Honorable JamesE. Barlow

Criminal District Attorney County of Bexar County Courthouse SanAntonio, Texas 78204 Opinion No. M-328 Re: Whohas the administratlve responsibility of deciding the status of property for ad valorem tax exemption under the Constitution and Dear Hr. Barlow: Statutes of Texas?

Your request for an opinion from this office inquires as to what official or of'flclals on the county level has the responsibility of deciding which property shall be exempt from taxation beoauae of the various provisions of the Constitution and Statutes, whenthe tax exempt status ia disputed.

In connection with this request, It should be noted that the final authority to decide If property is exempt from taxation rests with a court of competent jurisdiction. Yourquestion, therefore, has been interpreted to ask what admlnlstrative authority is vested with the authority to initially determine if property is exempt from ad valorem taxation by virtue of the Constitution andStatutes, and does any other administrative body have the authority to review such a determination.

TheConstitution andStatutes of Texas delegate the duties of administering the ad valorem tax laws of the state to three authorities, namely, the county tax assessor and collector, the county commissioners court, sitting as a board of equalization, andthe county commissioners, functioning as a commissioners court. Anexamination of these samelaws, however, reveals that none of these bodies is expressly granted the authority to Initially determine whether property falls within a class that is tax exempt.

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Hon. JamesE. Barlow, Page 2 (M-328 )

Sections 14of Article VIII of the Texas Constitution establishes the office of assessor and collector of taxes and provides therein that he

. . . shall perform all the duties with respect to assessing orooertv for the nurpose of taxation andboliecting taxes as may be prescribed by the Legislature.” (Emphasis Added.) Amongthe numerous duties of the tax aaaeasor as prascribed by the Legislature is that of obtaining a full, complete, and correct asaeaament of all taxable property sltuated in his respective county. SeeArt. 7189, et seq. Vernon’s Civil Statutes.

Anassessment of property for taxation has been defined as the’listlng of property to be taxed~ln aomeform, andan estimation of the sumswhich are to be a guide in the apportlonment of the tax. See Sullivan v, Bitter, 51 Tex. 604, II3 S.1 W. 193, (!fex.Clv.App. 1901 B, nowrit history).

-. Article 7145,

. Vernon’s Civil Statutes, provides

“All property, real, personal or mixed, except such a%maybe hereinafter expressly exempted, la subdect to taxation. and the sameshall be rendered and llstedx herein prescribed. ” (Emphasis Addd ) e
. Asummation of the above definition andprovlalona Indicates that only property subject to taxation Is to be listed, andthe duty of listing such property is vested with the assessor and collector of taxes, It follows, therefore, that before the assesaor can perform his duties hemustmakean initial decision of whether or not property is exempt from taxation. If it Is exempt, the assessor has noauthority to assess the property. If it 1s not exempt, then it is madehis duty under the statutes to assess the same. It is the opinion of this office, therefore, that the tax assessor and collector is granted the authority to lnltlally decide if property is tax exempt under the Constitution and Statutes of, Texass

Thenext question to answer is whether the county commissioners court, sitting as a board of equallzatlon, has the

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Hon. JamesE. Barlow, Page 3 (M-328) authority to uasa on auestions relating to the tax exempt status of property. -

Section 18 of Article VIII of the Constitution provides that: of !Psxaa

?l?haLegislature shall provide for equalizing, as near as maybe, the valuation of all property subject to or rendered for

Theduties of the commissioners court, sitting as a board of equalization, and Its authority as such board is defined byArticle 7206, Vernon's Civil Statutes. Theother statutes that have been enacted regarding the board simply clarify those duties listed In Article 7206, supra. 7356, et seq., SeeArticles 7198, 7211, 7212,

Vernon's Civil Statutes. Article 7206 provides that the commissioners court shall sit as aboard of equalization and Is to receive all the asseaament lists or books of the assessors of their counties for Inspection, correction or equalization andapproval, Thereafter, said Article, supra, provides in part as follows:

