Honorable Carlos Valdez Opinion No. 

### JX-833 Nueces County Attorney . 901 Leopard, Room 206 Re: Collection ofcounty Corpus Christi, Texas 78401 taxes (RQ-962)

Dear Mr. Valdez:

You advise that a tax assessor collector has been elected inNueces County pursuant toarticle VIII, section 14,ofthe Texas Constitution, and ask oftwo legislative enactments that wouldabout the validity

the collection ofcounty taxes bypersons seemingly permit other than that officer.

Article VIII, section 14, ofthe constitution reads:

Except asprovided inSection 16of this Article, there shall be elected by the qualified voters of each county, anAssessor and Collector of Taxes, who shall hold his office for four years and until his
successor iselected and qualified; and such Assessor and Collector ofTaxes shall nerform all the duties with reswect to assessins wrowertv for thewurwose of taxation and of collectins taxes, as may be prescribed bv the Lecrislature. (Emphasis added.)

When the constitution was originally adopted in1876, the Assessor ofTaxes and the Collector ofTaxes were separate officers. Article VIII, section 14, which originally concerned only the tax assessor, then specified
noparticular duties for that officer toperform, leaving thematter to the legislature. The original provision read:

There shall be elected by the qualified

electors ofeach county atthe same time and under the same law regulating the election of State and county officers, anAssessor of



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Taxes, who shall hold his office for two years and until his successor iselected and qualified.

Tex.Const. art. VIII, 514 (1876).

The collection oftaxes was treated insection 16, of article VIII. Itoriginally read:

The Sheriff ofeach county, inaddition to his other duties, shall be the collector of taxes therefor. But incounties having ten thousand inhabitants, tobe determined by the last preceding census of the United States, a Collector of taxes shall be elected to hold office for two years and until his successor shall be elected and qualified.

Tex. Const. art. VIII, 516 (1876).

While these original provisions ofthe constitution
were still in place, the Texas Supreme Court decided Missouri. K&TRailwav Co. ofTexas v. Shannon, 100 S.W. 138 (Tex. 1907). The court wrote:

It is argued that section 14, properly construed, means, not only that there shall be an assessor of taxes elected for each county, but that he and no other officer shall be intrusted with any part ofthe duty ofmaking the assessment. We think the claim istoo broad. The section contains no language which expressly prohibits the appointment ofaboard to assess taxes in a particular case. Unlike other wrovisions of the Constitution which create offices. it does not define the duties ofthe officer, fromwhich we think it is tobe inferred that the scowe ofhis duties were left to the determination ofthe Leaislature. While
we think that the Legislature could not strip the assessor of all authority, and probably that itwas intended by the framers of the Constitution that all ordinary assessments ofproperty for taxation should bemade by him, still we think itwas not intended todeprive the Legislature of the power of devolving the duty upon another

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officer, special orboard toassess property insome

case, where, as in the present instance, the county assessors were clearly unable from themeans ascertain with any attheir disposal to
approximation the reasonable degree of value of the intangible assets of the railroad company, and still less capable of making intelligently the apportionment due to their counties. respective

(Emphasis added.)

Later, after the Supreme Court in Shannon had construed section 14ofarticle VIII topermit definition by the legislature of the scope of the tax assessor's duties and to permit its placement of some assessment duties elsewhere, both sections 14and 16 of article VIII
were amended. In 1932, section 14was amended the title ofthe officer to "TaxAssessor to change and Collector" and to add the following language:

[A]nd such Assessor and Collector of Taxes shall perform all the duties with respect to assessing property for the purpose of taxation and ofcollecting taxes, asmay beprescribed by the Legislature.

See H.J.R. 21,Acts 1931, 42d Leg., at 942. At the same time, section 16 was amended to make the sheriff the "Assessor and Collector of Taxes!'for the county, but to require the election of a separate Tax Assessor and Collector "as provided in Section 14" in counties 'of 10,000 inhabitants ormore. Id. at 943.1

It ispossible toread the added 14 indifferent ways. language of section

intends the words Itcan be argued that the provision "all duties" to be read as "such duties," so that the officer is toperform only such duties asthe legislature prescribes, much as article IV, section 23, of the constitution specifies that the comptroller of public accounts, the treasurer, and the commissioner of the general land office are to

1. In 1954, section 16awas added toarticle VIII, allowing the election ofaseparate assessor-collector of taxes in counties having less than 10,000 inhabitants. See H.J.R. 8,Acts 1953, 53d Leg., at 1175.

