. . 

_ . 

The Attorney General of Texas 

January 24, 1978 

JOHN L. HILL 

Attorney General 

Hdnorable Joe Wyatt, Jr. 

Chairman, Committee on Ways and 

Means 

Texas House of Representatives 

Austin, Texas 

Opinion No. H- 1120 

Re: Validity of article 72444 

V.T.C.S., the Texas ; Assessors 

Registration and Professional 

Certification Act. 

Dear Chairman Wyatt: 

You have requested our opinion regarding the constitutionality of 

article 7244b, V.T.C.S., enacted by the 65th Legislature, and several related 

questions. 

IJI enacting article 72444 the Legislature intended that 

the assessing of property for taxation be practiced &d 

regulated as a learned profession and that the practitioners in this State be accountable to the public. 

The purpke of the statute is 

to assure the .people of Texas that the responsibility of 

assessing property for taxation is entrusted only to 

those persons duly registered and competent according 

to the regulations provided by this Act. 

V.T.C.S. art. 7244b, !i 1, Acts 1977, 65th Leg., ch. 391,106s. 

In order to effect the intent of article 72444 the statute creates a 

Board of Tax Assessor Examiners, which is empowered to promulgate rules 

and standards of professional conduct for assessors and to insure compliance 

therewith. .Certain classes of individuals, including “persons elected or 

appointed to act aaassessors for a county,” are required to register vith the 

.wd; and the Board is directed to classify every registered individual as a 

,(1) registration: permit .+oldert (2) registered Texas ,a!+sessor, (3) registered 

“‘Texas essessor and candidate-for certification,‘~or (4) registered profetiional 

‘%ssessor.~” Sets; -ll, 12. Then Board is authorized to suspend or revoke the 

registration of any person who violates a provision of the statute or any rule 

or regulation of the Board. 

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Honorable Joe Wyatt, Jr. - Page 2 (H-1120) 

Certain county tax assessor-collectors may qualify for classification as a 

registration permit holder, “which includes newly elected or newly appointed 

assessors without previous experience as assessors.” Sec. 12(l). An applicant in this 

category may be issued a permit so long as he is a resident of the state, of good 

moral character, and supplies favorable recommendations from three persons, one 

of whom must be a registered assessor. sec. 15. Most county tax assessorcollectors, however, will probably be classified initially as “registered Texas 

assessors.” The qualifications for this category of registration are much more 

stringent, including those relating to age, education and work experience. 

Registrants must pass a written examination and, within five years of their original 

registration, demonstrate compliance with the requirements of section 17, which 

prescribes additional qualifications for a ‘candidate for certification.” Sec. 16. 

Within five more years, such persons must qualify as “registered professional 

assessors” under section 18. Sec. 17(b). 

Since the registration requirement is made applicable to county tax assessorcollectors, and since registrants are required to qualify under the various 

categories of the statute, it is clear that article 7244b imposes qualifications upon 

the office of county tax assessor*olIector. 

is empowered to do so. 

You first ask whether the Legislature 

Article 8, section 14 of the Texas Constitution establishes the elective office 

of Assessor and Collector of Taxes for each county. It requires the occupant of 

that office to “perform all the duties with respect to assessing property for the 

purpose of taxation and of collecting taxes, as may be prescribed by the 

Legislature,” but it imposes upon him no qualifications necessary to hold the office. 

It is well established that, 

where the Constitution prescribes the qualifications for 

office it is beyond the legislative power to change or add to 

the qualifications, unless the Constitution gives that power. 

Burroughs v. Lyles, 181 S.W.2d 570, 574 (Tex. 1944); Dickson v. Strickland, 265 S.W. 

1012, 1015 (Tex. 1924); Ex arte Lefors 347 S.W.2d 254 255 ( 

Texas court has ever +-I76 erect Y a ressed, however, tie auestion of whether the 

Tex. Crim. 1961). No 

Legislature may impose quaiifications upon a constitutional office where the 

Constitution itself has not done so. 