"1

. Theyshall cause the assessor to bring before them

. . . all assessment lists, books, etc., for inspection, and see that every person has rendered his property at a fair market value, and shall have the power to send for persons, books, andpapera, swear andqualify persons, to ascertain the value of such property, andto lower or raise the value on same. "2

. Theyshall have power to correct errors In assessments.
“3

. +** "4. After they have Inspected and equalized as nearly as possible, they shaI.1 approve said lists on books and return sameto the assessors for making

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upthe general rolls, whensaid board shall meet again andapprove theasameif found correct. ::g- *** !l!heassessors of taxes shall furnish said board

. . . a certified list of names of all persons whoeither refuse to swear or to qualify or to have signed the oath required by law, together with the assessmentof said person's property madebyhim through other information; and said board shall examine. eclualize and correct assessments somadebythe assessor, andwhenso revised, equalized,,and corrected, the same shall be approved. In the case of Harris County v. Bassett, 139S.W.2d 180, (Tex.Clv.App., 1940, writ of error refused) the Court, dlscusaing Art. 7206, suprag as well as other statutes, said:

II hildiig the authorities are uniform In

that the Board of Equalization is concerned only with the properties onthe rolls andwith the correction of valuations placed thereon by the TaxAssessor, and that the board maynot add to the rolls property not entered, nor eliminate therefrom entries appearing thereon.

consent, e (citing authorities).-. (Emphasis Added,) D

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Furthermore, In the case of Roachv. First Savings & Loan 203S.Y.2d 1006, 1012 (Tex.Civ.App. 19471, the Court esslng the powers of the county commissioners acting ai the board of equalization, observed that the latter is given the power of reconsideration andrevision of the tax assessor-collector's real property valuations. TheCourt further said:

"Thejurladlotlon 

### ofthe Commlasioners Court sitting as a board of equalization la fixed bs Art. VIII. Sec. I8 of the Constitution. Vknon*a AxmISt. It Is conceded by all authorities that ihe Board of Equalization Is without 

### powerto add to or take from the assessment rolls property plaoed thereon or round thereon, but its power 1s limited to matters affecting valuationa.” (Emphasis Add ,ed.) In the oaae of Bavls v. Burnett, 77Wx.3, 13S.W. 613 (1890). the SupremeCourt naa conoerned with the queetlon of rihethir the apiellee would be entitled to awrit cif Injunction to prohibit the oolltctlon of 

### anIllegal tax. Thetaxing authorities hadassessed property that uas tax exempt. The appellant (tax authority) had urged the appellee had a remedy by applloatlon 

### tothe board of equallution, and that therefore he was ZI&entitled to awrit of In¬ion. That Court declared:

Theabove articles andthe court Interpretations placed thereon clearly define the scope of authority of the county commissioners court sitting as a board of equalization with respect to whatmatters maybe brought before them for their oonslderatlon. It la the opinion of this office that such scope of authority does not include the power to decide whether property is exempt from 

### taxationby the Constitution andStatutes.

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Hon. JamesE. Barlow, Page6 (M- 328)

If the county commissioners court, sitting as a board of

does not have this authority, dothe county commlsslon-

_ _ equalization, ers functioning as a commlssloners court have any control over assessments or exemptions therefrom madeby the tax a~ssessor and collector? Art. V, Section 18of the Texas Constitution provides that the County Commissioners Court shall exercise such powers and jurisdiction over all county business, as Is conferred by the Constitution and laws of the State. Pursuant thereto, the legislature enacted in the year 1905Articles 7346and 73479 Vernon’s Civil Statutes, giving the county commissioners court certain authority to reconsider andrevise the tax rolls, Article 7346prescribes, in part, as follows:

“Wheneverany commissioners court shall discover through notice from the tax collector or otherwise that anyreal property has been omitted from the tax rolls for anyyears since 1884, OP

enforce collection of taxes on said properties, they may-,at ameeting of the Court, order a list of SW+ properties to be made i ;, II) (Emphasis Addeds) Art. 7347, provides, in part, that whenthe list referred to in Art. 7346has been compiled,

