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 on the 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 of Art. 3 of the Constitution of the State of Texas 

and subsequently availed itself of the benefits of Art. 

16, Section 59 of the Constitution without change of 

nnme . 

“The Commissioners’ Court of Braxoria County 

determines the tax valuation of the drainage district 

aa a board of equaliaatioa and sets the fax levy as 

well as adopts the budget for the drainage district. 

“Due notices of hearings were given and hearings were held on the questions of values and budget for the district. but no taxpayer appeared and 

entered a protest on the 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.mg taxes 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 a tarpafelr orniy property loeatad 

withIn the draiange district and taxable by such 

district. par hfe state aad couuty taxes on hi,s 

property located wffhf8 such drofnage district, 

without 4t the same time. pnpirr his drrfnage 

district taxes on this propwiy? 

“2. Ia the event that such state and county 

tares 4rr payable without the drainage district 
Hon. 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,ounty taxes paid? 

““3. In the event that a taxpayer tendered payment of his State and county taxes prior to November 2nd without the payment of his drainage district 

taxes and I refused the same, is such taxpayer entitled to the percentage reduction provided by sPatute for the payment of taxes on or 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, 

135 Tex. 239, 140 S.W.(i?d) 1098. From the firs% case we quote: 

w 0 D . The drainage district is as much an en%ity as 

is the city@ and clothed with the authority to ‘sue 

and be sued in all courts of this state in the name 

of such drainage district, and all cour%s of this 

state shall take judicial notice of the establishment of all such districts.’ Hidalgo county in this 

suit has appeared for it as would %he next friend 

for a minor or a lunatic, but thaU has not des%royed ite separahe existence as a drainage dis%ric%. 

Matagorda County Drainage DistricU v. Gaines g 

Corbett (Tex.Civ. App.) 140 S.W. 370.“’ 

Neither the State of Texas nor the County of Braaoria 

has any iatereet in the funds or taxes of the drafnage district. 

The fad that the Commissioners’ CourU, the Tax AseessorCollector, the County Auditor;;and the County Treasurer lnave 

certaim d&e@ conferred upon them by law in the admiwiis%ration of the fiscal a%fairs of the d&strict does not change this. 

In the performance of these dutfes tb.ey are merely performing additional duties, not iwconairhent with those ordinarily required of them under the law. That such additioauel duties may 

be required of them by the Lagiala%ure has been approved by 

our cou~te, and for this they receive no addi%ional compensation. Settegast v, Harris County, 159 S.W.(2d) 543 (Ct.Civ.Appd, 

writ of error denied). The State and County taxes cowstitute 

separate and distinct obligations of Qhe Uaxpayer, 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 of work and research upon the questions presented, 

but after careful consideration WC have 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, 112 Tax. 493, 249 

S.W. 172, Chief Justice Cureton, speaking for the Supreme 

Court, said: 

“In considering the rule requiring the full payment of the 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 on any 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 of the citincn to have any 

tract of his 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 of his land without paying 

on all, or paying all of his taxes, in its final effect 

on him, 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 

one time is not to be so blindly followed as to subvert the plain meaning of the organic law. We arc 

of the 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 of the 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 of his taxes* without at the same time paying 

other taxes. The drainage tax is a part of the taxpayer’s other 

taxes. and is a part of all other taxes due by him. 
Hen. Sam Lee, Page 4 (V-734) 

Moreover, as observed by Judge Cureton, if we were to 

hold that tat taxpayer must pay his drainage district taxes at 

the same tima he pays hit State and Couuty taxes, we would in 

effect bt tndteroriop to enforce a lien for the payment of one 

tax to require the payment of another separate and distinct 

tar, and to place upon the taxpayer a distraint as to the payment of tie Stat8 and Cou@ty taxte not provided for in the Consbktutioo or sbetutes. 

In the absence of some 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 a board of equalization as to the 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 taxpayer at to the plrymcnt of bke State aad County taxes unless his 

draimg# bq~~t we petd at bbt same time is not one cd tho mtthtds prevl+Td by tkt LeStrltture. 

It is, theraforc, our conclusion that a tatpayer may pay 

hia State and County taxes at any time thsy are due and payable, 

natwithstandiq he may chosse not to py at the same time his 

dauinqt district futs eerearrtd on the State and County ~011s. 

SUMMARY 

State and C?usty tart8 may be paid without requiriag the taxpayer to pay drainage 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, 140 S.W,(td) 1098; Richey, Tax Collector 

V. Mow, 112 Tex. 493, 249 SAW. 172; Arts. 8135 to 

0144, V.CSs. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS