ounty taxes.
. . ." Thus, the compensationallowed the attorney is in the nature of legal fees for enforcement services and does not smack of the fees for assessment and collection contemplatedby the amendment in question.
We conclude, then, that the amendment in question does,. not..ffect the terms and provisions of Articles 

### 7335 and 

### 7335a. SUMMARY Subdivision 

### 5 of the new Section l-e added to Article 

### 8 of the Constitution of the State of' Texas became effective on November 22, 

### 1968.
Tax Assessors-Collectors shouldbe compensated for taxes assessed or collectedprior to November 22, 

### 1968,at the rates prescribed in the applicable fee statutes preexisting the amendment

. They shouldbe compensated for taxes assessed and collected on and after November 22, 

### 1968,at the rate of,2$ of ,theamount of assessed taxeswhich are actually collected; and they shouldbe paid at the rate of 2% of the.amount of taxes collected on and after November 

### 22,'1968, butwhich were asse,ssed prior thereto. Articles 

### 73~r3tin;t7335a,

V.C.S., were not affected by the

You&very truly,

Prepared by Alfred Walker Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns B. Taylor, Chairman John Reeves Bill Craig .FisherTyler Jack Goodman -1551- A.,~& Carubbi, Jr. Staf,ffLegalAssistsnt .; ,!,’