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December 14. 1949 ; ‘., ‘i.< :y. 

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Hon. L. A. Woods State Superintendent Department of Education Aus tin, Texas Opinion No. V- 966.

Re: Validity ofcontract for revaluation ofproperty within Grand Prairie Independent School District.

Dear Sir:

You have requested the opinion of this office as to whether the Trustees ofGrand Prairie Independent School District had the authority to enter into aparticular contract. a copy of which is attached to your request. We gather from the accompanying file that the Grand Prairie Independent School District has been receiving grants from the Federal Government under the Lanham Act, which provides for aid in the maintenance and operation of those school districts wherein activities of the Federal Government have caused such serious financial burdens that the districts cannot finance the normal operation and maintenance ofschool facilities. The Federal grants supplement State and local funds available to school agencies. Tit. 42, Sec. 1535, U.S.C.A.

The Federal authorities have questioned the propriety ofthe expenditure ofthe District’s funds under the contract in question. Ifitwas within the powers of the Board of Trustees under applicable statutes to enter into the contract, then school district funds could be properly used as provided therein; and the Federal Government will supplement or contribute the maximum amount allowable as Federal aid; but ifneither State nor local school funds could legally be used to pay for the services rendered under the contract, the amount expended under the contract cannot be considered indetermining the amount of the Federal grant.

The preamble tothe contract recites that “the Tax Assessor and Collector ofthe

. . .District does not have available in his records, lists or records showing the actual value ofall property within the boundaries of the

. . .District;

. . . /&atf.

. .Due to change’s invalues over a long period ofyears thevarious equalization boards appointed by said

. . .District have been unable to revalue the property to meet the changing

. . .values.

. .; and

. . . /&at7 itwill be of inestimable value

. . . to the

. . .board tohave ZvaiTbble

. . . records showing the different classes of properties and their values so that the said board may be able to efficiently and correctly fix the same proportionate values on all classes of properties in this

. . .District

. . .”Hon. L. A. Woods, Page 2 (V-966)

The contract proper is behveen theGrand Prairie Independent School District acting by and through its regularly elected Board of Trustees and the Texas Educational Service Company, a Texas Corporation, engaged in the business ofvaluation and appraisal. Its provisions may be summarized as follows.

The Service Company agreed to evaluate all land by actual view and to determine thefront foot value ofall lots and parcels of land within the district. Inappraising every lot and parcel of land the company was tofollow thebest evaluation practices and
was torecord the results ofsuch appraisals onlandand improvement record cards which were tobecome thepermanent record of the district. Likewise the company was to appraise and evaluate all buildings and improvements upon each tract ofland, recording
numerous specific details with regard to said buildings and impiovements onthe land and improvement cards above referred to.

The contract specifically required thelisting and appraisal of “all tangible personal property, machinery, fixtures and easements belonging toutility companies, pipe lines, communication systems, transportation systems, tank farms, refineries, gas companies, railroads and oil companies.” There was likewis~e a specific requirement to list. appraise and evaluate ‘all business and professional property, such as stocks ofmerchandise.~ materials, business and professional tools, implements, equipment, vehicles, machinery, furniture and fixtures, and libraries.” Personal_ property inhomes, automobiles, jewelry, stocks, bonds, and intangible property were expressly excluded from this provision ofthe contract.

Inaddition to furnishing one set of sectional maps on any property onwhich the District did not have such maps and to bringing existing maps uptodate, the service company was tobring uptodate all ownership sheets ofall property within the school district. These sheets were tobe on the same forms as the tax collector was then using, such forms to.be furnished by the district.

The ‘experts” ofthe service company were required to instruct the ‘Assessors” of the school district in the methods ofvaluation and computation used by the company *so that the system may be continued and kept up-to-date inthefuture.”

Likewise the company was to “cause acompetent representative

. . .to attend thehearings of thenext Board of Equalization of the Grand Prairie Independent School District

. . . toadvise with said board, make recommendations tosaid board and to defend any valuations set under this contract

. . . * 

# a

aHon. L. A. Woods, Page 3 (V-966)

Inthe event “any valuation set upunder the contract is attacked or contested in court or other legal proceedings directly
or indirectly” the company agreed to furnish a competent witness to testify at such hearing as to the accuracy ofthe valuations “arrived at under this contract.”

