April 23, 1963

Honorable Jules Damiani, Jr. Opinion NO. C- 63 Criminal DistrictAttorney Galveston County Galveston, Texas Re: Whether the Commissioners Court has authorization to establishan industrial oil and gas and public
Dear Mr. Damiani: utilitiesappraisal department.
In your request for an opinion from this office,you submit certain facts which we quote as follows:

"The Galveston County Tax Assessor and Collector recently requested the Commissioners Court for the County of Galveston to enter into a contractwith an appraisal firm to assist him in the appraisal and assessment of oil and gas, public utilitiesand industrialproperties. The Commissioners Court declined to enter into any contractwith an appraisal firm and on March 19, 1963, at a regularmeeting of the Commissioners Court the CommissionersCourt voted to set up an industrial oil and gas and public utilities appraisal department under the supervisionof the County CommissionersCourt to assist the Board of Equalizationand to work with the County Tax Assessor and Collector's office. "After the creation of thisparticular department, the Court voted to hire an engineer to head this particular department at an annual salary of $13,500.00. This engineer is not responsible to the Tax Assessor and Collector and is not a tax office employee or deputy.

. . . "It is understood that the hiring of this particular engineerwill in no way usurp the authority of the Tax Assessor and Collectorwho

-306-Hon. Jules Damiani, Jr., page 2 (C- 63 )

has the specificduty to assess all properties.

. ." With regard to these facts you ask two questions which we list as follows:

"Whether the CommissionersCourt has authorization to establish an industrial oil and gas and public utilities appraisal department."Whether the CommissionersCourt is authorized to hire an eigineer for the appraisal of industrialoil and gas and public utilitiesproperties as an aid to the Commissioners Court sitting as a Board of Equalization." Under Section 18 of ArticleV of the Texas Constitution,' Commissioners'Courts are courts of limited jurisdiction,having no authority except as is expressly or impliedly conferred, Von- - Rosenberg v. Lovett, 173 S.W. 508 (Civ.App.1915);Miller v. Brown, 2 b S W 4 2 C' App. 1919) and Carrollv. Williams 2:2 S:W: 524 lGi6). Also the authority t 09 T o create sick a dz&i!F' ment is not conferredby the terms of Article 2351,Vernon's Civil Statutes,which specifies the general powers and duties of Commissioners' Courts.

Since the Commissioners'Court has no express authority to establishan industrialoil and gas and public utilitiesappraisal department, it cannot rely on its impliedpower for authorizing the creation of this department. In Cmalee v. Laughlin, 147 Tex. 169, 214 S.W.2d 451 (1948), the Supreme Court stated:

"The Constftutiondoes not confer cn the commissionerscourts 'generalauthority over the countybusiness' and such courts can exercise only such powers as the Constitution itself or the statuteshave 'specificallyconferredupon them.'

. . .While the commissionerscourtshave a broad discretion in exercisingpowers ex!:ressly conferredon them,nevertheless the legalba,?Is for any action by any such court must be ultimately found in the Constitutionor the statutes.'
For o,thercases denying the use of impliedpowers in absence of a statute, see Lasater v. Lopez, 110 Tex. 179, 217 S.W.

-307-Hon. Jules Damiani, Jr., pa@;e3 (C- 63 )

373 (1919);Moon v. dism. w.0.j.‘); Hill Alred, 277 S.W. 787 (Civ.App. 1925, error v. Sterrett, 252 S.W.2d 766 (Civ.App. 1952, error ref. n.r.e.).

Attorney General's Opinion O-4557 (1942)held that in the absence of express or impliedauthority, the Commissioners' Court of Tarrant County could not legally employ a Board of Equalization composed of skilled experts to value for taxation purposes property in the county. Consequently, in the absence of express constitutionalor statutoryauthority,we must hold the act of the Commissioners'Court in establishing an industrial oil and gas and public utilitiesappraisal department,headed by an engineer not responsible to the Tax Assessor and Collector, is ultravires and void.

Section 1.8

of ArticleV of the Texas Constitutionprovides in part as follows:

"Each County shall.

. .bedivided into four commissionerstprecincts in each of which there shallbe electedby the qualifiedvoters thereof one county commissioner,who shall hold his office for four years. . .The county commissioners so chosen with the County Judge, as presiding officer, shall compose the County CommissionersCourt.
. . ."
Section 18,ArticleVIII of the Texas Constitution, provides as follows:

"TheLegislature shallprovide for equalizing as near as may be, the valuation of all property subject to or rendered for taxation, (the County Commissioner'sCourt to constitute a board of equalization);and may also provide for the classificationof all landswith reference to their value in the several counties.” The Texas Constitutionalso provides that "Taxation shallbe equal and uniform. All property in this State, whether owned by natural persons or corporations,other than municipal, shall be taxed in proportion to Its value, which shall be ascertainedas may be providedby law." Section 1, ArticleVIII.

