c

.

E ATTCBRNEY GENERAL

OF

December 4,1970

Honorable Hunter B. Brush Opinion No. M-741 Criminal DistrictAttorney Tyler, Texas 75701 Re: Is a Commlssioners~Court warranted in refusing to certify as correct the lists of insolventtaxpayersand delinquent landspresented by the Tax Collector, it appearing that a large number of businesses listed thereon
are still In business and have personalproperty plainly displayed for sale, and DearMr. Brush: related questions?

You have requested the opinion of this office on the hereinafter set-outquestions concerning the collectionof ad valorem taxes due the State and County. The factual background as presentedby you is condensed as follows: The Tax Collector of Smith County, in response to themandates of @-ticlea 7263 and 7336, section (e),Vernon's Civil Statutes, presented to the Commissioners'Court of such county certified lists of delinquentor insolventtaxpayers and lands and lots and/orproperty on which any taxeswere delinquent for approval and certificationby such court and credit to such tax assessor on final settlementof his accounts for the amounts therein shown. Upon examination of the lists presented to them, the Commissioners1Court refused to approve and certify to their correctness for the reason that several of the business establishmentslistedwere still in operation and displayingpersonal property for sale,

The first questionpresented by you is restated as follows:

+ All Articles cited are as codified in VernonIs Civil Statutes,

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HonorableHunter B. Brush, Page 2 (M-741)

(1) Under the stated facts,has the Commissioners' Court reasonablegrounds to refuse to approve the lists and to certify that the persons appearing
on the listshave no property out of which to make the taxes assessedagainst them, or that they havemoved out of the county, and that no property canbe found in the countybelonging to such persona out of which tomake the taxes due?

Your second,third and fourthquestions are such as necessarily arise from the first question and will have to be resolved first in order to answer the primary question. They appear in your brief as follows: 

# k2,

real Can the Tax Collector levy on personalpropof a taxpayer for taxes assessed againsthis property?
(3) Article 3832 lists certainproperty as exempt from forced sale, Does this Statuteprohibit the Tax Collector from levying on such exemptproperty for the satisfactionof delinquenttaxes?

i4) 832 If the exemptproperty designated inArticle is subjectto levy by theTax Collector, is his power to levy limited to the exemptproperty
on which the taxes are delinquent ormay he also levy on other exemptproperty of the tax debtor to satisfythe delinquency?

Your Questionsnumbered 2, 3 and 4 are related and pertain to the legal sufficiencyof the.reasons givenby the Commissioners'Court for their refusal or inabilitytomake the statutory certificate of approval of such lists. They will be consideredand answered together as follows:

Article 7272provides, inpart, that:

"Allreal and personalproperty held or owned by any person in this State shallbe liable for all State and County taxes dueby the owner thereof, including tax on real estate,personalproperty and poll tax; and the tax collector shall levy
on any personal or real property to be found in his county to satisfyall delinquent taxes, tny law to the contrarynotwithstanding; e Q O O

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The case of Shugartv. Nocona IndebendentSchool Distrikt, 288 S.W.2d 243 (Tex.Civ.App.1956,no writ hlst.), held that a taxing authority can levy on and seize and sell any personalproperty of a tax debtor to collectdelinquent taxes on its owner99 real estate.

The Court In Stephensv. City of Aransas Pass, 364 S.W.2d 733 (Tex.Clv.App.1963, no writ hlst.), held that Article 3832, exempting certainproperty from forced sale for the payment of debts except as thereinprovided, 9 not a tax exemption statute and such exemptions therein containeddo not pertain to taxation.
Although the personal property Involved In the Stephens case was foreclosedupon only for the amount of the delinquent taxes assessed against suchproperty, the rationale of the decisions in this and in the Shugart case, supra, lead to the further conclusionthat such property could have been impressedalso with the delinquent taxes assessed against the owner on account of any otherproperty owned by him. Further In this regard, the early case of Ring v. Williams, 35 S.W. 733 (Tex.Clv.App.1896, no writ) held that the laws exempting certainpersonal property from the burden of taxation did not relieve suchproperty fran llabillty for taxes otherwisedue from the taxpayerand affirmed the judgment of the trial court approving the levs. seizure and sale of a sewinnmachine for dellnauent poli-taxes due from the taxpayer.- See also City of Henrietta
v. Eustis, 87 Tex. 14, 26.~~~. 619 (1894);Mm-0 co., Inc. v. State, 168 S.W.2d 510 (Tex.Civ.App.1943, error ref.),

