.- .

Honorable Geo. II.Sheppard

Comptroller of Public Accounts Austin, Texas

Dear Sir: OpinionNO. 0-1886 Re: Validity of the judgmenttaken in the case of State of Texas v. J.W. Jackson, No. 5756, in theDistrict Court of Bosque County,Texas.
We are in receipt of your letter of January 22, 1940, togetherwith the papers enclosed, in which you request an opinion of this department as to the validity of the judgment taken In the case of State of Texas v. J. W. Jackson.

The judgmentwas taken on the 19th day ofDecember, 1938. It has become final and may not be appealed from. Any suit to set aside this judgmentwould have to be a collateralattack. The validity of the judgmentwill be considered in the light of such attack.

A judgmentcannot be collaterallyattacked even though the samemay be voidable. It is necessary that the judgmentbe void before such an attackmay be made upon the same. See Morris v. Halbert, 36Tex. 19, Sup. Ct. of Texas.

There are authorities too numerous to mention that distinguishbetween a void judgment and one voidable. A good statementof the general rule is contained in 25 Tex. Jurls. 693.

"Generallyspeaking, the only defect that will make a judgmentvoid is lack of jurlsdlctlon on the part of the court rendering lt, such lack being apparentupon inspection of the judgmentor of its record." 25 Tex. Juris. 709:

"Generallyspeaking, the only ground upon which a judgmentwill be held for naught in an unrelated proceeding is the absence of one or more of the followln organized court, (27 elements: (1)a legally jurisdiction over the sub-Honorable Geo. H. Sheppard, page 2 

### O-1886

'ectmatter, t 

### (3) jurisdictionover the person, 4) power to render the particularrelief of order-" There is no question but that in the case at handwe have a legally organized court and said court had jurisdiction over the person.

As to the jurisdictionof the court over the sub'ect matter, the case ofGulf, T. & W. Railway Co. v. Dunn, 1: 1 1.S.W. 

### 538,affirmed by the Supreme Court of Texas. The court stated as follows:

"The test of jurisdictionis whether the court had the power to enterupon the inquiry, not whether Its conclusionwas right or wrong." "JurFsdictlonof the subject is the power to hear and determine cases of the general class to which the proceedings in question belong." While the assessmentplaced on a particularpiece of propertyby a board of equalization is considered as final for all practicalpurposes the samemay be set aside by a district court of this State Lf special circumstancesare shown. The Supreme Court of Texas in the case of State v. Mallet Land & Cattle Co., 

### 88 S.W. (2a) 

### 471,stated as follows:

"However,the rule has been declared that If a board of equalizationadopts a method that is Illegal, arbitrary, or fundamentallywrong, the decision of the board may be attacked and set aside."
See also Texas & PacificRg. Co. v. City of El Paso, 

### 85 S.W. (2d) 245; Port Arthur Ind, Sch. Dist, v. Baumer, 

### 64 S.W. (2d) 412; Nederland Ind. Scho.Dist. v. Carter, 

### 73 S.W. (2d) 935. In the present case the issue as to the validity of the assessmentwas raised in defendant's firat amended answer as follows:

"Waivingnone of the foregoing, and only in the event the Court require further answer, comes the defendant,now and says that plaintfff State and County, and or Intervenor Cltg ofWalnut Springs for the years each, sued on herein, have placed a greater value of double on his property than authorizedby law, as a proper taxing value, and same has been assessed and placed at greater value than the adjoining and other property of like kind, value and sit-Honorable Geo. H. Sheppard, page 

### 3 O-1886

uatlon in said CLty and Countyby double, and that the equalizationBoards for the respective years and taxingunits herein, have filed to adjust and fix an equalizedvalue on his property in keeping and equalizedvalue as that in the same sFtuationand of the same kind and value as other taxableproperty. That the values placed on his said property for each of the said years sued on by each taxingunit herein respectively are and is doubled and excessive, and his saidproperty not reasonablyworth for taxing purposes or salepurposes the sum of money and value filfed and so charged to him on his said property. Based on the pleadings above quoted, the 'ourtmay have found that the method of assessment adopted by the Commissioners' Courtwas wrong so as to set aside the originalassessmentby said board of equalization. In the case submittedto us the court had jurisdictionover the subjectmatter. There can be no questionbut that the pleadingwas sufficient,at least~tothe extent that the judgment is not void. As statedby the Supreme Court of Texas In the case of Weems v. Masterson, 15 S.W. 590, as follows:

