Iiq3lied overniled

by Honorable L.A.Woods O-6596and State Superintendent of Public Instruction v-1517 Austin, Texas

Dear Sir: Opinion No. O-2727 Re: May theboard of school trustees of an independent school district which assesses and collects its own taxes release or leave off charging the penalty and interest which has accrued on delinquent taxes.

We are in receipt ofyour letter inwhich you request the opinion of this department on several questions concerning the authority of theboard of trustees of an independent school district in taxmatters.

Inyour first question you inquire whether or not theboard of trustees of an independent school district which assesses and collects itsown taxesmay release or leave off charging thepenalty and interest which has accrued
on delinquent taxes. The authority of aboard of trustees of an independent school district over the collection of the taxes of saiddistrict isdefined byArticle 2701 of theRevised Civil Statutes as follows:

"Thedistrict tax assessor and collector shall have the same power and shall perform the
same duties with reference to the assessment and collection of taxes for free school purposes that are conferred by law upon the citymarshal1 of incorporated towns or villages, andhe shall receive such compensation forhis services as the board of trustees may allow, except incities and towns provided for,not toexceed fourper cent of thewhole amount of taxes received byhim. He shall give bond indouble the estimated amount of taxes coming annually into his hands, payableHonorable L.A. Woods, Page 2

to and tobe approved by thepresident of the board, conditioned for the faithful discharge of his duties, and that hewill pay over to the treasurer of theboard all funds coming into his hands by virtue of his office as such
assessor and collector; provided that in the enforced collection of taxes theboard of trustees shall perform the duties which devolve in such
cases upon the city council of an incorporated city or town, thepresident of theboard of trustees shall perform the duties which devolve in such cases upon themayor of an incorporated city or town, and the county attorney of the county inwhich the independent school district is located shall perform the duties which in such cases devolve upon the city attorney of an incorporated city or town under the provisions of law applicable thereto.

. . ."

As the above quoted article gives theboard of trustees of an independent school district the same authority that the city council has over the collection of city taxes, it isnecessary tonext seewhat authority such city council has in such a matter. Article 1041 of the Revised Civil Statutes provides as follows:

"The city council may provide, by ordinance, for theprompt collection of all taxes assessed, levied and imposed under this title, and is authorized to sell or cause tobe sold real aswell
aspersonal property, and may make such rules and regulations, andpass all ordrnances as they 'may deem necessary to the levying, laying, imposing, assessing and collecting of any tax herern provided." (Emphasisours)

Under the above quoted article itmay be seen that
abroad power isplaced in theboard of trustees of an independent school district over the collection of its taxes. Based upon such statute, this department ruled inOpinion NO. O-1801, as follows:

II

. . . An independent school district can elect to assess and collect its own taxes by and through itsduly appointed and acting district assessor, district board of equalization and district collector, and in such casewill have theHonorable L.A.Woods, Page 3

power and authority conferred byArticle 2791, Revised Civil Statutes of Texas; Pruitt v. Glen Rose Ind. Sch. Dist., 84 S.W. (2d)1004; and, although there isno specific statute upon the subject, it isour conclusion that this power and authority would embrace the right of theboard of trustees to fix the time for the accrual of ad valorem taxes of an independent school district, and appropriate penalties and interest on such taxes asbecome delinquent. Under Article 2791, Revised Civil Statutes, thepower and duty of a board of trustees of an independent school district in the matter of the assessment and collection of school taxes of such district, including the fixing of penalties and interest on delinquent taxes, are referable to similiar powers existing in the governing body of an incorporated city or town. Such city or townmay provide, by ordinante, thatmunicipal taxes shall become due and delinquent at adifferent time fromgeneral taxes. Eustis v. City of Henrietta, 37S.W. 632. Moreover, Article 1041, Revised Civil Statutes, impliedly gives andArticle 1175, Subdivision 9, Revised Civil Statuted, expressly vests in the governing body of cities and towns power to fix the amount ofpenalties and interest upon delinquest taxes. Articles 2784 and 2790, Revised Civil Statutes of Texas, provides that theboard of trustees of an independent school district 'shallhave power to levy and cause tobe collected the annual taxes etc.' Therefore, we submit zat in those'instances where an independent school district has elected to assess and collect its taxes by itsown officers, theboard of trustees of suchdistrict have, under the foregoing statutes, the power and authority to fix the time for the accrual of such taxes and the amount and
manner of collection ofpenalties and interest
on delinquent taxes."