Therefore, in answer to QuestionsNos. 2, 3, and 4, it is the opinion of this office that the tax collector is not prohibited by law from levying upon any~personalproperty of the taxpayer in satisfactionof his delinquent taxes, regardless of whether such taxes accrued againet suchproperty, or against his real property, or against otherpersonalproperty of the taxpayer. The homestead of a family Is exempt from all taxes except those assessed against It. Tex. Const.Art. XVI, Sec. 50.

Before applying these rules to the facts Involved in Question No. 1, it Is necessary to consider the following statutes outliningthe relevant duties of the Commissioners' court:

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Article 7263 requires the Tax Collectorto make a list of delinquent or insolvent taxoayers for the purpose of obtaining credit on final settlement of his accountsupon the allowance of such list by certificate of the Commissioners'Court. Such Article reads as follows:

"The tax collector shallmake out on forms to be furnished for that purpose by the Comptroller,between April first and the fifteenth of each year, list of delinquent or insolvent taxpayers, the caption of which shall be, the 'listof delinquent or insolvent taxpayers.' In this list he shallgive the name of the person, firm, company, or corporation from whom the taxes are due, in separate columns;and he shall post one copy of these delinquent or insolvent lists at the courthousedoor of the county,and one list at the courthousedoor, or where court is usually held, in each justiceprecinct in his county; and the tax collector,upon the certificateof the commissioners court that the persons appearing on the insolvent or delinquent lists have no property out of which tomake the taxes assessed against them, or that they'have moved out of the county, and that no property can be found in the countybelonging to suchpersons, out of which to make the taxes due, shallbe entitled to a credit on final settlement of his accounts, for the amounts due by the persons, firms, companies, or corporations certified to by the commissionerscourt,
as above provided for."

Article 7336, section (e), also requires such Tax Collector to make up a list of the lands and lots and/or property
on which taxes are delinquent, chargingagainst the same all unpaid taxes assessed against the owner thereof. The portion of said section (e)pertinent to your Inquiry is quoted as follows:

"Said list shall be made in triplicateand presented to the Commissioners'Court for examinationand correctionand after being so examined and corrected said list in triplicate shall be aooroved by said Court, One copy thereof shall be filed with the County Clerk or Auditor, one copy retained and filed by the Assessor and Collectorof Taxes, and

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one copy forwarded to the Comptrollerwith the annual settlementreport of the Assessor and Collector of Taxes. Said list, as compiledby the Assessor and Collector of Taxes, and corrected by the Commissioners'Court, or the rolls or books
on file in the office of the Assessor and Collector of Taxes, shall be prima facie evidence that all the requirements of the law have been compliedwith by the officers of courts charged with any duty thereunder, as to regularity of listing, assessing, and levying all taxes thereln set out, and that the amount assessed against said real estate is a true and correct charge. If the description of the real estate In said list or assessmentrolls or books is not sufficient to identify the same, but there is a sufficientdescription of the Inventories in the office of the Assessor and Collector of Taxes, then said Inventories shall be admissibleas evidence of the description of saidproperty." (underlinedfor emphasis)

Credit for the delinquent taxes reported and allowed in accordancewith the two next-foregoingquoted Statutes is provided by the terms of Article 7271 which reads as follows:

"Theprovisions of this chapterpertaining to the duty of tax collectors in the matter of the collection of delinquent and insolvent taxes shall apply as well to taxes owing by persons who own real property as to those who do not own real property, and no tax collector in thfs State shall be entitled to or be allowed eitherby the county or by the Comptrollercredit as approvedby Article 7263 for any taxes reported or returned as either delinquent or insolventunder Article 7263 or 7336 until he makes affidavit entered upon or attached to both his lists of insolvent tax payers prepared under said Article 7263 and his lists of delinquent lands prepared under Article 7336, that said lists
are true and correct and that he has fully complied with and exhaustedall resources to collect such taxes as authorized and required by Articles 7264, 7266, 7267, 7268, 7269, 7270, 7272, 7273, 7274, and 7336, and does not know of, and hasmade delfgent Qnqufry and has been unable to learn of, any personal