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"perform such duties as are or may be required by law." Alternatively, the language may be read to mean "all duties with respect to assessing property for purposes of taxation and ofcollecting taxes8' that the lesislature prescribes are to beperformed by that officer. It was read inthis way byAttorney General Letter Advisory No. 117 (1976), based on Green v. Stewart, 516 S.W.Zd 133 (Tex. 1974). See also Attorney General Opinion M-70 (1967).

InGreen v. Stewart, m, the Texas Supreme Court considered aCourt ofCivil Appeals decision holding that deputy tax assessors-collectors performed governmental functions in their own right, making them **officers*' excluded from civil service coverage. The supreme court began its review of the case by juxtaposing the constitutional language and the statute:

Article VIII, Section 14of the Texas Constitution, Vernon's Ann. St., authorizes the election of an assessor-collector of taxes in each county who shall hold his office for four years and until his successor is elected and qualified. It then states that 'such Assessor and Collector of Taxes shall perform all the duties with respect to assessing property for the purpose of taxation and collecting taxes, as may be prescribed by the Legislature.' Article 7252 authorizes the assessorcollector oftaxes to appoint deputies 'to assist himI and among other things provides, 'and the deputies appointed in accordance with the provisions ofthis Article shall do and perform all the duties imposed and required by law ofAssessors and Collectors ofTaxes: and all acts of such deputies done inconformity with law shall be as binding and valid as if done by the Assessor and Collector ofTaxes inperson.' (Emphasis by the court.)

Id. at 134-35. The supreme court then said:

Any possible conflict between the statute and the Constitution which might arise by
reason of their different delegations of the same totality of powers to the assessorcollector and also to each one of his

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appointees isavoided by the additional words of Article 7252 which state that the assessor-collector may appoint deputies 'to assist him.' The Constitution and statute are thus harmonized since itisthe assessorcollector who is charsed with all the duties. and it isthe dewuties who 'assist him' in the werformance of those duties. (Emphasis added.)

Id. at 135.

The supreme court in Green v. Stewart apparently construed article VIII, section 14, to mean that the legislature could decide what needed to be done (what duties should be performed) with respect to assessing and collecting taxes, but that it could not usurp the constitutional authority ofthe Tax Assessor-Collector to discharge those duties himself. In other words, the legislature might designate others to assist him, but it could not supplant him.

The question inAttorney General Letter Advisory No. 117 (1976), was whether the legislature could, consistent with section 14 of article VIII, vest the appraisal function ofthe county tax assessor-collector inanoffice
orunit independent of that officer. After concluding that the appraisal function was part of the assessment duty, this office concluded, relying on Green v. Stewart, that "the duties ofthe assessor-collector with regard to the assessment ofproperty forcounty taxation" could not be transferred to another individual without amendment of the constitution.

Thereafter, in 1980, a constitutional amendment dealing with appraisals was adopted in response to Attorney General Letter Advisory No. 117. Wilson v. Galveston Countv Central Awwraisal District, 713~S.W.2d 98 (Tex. 1986). Section 18 ofarticle VIII, was changed to read [with subsections (b), (c),and (d)representing new language]:

(a) The Legislature shall provide for

equalizing, asnear asmay be, the valuation ofall property subject toor rendered for taxation, and may also provide for the classification of all lands with reference totheir value inthe several counties.

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(b) A single appraisal within each county ofall property subject toadvalorem taxation by the county and all other taxing units located therein shall beprovided by general law. The Legislature, by general law, may authorize appraisals outside a county when political subdivisions are situated inmore than one county orwhen two
or more counties elect to consolidate appraisal services.

(c) The Legislature, by general law, shall provide for a single board of equalization for each appraisal consisting of entity qualified persons residing within the territory appraised by that entity. Members of the board of egualization may not be elected officials of the county orofthe governing body of a unit. taxing

(d) The Legislature shall prescribe by general law the methods, timing, and administrative process for implementing the requirements ofthis section.

