.- . 

Honorable Geo. II. Sheppard 

Comptroller of Public Accounts 

Austin, Texas 

Dear Sir: Opinion NO. 0-1886 

Re: Validity of the judgment taken in 

the case of State of Texas v. J.W. 

Jackson, No. 5756, in the District 

Court of Bosque County, Texas. 

We are in receipt of your letter of January 22, 1940, 

together with 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 judgment was taken on the 19th day of December, 1938. 

It has become final and may not be appealed from. Any suit to 

set aside this judgment would have to be a collateral attack. 

The validity of the judgment will be considered in the light of 

such attack. 

A judgment cannot be collaterally attacked even though 

the same may be voidable. It is necessary that the judgment be 

void before such an attack may be made upon the same. See 

Morris v. Halbert, 36 Tex. 19, Sup. Ct. of Texas. 

There are authorities too numerous to mention that 

distinguish between a void judgment and one voidable. A good 

statement of the general rule is contained in 25 Tex. Jurls. 693. 

"Generally speaking, the only defect that 

will make a judgment void is lack of jurlsdlctlon 

on the part of the court rendering lt, such lack 

being apparent upon inspection of the judgment or 

of its record." 

25 Tex. Juris. 709: 

"Generally speaking, the only ground upon 

which a judgment will 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 

'ect matter, 

t 

(3) jurisdiction over the person, 

4) power to render the particular relief of 

order -" 

There is no question but that in the case at hand we 

have a legally organized court and said court had jurisdiction 

over the person. 

As to the jurisdiction of the court over the sub'ect 

matter, the case of Gulf, 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 jurisdiction is whether the 

court had the power to enter upon the inquiry, 

not whether Its conclusion was right or wrong." 

"JurFsdictlon of the subject is the power 

to hear and determine cases of the general class 

to which the proceedings in question belong." 

While the assessment placed on a particular piece of 

property by a board of equalization is considered as final for 

all practical purposes the same may be set aside by a district 

court of this State Lf special circumstances are 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 equalization adopts a method that 

is Illegal, arbitrary, or fundamentally wrong, 

the decision of the board may be attacked and 

set aside." 

See also Texas & Pacific Rg. 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 assessment was 

raised in defendant's firat amended answer as follows: 

"Waiving none 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 

of Walnut Springs for the years each, sued on 

herein, have placed a greater value of double 

on his property than authorized by 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 County by double, and 

that the equalization Boards for the respective 

years and taxing units herein, have filed to 

adjust and fix an equalized value on his property in keeping and equalized value as that in 

the same sFtuation and of the same kind and 

value as other taxable property. That the 

values placed on his said property for each of 

the said years sued on by each taxing unit herein respectively are and is doubled and excessive, and his said property not reasonably worth 

for taxing purposes or sale purposes the sum of 

money and value filfed and so charged to him on 

his said property. 

Based on the pleadings above quoted, the 'ourt may have found 

that the method of assessment adopted by the Commissioners' 

Court was wrong so as to set aside the original assessment by 

said board of equalization. In the case submitted to us the 

court had jurisdiction over the subject matter. There can be no 

question but that the pleading was sufficient, at least ~to the 

extent that the judgment is not void. As stated by the Supreme 

Court of Texas In the case of Weems v. Masterson, 15 S.W. 590, 

as follows: 

"A proposition that a judgment of a distrfct court could be attacked in a collateral 

proceeding because pleadIngs were defective, 

if the court had jurisdiction over the subjectmatter and the parties, would not be advanced, 

and it would be readily conceded that, however 

erroneous such a judgment might be, it would 

be conclusive on the parties until set aside 

by some direct proceeding for that purpose; and 

we are of the opinion that this would be true 

even if the pleadings were so defective as to 

be had on general demurrer, as to present no 

issue of fact." 

In determining whether the court had the power to render 

the particular relief awarded, it 1s necessary to see whether 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: 

"Wherefore this defendant prays that a hearing be had hereon and the true value placed on 

his said properties for the years named and to 
Honorable Geo. H. Sheppard, page 4 O-1886 

the taxing units Involved herein and he be allowed proper credits therefor and that he be discharged with his costs, and legal and equttable 

relief, general,,and special in the premises he 

will ever pray. 

The Commission of Appeals of Texas in the case of State v. 

Richardson, 84 S.W. (2d) 1076, definitely established the 

rule that under certain circumstances a district court had 

the authority to enter a judgment for taxes based upon an 

assessment reduced by said court. In this connection, the 

court stated as follows: 

"The real question for decision here is 

this, was the district court in this proceeding authorized to revalue and reassess the 

property on the findings made by the jury and 

award judgment for taxes with interest on account of delinquency? It is our opinion that 

in event of a void assessment the district 

court has no jurisdiction or power to revalue 

and reassess property and render judgment for 

taxes based on such revaluation and reassessment. The jurisdiction of the tax assessor and 

board of equalization Is unquestionably exclusive s 

(Tex. 

State v. Chicago, R. I., etc., Ry. Co., 

Corn. App.) 263 S.W. 249. In the event 

there be a valuation by the board of equalization not wholly void, and the matter of discrim1natlon may be corrected by reducing the 

valuation according to some mathematical formula, and not be substituting the discretion 

of a cour,t of jury for the discretion of the 

board of equalization, a court of equity may 

make an eauitable adiustment of the values and 

taxes. Lively v. Missouri, etc,R. Co., 102 

Tex. 545, 120 S.W. 852*" 

This same principle was reaffirmed by the Supreme Court of Texas 

in the case of Republic Insurance Co. v. Highland Park Ind. Sch. 

Dist. of Dallas 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 property where 

it was shown that his property was not assessed equally and uniformly with other property. In that case other property had 

been assessed at .66 2/3 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 judgment assessing the taxpayer's 

property at the same ratio. We cannot be concerned with the 
Honorable Geo. H. Sheppard, page 5 o-1886 

question of whether the court committed such an error as might 

result in a reversal on appeal. The court had jurisdiction of 

the parties and the subject matter with the inherent power to 

grant the relief prayed. 

You are advised, therefore, that the judgment in the 

case under consideration here Is a final judgment and is one 

which Is not void and therefore cannot be collaterally attacked. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/Billy Goldberg 

Billy Goldberg 

Assistant 

BG:Rs :wc 

APPROVED FEB 14, 1940 

s/Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee By s/BWB Chairman