PRICE DANIEL ATTORNEY

GENERA,. Arrclx-IN 1,. X-IGKAH

December 14, 1948

Hon. Sam Lee Opinion No. V-734 County Attorney Brasoria County **Re:** Legality of paying State and CounAngleton, Texas ty ad valorem taxes without at the
same time paying drainage disDear **Mr.** Lee: trict taxes onthe same tax roll.

You request an opinion upon the following questions: “Drainage District No. 4, located entirely within Braaoria County, Texas, was cr,eated **under** Section 52

### ofArt. 3 of the Constitution ofthe State of Texas and subsequently availed itself ofthe benefits ofArt. 16,Section 59 ofthe Constitution without change of
nnme

. “The Commissioners’ Court of Braxoria County determines the tax valuation ofthe drainage district
aa 

### aboard ofequaliaatioa andsets thefax levy as well 

### as adopts the budget 

### for the drainage district.

“Due notices ofhearings were given and hearings were held on the questions of values and budget **for** the district. but no taxpayer appeared and entered a protest onthe values, the budget **or** levies. The Tax Collector and 

### Asressor for Braxori& Cauoty, Texas has made up his tax rolls for the 

### y8ar 1948

### aad io now 

### receivi.mgtaxes for the gear 1948. The drainage **dirtrict tax**  **Is on** **the** Mme **tax** roll ae the stat, and couMy taxec and is payable at the eame timt the state and county taxes are payaMe. The Tax ColLcfor has asked me the following qllestionnr
“1, 

### Cur atarpafelr orniy property loeatad withIn the 

### draiange district and taxable by such district. par hfe state aad couuty taxes onhi,s property located wffhf8 such drofnage district, without 4t the same time. pnpirr his drrfnage district taxes onthis 

### propwiy?

**“ 2.**  Ia the event that such state and county tares 4rr payable without the drainage districtHon. Sam Lee, Page 2 (V-734)

tax being paid, am I. as Tax Collector, autborieed to give the taxpayer a receipt showing his state and c,ountytaxes paid?

**““ 3.**  In the event that a taxpayer tendered payment ofhis State and county taxes prior to November 2ndwithout the payment ofhis drainage district taxes and I refused the same, is such taxpayer entitled to the percentage reduction provided by sPatute for the payment of taxes onor before November 2ad? -
We note briefly tbe status of drainage dis%ricts. Such districts are created by constitutional and statutory authority, and exist separate and apart from the counties wherein they are located. The following authorities support this view: American Surety Company of New York v. Hidalgo County, 283 S.W. 267 (writ refused); Harris County Flood Control District v. Mann, 135Tex. 239, 140S.W.(i?d) 1098. From the firs% case we quote:

w 0D

.The drainage district is as much an en%ityas is the city@and clothed with the authority to ‘sue and be **sued** in all courts ofthis state in the name of such drainage district, and all cour%s ofthis state shall take judicial notice ofthe establishment 

### ofall such districts.’ Hidalgo county in this suit has appeared for it as would %henext friend for a minor or a lunatic, but thaUhas not des%royed ite separahe existence as a drainage dis%ric%. Matagorda County Drainage DistricU v. Gaines g 

### Corbett (Tex.Civ. App.) 140S.W. 370.“’
Neither the State ofTexas nor the County of Braaoria has any 

### iatereet in the funds or taxes ofthe drafnage district. The 

### fad that the Commissioners’ CourU, the Tax **Aseessor** Collector, the County Auditor;;and the County Treasurer lnave certaim d&e@ conferred upon them by law in the admiwiis%ra**tion of** **the** fiscal a%fairs ofthe d&strict does not change this. Inthe performance ofthese dutfes tb.eyare merely performing additional duties, not iwconairhent with those ordinarily required ofthem under the law. That such additioauel duties may be required ofthem by the Lagiala%ure has been approved by
our cou~te, and for this they receive no addi%ional compensation. Settegast v, Harris County, 159S.W.(2d) 543 (Ct.Civ.Appd, writ of error denied). The State and County taxes cowstitute separate and distinct obligations ofQheUaxpayer, quite separate and diiitinct from the drainage district taxes.

Your request reveals that you have dowe a commend-Hon. Sam Lee, Page 3 (V-734)

able amount ofwork and research upon the questions presented, but after careful consideration WChave reached opposite conclusions from those expressed by you. We have concluded that all three questions should be answered in the affirmative, In the case of Richey, Tax Collector v. 