A “deputy tax assessor” was tobe furnished by the company “to assist inassessing taxes for the thirty (30) day period beginning December 26, 1949, and ending January 25, 1950.”

Various other detailed provisions ofthe contract are not material to the present question. For the performance ofthe various services enumerated in the contract the schooL district agreed topay the service company $11,000.00 tobe paid *as the work progresses, in installments, as follows: The first installment of $1.000.00 shall be due and payable January 30, 1949. Thereafter payments of $1,OOO.OOeach shall be due andpayable on February 28, 1949, Mar~ch 31, 1949, April 30, 1949, May 31, 1949. The balance of $6,000.00 shall be due and payable oncompletion ofthework and acceptance ofreport” by the District.

The general rule is that school districts may not enter into any contract which is not expressly authorized by law or impliedly authorized from powers expressly granted. 37 Tex. Jur. 943, Schools, Sec. 75.

The expenditure ofpublic free school funds is governed by Article 2827, V.C.S. Section 1of this article provides that the State and county available funds shall be used solely for the payment of teachers’ and superintendents‘ salaries, fees for taking the scholastic census, and interest onmoney borrowed on short time topay salaries ofteachers and superintendents until school funds for the current year were available.

Section 2ofArticle 2827 reads as follows:
“Local school funds from district taxes, tuition fees ofpupils not entitled tofree tuition and other local
sources may be used for the purposes enumerated for State and county funds andfor purchasing appliances and supplies, for the payment of insurance premiums, janitors and other employes, for buying school sites, buying, building and repairing and renting school houses, and for other nurnoses necessarv in the conduct ofthe=b1 Iic schools tobe determmed’by the Board ofTrustees, the accounts and vouchers for county districts tobe approved by the county superintendent; provided, that when the State available school fund inany city or district is sufficient tomaintain the schools thereof in any year forHon. L. A. Woods, Page 4 (V-966)

at least eight months, and leave a surplus, such surplus may be expended for the purposes mentioned herein.” (Emphasis ours.)

The underscored portion of the above quoted section has peen construed by our courts in numerous opinions. Ithas been held sufficiently broad toauthorize the trustees to expend local school funds for the construction ofliving quarters for teachers, Adams v. Miles, 300 S.W. 211, affirmed 41 S.W.Zd 21 (Tex. Comm. App. 1931); for establishing ahealth department as part of the school system, Mosely v. City ofDallas, 171 S.W.2d 36 (Tex. Comm. App. 1929); andfor employing anattorney to represent the trustees ina. suit tocancel a teacher’s contract. Arrington v. Jones, 191 S.W. 361 (Tex. Civ. App. 1917).

In general itmay be said that “trustees are authorized to expend funds derived from local sources and the surplus ofthe State and county available school funds, for any and all purposes enumerated by law, andfor such other purposes as, in the discretion oftheboard, may be reasonably necessary in the maintenance.. of the schools.” 37 Tex. Jur. 970, Schools, Sec. 98.

Articles 2791, 2792, and 2792b. V.C.S., expressly deal with assessing and collecting taxes for independent school districts. Article 2791 reads as follows:

“There is hereby created the office ofassessor and collector ofeach independent school district, whether created by special or general law, who shall be appointed by the Board ofTrustees thereof, and shall have the same power and shall perform the same duties with reference to the assessment and collection of taxes for free school purposes thatare conferred by law upon the
**assessor** and collector oftaxes inand for any incorporated city, town or village, or upon the person or officer legally performing theduties of such assessor and collector,and-tre shail receive such compensatinnfor his services as the Board ofTrustees may allow, except in cities and towns provided for, not to exceed four (4) per cent ofthe whole amount of taxes received by him. He shall give bond indouble the estimated amount of taxes coming annually into his hands, payable toand to be approved by the president of the Board, conditioned for the faithful discharge ofhis duties. and that hewill pay over tothe **treasurer** of the Board all funds coming into his hands by virtue of his office as such assessor and collector; provided that in the enforced collection oftaxes the Board ofTrustees shall perform the duties which devolve insuch cases upon the city councilHon. L. A. Woods, Page 5(V-966)

ofan incorporated city or town, the president ofthe Board of Trustees shall perform the duties which devolve in such cases upon the mayor ofan incorporated city or town, and the county attorney ofthe county in which the independent school district is located, 