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propertybelonging to any person or persona against whom such taxes are shown on said lists to be unpaid that he was authorizedby law to seize, levy upon and sell for the purpose of enforcing the payment of such taxes or any part thereof,nor until the commlsslonerst court of his county, after full considerationand investigation,has entered uDon or attached to both the insolvent lists and lists of delinQUent lands the certificaterequired by saidArticle )7263,and no compensationthat at the time, or at any time thereafter,may be due or owing to the tax collector, either by the State or county, shallbe retained by or paid to the tax collector until he hasmade the affidavits as provided by this article. Nothing in this article is intended
or shall be construedas requiring any tax collector to levy upon and sell real property for the purpose of enforcing the payment of such taxes.” (underscoringadded)

It plainly appears from the express wording of these Articles 7263, 7336, and 7271 that no credit is to be allowed the tax collectoruntil his properly certified lists have been allowed and certifieda8 correct by the Commissioners’ Court after full considerationand investigation.

A certificationby such courtmerely showingreliance
on the tax collector’s certificateas the basis for its approval of the insolvent lists and lists of delinquent lands Is not sufficient to comply with the provisions of Article 7263. See Attorney General’s OpinionNo. O-4046 (19&l),a copy of which Is furnishedyou herewith.

The phrase “full considerationand investigation”as a prerequisite to approval and certificationby the Commissioners’ Courtplainly denotes the bestowing of discretionaryauthority upon the court to approve or not approve such lists as Its judgment or findings warrant.

In any event, in order for credit to be allowed the tax collector the listsmust show the certificates of the tax collector and the Commissioners’Court in the exact terms of Articles 7263 and 7271. The fact that it appears to the Commissioners’Court, from an examination of such lists, that

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some of the taxpayers listed thereon havepersonalproperty in their possession subject to a levy for delinquent taxes by the tax collector is sufficient to prohibit the said court from certifyingdirectly to the contrary. We believe the foregoing statement fully answersyour Question No. 1.

It is noted, however, that in reference to the lists of lands and lots and/orproperty directed to be made by the tax collectorby Article 7336, section (e), the term “correctlon”is used as a duty designated to the Commissioners’ Court in conjunctionwith the term “examined”,in reference to the delinquent land list thereinprovided. This would
seem to Impose a general duty of the court to act in some manner In regard to all such lists, delinquent insolventsand delinquent lands, lots and/or property as well, rather than just refuse to take any action. In the instant case correction of the lists could consist of striking from such lists the name8 of all persons appearing thereonwho, in the judgment of the court, are not certifiableas having no property out of which to make the taxes assessed against them, or as having moved out of the countyand no property canbe found in the countybelonging to such persons out of which tcmake the taxes due, and certifyingto the correctness of the remainder of such lists.

SUMMARY

The tax collector is not prohibitedby law from levyingupon any personal property of the taxpayer in satisfaction of his delinquent taxes,regardless of whether such taxes accrued against suchproperty, OP against his real property, or against other personal property of the taxpayer.
Upon examination of the tax collector’s lists of delinquent or Insolvent taxpayersand lands and lots and/orproperty on which any taxes are delinquent, the discoveryby the CommfsslonerssCourt of persons listed thereonhavingpersonalproperty in their possession subject to a levy for delinquent taxes fs sufficient to warrant such court to refuse approval and certfffcatlonof such listsD

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eneral of Texas

Preparedby R. L. Lattlmore AssistantAttorney General

APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman W. E. Allen, Co-Chairman Harriet Burke Max Hamilton Arthur Sandlin John Banks

Meade F. Griffin Staff Legal Assistant

Alfred Walker ExecutiveAssistant

Nola White First Assistant

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