AUSTIN. TEXAS 78711 

December 16, 1968 

Honorable Robert S. Calvert 

Comptrqller of Public Accounts 

Austin, Texas 

Opinion No. ~-318 

Re: Effect of Subsection No. 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 State Ad Valorem Tax during the 

next several years. Sub-section No. 5 of Amendment 

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-section No. 5 have on the commission fe,es,!, 

: listed above?' January'l, 1969, will be the 'dateeof.~' 

the beginning of the reductionin the StateTax'Rate 

land we 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 -~ 'Under Sub-section Ro. 5,; 1, 

can the Comptroller in 1969 pay the Assessing Commis- ,' 

sion Fee to the County Tax Assessor-Collector.as set 

: forth in ARTICLE 3937?' I list the following:schedule 

of assessing commissions paid 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 .03i per 100.00. tax.~value' 

Baiance .02& per 

(One-half of the above ~ommi~ssion is 

'and ,one-half by County) '~, 

"Question No. 3 is - 1Can the State continue .to,ma,ke 

additional commission payment to an attorney who has.,~, 

Eontracted with the 'State and 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 amendments toArticles 

3937 and 3939, Vernon's Civil Statutes, vihich increased the : : 

compensation for assessing'and collecting taxes. These: statutory amendments became effective on June 19, 1949. The summary' 

of the opinionreads as follotis: 

"The assessor-collector should be compensatdd 

for taxes assessed and, collected:prior to ~.' :: 

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 Constitution declares the organic law,of the,State, 

and its pronouncements are supreme. Thus, constitutional 

provisions are controlling over all. statutory provisions which 

are in conflict therewith, to the extent of the ~conflict. 

‘f-12 Tex.Jur.2d 359, Constitutional Law, 88 9 and 10. It is 

also the rule that unless the contrary is manifest, a constitutional provision will be construed to operate prospectively 

only. 12 Tex.Jur.2d 360, Constitutional Law, 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 

collected before’the effective .date of the amendment, ~fees 

should be~paid in acoordance with the applicable assessment 

and, collection fee statutes.which were in eff,act ‘immediately 

prior to such effective date. 

(2) As to all State taxes which are both asnessed and 

collected on and after,the effective date of the amendment, 

the .only fees paid by the State should be 2s of the amount of <;’ 

taxes actually collected. This rule applies to redemption and 

supplemental items as well as ordinary collections and 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 accordance with the appllcable assessment fee statutes which were,in effect immediately 

prior to such effective date. 

(4) ,, As to all State taxes assessed on and after the 

effective date of ttie amendment no fees should be 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 taxes which are actually collected should.be paid. 

as compensation for the complete service of both assessing 

and collecting such taxes. 

(5) As to all State taxes which were assessed before 

the effective date of the amendment but which are:collec:ted 

on and after that date, the State should pay 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 ,the prkexisting:statutes for &s&ssmehts" 

were earned'before the effective date of the amendment';"that 

the amendment.provides no measure whatsoever whereby a specific 

part of the 2% fee can be allocated for collection alone; that 

a reasonable construction of the amendment should Abe given so 

as to do,equity and to give rise to as few questions inits 

application as possible. 

Law, f+8 14-22. 

12 Tex.Jr.2d, 362-368, Constitutional 

We now proceed to your third question which 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 ,to enforce or 

assist in the 'enforcement of the .collection of: delinquent:~State 

and'county taxes for a percentage of the,taxes, penaIty,and 

interest actually collected. Article 7335a,provides that no 

such contract shall be made where the compensation 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 accomplished by 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 interpret Articles 7335 and 7335a 

as having to do with legal services rendered (in ,the words 

of Article 7335) "To enforce or assist in the enforcement 

of the collection of any delinquent State and c'ounty 

taxes. . . ." Thus, the compensation allowed the attorney 

is in the nature of legal fees for enforcement services 

and does not smack of the fees for assessment and collection 

contemplated by 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 should be compensated 

for taxes assessed or collected prior to 

November 22, 1968, at the rates prescribed in 

the applicable fee statutes preexisting the 

amendment . They should be compensated for taxes 

assessed and collected on and after November 22, 

1968, at the rate of,2$ of ,the amount of assessed 

taxes which are actually collected; and they 

should be 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 

.Fisher Tyler 

Jack Goodman 

-1551- 

A.,~& Carubbi, Jr. 

Staf,ffLegal Assistsnt 

.; ,!,’