### or the city attorney oftheincorporated city inwhich said district or apart thereof is located, shall perform the duties which in such cases devolve upon the city attorney ofan incorporated city or town under theprovisions of law applicable thereto. It shall be within the discretion of the Board ofTrustees ofany independent school district to name anassessor oftaxes who shall assess the taxable property within the limits of the independent school district within the time and in the manner provided by existing laws, in so far as they are applicable, and when said assessment has been equalized by aBoard ofEqualization appointed by the Board of Trustees for that purpose, shall prepare the tax rolls of said district and shall duly sign and certify same to the county tax collector, or the city tax collector as provided for in the succeeding article. The said assessor of taxes shall receive afee oftwo (2) per cent of thewhole amount oftaxes assessed by him as shown by the completed certified tax rolls.”
This article is applicable to the “tax assessor and collector of the Grand Prairie Independent School District.”

Article 2792 provides an alternative method by authorizing the Board of Trustees tohave the taxes of their district assessed and collected, or collected only, by the county assessor and collector, or by the city assessor and collector ofanincorporated city or town in the limits ofwhich the school district or a part thereof is located. Other provisions ofthis article pertain tovaluation, payment ofassessors and collectors, etc.

Article 2792b authorizes the trustees ofindependent school districts lying partly within and partly without the limits of any incorporated city or towntohave separate Boards ofEqualization and separate Assessors and Collectors for such two portions of the district under certain circumstances.

The above quoted and summarized articles thus confer upon Boards of Trustees ofIndependent School Districts expressly enumerated powers inconnection with assessing andcollecting district taxes.
An assessor and collector appointed inpursuance of the provisions ofArticle 2791 is “as to powers (Art. 1147, R.S.)

. . .Hon. L. A. Woods, Page 6(V-966)

granted all of the authority that is prescribed in Ch. 5, Title 28, relating tocities, towns andvillages.” Republic Ins. Co. v. Highland Park Independent School Dist.. 123S.W.Zd 184 App. lY38. Dismissed W. 0. J. - Correct Judgment’- IYZ (Tex. Civ. see explana - tion 125S.W.td 270). Independent school districts are governed generally in matters of taxation by the group of **statutes** applicable to cities and towns rather **than** by **the statutes**  applicable to the State and counties. Republic Ins. Co. v. Hyde Park Independent School District, 141 Tex. 224 1II SW 2d 342 (1943)

. . . Itis thus apparent that the statutes con&n express directions for assessing and collecting school district taxes and that no express statutory provision authorizes a contract ofthe type under consideration. Therefore, if the Board ofTrustees was authorized toenter into this contract, such authorization must be implied from the provision inArticle 2827, Section 2, previously quoted, which authorizes the expenditure of local school funds for *purposes necessary in the conduct of the public schools;” and the question is whether such authority can be implied inview ofthe specific statutory provisions above cited or summarized.

Contracts similar to the one under consideration have become the subject of litigation in our **courts.**

In Roper v. Hal:. 280 S.W. 289 (Tex. Civ. App. 1926), the court held that the Commissioners’ Court of Freestone County had authority to make acontract with aprivate individual to list
owners ofall producing oil and gas properties within the county and make avaluation ofall pipe lines, refineries, tank farms, and tankage. etc., used in connection with oil and gas development, including transportation facilities. The court reasoned that the particular property involved could not have been assessed by an ordinary person, and therefore the Commissioners’ Court under its general powers had the authority tosecure expert assistance. The contention thatduties imposed by law on the Tax Collector and Commissioners’ Court had been unlawfully delegated was rejected. The **court** said:

*It does not appear that itwas the intent or effect of the contract that Pickett should perform the duties imposed by law onany of the offices concerned. On the contrary itdoes appear that its purpose was merely to aid such offices in the respective performance of their duties,”

