Honorable J. W. Edgar

Commissionerof Education Texas Education Agency Austin, Texas

Dear Mr. Edgar: Opinion No. M-859
Re: Whether a County Tax Assessor Collector can refuse to assess and collect independent school district taxes under Section 23.94, Texas Education Code, at a valuation different from or higher than the valuation assessed for state and county purposes and whether the Commissioner's Court should be the Board of Equalization under Section 23.94.
Your request for opinionposes the following questions:
"1

. When an Independent school district,pursuant to Section 23.94, Texas Education Code, designates the county tax assessor-collector to assess and collect its school district taxes, and to assess Its taxableproperty at a greater rate (orat greatervaluations) of value than that sameproperty is assessed for state and county purposes, legallymay he refuse to perform?
"2. When under Section 23.94, the county tax assessorcollector Is so designated to assess and collect, and assess on higher valuations, does the commlssloners court automaticallybecome the board of equalization of property values for the Independent schooldistrict; or does the law contemplate the district shall appoint Its own board of equalization for handling protests, hearing and adjustment purposes, and a preparation of a tax roll approved by a board of equalization?" Section 23.94, Education Code, Vernon's Civil Statutes, which became effective September 1, 1969, reads as follows: -4165-, .

Honorable J. W. Edgar, Page 2 (M-859)

"(a) The board of trustees of any independentschool dlstrlctmay designate as Its assessor and collector of taxes for the school district the county tax assessor-collector. "(b) The property In the school districtmay be assessed at a greater rate of value than the same property is assessed for state and county purposes, "(c) When the county tax assessor and collector Is required to assess and collect the taxes of an independent school district, the board of trusteesof such school district may contractwith the commissioners court of said county for payment for such services as theymay see fit to allow, not to exceed the actual cost incurred in assessing and collecting said taxes. "(d) The county official so selected shall turn over all Independent school district taxes collectedby him to the depository of the independent school district." Various statutoryprovisions preceded the enactment of Section 23.94 and related to the valuation tobe usedby a county tax assessor-collector in assessing ad valorem taxes for an independentschool district. Under suchprevious statutesa county tax assessor-collectorwas limited, except for a brief period, In assessing ad valorem taxes on property in independent schooldistricts to the value used to assess for countyand statepurposes.
In the case of McPhall v. Tax Collector of Van Zandt -- County, 280 S.W. 260~(Tex.~Fi.~p., 1925, error ref.),the -stated: "The law provides with reference to the assessmentof

property for Independent schooldistricts,when assessedby the county assessor, that the same shall not be assessed at a greater value than that for which it is assessed for county and state purposes. If, however, the assessment Is made by a specialassessor,

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. . . propertymay be assessed at a greatervalue than that for whlc; It was assessed for stateand county purposes. ... (atp. 264). Accord: Underwood v. Chlldress I. S. 773 (Tex.Civ. App.7912, error nsm7. &, 149 S. W.

Section 23.94, Texas Education Code now provides that when a county assessor assesses Independent schooldistrict property thathe may assess such property at a greatervalue than that used for state and countypurposes. Therefore, the question is whether a county tax assessor-collectorcan refuse to assess and collect at a rate of value leviedby a schoolboard greater than the rate for which property situated within such school district was assessed for stateand county purposes. The Texas Supreme Court In Aldlne IndependentSchool District %Sta;d;le;, 154 Tex. 547, 280 Smd2a-578 (1933)mued

2 which was thepredecessor statute to Section 23.94. The special assessor-collectorappointed to assess the school taxes In this Instancewas not the county tax assessor-collector; however,Article 2792 and related statuteswere Involved In the case. In discussing the authority of the board of trusteesand an appointed tax assessor-collector, the court said:

"We think It apparent from a reading of the above statutes, that an assessor-collectorof taxesappointed by a schoolboard Is
... only an agent or employee of such schoolboard at Its discretion. The board alone has thepower to levy and cause to be collected the annual taxes
... ."

...

...a reading of the statutes relative to the assessmentand collectionof taxes... shows that this power Is lodged by the Legislature and Constitution in the schoolboard, and not in the office of the assessor-collector. He Is but an agent or employee of theBoard to discharge the clericalduties necessary to carry out the schoolboard's powers of taxation."