Also the statutory law places upon the Commissioners' Court sitting as the County EqualizationBoard a heavy responsibility. Section 1 of Article 7206 of Vernon's Civil Statutes, provides as follows:

-3os-Hon. Jules Damiani, Jr., pas 4 (C- 63 )

"They shall cause the assessor to bring before them at suchmeeting all said assessment lists,books, etc., for inspection,and see that every person has renderedhis property at a fair market value, and shallhave power to send for persons,books and papers, swear and qualify persons, to ascertain the value of such vw$tY 9 and to lower or raise the value on the

Article 7!.Zl2

of Vernon's Civil Statutes, states in part: "Theboards of equalization shall have power, and it is made their official duty, to supervise the assessment of their respective counties,and, if satisfied that the valuation of any property is not in accordancewith the laws of the State, to increase or diminish the same and to affix a proper valuation thereto, as provided for in the preceding article; and, when any assessor in this State shallhave furnished said courtwith the renditionas provided for in the preceding article, it shallbe the duty of such court to callbefore it such persons as in its judgmentmay know the market value or true value of such property,as the casemay be, by proper process,who shall testify under oath the character, quality and quantity of such property,as well as the value thereof. Said court, after hearing~the evidence shall fix the value of such property in accordancewith the evidence so introduced and as provided for in the preceding article; and their action in such case or cases shallbe final;

. . .'
It has been definitelydecidedby our courts,however, that the Commissioners1 Court has the implied power to employ independentassistants to assist in arriving at the value to be fixed by the Commissioners1 Court as a Board of Equalization where technical or specialknowledge is necessary and which knowledge the Commissioners'Court would not be presumed to possess, such for example as oil property or any other type of property in which skilled or technicalknowledge is necessary in order to attain a fair valuation. One of the first cases to consider the authority of the Commissioners1Court to employ outsidehelp in valuating property is Roper v. Hall, 280 S.W. 289 (Tex.Civ.App. 1926), in which the court held that the Commissioners'Court of
-309-,

Hon. Jules Damiani, Jr., page 5 (C- 63 )

Freestone County had authority to make a contractwith a private individual to list owners of all producing oil and gas propertieswithin the county and make a valuation of all pipelines, refineries, tank farms, tankage, etc., used in connectionwith oil and gas development including transportation facilities. The courtbased its decision upon the premise that the value of the particularkind of property involved could not have been determinedby one who possessed only ordinary knowledge as to such property and hence the courthad the implied authority to secure the services of an expert as to the value of such property. The courtwas careful to point out, however, that the contractprecluded the possibility that the expert would perform any of the duties imposedby law on the Tax AssessorCollector or the Board of Equalization, stating that the purpose of the contractwas merely to aid such officers in the performance of their duties. The next case in which the courthad occasion to consider the power vested in a taxing authority to employ assistants in arriving at fair appraisals is Simkins v. City of Corsicana, 86 S.W.2d 792 (Tex.Civ.App.1935). In this case the court said:

"Weknow of no valid reasonwhy a tax board cannot employ an expert to assist it in arriving at the true value of taxableproperty, and when such expert has been employed the board shouldhave a right to take into consideration the information so furnishedby him in ascertaining the true value of property for tax purposes. . . But it must be remembered that such experts so employedbear no official relationship to the property owner and have no statutoryauthority to fix the value at which the property is tobe assessed.

. .' The same problem was later presented and ruled upon in the case of Marquart v. Harris County 117 S.W.2d 4914(Tex.Civ. App. 1938, error dism.), and the cont;act considered in that case was condemnedby the courtbecause of its broad application to all of the taxableproperty in the county and, in effect, superseded the statutorypowers of the Tax Assessor-Collector. The case followed,however, the previous decisions that contracts of employmentof experts to aid in valuing certain types of property were legal and constitutedan appropriate expenditure of public funds. Another case to consider this problem is Crosby v. P. L. Marquess and Co., 226 S.W.2d 461 (Tex.Civ.App.1950, error

-310-Hon. Jules Damiani, Jr., page 6 (C- 63 )

ref. n.r.e.),which case upholds the validity of an appraisal and valuation contractwhich had been entered intoby the trustees of the Kuntz IndependentSchool District and P. L. Marquess and Company. This casewent further than any prior case in upholding the validity of a contract to appraise property in behalf of a taxing district. The most recent case concernedwith this problem is Pritchardand Abbott, et al. v. McKenna, 162 Tex. 617, 350 S.k.2d 333 (lgol). In this case the Supreme Court reversed the First Court of CivilAppeals, and followin the reasoning of Roper v. Hall, 280 S.W. 289 (Civ.Apn. Royalty Co. v. St t

a T& 4 SW.2d 670 Federal, Civ.Ap 1931) and Whelan V. t 155 Tex. z82.SW 2d 37 Q (19557'held ihat "while the Czmt%ssioners*Co:rt is ;oE expressly c&hed with constitutional or statutoryauthority to contractwith a private firm for the appraisal of in the county, that authority is implied from the been expressly granted to and the duties imposed upon that body by law." (Emphasisadded),.

On the basis of the foregoingauthorities,you are advised that the Commissioners1 Court is authorized to hire an engineer for the appraisal of industrialoil and gas and public utilitiespropertiesas an aid to the Commissioners'Court sitting as a Board of Equalization. SUMMARY The Commissioners'Court does not have the express or impliedauthority to establish an independent industrial oil and gas and public utilities appraisal department. However, the CommissionersfCourt is authorized to hire an engineer for the appraisal of industrialoil and gas and pub1-l.c utilities propertiesas an aid to the Commissioners' Court sittingas a Board of Equalization. Sincerely, WAGGONER CARR Attorney General
By:.+&&-%,. I.,RaymondWilliams, Jr. P Assistant IRW:mkh

-311-Hon. Jules Damiani, Jr., page 7 (C- 63 )

APPZG?JED: OPINION CCMMITTEE
W. V. Geppert, Cha'rrnan J. C. Davis J?hn Reeves H. Grady Chandler Albert Pruitt
APPROVED FOR THE ATTCRNEY GENERAL BY: Stanton Stone

-312-