c . 

E ATTCBRNEY GENERAL 

OF 

December 4, 1970 

Honorable Hunter B. Brush Opinion No. M-741 

Criminal District Attorney 

Tyler, Texas 75701 Re: Is a Commlssioners~ Court 

warranted in refusing to 

certify as correct the lists 

of insolvent taxpayers and 

delinquent lands presented 

by the Tax Collector, it 

appearing that a large number 

of businesses listed thereon 

are still In business and 

have personal property plainly 

displayed for sale, and 

Dear Mr. Brush: related questions? 

You have requested the opinion of this office on the 

hereinafter set-out questions concerning the collection of 

ad valorem taxes due the State and County. The factual 

background as presented by you is condensed as follows: 

The Tax Collector of Smith County, in response to the mandates of @-ticlea 7263 and 7336, section (e), Vernon's Civil 

Statutes, presented to the Commissioners' Court of such 

county certified lists of delinquent or insolvent taxpayers 

and lands and lots and/or property on which any taxes were 

delinquent for approval and certification by such court and 

credit to such tax assessor on final settlement of his accounts 

for the amounts therein shown. Upon examination of the lists 

presented to them, the Commissioners 1 Court refused to approve 

and certify to their correctness for the reason that several 

of the business establishments listed were still in operation 

and displaying personal property for sale, 

The first question presented by you is restated as 

follows: 

+ All Articles cited are as codified in VernonIs Civil 

Statutes, 

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r . 

Honorable Hunter B. Brush, Page 2 (M- 741) 

(1) Under the stated facts, has the Commissioners' 

Court reasonable grounds to refuse to approve the 

lists and to certify that the persons appearing 

on the lists have no property out of which to 

make the taxes assessed against them, or that they 

have moved out of the county, and that no property can be found in the county belonging to such 

persona out of which to make the taxes due? 

Your second, third and fourth questions 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 personal propof a taxpayer for taxes assessed against his 

property? 

(3) Article 3832 lists certain property as exempt 

from forced sale, Does this Statute prohibit the 

Tax Collector from levying on such exempt property 

for the satisfaction of delinquent taxes? 

i 

4) 

832 

If the exempt property designated in Article 

is subject to levy by the Tax Collector, is 

his power to levy limited to the exempt property 

on which the taxes are delinquent or may he also 

levy on other exempt property of the tax debtor 

to satisfy the delinquency? 

Your Questions numbered 2, 3 and 4 are related and pertain to the legal sufficiency of the. reasons given by the 

Commissioners' Court for their refusal or inability to make 

the statutory certificate of approval of such lists. They 

will be considered and answered together as follows: 

Article 7272 provides, in part, that: 

"All real and personal property held or owned by 

any person in this State shall be liable for all 

State and County taxes due by the owner thereof, 

including tax on real estate, personal property 

and poll tax; and the tax collector shall levy 

on any personal or real property to be found in 

his county to satisfy all delinquent taxes, tny 

law to the contrary notwithstanding; e Q O O 

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Honorable Hunter B. Brush, Page 3 (M-741) 

The case of Shugart v. Nocona Indebendent School 

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 personal property of a tax debtor to collect delinquent 

taxes on its owner99 real estate. 

The Court In Stephens v. City of Aransas Pass, 364 

S.W.2d 733 (Tex.Clv.App. 1963, no writ hlst.), held that 

Article 3832, exempting certain property from forced sale 

for the payment of debts except as therein provided, 9 

not a tax exemption statute and such exemptions therein 

contained do not pertain to taxation. 

Although the personal property Involved In the 

Stephens case was foreclosed upon only for the amount of 

the delinquent taxes assessed against such property, the 

rationale of the decisions in this and in the Shugart case, 

supra, lead to the further conclusion that such property 

could have been impressed also with the delinquent taxes 

assessed against the owner on account of any other property 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 certain personal property from 

the burden of taxation did not relieve such property fran 

llabillty for taxes otherwise due from the taxpayer and 

affirmed the judgment of the trial court approving the 

levs. seizure and sale of a sewinn machine 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 Questions Nos. 2, 3, and 4, it 

is the opinion of this office that the tax collector is not 

prohibited by law from levying upon any~personal property of 

the taxpayer in satisfaction of his delinquent taxes, regardless of whether such taxes accrued againet such property, or 

against his real property, or against other personal property 

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 outlining the relevant duties of the Commissioners' 

court : 

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Honorable Hunter B. Brush, Page 4 (M-741) 

Article 7263 requires the Tax Collector to make a list 

of delinquent or insolvent taxoayers for the purpose of obtaining 

credit on final settlement of his accounts upon the allowance of 

such list by certificate of the Commissioners' Court. Such 

Article reads as follows: 