In Wilson v. Galveston Countv Central Awwraisal District, suwra, the Texas Supreme Court held that this amendment separated the appraisal function from the "express assessing function" ofthe county tax assessorcollector and authorized the legislature to place the appraisal function elsewhere. We conclude that the Constitution ofTexas, article VIII, section 14, continues tomean that all duties with respect toassessing property for purposes ofcounty taxation and of collecting county taxes that the legislature prescribes -- except the appraisal function (now permitted by the constitution to beplaced elsewhere) --are tobe performed by the tax assessor-collector ofthe county.

We turn now to the statutes about which you have asked. The two statutory provisions sections 6.24 in question are and 6.26 ofthe Tax Code. Section 6.24 states:
(a) The governing body ofataxing unit

other than acounty may contract asprovided by the Interlocal Cooperation Act with the governing body ofanother unit orwith the

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board ofdirectors ofanappraisal district for the other unit orthe district to perform duties relating to the assessment or collection oftaxes.
(b) The commissioners court with the awwroval of the countv assessor-collector may contract as provided by the Interlocal Cooperation Actwith the governing body of another taxing unit inthe county or with the board of directors of the appraisal district for the other unit orthe district toperform duties relating to the assessment
orcollection oftaxes for the county. Ifa county contracts tohave its taxes assessed and collected by another taxing unit or by the appraisal district, the contract shall require the other unit or the district to
assess and collect all taxes the county is required toassess and collect.

(c) repealed (byActs 1983, 68th Leg., ch. 851, at 4829).

(d) A'contract under this section may provide for the entity that collects taxes tocontract with anattorney, asprovided by Section 6.30 ofthis code, for collection of delinquent taxes. (Emphasis added.)

Astatute istobegiven, ifpossible, ameaning that isagreeable to the constitution. See 12 Tex. Jur. 3d Constitutional Law 537, at 537. We think such aconstruction can reasonably begiven section 6.24. Subsection (a) of the statute exempts counties from those entities authorized to contract (by "Interlocal Cooperation Act" contract) tohave another governmental body perform duties relating to the assessment or collection of its taxes except as provided in subsection (b). The latter subsection permits such acontract only "with the awwroval of the countv assessor-collector."

We construe this language as authorizing acontract toobtain assistance for the assessor-collector, not to supplant him. Cf. Pritchard &Abbot v. McKenna, 350 S.W.2d 333 (Tex. 1961): Attornev General Owinion M-986 (1971). This reading. his reasonable in light of the preceding section, section 6.23, which states, "m

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countv assessor-collector shall assess and collect taxes
onWrOWertv inthe countv for the state and the county." Although the "with the approval" phrase insection 6.24 could be given a different, broader meaning, a statute should be construed inarestricted manner when necessary topreserve its constitutionality, if it isreasonable to do so. Citv ofWaco v. Landinsham, 157 S.W.2d 631 (Tex. 1941).

We cannot assign to the legislative act an intent to authorize the assessor-collector, by his "approval," to divest himself of power, authority, and invested in him by the constitution -- responsibility something the legislature itself could not do. Itmust be assumed the legislature intended to enact a valid law. Industrial Accident Board v. O'Dowd, 303 S.W.2d 763 (Tex. 1957). cf. Uwshur Countv Commissioners Court v. Central Education Asency 697 S.W.Zd 443 (Tex.App. -Austin 1985, nowrit). As co&trued, section 6.24 ofthe Tax Code is valid, in
our opinion.

The other statute, different matter. section 6.26 of the Tax Code, isa As amended in 1983, itreads:

(a) The qualified voters residing in an appraisal district bypetition submitted to the county clerk of the county principally served by the appraisal district may require that an election be held to determine whether or not to reouire the awwraisal district. the countv assessor-collector, or aswecified taxinc unit within the awwraisal district to assess. collect, orassess and Collect WrOWertV taxes onwrowertv awwraised bv the district for all taxina units.

(b) The qualified voters of a taxing unit that assesses, collects, or assesses and collects its own property taxes by petition submitted to the governing body of the taxing unit may require that an election beheld to determine whether or not to require the awwraisal district, the countv assessor-collector, or another taxina unit that is assessins and collectins wrowerty taxes to assess. collect, or assess and collect the unit's wrowertv taxes.

(c) Apetition isvalid if:

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(1) itstates that it is intended to require an election inthe appraisal district ortaxing unit onthe question of consolidation of assessing or collecting functions orboth;

(2) itstates the functions to be consolidated and identifies the entit. office that will be recuired to perform the functions.
. . .