"Aproposition that a judgment of a distrfct court could be attacked in a collateral proceedingbecause pleadIngswere defective, if the court had jurisdictionover the subjectmatter and the parties,would not be advanced, and itwould be readily conceded that, however erroneous such a judgmentmight be, itwould be conclusive on the parties until set aside by somedirect proceeding for that purpose; and we are of the opinion that thiswould be true even if the pleadingswere so defective as to be had on general demurrer, as to presentno issue of fact."
In determiningwhether the court had the power to render the particularrelief awarded, it 1s necessary to seewhether a district court of this State had the authority to reduce a tax assessment of a board of equallzatI.on and then enter a judgment based upon such reduced assessments, In this connection, it is to be pointed out that the prayer in defendant's first amended answer is as follows:

"Whereforethis defendant prays that a hearing be had hereon and the true value placed on his said properties for the years named and toHonorable Geo. H. Sheppard, page 4 

### O-1886

the taxingunits Involvedherein and he be allowed proper credits therefor and that he be dischargedwith his costs, and legal and equttable relief, general,,and special in the premises he will ever pray. The Commission ofAppeals of Texas in the case of State v. Richardson, 

### 84 S.W. (2d) 1076, definitely establishedthe rule that under certain circumstancesa district court had the authority to enter a judgment for taxes based upon an assessment reducedby said court. In this connection, the court stated as follows:

"Thereal question for decision here is this,was the district court in this proceeding authorized to revalue and reassess the property on the findingsmade by the jury and award judgment for taxeswith interest on account of delinquency? It is our opinion that in event of a void assessment the district court has no jurisdictionor power to revalue and reassess property and render judgment for taxes based on such revaluation and reassessment. The jurisdictionof the tax assessor and board of equalizationIs unquestionably exclusives (Tex. State v. Chicago,R. I., etc.,Ry. Co., Corn. App.) 263 S.W. 249. In the event there be a valuationby the board of equalization not wholly void, and the matter of discrim1natlonmay be corrected by reducing the valuation according to some mathematical formula, and not be substituting the discretion of a cour,tof jury for the discretion of the board of equalization,a court of equitymay make an eauitableadiustment of the values and
taxes. Lively v. Missouri, etc,R. Co., 102 Tex. 

### 545, 120 S.W. 852*" This same principlewas reaffirmed by the Supreme Court of Texas in the case of Republic Insurance Co. v. Highland Park Ind. Sch. Dist. ofDallas County, 102 S.W. (2d) 184. The Supreme Court of Texas in the case of Lively v. Missouri, Kansas & Texas Ry. Co. of Texas, 120 S.W. 852, held that a district court had the authority to reduce the assessment on a taxpayer's propertywhere itwas shown that his propertywas not assessed equally and uniformlywith otherproperty. In that case other property had been assessed at .662/3 cents on the dollar of actual market value as a basis. The Supreme Court held that the district court had the authority to render a judgmentassessing the taxpayer's property at the sameratio. We cannot be concernedwith theHonorable Geo. H. Sheppard, page 

### 5 

### o-1886

question ofwhether the court committed such an error as might result in a reversal on appeal. The court had jurisdictionof the parties and the subjectmatter with the inherentpower to grant the relief prayed.

You are advised, therefore, that the judgment in the case under considerationhere Is a final judgmentand is one which Is not void and therefore cannot be collaterallyattacked.
Yours very truly
ATTORNEY GENERAL OF TEXAS

By s/BillyGoldberg Billy Goldberg Assistant
BG:Rs:wc

APPROVED FEB 

### 14, 1940 s/Gerald C. Mann ATTORNEY GENERAL OF TEXAS
Approved Opinion CommitteeBy s/BWB Chairman