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This reasoningwould apply also to a county assessorcollectorappointed underArticle 2792 because he Is likewise only an "agent"appointed at the discretion of theBoard, which 'alonehas the power to levy and cause to be collected the annual taxes.,. .' Although the wording has been changed in the Education Code from the language of Article 2792 and its relatedArticles, the relationshipbetween a schoolboard and a tax assessorcollectordesignatedby it as Its assessor and collectorof taxes Is virtually the same. We see no reason to doubt that the county tax assessor-collectoras designatedby the Board under the Education Code Is an agent of the Board to carry out the Board's powers of taxationas the Board may dictate.
The power to determine the rate to be used Is vested In the Board and not in the assessor-collector. Once the Board designates the tax assessor-collector Its agent for assessing and collectingand Instructshim on the rate of value that the Board has levied on property within the schooldistrict to be used, the tax assessor-collector Is obligated to assess and collectat the rate instructed. The language In Section 23.94 (b) that theproperty "maybe assessed at a greater rate of value' does not grant any discretion to the tax assessor-collector to determine the rate to be used or to refuse to assess at a certainrate of value. It merely removes theprior llmltatlon on the rate of value which the Board could levy. Therefore, It Is the opinion of this office thatwhen an lndependent schooldistrict,pursuant to Section 23.94, designates the county tax assessor-collector to assess and collect Its schooldistrict taxes, and to assess Its taxableproperty at a greater rate of value then that sameproperty is assessed for stateand county purposes, the county tax assessor-collector Is bound to the rate of value as levied by the Board and, as the Boards' agent, he has no discretion to assess such taxes at any other rate. The second questionposed relates to whether the County Commissioner'sCourt or a board appointed by the Board of Trustees is to serve as a Board of Equalization under Section 23.94, Education Code. Article 8, Section 18, Texas Constitution,provides: "The Legislature shallprovide for equalizing,as

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Honorable J. W. Edgar, Page 5 (M-859)

near as may be, the valuation of all property subject to or rendered for taxation, (theCounty Commissioner’sCourt to constitutea board of equalization);and may also provide for the classificationof all lands with reference to their value In the several counties.” However, in discussing Section 18, the Court in Board of Equalizationof Clt of Port Worth v- McDonald, 

### 133 Ta52r 29 s w 26

. . 

### Ir35-&5g)mtF

... It has been held that the reference to the Commissioners’Court pertains to state and county taxes, and not to city taxes, but the requirement for creation of an agency for equalizingvalues does apply to cities and towns, The necessity for some agency ... for assessing values and equalizing same, ,.. is obvious.

...I’(atp. 1139).
It is apparent that the Constitutional requirement for the use of the Commissioner’sCourt Is limited to stateand county taxes. However, the Texas Supreme Court In Miller v. Vance, 107 Tex. 485, 180 S. W. 739 (1915)determmat meCommIssIoner’s Court could properly he designated as a Board of Equalization In a situationwhere the county--taxassessorcollectorwas selectedby an Independent schooldistrict to assess and collect Its taxes,and where he was limitedby statute in assessing to the rate of value used for state and county purposes. The reasoningwas that It would be senseless to establisha board which would be powerless to equalize values, inasmuchas it could not raise the rate of valuation.
As hereinbefore stated, Section 23.94(b) granted to the schoolboard the authorlty to levy a greater rate of value on property In the school district than the sameproperty Is assessed for state and countypurposes. In Section 23.94 there Is no express requirement that a board of equalization be appointed;however Section 23.93 providing for the appolntment of an assessor-collector for the district by the board of trustees requires the assessment be equalized by a board of equalizationappointed by the board of trustees. Inasmuchas the county taxassessor-collectoras deslgnated under Section 23.74 serves the same functionas a tax assessor-collector apnolnted under the authority of Section 23.33. the llke authority for equalizationof the asoessmenl under Section 23.94,

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Honorable J. W. Edgar, Page 

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by a board of equalization can be reasonablypresumed when considered togetherwith the other two methods provided in such Education Code for selectingan assessor and collector (Sections 23.95 and 

### 23.96). In both cases, a board of equalization is provided. The overall scheme of equalization for such school districtsappears to be by a board of equalizationappointed by the schooldistricts and not a board of equalization composed of the Commissioner'sCourt. Based upon the above reasoning, it Is the opinion of this office that under Section 23.94 the independent school district should appoint its own board of equalization.

SUMMARY

When an independent school district,pursuant to Section 23.94, Texas Education Code, designates the County tax assessor-collector to assess and collect Its taxes and designateshim to assess Its taxableproperty at a greater rate of value than that sameproperty is assessed for state and county purposes, he, as an agent only, has no discretion to do otherwise in the matter. When the county tax assessor-collector Is so designated under Section 23.94, the statutory Intent is that the Board of Trustees of the Independent School District shouldappoint its own Board of Equalization. ? You&very truly,

Preparedby Harriet D. Burke AssistantAttorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman

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Sob Lattlmorc? James McCoy Fisher Tyler James #.uuick
MEADE F. GRIFFIN Staff Legal Assistant
ALFRED WALKER Executl.ve

Assistant
NOLA I;'HITFi First Assistant (M-859)

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