It isevident that the Legislature has delegated to theboard of trustees of an independent school district that chooses to collect its own taxes full authority over such assessment and collection, which we believe includes not only the authority to assess and collect appropriate penalties but also the authority to release or charge-off such penalties after the same have been assessed. As stated by the Supreme Court of Tennessee in the case of Burns v. City ofNashville, 221 S.W. 828, "If theboard of commissioners had the power toaffix penalties and interest, they had thepower to remit them by ordinance."Honorable L.A.Woods, Page 4

It then becomes necessary to seewhether ornot theLegislature itself could have constitutionally allowed the release or charging-off of the interest and penalty on delinquent taxes. The Supreme Court of Texas in the case of Jones?" Williams, 45 S.W. (2d)130, upheld thevalidity of an act of theLegislature which released the interest and penalties which had accrued on certain state, county and district taxes. The court held that interest chargeable
was in fact apenalty and such release was not violative ofArticle 3, Section 55,of theConstitution, which prohibits theLegislature from releasing or extinguising or authorizing the releasing or extinguishing inwhole or in part the indebtedness, liability or obligation of any incorporation or individual to this State or to any county or other municipal corporation therein. The court held that the Legislature would have the authority to release the interest and penalty accrued on delinquent taxes of the State and county
aswell as of thedistricts and subdivisions of the State. It isour opinion that this broad authority has been delegated by the Legislature to theboard of trustees of the independent school districts aswell as to the city council of incorporated cities and towns.

Your attention is called to an opinion dated September 11, 1936,written byAssistant Attorney General Clark Wren toHonorable Paul G. Groggan, County Attorney, Montgomery County, in chich itwas held that the Conroe Independent School District could not remit penalty and interest foraperiod of ninety days inorder to invite collections of taxes delinquent to that district. Itdoes.not appear from the contained in that opinion whether ornot the Conroe Independent School District assessed and collected itsown taxes orwhether the same were assessed and collected by the county collector and assessor. Insofar as such opinion may appear inconflictwith the opinion expressed herein the same is expresslyoverruled.

It is the opinion of this department that your first question should be answered in the affirmative and that theboard of school trustees of an independent school district that assesses and collects itsown taxes has the power to release or charge-off the interest and penalty which has accrued against such taxes.

Inyour second question you inquire whether or not it ismandatory for the independent school district to collect the one dollar tax assessor-collector fee set out in Article 7331 of the Revised Civil Statutes. Article 7331 provides for the on dollar fee tobe collected by the county tax assessor-collector in suits brought for the collection of State and county taxesHonorable L.A.Woods, Page 5

Article 7337provides as follows:

"Any incorporated city or town or school district shall have the right to enforce the collection of delinquent taxes due itunder the provisions of this chapter."

Article 7343 of the Revised Civil Statutes reads inpart as follows:

"All laws of this State for theprupose of collecting delinquent State and county taxes are by this lawmade available for, andwhen invoked shall be applied to, the collection of delinquent taxes of cities and towns and independent school districts in so faras such laws are applicable."

The Commission ofAppeals of Texas in the case of Duclos V. Harris County, 298 S.W. 417, held that the above quoted articles authorize themunicipal corporations named therein to collect the feesprovided inArticle 7332 of the Revised Civil Statutes, which article sets the fees for the district clerk and county and district attorney. The authority to collect such fees,however, depends underArticle 7343upon such provisions of the tax statutes having been invoked by thedistrict inquestion. We believe that the
same rule of law should be applied to the feeprovided in Article 7331. It isour opinion that such feemay be collectedwhen such authority is invoked by theboard of trustees of an independent school district. We are of the opinion, however, that it isnotmandatory upon such independent school districts to collect said feewhen itdoes not choose to invoke this provision of the statutes relating to the state and county taxes in the collection of thedistrict taxes.

Inyour third question you inquire whether ornot theboard of trustees of an independent school district may reduce assessments against property in the district previouslymade when the original assessment was made by the duly elected board of equalization for theparticular year.

In our Opinion No. O-930 we held an act of the Legislature which authorized the commissioners' court to do just this thingwhich you inquire about tobe unconstitutional in that itviolated several sections of the Constitution of Texas including Article 3,Section 55. Said Section reads
as follows:.

.

Honorable L.A. Woods, Page 6

"The Legislature shallhave nopower to release or extinguish, or toauthorize the releasing or extinguishing, inwhole or inpart, the indebtedness, liability or obligation of any incorporation or individual, to this State, or to any county or other municipal corporation therein."

As the Legislature would not have the authority to release such obligations to themunicipal corporation in question it follows that theboard of trustees of such district also does not have thepower or authority to do the
same. A copy of Opinion No. O-930 isenclosed foryour information.

We trust that the foregoing will be sufficient to enlighten you as to the authority of theboard of trustees in thematters you inquire about.

Yours very truly
ATTORNEY GENERAL OF TEXAS

/s/ Billy Goldberg

Assistant

BG:db

Enclosure

APPROVED OCT 2.2,1940

/s/ Gerald Mann ATTORNEY GENERAL OFTEXAS

APPROVED OPINION COMMITTEE By BWB Chairman