II

. * 0 the commissioners court m2J at n of such :e known anymeeting, order a caneellatio properties in said list that al to have been previously assessed, but which assessments are found to be fnvalia have not been canoelled byany for?i&r order of the commissioners court, or by decree of any district court; and shall then refer such list of properties to be assessed OP re-assessed

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Hon. JamesE. Barlow, Page7 (M-328 )

to the tax assessor whoshall proceed at once to makeanassessment of all said properties, from the data given by said list

. . . andwhencompleted shall submit the sameto the commlssioners court, whoshall pass uponthe valuations fixed by him; and, whenapproved as to the values, shall cause the taxes to be compc!ted and extended at the tax rate in effect for each separate year mentioned in said list;.

. . (Emphasis Added. ) These statutes speak of those situations where the commissioners court "shall discover" or "shall find" that real property has been omitted from the tax rolls or a previous assessment thereon is Invalid. In such Instances, it becomes the duty of the commissioners court to makea list of said properties andrefer said list to the tax assessor to be properly assessed or reassessed.

In CouchvEarnest, 62 S.W.2d 988, 992 (Tex.Civ.App. 1933, error dism.) the SanAntonio Court 01'civil Appeals declalseu bnat I,

. . . Thet:x roll of a county is not like the lawof the Medes and Persians, irrevocable andunchangeable. Whenproperty is found to have been omitted from the rolls, it is the right andthe bounden duty of the commissioners court to have a corrected roll prepared.

. . ." (Emphasis Addd ) e
. It is our view that Articles 7346and 7347 expressly authorize the commissioners court, in its discretion, to inquire Into real property assessments andanyandall exemptions therefrommadeby the tax assessor and to declare the sameto be invalid for anyreason (including the matter of exemptions); and should the commissioners court decide anassessment is invalid, they have the authority to strike said assessment from the tax rolls. This position is supported byprior opinions from this office. See Attly. Cen. Opinion Nos. O-7251 (lg46), V-973 (19&q), andM-321 (1968). If the real property Is not assessed because found to be exempt by the assessor, whoomits the property from the tax rolls, the commissioners court may, at anymeeting of the court, determine that the property is not exempt andorder that such property be listed on the tax rolls andasaeased. If that real property is assessed because found not to be exempt bythe assessor, wholists the property on the tax rolls, the commissioners court may, at any

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meeting of the court, declare the assessment invalid and order the sameto be cancelled from the tax rolls. **ThUS,** the county commissioners court functions here as the general governing body of the county, andexercising administrative and quasi-judicial functions, as contemplated andauthorized byArticle V, Section 18, Constitution of Texas, andthe cited statutes enacted pursuant thereto.

This opinion should not be interpreted as saying or implying that the county commissioners court is necessarily required to review all tax assessments or exemptions therefrom, or that action bythat authority is a condition precedent to the maintenance of anaction in Court concerning invalid assessments or tax exempt properties. Thecommissioners 1court Isjurisdiction and-duty Is Invoked only whenit shall discover through notice that real vrooertv has been omitted from the tax rolls, or shall find-any-previous assessments to be invalid, or to have been declared invalid for anyreason by any district court, 7346. as expressly set out in Article
SUMMARY It Is the opinion of this office that the administrative responsibility of deciding whether property Is exempt from taxation by the Constitution andStatutes of Texas is vested with the county tax assessor and collector, and the county commissioners, functloning as a county commissioners court, has the authority to reconsider andrevise his decisions with reference to all real property; the county commissioners court, sitting as a board of equalization, has noauthority, expressly or impliedly, to consider questions relating to tax exemptions, but its authority is limited to matters affecting valuations.

s very truly,

‘2. MARTIN orney Qeneral of Texas. .

Hon. JamesE. Barlow, Page 9 (M-328 ) Prepared byEdwardH.Esqulvel Assistant Attorney General APPROVED: OPINIONCOMMITTgE Kerns !lkylor, Chairman Bill Allen JohnReeves JamesMcCoy Alfred Walker Gabriel QutSmrez HAWTRORNE

PHILLIPS EICECUTIVE

ASSISTANT

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