Aprll'8, 1958

Honorable Glyndon M. Hague County Attorney Johnson County Cleburne,Texas OpinionNo. WW-411
Re: P@.y

the Tax AssessorCollectorof Johnson County, acting as an agent for the Board of Fire Commissioners of the Johnson County Rural Fire PreventionDistrict, voluntarilyand without emolument,collect the tax providedby law for said ,Rural Fire PreventionDistrict after being properly authorizedto do so by said Dear Mr. Hague: Board of Fire CornmIssIoners?

You have requestedan opinion of this office on the followingquestion:

“May the Tax Assessor-Collector of Johnson County, acting as an Agent for the Board of Fire Comfssioncrs of the Johnson County Rural Fire (Prevention)

Distrf.et,

voluntarilyand without emoi:umen

ta collect the tax Provided by law for said Rural Fire (Prev~ention District after being properly authorize& to do 80 by said Board of PlPe Comml.ssionePs?" (Parentheses oura). "Ihe Johnson County Rural Fire PreventionDistrict :?as been established

pursuant to the provisions of Section 48-8. of .%rticle

III of the Constitution of Texas and Senate X.11 3'72,

A&S of the 55th Legislature, Regular Session, Chaptw 5Jy page 130. AttorneyGeneral's Opinion ~~-308 (l.$?g )*
In Attorney General'sOpinionww-308 it was held that the County Assessor and Collectorof Taxes of JohnsonHonorable Glyndon M. Hague, Page 2 (UW-411).

County did not have authorityunder Senate Bill 372 of the 55th Leglalatureto oolleot the tax provided for therein. It was pointed out In Opinion 1~308 that the office wan not paeslng on the question of whether the governingboard of the District could set up Its own tax assessingand collection system. The questionspresented In the instant case Involve: (1) Whether the governingboard of the District may provide for the assessingand oollection of taxes provided for in the Act; anil (2) Whether the governingboard can uae the aervices of the Aaaeaaor and Collectorof Taxes for Johnson County ae agent for the collectionof the tax. Seation 48-d of Article III of the Constitution of Texas provides:

“Sec. 48-d. The Legislatureshell have the power to provide for the establishment and creation of rural fire preventlondistrictsand to authorize a tax on the ad valorem property situated in said dirtrlotanot to exoeed Three (34) Cents on the One Hundred ($100.00)Dollars valuation for the support thereof;provided that no tax shall be levied In support of said districtsuntil approvedby vote of the people residing therein.”
Pursuantto the above provisions,the Legislature enacted Senate Bill 372 and provided for the ore&ion and organizationof rural fire preventiondistricts. Tfiepertlnent provisionsof the Aot provide:

“Sec. 10. Such fire proteotlondistrictsare hereby declared to be political subdivisions of the state, and shall have full authority to oarry out %hs objects of their oreation and to that end are authorizedto aoqulre,purohaae,hold, leame,manage, oooupy and sell real and personal property or any interest therein; to enter into and to perform any and all neoessary contracts;to appoint and employ the neoeaaaryoffio8rs, agents and employsea; to aue and be sued; to levy and enforce the mlectlon of taxes In the manner @-id aubjeot toHonorable Qlyndon M. Hague, Page 3 (WW-411).

the limitations

herein proviUed against the lands d ther propertyxithln,thedistriot for the ~?a&& revenues

; to accept and receive donationa; and to do any and all lawful acts required and expedfent to carpg out the purposea of,th$s Act.

l&d have "Sec. 11. Any fire proteationdistrict organunder the provisionsof this Act shall further authority: 11

. . .

“(5) To do and perform all things In its diserttion proper and necessary to fully uarry out the intent of this Act. “Sec. 12. No indebtednessshall be contracted in any one yeap in exoeaa of funds then on hand or which may be satlafledout of current revenues for the year. The Board of Fire Commissionersshall annually levy and cause to be assessed and collected a tax upon ,a11

properties,real and personal, situated with1 th dl t I t and subjeot to taxation, in an amouk n% tt zxzeed three ocnts (36) on the One Hundred Dollars ($100.00) valuation for the support of the district,and for the purposes authorized In this Act. "The values of property in the said distriat shall be the same values as are sholm, in the county tax ~011s.

"Sec. 15. The provisionsof this Act and proceedings thereunder shall be liberally con&Fed with a view to effect their objects.

