June 21, 1988 

Honorable Stan Schlueter Opinion No. JM-919 

Chairman 

Ways and Means Committee Re: Whether the directors 

Texas House of Representatives of a taxing unit are perP. 0. Box 2910 mitted to waive interest 

Austin, Texas 78769 and penalties on a tax payment delinquent by reason 

of a central appraisal district error (RQ-1173) 

Dear Representative Schlueter: 

you have asked us to determine 

[wlhether a central appraisal district is an 

agent of a taxing unit which utilizes the 

central appraisal district so that an error 

or omission of the central appraisal district 

would allow the board of the taxing unit to 

waive interest and penalties on a delinquent 

tax payment under section 33.011 of the Tax 

Code. 

The Tax Code provision to which you refer reads: 

The governing body of a taxing unit may provide for the waiver of penalties and interest 

on a delinquent tax if an act or omission of 

an officer, employee, or agent of the taxing 

p~j& caused the taxpayer's failure to pay the 

tax before delinquency and if the tax is paid 

within 21 days after the taxpayer knows of or 

should know of the delinquency. (Emphasis 

added.) 

A county is a "taxing unit" within the meaning of the 

statute, but a central appraisal district is not. Section 

1.04(12) of the Tax Code provides: 

(12) 'Taxing unit' means a county, an 

incorporated city or town (including a homeP- 4599 
Honorable Stan Schlueter - Page 2 (JM-919) 

rule city), a school 

district or authority 

district, a special 

(including a junior 

college district, a hospital district, a 

district created by or pursuant to the Water 

Code, a mosquito control district, a fire 

prevention district, or a noxious weed 

control district), or any 

unit of this state, 

other political 

whether created by or 

pursuant to the constitution or a local, 

special, or general law, that is authorized 

to imoose and is imoosinu ad valorem taxes on 

property even if 

another political 

the governing body of 

unit determines the tax 

rate for the unit or otherwise governs its 

affairs. (Emphasis added.) 

An appraisal district does not fit this definition because 

it is not authorized to "imposel' taxes on property: it is 

responsible only for appraising property in the district. 

See Barclav v. Ochiltree ADDraiSal District Board, 730 

S.W.2d 878 (Tex. App. - Amarillo 1987, no writ). Cf. Tax 

Code 5§171.2021(~)(2), 311.002(4). 

Another statutory provision also makes it clear that an 

appraisal district is not a "taxing unit." Section 1.15 of 

the Tax Code, enacted in 1983 to become effective October 1, 

1985,l prohibits a taxing unit from employing "any person 

for the purpose of appraising property for taxation purposes 

except to the extent necessary 

Section 6.05(b) of 

to perform a contract under 

[the1 code" (section 6.05(b) allows 

appraisal districts to contract with a taxing unit to 

perform the duties of an appraisal office for the district). 

On the other hand, an appraisaldistrict is 

responsible for appraising property 

statutorily 

for the ad valorem tax 

purposes of each taxing unit in the district -- which necessitates employing appraisers. Tax Code 56.01(b). See Tax 

Code 56.05(d). Cf. Tex. Con&. art. VIII, 518; Wilson v. 

Galveston County Central Annraisal District, 713 S.W.2d 98 

(Tex. 1986). 

1. Section 1.15 of the Tax Code was codified as 

section 1.13 until 1987. See Acts 1983, 68th Leg., ch. 

1028, at 5463; Acts 1987, 70th Leg., ch. 167, §5.01(a)50, at 

1360. 

p. 4600 
Honorable Stan Schlueter - Page 3 (JM-919) 

It has been suggested that because an appraisal 

district is not itself a taxing unit, and because it is a 

"political subdivision of the state," Tax Code 56.01(c), an 

error caused by an officer, employee or agent of the 

appraisal district would not be an error caused by an 

officer, employee, or agent of the taxins unit so as to 

allow the taxing unit to waive penalties and interest on 

delinquent taxes under section 33.011 of the code. In our 

opinion, however, a central appraisal district, within the 

meaning of section 33.011, acts as the agent of the taxing 

units for which it makes appraisals. 

The argument that the appraisal district cannot be the 

agent of the taxing unit rests on the familiar rule that 

l"agencyrl is a legal relationship founded upon an express or 

implied contract whereby the agent acts for and on behalf of 

the principal and under his control. See 3 Tex. Jur. 3d, 

Asency 51, at 13. The relationship between an appraisal 

unit and a taxing unit for which it makes appraisals is said 

to be neither consensual nor one in which the .appraisal 

district is subject to the control of the taxing unit, 

since the duties of the appraisal district are established 

independently by statute. 