, The general rule in other jurisdictions is that, where the Constitution 

prescribes no qualifications, the Legislature is authorized to do so. See Annot., 34 

A.L.R.2d 155. 174 (19541. This view has been uoheld as to a wisvarietv of 

constitutional offices. See Opinion of the Justices, 285 So.2d 87, 90 (Ala. 1973); 

State ex rel. Askew v. Gas, 293 So.2d 40, 43 (Fla. 19741; State ex rel. Lippincott 

i!i==2g -- 

-3610 19401. See also State ex rel. Flynn v. Board of 

ections of Cuyahoga County, 129 N.E.2dm (Ohio 1955). 

p. 4576 
Honorable Joe Wyatt, Jr. - Page 3 (h-1120) 

The most instructive case for our purposes is a 1934 decision from Florida, 

where the Court upheld the Legislature’s authority to prescribe qualifications for 

the constitutional office of county surveyor. The Court fully subscribed to the 

Texas view that, where the Constitution creates an office and lists its eligibility 

requirements, the Legislature may not impose additional qualifications. But, the 

Court held, it does not necessarily follow that, where the Constitution is silent as 

to qualifications for a particular office, a statute fixing qualifications is 

unconstitutional. State ex rel. Landis v; Ward, 158 So. 273, 274 (Fla. 1934). The 

office of county surveyor IS one of a “techmcal character,” and it is reasonable to 

expect the holder of it to be competent. The statute, by establishing professional 

standards for surveyors, and making them applicable to persons holding the 

constitutional office of county surveyor, cannot be said to conflict with any 

constitutional provision. g at 275. 

These decisions indicate that the Texas Supreme Court would probably uphold 

the validity of the qualifications imposed upon tax assessor-collectors by article 

7244b. See Phagan v. State, 510 S.W.2d 655 (Tex. Civ. App. - Fort Worth 1974, writ 

ref’d n.rx. 

Your next question is whether R county tax assessor-collector may be 

prosecuted for failure to register with the Board. Section 24 of article 7244b 

states that 

[a) person who is required under Section 11 of this Act to 

register with the board commits a Class A misdemeanor if 

he fails to register. 

Since a county tax assessor-collector is one of those persons required to register 

under section 11, it seems clear that the occupant of that office may be prosecuted 

for failure to register with the Board. 

You also ask whether the registration of a county tax assessor-collector may 

be revoked for a violation of Board rules. As noted previously, section 10 

authorizes the Board to suspend or revoke the license of any registrant for violation 

of the statute or of any Board rule or regulation. The Board is required to conduct 

a hearing on any such violation with adequate notice to the registrant. 

Your final question is whether revocation of his registration acts to remove a 

county tax assessor-collector from office.. Article 7244b does not so provide, but 

the court in Phagan, E, held that the disbarment of a district attorney served to 

effect his immediate removal from office and that, after the effective date of the 

judgment of disbarment, he became a usurper of the office, subject to ouster by 

quo warrant0 proceedings. 510 S.W.2d at 662. We are not at liberty to disregard 

this pronouncement, and must advise, therefore, on the basis of Phagan, that a 

revocation of the registration of a county tax assessor-collector acts to remove 

him from office. We note, however, that article 5970, V.T.C.S., provides that a 

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Honorable Joe Wyatt, Jr. - Page 4 (H-1120) 

county tax assessor%ollector is among those officers subject to removal “from 

office by the judge of the district court for incompetency, official misconduct or 

becoming intoxicated by drinking intoxicating liquor . . . .” 

SUMMARY 

Article 72444 V.T.C.S., will probably be upheld against the 

contention that it unconstitutionally imposes qualifications 

for the office of county tax &essor-coUector. A county 

tax assessor+oHector may be prosecuted under article 

7244b for failure to register with the Hoard of Tax Assessor 

Examiners. The registration of a county tax assessorcollector may be revoked for violation of Hoard rules. 

Revocation of the registration of a county tax assessorcollector acts to remove him from office. 

Attorney General of Texas 

APPROVED: 

?z&h&lLd 

M. KENDALL, Pust Assistant 

Opinion Committee 

w 

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