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# The Attorney General of Texas January 24, 1978 JOHNL.HILL AttorneyGeneral
Hdnorable Joe Wyatt, Jr. Chairman, Committee onWaysand Means Texas House ofRepresentatives 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. IJIenacting article 72444 the Legislature intended that the assessing ofproperty for taxation bepracticed &d regulated as a learned profession and that the practitioners inthis State beaccountable to the public. The purpke ofthe statute is

to assure the .people ofTexas that the responsibility of assessing property for taxation is entrusted only to those persons duly registered and competent according to the regulations provided bythis Act. V.T.C.S. art. 7244b, !i1,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 acounty,” 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. ThenBoard is authorized to suspend or revoke the registration of any person whoviolates a provision ofthe statute or any rule orregulation ofthe Board.

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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 asassessors.” Sec. 12(l). Anapplicant inthis 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 awritten examination and, within five years oftheir 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 ismade applicable to county tax assessorcollectors, and since registrants are required to qualify under the various categories of the statute, it isclear that article 7244b imposes qualifications upon the office of county tax assessor*olIector. isempowered to doso. You first ask whether the Legislature
Article 8, section 14of 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 himnoqualifications necessary to hold the office. It is well established that,

where the Constitution prescribes the qualifications for office it isbeyond the legislative power to change or add to the qualifications, unless the Constitution gives that power. Burroughs v. Lyles, 181S.W.2d570, 574(Tex. 1944);Dickson v.Strickland, 265S.W. 1012,1015(Tex. 1924);Ex arte Lefors 347 S.W.2d 254 255 ( Texas court has ever erect Y a ressed, however, tie auestion of whether the +-I76 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 noqualifications, 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, 293So.2d40, 43(Fla. 19741;State exrel. Lippincott i!i==2g --

-3610 19401. See also State ex rel. Flynn v. Board of ections ofCuyahoga County, 129N.E.2dm (Ohio 1955).

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The most instructive case for our purposes is a 1934decision 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, 158So. 273, 274 (Fla. 1934).The office ofcounty surveyor ISone 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, 510S.W.2d655(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 11of this Act to

register with the board commits a Class A misdemeanor if hefails 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 orrevoke the license ofany registrant for violation ofthe statute or ofany Board rule or regulation. The Board isrequired to conduct ahearing onany such violation with adequate notice to the registrant. Your final question is whether revocation ofhis registration acts toremove a county tax assessor-collector from office.. Article 7244b does not so provide, but the court inPhagan, E, held that the disbarment ofa district attorney served to effect hisimmediate removal from office and that, after the effective date ofthe judgment of disbarment, he became a usurper of the office, subject to ouster by quo warrant0 proceedings. 510S.W.2dat 662. Weare 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. Wenote, however, that article 5970, V.T.C.S., provides that a

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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 bydrinking 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 ofTax 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 himfrom office.

Attorney General ofTexas APPROVED: 

# ?z&h&lLd

M.KENDALL, Pust Assistant

Opinion Committee 

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