InSimkins v. City of Corsicana. 86 S.W.2d 792 (Tex. Civ. App. 1935), suit was brought by the City ofCorsicana against Mrs. Eliza J. Simkins torecover delinquent taxes for the years 1921 to 1929. inclusive, and toforeclose a tax lien on the land against which the taxes hadbeen assessed. The defendant allegedHon. L. A. Woods, Page 7 (V-966)

that in 1928 the city had entered into a contract with one Erinborg under which he was toplace a value for tax purposes on all real property within the city; that defendant’s property hadbeen excessively valued by said Erinborg; that the city had arbitrarily and without hearing adopted said valuation over defendant’s protest, that said action was illegal and void, and that therefore the city had no right tocollect the taxes. The **court** held that the trial **court** had erred innot submitting to thejury the question ofwhether the valuation as fixed by the board was grossly excessive and reversed and remanded the case. In the course of the opinion the court, speaking through Judge Alexander, said:

“We know of no valid reason why a tax board cannot employ an expert to assist it in arriving at the true value oftaxable property, and when such expert has been employed the board should have a right to take intoconsideration the information so furnished by him inascertaining the true value of property for tax purposes.
. . . But it must be remembered that such experts so employed bear no official relationship to the property owner and have no **statutory** authority tofix thevalue atwhich the property is tobe assessed

. . .* (P. 794)
In Marquax tv. Harris County, 117 S.W.2d 494 (Tex. Civ. App. 1938, error dism.), a contract which contemplated arevaluation by twofirms ofa-1 the property within Harris County “of the type now generally assessed for taxation” was held tobe void. The court first stated that the contract as a whole showed that it
was made by the Commissioners’ Court “in connection with the collection ofdelinquent taxes” within the meaning ofArticles 7264a and 7335a and that since it had not been approved by either the Comptroller or Attorney General, nor by both acting together, was prohibited by these **statutes.**

Ithas been held that.a contract made by an independent school district with an attorney for collection ofdelinquent taxes did not have tobe approved by the Attorney General and the Comptroller, although the amount of thefee for such services was limited to that provided by law for State and county taxes. Beil v. Mansfield Independent School District, 133 Tex. 403. 129S.W.Zd 629 (lY3q. Therefore, the first reason for invalidating the contract inthe **Mar** quart case is not applicable here even if wewere ofthe opinion that the contract~under consideration was in the **nature** ofa contract “in connection with the coklection ofdelinquent taxes,” a point which we do not need todecide.

However, the court found the contract void for thefurther reason that it amounted to an attempted deiegation of thedutiesHon. L. A. Woods, Page 8 (V ,966)

devolved by law uponthe tax assessor and collector. We quote from the opinion ofthe court at pages 502, 503:

“(4) (5) While the Commissioners’ Court may validly employ ‘skilled experts ’tovalue for taxation purposes property in special instances, where technical equipment is required, since this contract--,by its express terms --embraces avaluation ofthe entire taxable property ofHarris County, as reflected by its tax records, itnecessarily supersedes the powers, duties, and functions of the tax assessor and collector, and since those duties are devolved by law upon him, such anattempted employment by thatbody ofother persons to, inthefirst instance, per,form such duties instead, is an expenditure ofpublic funds for anunauthorized purpose. Article 5. sec. 18, State Constitution; Sec. 18andSec. 14, as amended November 8, 1932, ofArt. 8, State Constitution; Sections 6and 10ofArt. 16, State Constitution; Section 3ofArt. 1, State Constitution; Art. 3, Sets. 44, 53, and 55 ofState Constitution; Articles 7148. 7161, 7162, 7183, 7184 to 7205. inclusive, all of the Revised Civil Statutes of 1925; Missouri, K. &T. Ry. Co. v. Shannon, 100 Tex. 379, 100 S.W. 138, 10L.R.A.N.S., 681; Maud v. Terrell, 109 TEX. 07, 200 S.W. 375, Von Rosenberg v. Lovett, Tex. Civ. App., 173 S.W. 508; Roper Y. Hall, Tex. Civ. App.. 280 S.W. 289; Federal Royalty Co. v. State, Tex. Civ. App., 42 S.W.2d 670; Id., 124 Tex. 290, 77 S.W.Zd 1021, 80 S.W. 2d 741.