There are, of course, situations where the ordinary 

definition and consequences of agency do not apply. Not all 

agencies are created by contract: some arise by operation of 

law. The administrator of a decedent's estate, for example, 

has been termed a "statutory agent." See Roberts v. Kenna, 

241 S.W.2d 680, 685 (Tex. Civ. App. - Beaumont 1951, no 

writ). Agencies can be created by estoppel. -3 Tex. 

Jur. 3d, Aoencv 547, at 77. And an agent whose power of 

attorney is coupled with an interest is not completely 

subject to the control of the principal. Id. 528, at 51. 

An agent for a public body is no less an agent because 

the duties of the agent are established by statutory law 

rather than by contract at common law. A public depository 

holds tax collections for the county as the trustee and 

agent of the county. See Fidelity and Deoosit Co. v. Farmers 

and Merchants National Bank, 121 S.W.2d 503 (Tex. Civ. APP. 

- Fort Worth 1938, writ dism'd). In Callashan v. McGown, 90 

S.W. 319, 327 (Tex. Civ. App. 1905, writ ref'd), the court, 

speaking of public officials, said: 

An officer is simply an agent of the public, 

whose power of attorney is the law, which 

prescribes his duties and limits his authority 

to such acts only as are necessary and 

p. 4601 
Honorable Stan Schlueter - Page 4 (JM-919) 

incidental to a proper discharge of such 

duties as it imposes. 

An independent contractor engaged by a Public Utility 

District to read meters and to determine and collect water 

bills was held by this office to be the agent of the 

district in discharging those tasks. See Open Records 

Decision No. 437 (1986). We have also concluded that an 

independent governmental agency may be considered to be 

acting as the agent of another governmental entity even 

though no statute expressly denominates one as the agent of 

the other: yiz., in Attorney General Opinion JM-446 (1986), 

the State Purchasing and General Services Commission was 

said to be the agent of the Supreme Court in collecting and 

abstracting information concerning the court. 

Alternative concepts of "agency" need not be exhaustively explored. .Here, we need only demonstrate that a 

legislature could reasonably have intended to use the word 

"agent" in a broader legal sense. The. purpose of the 

legislative provision is clear and its use of "agent" in 

the suggested restrictive sense would lead to incongruous 

results. 

Section'1.15 of the Tax Code (previously section 

prohibiting taxing units from employing appraisers, 

1.13) 

was 

passed in 1983 but did not take effect until October 1, 

1985. See Acts 1983, 68th Leg., ch. 1028, at 5463. Section 

33.011 of the Tax Code (which permits the governing body of 

a taxing unit to provide for the waiver of penalties and 

interest on delinquent taxes "if an act or omission of an 

officer, employee, or agent of the taxing unit" caused the 

delinquency) became effective more than three months earlier 

-- on June 14, 

enacting it. 

1985, the day the Governor signed the bill 

The bill was passed by a unanimous senate and 

a unanimous house, except for one house member present but 

not voting. 

Thus, when the waiver provision was enacted, the 

legislature was aware that it would become effective at a 

time when 

employing 

not every taxing unit was yet prohibited from 

appraisers and 

delinquencies caused by the 

when penalties resulting from 

errors of such employees would 

be waivable under section 33.011. 

intended that 

The legislature clearly 

errors caused by RgNg appraisal personnel 

resulting in delinquency penalties would allow waiver under 

the statute. 

p. 4602 
Honorable Stan Schlueter - Page 5 (JM-919) 

Though not all taxing units were prohibited from 

employing appraisers during the period from June 14, 1985 to 

October 1, 1985, m were. The same 1983 bill which prohibited everv taxing unit from employing appraisers after 

October 1, 1985 (except in a contract situation), prohibited 

some (those located in appraisal districts that had not 

postponed their appraisal duties pursuant to a 1981 law) 

from employing appraisers after October 1, 1984. See Acts 

1983, 68th Leg., ch. 1028, at 5463. The legislature, then, 

was not only aware that penalties resulting from delinquencies caused by the errors of some appraisers -- those 

employed by taxing units at the time section 33.011 became 

law -- would be waivable; it was also aware that some taxing 

units were then prohibited from employing appraisers themselves and were forced to rely upon appraisal districts 

for such appraisal services. See Driscoll v. Harris County 

Commissioners Court, 688 S.W.2d 569 (Tex. APP. - Houston 

[14th Dist.] 1984, writ ref'd n.r.e.). 

