### TB~EATTORMSY GENERAL OF TEXAS

HonorableR. L. Lattlmore Opinion No. C-757 Criminal District Attorney Edlnburg, Texas Re: Jurisdiction of suits for delinquentpersonal property taxes, plus interestand penalties, where the total amount sued for is over $200 Dear Sir: but lesa than 

### $500.
You have requested the opinion of this office in regard to the proper jurisdictionof suit8 for delinquent personal property taxes plus penalties ard interestwhere the total amount In controversy la over $200 but less than $500, exclusive of interest and costs. We quote from your letter,requesting the opinion, as follows: "A aerloua questionhas arisen concerning the collection of Delinquent Personal Property Taxes for Hldalgo County as to whether the District Court or County Court has jurisdiction when the amount of taxes Involved, Including penalty and Interest, 1s over $200.00but less than 

### $500.00. The question can further be broken down with regard to the following three situations: One: If suit Is original1 filed by the State (For State or CountyTaxes T? Two: If suit IS originally filed by a City or Independent School District? Three: If suit is originally filed by a City or Independent School Dlstrlct and the State should Intervene In such suit?" SituationOne. Since 

### 1876the Constitutionof the State of Texas has provided that the District Court shallhave original juria- 

### -3637-Hon. R. L. Lattimore,Page 2 (C-757) ‘

.

diction in all suit8 in behalf of the State to recover penalties. Section 8, ArticleV, of the Conatltutlonof Texaa, reada, in part, as follows:

"The District Court ahallhave original jurisdiction

. . .in all suits in behalf of the State to recoverpenalties.

. . ." (Emphasis aupplled) Article 1906,Vernon's Civil Statutes,also confers orlginal jurisdictionupon the District Court In such cases, providing that:

"Thedlatrict court shallhave original jurisdiction in civil cases of: 1. recover 11

. . . Section in part: Suits in behalf of the State to

~;;;en:;;,s~;;f;;;~s and escheats.
16, ArticleV, of the Constitution states

"The CountyCourt
. . . shallhave exclusive Jurisdiction In all civil case8vhen the matter in controversy shall exceed in value $200, and not exceed $500, exclusive of intereat
. . .' Article 1949,Vernon's Civil Statutes, confers exclusive orlginal jurisdictionin such cases in the County Court. We have been unable to find a case directly inpoint with regard to ad valorem taxes, but the case of Statev. Kfnnham, 

### 361 S.W.2d 191 (Tex.Sup.1962) Involving a suit for delinquent unemploymentcompensation contributions and penalties arisingby virtue of failure to pay the taxes on time, held that jurisdictionof the suit by the State for the penaltieswas conferredupon the District Court. In that case the Court statedthe question and decided it aa follows: (Beginningat page 192)



### -3638-Hon. R. L. Lattlmore, Page 

### 3 (C-757)

“Aa the case la before us, the~controlling question la whether this suit Is for a ‘penaltyIa8 uaed In Art. V, Sec. 8, State Conatitutlon,Vernon’s Annotated Statutes, ao aa to confer jurladictlonon the Diatrlct Court to try this cause, orwhether thia la a suit for a debt consistingof taxes 8nd aa a part thereofpenalties, governedby Article V, Section 

### 16,which gives exclusive jurisdiction to the Courty Court In all civil case8 where the matter in oontroverayshall exceed $200 and not exceed $90 exclusive of Interest.
. . .‘I “Thereasoning in the case of Jonea v. Wllllama (1931) 121 Tex. 94, 

### 45 S.W.2d 130, 79 A.L.R. 983, settles the questionbefore us. After a lengthy and thoroughdiacusalon, that case holds that the interestand the penalty exaction8 added to delinquenttaxes by the various conatitutlonaland atatutory provisions are ‘penalty’rather than lntereat eo nominee. The Court says:

‘Thelmposltlonof penalties la the means provided to prevent tax delinquencies,and sincethe word imPlie some form of Duniahment, It Is obvloua all leglalatlon competent under the constitution must be of that nature.
. . .I @mphaala theirs)

The case of Jonea v. Williama, supra,‘d;cidesthat the &nalty and interest added to delinquent taxes la not an Incident of the taxes, but Is a separateand distinct Item provided by the Leglalatureaa a punlshment for failure to pay taxeaprior to dellnquency, and therefore, a ‘penalty’within the meaning of the Constitution.

. . .‘I It has been consistentlyheld by this office that both the State and County ad valorem taxesupon any single separately assessed Item of propertymust be paid at the aame



### -3639-Hon. R. .L.Lattimore, Page 4 (C-757)

time in order to obtain a dlacountunder Article 7255b, Vernon18 Civil Statutea. Attorney Oeneral’a 3 lnlon Nos. o-1262, o-6124, o-1187, o-6397,v-734 and C-33
. It IS therefore inconceivable that a suitwould be filed for state taxes and not for countytaxes or vice versa. It might also be noted that Article 7332,Vernon’s Civil Statutes,provides that the Diatrlctor CountyAttorney shall represent the State and County in all aulta against delinquent taxpayera. It ia therefore, our opinion that aults for the collection of delinquent personalproperty taxes owing to either the State or Countymust Include the tax owing to the other and will invariablyIncludepenalties and Interest,and thus be suits in behalf of the State for penalties aa defined by the Kingham case. We hold that exclusive jurladlctlon for such suits is conferredupon the District Court. SituationTwo. In consideringwhere jurladlctionis conferred In suitsbrought by cities and independentschool districts for personal property taxes,where the amount In controversy la between $200 and $500,we turn again to Article V, Section 16, of the Texas Constitution,which directs all such suits are to be brought in the County Court. Article 1949, confers exclusive original Jurisdiction upon the County Court for these suits.
An exception to the law as expressed by the preceding statute exists when the value of the property againstwhich the lien la asaerted exceeds $500. When the value of the property exceed8 $500, the District. Court has concurrent jurladlctlbnwith the County Court except in cases where the value of the property exceeds $1,000, in which case .the .DlatrSqt.Courthaa.exclusive jurlsdlctlon.
;.;. ‘., a. Amount in Controversy ~’Considering the problem of amount in controversy, the Court in Billingaley v. City of Fort Worth, 278 S.W.2d 869 (Tex.Clv.App.1955,error ref.n.r.e.)held, in a suit by a city and school district fordelinquent taxes assessed agalnat personal property of the defendant, that:

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### 5 (C-757)

II

. . . the ,$ty and schoolenaltles on delinquent taxes

_p must be conaldered aa In the nature of damage8 and a8 such are to be conaldT,red

as part of the amount In controveray. (Bracketedlnaert supplied) It would aeem that this holding alao aupports the proposition that a suitby a city or Independent schooldistrict for taxes and penaltlea la not a suit in behalf of the State and thus not subjectto the rule as later laiddown by the Klngham case, aupra,and that proper jurisdiction for such Suits la conferredupon the County Court. b. Existence of Lien Article 1060,Vernon’s Civil Statutea,provides a lien against personal property in behalf of cities, stating In part,
. . .All taxes shall be a lien upon the property upon which they are asseased.
. .” Article 106Ca,Vernon’s Civil Statute8 amended In 1963, oonfers upon all schooldistricts the benefit of all liens and remedies for the securityand collection of their taxes which are granted incorporatedcities and towns. Therefore, the provisions of Article 1060 are likewise applicable In favor of school districts. Article lC6Caprovide8 aa follows:

“(a) All of the provisions of Title 122A, of the Revised Civil Statutes of Texas of 1925, be, and the same are made available Insofar as same may be applicable and necessary to all school districts and municipal corporations organized under any general or special law of this State and which have power and authority to levy and collect their own taxes, and that each of such school dlatricts and such municipal corporations shall have the benefit of all liens and remedies for the security and collection of taxes due them as is provided in said Title In the case of taxes due the State and County, and as otherwiseprovided by the GeneralLaws of this State in the case of taxes due Incorporated cities and towns.” {Emphasis supplied)

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.