. . . (Fmphasisours). Under the provlaionsabove quoted, it is the duty of the goveming board of the Rural Fire PpeventlonDistrict to levy and,

cause to be assessed and collected the taxes provided therein. Since the governingboard has the express authoplty to levy and collect the taxes provided for in the Act, it has a broad disoretionto aooomplishthe purposea of the Aot, Bexar County Y. Hatley, 136 Tex. 354, 150 S.W.2d 980 (1941). Furthermore,the Legislature haa specificallyHonorable Olyndon M. Hague, Page 4 (WW-411).

provided that the governingboard shall have authority to do any and all lawful acts rcqulred and expedientto carry out the purposes of the Aot and haa also specifioally provided that the Act shall be liberallyaonstruedwith a view to effect its object. Therefore,it is our opinion that the governingboard ha4 the authority to request and receive the servicesof the Assessor and Collecrtor of Taxes of Johnson County in collectingthe taxes levied by the governingboardp provided, of eour4e, that the Assessorand Collectorof Taxes I.4 not prohibitedfrom performing such services for the District.
In determiningthe question of whether the Assessor and Collectorof Taxes I.s prohibitedfrom renderinga service to the District,we must consider the provisionsof Section4 33 and 40 of Article XVI of the Constitution of Texas and determinewhether the servioesperformed for the District are incompatible

with the duties of the office of the County Asae'ssor

and Collectorof Taxes. Section 33 of Article XVI of the Constitutionof Texaa provides:

"The AaoountlngOfficers of this State shall neither draw nor pay a warrant upon the Treasury in favor of any pereon, for salary or aompensation as agent, officer or appointee,who holds at the same time any other office or position of honor, trust OP proeit, under this State or the United States,

. . . (Exceptions not applicable). Section 33 of Artiole XVI of the Constitution of Texas applies only when an accountingofficw o:.? the State draws a warrant upon the Treasury in f~or of a person for his salary or compensation. Attorney OeneraI's Opinions o-4628 (1942); o-7446 (lg46)J O-5087 (1943).

In AttorneyQeneral'sOpinion 0-5087 it was held that Section 33 of Article XVI of the Constitutionof Texas was not applicableto a County Treasurerbeing employed as a teacher in the oity 4choola, stating:

"The employmentof the County Treasureras a principal teacher in the oity sahools of Corsicana is undoubtedlya 'position of honor, trust and profit under this State,' but it ha4 no application because the proposed voucher to the Treasurer isHonoxrable Glyndon M. Hague, Pa&~5 (MM-411).' ;

not 'for salary or compensation aa agent, oif.icer or appointee,'

whataoever. The am for whioh the warrant issues to the County Treasurer is the.'~ State's contributionto the Officers'SalaryPsnd of Navarro County, and the CountyTreasurer,. In receivingand turning over to the Officers1 Salary Fund the prooeeda thereof, is doing 80 in ,a.fiduaiary capacity. The warrant ahould Issue in the ordinary course." It Is, therefore,our opinion that Section 33 of Article XVI, Conatitutlon of Texas, is not applicableto your question.

Section 40 of Artiole XVI of the Constitution of Texas provides:

"No person shall hold or exercise,at the same time, ment, .'.
.

mzre than one Civil Office of emolu- (Fxoeptions

not applicable). Slnae the Assessor-Colleotor of Taxes will hold only one civil office of emolumentunder the fact6 presented, Section 40 of Article XVI la not applicableto ywr question.

Apart from the constitutional provlalaas'~reol;ted herein, it Is a fundamentalrule that one person may not at the same time hold two offices. the duties of which are not compatible. State v. Brlnkerhoff,66 Tex. 45, 17 S.W. 109 (1886);Thomas v. Abernathy County Line IndependentSchool District, 290 S,W. 152 (C A 92) PI- . ultt v. Qlen Rose IndependentSchool Distrizy*12gPTe:. 5: 84 'S.W;2d ~1004 (19351* We fail to find any Incompatibility between the dut.ies of the office of Assessor-Collector of Taxes and the service to be performed for the District. You are, therefore, advised that the governingboard of the Johnson County Rural Fire PreventionDistricthas the authority to request and receive the servicesof the Johnson County Tax Asseseorand Collectorin collectingthe taxes for the pistrict,but he is not under a legal obligationto do so. SUMMARY The Board of Fire Commiasloners of the Johnson County Rural Fire E?eventionHonorable Glyndon M. Hague, Page 6 (WW-411).

Districthas the authorityto appoint the Assessorand Colleotorof Taxes of Johnson County its agent in aollecting taxes for the District,and the Assessor ana Uollectorof Taxes haa authority to perform suah aervices~wlthoutcompensation.
Yours very truly,
WILL WI&SON Attorney General of Texas

JR:jl
APPROVED: OPINION COMMITTEE Qeo. P. Blackburn, Chairman Ralph R. Rash
W. 0. Shultz Riley Eugene Pletaher RF3IEWEDFORTHE ATTORNEYGENERAL BY: W. V. Geppert