“(5) No extended discussion will be indulged in under this last-stated ground. Suffice it tosay that such an apparent undertaking ofa commissioners’ **court** to itself initially revalue the entire taxable p:operty ofacounty, under the guise ofusing the same for its own information and guidance when sitting as a Board ofEqualization. does not seem to this court tosquare with thebalanced system ofrelatrve powers and duties conferred upon thatbody by our laws, as comparable to the correlative ones conferred upon the county tax assessor-coilector; it may be, as much testimony in the statement offacts indicates, that inthis instance the commissioners’ **court** concluded that thetax assessor-collector’s office hadbroken down, and that its so occupying his place and performing his functions Instead, justified an original assumption of such power upon its part; but itis not this court’s understanding that our statutes in such cases conferred upon it any such authcrity; on the contrary, itwould seem tohave been the taxHon. L. A. Woods, Page 9 (V-966)

assessor-collector’s legal right to independently perform the duties actually conferred upon him by law. Terre11 v. Greene, 88 Tex. 539, 31 S.W. 631, 634; 34 Tex. Jur. p. 444.

‘(6) The authorities cited under ground (5) supra seem to make it quite clear that this contract did evidence an undertaking toin effect usurp the official privileges and obligations ofthe tax assessor-collector, as vouchsafed inthe statutes there collated. while upon the other hand, thediffering and correlative duties ofthe commissioners’ court--as a Board ofEqualization--
are embraced within R.S. Articles 7206, 7211, and 7212. Under them itwould seem never tohave been contemplated that the Board ofEquaiization should act upon anything other than the assessments first rendered to them by the tax assessor-collector. and notinitially upon their own motion. County of Galveston v. Galveston Gas Co., 72 Tex. 509. 1O.S.W. 583. Further, under R.S. Article 7217--after the assessor-collector haddischarged his duties under those preceding statutes and hadfurnished the lists therein called for to that Board--it is obligated toreturn the same to him for presentment to the Grand Jury ofhis county.”

InAldrich v. Dailas County, 167 S.w.Zd 560 (Tex. Civ. App. 1942, error dism.). the court stated at page 565 that they perceived no material difference between the contract there under consideration and the one involved in the Marquart case and that the contract was therefore invalid.

Neither the Marquart case nor theAldrich case refers to Simkins v. City of Corsicana, supra. We think that thedecisions in obese two cases conflict with the 1anauaEe used by Judge Alexander in the City of Corsicana case. No &it was applied for in the City of Corsicana case. Inview of the fact that applications for writs oferror were refused in the Marquart andAldrich cases. we are ofthe opinion that we must be guided by these derisions.

The contract made by Grand Prairie Independent School District varies, ofcourse, from the contracts considered in these two cases, but we think inview of these decisions itwould be clearly outside the powers ofacommissioners’ court.

As we have previously stated. school districts are governed generally in matters oftaxation by a different group of statutes than are counties, i.e., by those provided for cities, towns and villages. Itis true that these statutes are less numerous and less specific than those which apply to the State and counties; but theyHon. L. A. Woods. Page 10(V-966)

none the less clearly contemplate that the assessor and collector shall make upthe assessment rolls ofall property taxed, Art. 1044. V.C.S.; and that he shall make out alist ofall property which has not been given infor assessment and assess same in the name of the owner ifknown, etc.. and shall present same to theboard of equalization for valuation by theboard. Arts. 1045. 1046. V.C.S. Further specific duties are set out inArticles 1047, 1050, 1052, 1055, and 1057. V.C.S. For an excellent summary of the assessor’s powers. see Blew&t v. Richardson Independent School Dist.. 240 S.W. 529, 532, 533 (Tex. Civ. App. 1922).

We think that the contract with the Service Company was, for practical purposes, acontract to list and revalue all the taxed property within the district. (The only property excepted from its terms was personal property in homes, automobiles, jewelry. stocks and bonds and intangible property.) We are of the opinion that inview ofthe specific statutes providing for the manner of listing and valuing property there is no room for finding implied authority in the Board ofTrustees to contract for the performance of these duties, and the contract is therefore void.

SUMMARY
The Board ofTrustees of Grand Prairie Independent School District had noauthority to enter into
a property listing andvaluation contract which provided for the performance ofduties devolved by law upon the District’s Tax Assessor and Collector. and said contract is therefore void. Cf. Marquart v. Harris County, 117 S.W.Zd 494 (Tex. C-iv. App. 1938, error dism.); Aldrich v. Dallas County, 167 S.W.2d 560 (Tex. Civ. App. 1942, error dism.).

APPROVED ATTORNEYGENERALOFTEXAS Yours very truly

FIRST ASSISTANT ATTORNEY GENERAL Assistant

MMC/mwb