Hon. R. L. Lattlmore, Page 6 (C-757)

c. Value of Property Concurrent jurisdiction is conferredupon the District Court and the County Court if the value of thepropert against which the taxes sued for are assessedexceeds but does not exceed $1,000and the taxing authority Isi500 provided with a lien against suchproperty. The case of Texas & N.O.R. Co. v. Rucker, 88 S.W. 815 (Tex.Clv.App. 1905, released after being affirmed on certifiedquestion, 99 Tex.125,

## a7s.w.

## ala)statesas foilows:

“It Is a well-settled general rule of decision in this statethat In a suit to enforce a lien upon personalproperty the value of the property upon which the lien Is asserted, and not the amount of the debt claimed,determines the Jurlsdlctlonof the court. Marshall v. Taylor, 7 Tex. 235; Smith v. Qlles, 65 Tex. 341; Cotullav. Goggan,77 Tex. 32, 13 S.W. 742; Real Estate Co.v. Bahn, 87 Tex. 583, 29 S.W. 646, 30 S.W. 430; Lane v. Howard, 22 Tex. 7."
A suit for collection of delinquenttaxes is in the nature of an action for debt. City of Henriettav. Eustis, 87 Tex. 14, 26 S.W. 619 (1894) The statutory lien of cities, grantedby Article 1060, and of schooldistricts, grantedby Article 106Ca, Is upon the whole of the property taxed and all of suchproperty is subject to sale for the taxes. Suchbeing the character of the lien,sought to be enforced, the value of the property upon which the lien Is assertedmust be considered In determining the jurisdiction of the court. Texas & N.O.R. Co. v. Rucker, supra. Compare SouthwesternDrug Corp.v. Webster, mW.2d 241 (Tex.Clv.App.1951). The rule Iswell stated in 15 Tex.Jur.2d 523 Courts, Sec. 83, as follows:

“Inactions to foreclose liens on personal property the amount sued for aswell as t.hevalue of the property on which foreclosure is sought are both considered in determining the amount In controversy;the greateramount determining the jurisdiction.

. . .‘I

-3642-Hon. R. L. Lattimore, Page 7 (C-757)

Althoughwe find no oaae directly In pointwherein thla propositionhaa been applied to delinquent tax aults for personal property taxes,we believe that the following statement from the case of Ball v. Beaty, 223 S.W. 552 (Tex.Civ.App.1920)wherein the court refers to the Texas & N.O.R. co. v. Rucker caee, aupra, la a correct statement of the law. The court aald, at page 556:

“Itmay be consideredaa establiahed by the decision in the case of T & N.O. Railway v. Rucker, approvedby the Supreme Court, that the rule to the effect that the value of the peraonalproperty upon which a lien is soughtto be foreclosed, if in excess of the amount of the debt, controls in determining jurisdiction Is not limitedto contract liena,but applies to co;mon-law liens, and atatutory lines.

. . . (Emphasis supplied)

SituationThree.
In responaeto your last question,no problem is presented if the suithas been filed In the Matrlct Court by a city or independent schooldistrict and jurisdiction

. is conferred upon the District Court. Certainly the State and County could Intervene in such suit for the purpose of collecting taxes and penalties due to them so long as the rules regarding interventionsare followed. However,where jurisdictionIs not conferredupon the District Court, i.e. the amount in controversybeing less than $500 and the value of the property againstwhich the taxes are assessedbeing less than $500, under the holding of the Kingham case, supra, it is clear that the District Court is the only Court that has jurisdiction Inwhich the State and Countymay properly file suit for delinquentpersonal property taxes, penaltiesand interest. The County Court does not have jurladlctlonof such suita. Therefore, the suit for the collection of State and County taxea should be filed in the District Court,where any proper lnterventlons by other taxing authoritiesmay be accomplishedunder the applicable rules of law.

-3643-1. -.

.

Hon. R. L. Lattlmoret Page a (C-757)

SUMMARY Jurisdiction for all suits in behalf of the State and County for penalties, regardless of amount Is conferred exclusivelyupon the District Court. Jurisdiction for cases filed by cities or independent schooldistricts seekingrecovery in an amount between $200 and $500 is conferred exclusivelyupon the County Court unless the property againstwhich the taxes are assessed is of a value of more than $500, in which lnatance the District Court ha8 concurrent jurisdiction so long as ruch value does not exceed $1,000. The State and County may not intervene in suits In County Court for collection of State and County taxes where penaltles are Involved, suchaction being a suit In behalf of the State, jurladlctlon for which is conferred exclusivelyupon the Dlatrlct Court. Very truly yours, WAGGONER CARR

JFP:ck APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Alan H. Minter Marietta McGregor Payne Malcolm L. Quick Brandon Blckett APPROVED FORTHEATTORNEY GENERAL BY: T. B. Wright
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