The penalties and interest exacted of delinquent taxpayers in Texas are considered "penalties,1' not taxes. 

Jones v. Williams, 45 S.W.2d 130 (Tex. 1931). As such, 

their remission may be authorized by general law, though not 

by a special or local law, notwithstanding sections 51 and 

55 of article III of the Texas Constitution, or section 10 

of article VIII. Jones v. Williams, suora. Cf. Tex. Const. 

art. III, 556. 

If, in its application to appraisers, section 33.011 

applied only to those taxing units which on June 14, 1985, 

could still employ appraisers (a closed class), an argument 

might be made that it constituted unconstitutional local or 

special legislation, but we do not so regard it. In our 

opinion, section 33.011 was intended to be a uniform, 

general law extending to all taxpayers the possibility of 

relief from the consequences of a tax delinquency caused by 

taxing authorities. 

The consequences of tax delinquency are severe. 

Delinquency triggers the application of section 15 of 

article VIII of the Texas Constitution, which reads: 

The annual assessment made upon landed 

property shall be a special lien thereon: and 

all oronertv. both real and personal, 

belonaina to anv delinouent taxnaver shall be 

liable to seizure and sale for the oavment 

of all the taxes and nenalties due by such 

delinouent; and such property may be sold for 

p. 4603 
Honorable Stan Schlueter - Page 6 (JM-glg) 

the payment of the taxes and penalties due 

by such delinquent, under such regulations 

as the Legislature may provide. (Emphasis 

added.) 

See Tax Code title 1, ch. 33. 

It is unreasonable to suppose that both the house and 

the senate would unanimouslv vote to permit relief of the 

constituents of m legislators, but not others, from 

burdens caused by tax appraisers exercising authority that, 

insofar as the taxpayer is concerned, is identical in 

nature, operation, and effect. The result would be even 

more incongruous in a %ontract" situation if the word 

"agent," as used in section 33.011, were given a narrow 

meaning. A central appraisal district is permitted by 

section 6.05(b) of the Tax Code to contract with a taxing 

unit within the district to perform the functions of an 

appraisal office. Under the narrow interpretation suggested, 

mistakes made by appraisers 

unit -- 

used by the contractinq taxing 

if delinquencies resulted -- would produce penalties 

waivable by the contracting taxing unit 

but p& waivable by 

[caused by its 

agent I , other taxing units in the district [not caused by their agent], even thouah the delinauencies occurrina in all taxina units were caused bv 

the identical mistake of the identical anoraiser. We are 

confident that the legislature intended otherwise. 

When taxes become delinquent as a result of errors 

committed by authorities charged with tax administration and 

not by reason of the taxpayer's fault, it is unjust, harsh 

and oppressive to visit upon the taxpayer a penalty which 

the taxpayer could not have avoided by any action of his 

own. While it may be within the power of the legislature to 

enact a statute having such an effect, it should not be held 

that the legislature intended to do so unless the language 

of the statute compels such construction. See Austin v. 

Strong, 1 S.W.2d 872 (Tex. 1928). In our pinion, the 

language of section 33.011 of the Tax Code does not compel 

such a construction. 

The intention of the legislature in enacting legislation is the essence of the law, and it is the duty of courts 

to give effect to the legislative purpose. &S 53 Tex. Jur. 

2d, Statutes 5125 et sea., at 180. The purpose of section 

33.011 is to allow the relief of taxpayers from harsh and 

unjustified penalties resulting from delinquencies caused by 

errors of taxing authorities which the taxpayers were 

powerless to prevent. In order to effectuate that purpose, 

p. 4604 
. 

Honorable Stan Schlueter - Page 7 (JM-919) 

it is necessary 

section 33.011 

district making 

We do so. 

to broadly read the term VVagent,'l as used in 

of the Tax Code, to include an appraisal 

tax appraisals for use by the taxing units. 

SUMMARY 

To effectuate the legislative intent, 

the term "agent," as used in section 33.011 

of the Tax Code, is to be read as including a 

central appraisal district making appraisals 

for use by the taxing unit. Therefore, the 

directors of a taxing unit are permitted to 

waive interest and penalties on a tax payment 

which is delinquent by reason of an error of 

a central. appraisal district. 

(--rb 

MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

MU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, opinion Committee 

Prepared by Bruce Youngblood 

Assistant Attorney General 

p. 4605