JIM MATTOX 

Attorney General 

Supreme Cowl Building 

P. 0. Box 12548 

Austin. TX. 78711. 2549 

5121475.2501 

Telex 9101874.1367 

Telecopier 512l475-0256 

714 Jackson, Sulle 700 

Dallas. TX. 752024506 

21417428944 

4824 Alberta Ave.. Suite 160 

El Paso. TX. 799052793 

9151533.3484 

lW1 Texas. Suite 700 

Houston, TX. 77002-3111 

71312255886 

808 Broadway, SuiIe 312 

Lubbock, TX. 79401.3479 

SOSil4?-5230 

4309 N. Tenth. Suite S 

McAllen. TX, 78501.1685 

5121682.4547 

200 Main Plaza, Suite 400 

San Antonio. TX. 78205.2797 

5121225-4191 

An Equal Opportunity1 

Affirmative Action Employer 

The Attorney General of Texas 

hagust 21. 1986 

Honorable Gary Gar:::tson 

Ector County Attor:rey 

Courthouse, Room 2’13 

Odessa, Texas 79 761 

Opinion No. .JK-536 

Re: Validity of a “tax clearance” 

account for excess property tax 

payments 

Dear Mr. Garrison: 

Pou ask us the following questions: 

Are there any legal objections to the Tax 

Assessor-Collector of Ector County, Texas, having 

a ‘tax el,earance’ account into which are deposited 

excess llroperty tax payments and from which are 

withdrawn amounts necessary to make up property 

tax paynents which are short? If there are no 

legal ol jectlons, does the Tax Assessor-Collector 

have the authority to create such an account or 

does thJs require approval from anyone -- ‘such as 

the Ectcr County Commissioners Court? 

By your use of the phrase “tax clearance” account and the 

authorities which you cite in the brief accompanying your request, we 

understand you to ask whether such an account may be established that 

would serve to satisfy, from the overpayments of taxpayers, the tax 

liabilities of those taxpayers who fall to tender sufficient payxent. 

We conclude that no such account may be established. Because we do 

so, we need not answer your second question. 

You have provided us with the following information relevant to 

your request: 

The ‘tax clearance’ account concept is used by 

four ccunties’ tax officials whom I contacted. 

They sa:Ltl that it is justified by convenience, the 

money aid effort spent to return overage/shortage 

checks, and revenue lost from not immediately 

deposlt:lug tax payments into the county treasury. 

The amomt of excess might be noted for audit and 

account,Lng purposes. Each county set a monetary 

limit, such as $10.00, below which a refund would 

p. 2467 
Eonorable Gary Garrison - Page 2 (JX-536) 

be sent only upon taxpayer request. Apparently, 

under the Properi:y Tax Code, a refund of excess 

payment is not required unless and until a taxpayer requests it. The excess amount would be 

deposited into !:he tax clearance account. Tax 

payments which are ‘short’ by no more than a set 

amount, such as $2.00. are acceptad. The shortage 

is noted for auditing and accounting purposes. 

Money is trans:iarred from the tax clearance 

account to make up the shortage. 

Article VIII, section 10, of the Texas Constitution provides the : 

following: 

910. Release’ from payment of taxes 

Sec. 10. The Legislature shall have no power 

to release the inhabitants of, or property in, any 

county, city or town from the payment of taxes 

levied for Stats or county purposes, unless in 

case of great public calamity in any such county, 

city or town, when such release may be made by a 

vote of two-thirds of each Rouse of the Legislature. 

Article III, section 55, of the Texas Constitution provides the 

following: 

$55. Release or extinguishment of indebtedness to 

state, county, subdivision or municipal corporation 

Sec. 55. The Legislature shall have no power 

to release or extinguish, or to authorize the 

releasing or sxt:lnguishing. in whole or in part. 

the indebtednesri,, liability or obligation of any 

corporation or jadividual. to this State or to any 

county or defired subdivision thereof, or other 

municipal corporation therein, except delinquent 

taxes which have! been due for a period of at least 

ten years. 

While penalty and interest owed on delinquent taxes may be waived 

if it is so provided by l~aw. Jones v. Williams, 45 S.W. 2d 130 (Tex. 

1931) ; Attorney General Dpinion JM-311 (1985), taxes themselves, 

whether current or delinquent. clearly may not be. Smith v. State, 

420 S.W.2d 204 (Tex. Civ. App. - Austin 1967). aff’d. 434 S.W.2d 342 

(Tex. 1968). State v. Pkneer Oils Refining Co., 292 S.W. 869 (Tex. 

1927). By utillaing any &ess tax monies paid to the taxing units to 

P. 2468 
Eonorable Gary Garrison - Pa:ge 3 (JM-536) 

offset the shortage of tho!re who fail to tender the full amount, the 

tax assessor-collector would be impermissibly waiving or releasing the 

debts owed by those who fa!.led to tender the sufficient amount. The 

legislature Is clearly prohibited from authorizing such a practice by 

article III. section 55, and article VIII, section 10. of the Texas 

Constitution. Since the legislature may not authorize the practice, 

it follows that neither the commissioners court *or the tax 

assessor-collector may do so. 

Even if the practice about which you inquire were established 

only for purposes of more efficient accounting, &, if no attempt 

were made to release or extinguish the tax liabilities of those 

taxpayers who tendered an insufficient amount, the practice would 

still be statutorily impermissible. In your letter, you state that 

tenders of payment which are less than the amount imposed by, for 

example, $2.00 are acceptoil. There are only two means by which a 

tender of less than the amount imposed may be accepted~. First, 

section 31.03 of the Tax C,ode authorizes a split payment whereby a 

taxpayer.who tenders one-half of the taxes owed by December 1 may 

tender the remaining half by July 1 with no accrual of penalty or 

interest. Second, section 31.05 of the Tax Code authorizes discounts 

of certain specified percer.tages for payments tendered before January. 

There is no other provision which permits acceptance of any amount 

tendered that is less than the amount of taxes imposed. 

Accordingly, we, conclude that the county tax assessor-collector 

may not establish a “tax c,learance” account in which excess property 

tax payments may be depo,;:Lted and then withdrawn to offset those 

property tax payments which are less than the amount imposed. 

SUMMARY 

A county tax assessor-collector may not establish a “tax cl,carance” account in which excess 

property tax payments may be deposited and then 

withdrawn to offeiet those property tax payments 

which are less tham the amount imposed. 

JIM HATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

p. 2469 
Eonorabla Gary Garrison - Pqe 4 (JM-536) 

NARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

chairman, opinion Cdttee 

Prepared by Jim Moellinger 

Assistant Attorney General 

p. 2470