### Moor, 112Tax. 493, 249 S.W. 172,Chief Justice Cureton, speaking for the Supreme Court, said:

“In considering the rule requiring the full payment ofthe taxes, we think it an appropriate deduc,- tion from the authorities to say that, where it is necessary for any one, in order to preserve unimpaired his property rights, to pay the taxes due onany separate tract or parcel of land which has been separately assessed, he has the right to do so; and, where the statutes can be construed to accomplish this end, they should be so construed. Under the constitutional provision **before** us, the right ofthe citincn tohave any tract ofhis land free of any lien, except that to secure the taxes levied against it, is an important, substantial, and real property right, not limited by the Constitution by any obligation to pay all other taxes due by him. If

### we were to say that the taxpayer cannot pey% taxes on one tract ofhis land **without** paying
onall, or paying all of his taxes, in its final effect
onhim, as previously stated, vu would be awarding
a lien not provided by the Constitution, or imposing
a quasi-distraint not warranted by that instrument. The general rule that all taxes due must be paid at 

### onetime is not to be so blindly followed as to subvert the plain meaning ofthe organic law. We arc ofthe opinion that the tax against such separate tract 

### or parcel of land, insofar as the right of payment is concerned. is to be reuarded as a rewrate tract, and may be paid without>t the same tilt paying other 

### taxes.” (Emphasis supplied)

It is true that the identical question before the court in thin eato is not the same as here, but we think the principle is the same. fudge Cureton was speaking specifically of taxes upon separate tracts of land separately 

### assessed, but from **the** laogutgt used it seems it would apply with equal force to separate taxes upon~the same property. Note some ofthe laagnagt used by Judge Cureton in this opinion. FOP example he says: *The taxpagtr ia not required to pay all other taxes due by him;

. . .or paying all ofhis taxes* without at the same time paying 

### other taxes. The drainage tax is a part ofthe taxpayer’s other taxes. and is a part ofall other taxes due by him.Hen. Sam Lee, Page 4 (V-734)



### Moreover, as observed byJudge Cureton, ifwewere to holdthat

# tattaxpayer must payhis drainage district taxes at the same tima he 

### pays hit StateandCouutytaxes, wewould in effect bt tndteroriop to **enforce** 

### a lien for thepayment ofone taxtorequire the payment of another separate 

### anddistinct **tar,** and to place upon the taxpayer a distraint as to the pay

### ment oftie Stat8andCou@tytaxte notprovided for intheConsbktutiooor sbetutes.

Intheabsence ofsome statitory authority requiring the taxpayer to pay his drainage tax, which **is** a separate tax 

### and aecnrtd by a separate lien, at the same time he pays his State and County taxes, such a requirement is unauthorieed, notwithstanding his drainage tax is upon the same tax roll as the State and County taxes. The facts that the Commissioners’ Court acts 

### as aboard ofequalization as 

### tothe drainage taxes and that the County Tax Collector collects the tax, are not sufficient within 1 themselves to require the taxpayer to pay the 

### drainage tax at the same time 

### he pays his State and County taxes, if he chooses not to do 80. The Legislature has made ample provision **for** the 

### collection of drainage district taxes, both current and delinquent 

### (Arts. 8135 to 8144, V.C.S.); but placing a distraint upon the tax**payer at**  **to**the plrymcnt ofbke State aad County taxes unless his 

### draimg# bq~~twe petdat bbt same 

### timeis not 

### onecdthomtth**tds prevl+Td**  **by**

### tktLeStrltture.

It is, **theraforc,** our conclusion that a tatpayer may pay hia State 

### andCounty 

### taxes atanytime thsyare dueand payable, 

### natwithstandiq hemay chosse nottopy atthesame time his dauinqt **district futs**  **eerearrtd on** **the**State and County ~011s.
SUMMARY


### StateandC?usty tart8 

### may bepaidwithout **re** 

### quiriag thetaxpayer to 

### paydrainage diatricb baxtc 

### upa the same 

### property, notwithrbandia~ the drainage district taxes are **assessed** upon the same tax rolls. American Surety Co. of New 

### York et al v. Htdalgo County et al, 283 S.W. 267 (writ refused); Harris County Flood Control District v. Mann, 135 Ttx. 239, 140S.W,(td) 1098; Richey, Tax Collector V. Mow, 112Tex. 493, 249 **SAW.** 172;

### Arts. 8135 to 0144, V.CSs.

Yours very truly
ATTORNEY GENERAL OF TEXAS