. . . . (e) Ifthe commissioners court or the governing body finds that the petition is valid, itshall order that anelection be held inthe district ortaxing unit on the next uniform election date prescribed by the Texas Election Code that ismore than 60 days after the last day on which it could have acted to approve or disapprove the petition. At the election, the ballots shall beprepared topermit voting for or against the proposition: 'Requiring the (name of entity or office) to (assess, collect, or assess and collect, applicable) property taxes units in for (all taxi::

the appraisal district for county or, name of unit orunits, taxing
asapplicable).' (Emphasis added.)
Although itis the duty ofthe courts --and this office --to strive to adopt a the constitutionality construction that supports of the statute, Uwshur County Commissioners Court, 697 S.W.2d at 447, itis not proper to ascribe to astatute ameaning atvariance with its plain import so asto conform itto constitutionality
orwisdom. Citv of Austin v.Cahill, 88S.W. 542 (Tex. 1905).

The plain import of section 6.26 ofthe Tax Code is topermit the electorate, ifit chooses, toplace the assessment and collection duties of the county tax assessor-collector elsewhere, contrary to the intent of article VIII, section 14, of the Texas Constitution. Section 6.26 could be saved by reading itto encompass only the awwraisal function ofthe tax assessor-collector, because the amendment of section 18, article VIII, had

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separated the appraisal function from the assessment and collection functions of the county assessor-collector before section 6.26 was amended to embrace counties.2 Wilson v. Galveston Countv Central Awwraisal District,
suwra. But such areading would restrict the functions other taxing units are allowed by the statute toplace in the hands of an appraisal district, and would not be a reasonable conclusion to draw from the words of the statute; we cannot give itthat construction. See County School Trustees ofOrance Countv v. District Trustees of Prairie View Common School District No. 8, 153 S.W.2d 434 (Tex. 1941).

We conclude that section 6.26 of the Tax Code is unconstitutional as applied to the assessment and collection duties ofcounty tax assessors-collectors -- except as the appraisal function of the office has been separated from those duties by the amendment of article VIII, section 18, of the constitution. But the entire statute need not fail if its provisions are not so connected insubject matter, sodependent on each other,
orotherwise soconnected together inmeaning that itcan bepresumed that the legislature would have passed the law without the provision found unconstitutional. Countv School Trustees ofOranae Countv v. District Trustees of Prairie View Common School District No. 8, suwra.

Inthis case, the legislature, in 1979, did enact section 6.26 without unconstitutionally including the section 14assessment and collection duties assessors-collectors within its scope,3 and of county tax nothing about -,

2. Section 6.26 was originally enacted aspart of Title 1ofthe Tax Code in 1979, totake effect January 1, 1982. See Acts 1979, 66th Leg., ch. 841, at 2217. Itwas amended in 1981, see Acts 1981, 67th Leg., ch. 13, at 125, effective January 1, 1982, and again amended in 1983, see Acts 1983, 68th Leg., ch. 785, at 4612. The amendment to article VIII, section 18,ofthe constitution was adopted in 1980 pursuant to a legislative proposal made in 1979. See H.J.R. No. 98, Acts 1979, 66th Leg., at 3229. Orisinallv. section 6.26 awwlied onlv to taxins units "other than acounty." The exception was removed by the 1981 amendment to the statute.

3. See note 2.

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the subsequent amendments to the section suggests that changes affecting other taxing units would not have been approved if counties had remained ambit ofthe statute. entirely outside the We donot believe section 6.26 is rendered invalid in its entirety by its unconstitutional attempt to embrace the assessment and collection duties of the county tax article section 14, assessor contemplated by VIII,

ofthe constitution.

Your questions concerned the validity of placing elsewhere the assessment and collection duties ofcounty assessors-collectors regarding county taxes. Inview of
our resolution of the matter based on article VIII, section 14of the constitution, we donot address other constitutional arguments. cf. Tex.Const. arts. I, 528: II, 91. SUMMARY

The legislature may not authorize the electorate todivest the county tax assessorcollector ofduties respecting the assessment and collection ofcounty taxes, other than appraisal functions. Tex. Const. art VIII, 5514, 18. Section 6.24 ofthe Tax Code, as construed, is valid, but section 6.26 is unconstitutional insofar as it contravenes article VIII, section 14, ofthe constitution.

JIM MATTOX Attorney General ofTexas

MARY KELLER Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Bruce Youngblood Assistant Attorney General

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