"The tax collector shall make 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 'list of delinquent or insolvent 

taxpayers.' In this list he shall give 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 courthouse door of the county, and one list at 

the courthouse door, or where court is usually held, 

in each justice precinct in his county; and the tax 

collector, upon the certificate of the commissioners 

court that the persons appearing on the insolvent or 

delinquent lists have no property out of which to make 

the taxes assessed against them, or that they'have 

moved out of the county, and that no property can be 

found in the county belonging to such persons, out of 

which to make the taxes due, shall be 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 commissioners court, 

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, charging against 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 triplicate and presented 

to the Commissioners' Court for examination and 

correction and 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 Collector of Taxes, and 

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Honorable Hunter B. Rrush, Page 5 (M- 741) 

one copy forwarded to the Comptroller with the 

annual settlement report of the Assessor and 

Collector of Taxes. Said list, as compiled by 

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 complied with 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 assessment rolls or books 

is not sufficient to identify the same, but there 

is a sufficient description of the Inventories in 

the office of the Assessor and Collector of Taxes, 

then said Inventories shall be admissible as 

evidence of the description of said property." 

(underlined for emphasis) 

Credit for the delinquent taxes reported and allowed 

in accordance with the two next-foregoing quoted Statutes is 

provided by the terms of Article 7271 which reads as follows: 

"The provisions of this chapter pertaining 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 either by the county 

or by the Comptroller credit as approved by Article 

7263 for any taxes reported or returned as either 

delinquent or insolvent under 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 exhausted all 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 has made delfgent 

Qnqufry and has been unable to learn of, any personal 

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Honorable Hunter B. Brush, Page 6 (M- 741) 

property belonging to any person or persona 

against whom such taxes are shown on said lists 

to be unpaid that he was authorized by 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 consideration and 

investigation, has entered uDon or attached to 

both the insolvent lists and lists of delinQUent 

lands the certificate required by said Article 

)7263, and no compensation that at the time, or at 

any time thereafter, may be due or owing to 

the tax collector, either by the State or county, 

shall be retained by or paid to the tax collector 

until he has made the affidavits as provided by 

this article. Nothing in this article is intended 

or shall be construed as requiring any tax collector 

to levy upon and sell real property for the purpose 

of enforcing the payment of such taxes.” 

(underscoring added) 

It plainly appears from the express wording of these 

Articles 7263, 7336, and 7271 that no credit is to be allowed 

the tax collector until his properly certified lists have 

been allowed and certified a8 correct by the Commissioners’ 

Court after full consideration and investigation. 

A certification by such court merely showing reliance 

on the tax collector’s certificate as 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 Opinion No. O-4046 (19&l), a copy of which 

Is furnished you herewith. 

The phrase “full consideration and investigation” as a 

prerequisite to approval and certification by the Commissioners’ 

Court plainly denotes the bestowing of discretionary authority 

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 lists must 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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, . 

Honorable Hunter B. Brush, Page 7 (M-741) 

some of the taxpayers listed thereon have personal property 

in their possession subject to a levy for delinquent taxes 

by the tax collector is sufficient to prohibit the said 

court from certifying directly to the contrary. We believe 

the foregoing statement fully answers your Question No. 1. 

It is noted, however, that in reference to the lists of 

lands and lots and/or property directed to be made by the 

tax collector by Article 7336, section (e), the term 

“correctlon” is used as a duty designated to the Commissioners’ 

Court in conjunction with the term “examined”, in reference 

to the delinquent land list therein provided. This would 

seem to Impose a general duty of the court to act in some 

manner In regard to all such lists, delinquent insolvents and 

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 thereon who, in the judgment 

of the court, are not certifiable as having no property out 

of which to make the taxes assessed against them, or as having 

moved out of the county and no property can be found in the 

county belonging to such persons out of which tc make the 

taxes due, and certifying to the correctness of the remainder 

of such lists. 

SUMMARY 

The tax collector is not prohibited by law from 

levying upon any personal property of the taxpayer 

in satisfaction of his delinquent taxes, regardless 

of whether such taxes accrued against such property, 

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 taxpayers and lands and 

lots and/or property on which any taxes are delinquent, the discovery by the Commfsslonerss Court 

of persons listed thereon having personal property 

in their possession subject to a levy for 

delinquent taxes fs sufficient to warrant such 

court to refuse approval and certfffcatlon of such 

lists D 

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Honorable Hunter B. Brush, Page 8 41) 

eneral of Texas 

Prepared by R. L. Lattlmore 

Assistant Attorney 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 

Executive Assistant 

Nola White 

First Assistant 

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