April 23, 1963 

Honorable Jules Damiani, Jr. Opinion NO. C- 63 

Criminal District Attorney 

Galveston County 

Galveston, Texas 

Re: Whether the Commissioners 

Court has authorization 

to establish an industrial 

oil and gas and public 

Dear Mr. Damiani: 

utilities appraisal 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 contract with an appraisal firm to assist 

him in the appraisal and assessment of oil and 

gas, public utilities and industrial properties. 

The Commissioners Court declined to enter into 

any contract with an appraisal firm and on March 

19, 1963, at a regular meeting of the Commissioners 

Court the Commissioners Court voted to set up an 

industrial oil and gas and public utilities appraisal department under the supervision of the 

County Commissioners Court to assist the Board 

of Equalization and to work with the County Tax 

Assessor and Collector's office. 

"After the creation of this particular 

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 engineer will in no way usurp the 

authority of the Tax Assessor and Collector who 

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

has the specific duty to assess all properties. . ." 

With regard to these facts you ask two questions 

which we list as follows: 

"Whether the Commissioners Court has 

authorization to establish an industrial oil 

and gas and public utilities appraisal department. 

"Whether the Commissioners Court is 

authorized to hire an eigineer for the appraisal of industrial oil and gas and public 

utilities properties as an aid to the Commissioners Court sitting as a Board of Equalization." 

Under Section 18 of Article V 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 Carroll v. Williams 

2:2 S:W: 524 lGi6). Also the authority t 

09 T 

o create sick a dz&i!F' 

ment is not conferred by 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 establish an industrial oil and gas and public utilities appraisal department, it cannot rely on its implied power 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 Constftution does not confer cn the 

commissioners courts 'general authority over 

the county business' and such courts can exercise 

only such powers as the Constitution itself or 

the statutes have 'specifically conferred upon 

them.' . . .While the commissioners courts have 

a broad discretion in exercising powers ex!:ressly 

conferred on them, nevertheless the legal ba,?Is 

for any action by any such court must be ultimately 

found in the Constitution or the statutes.' 

For o,ther cases denying the use of implied powers in 

absence of a statute, see Lasater v. Lopez, 110 Tex. 179, 217 S.W. 

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Hon. Jules Damiani, Jr., pa@;e 3 (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 implied authority, 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 constitutional or statutory authority, we must hold 

the act of the Commissioners' Court in establishing an industrial 

oil and gas and public utilities appraisal department, headed by 

an engineer not responsible to the Tax Assessor and Collector, 

is ultra vires and void. 

Section 1.8 of Article V of the Texas Constitution provides in part as follows: 

"Each County shall. . .be divided into four 

commissionerst precincts in each of which there 

shall be elected by the qualified voters 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 Commissioners Court. . . ." 

Section 18, Article VIII of the Texas Constitution, 

provides as follows: 

"The Legislature shall provide for equalizing as near as may be, the valuation of all 

property subject to or rendered for taxation, 

(the County Commissioner's Court to constitute 

a board of equalization); and may also provide 

for the classification of all lands with reference 

to their value in the several counties.” 

The Texas Constitution also provides that "Taxation 

shall be 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 ascertained as may be provided by law." Section 1, Article VIII. 

Also the statutory law places upon the Commissioners' 

Court sitting as the County Equalization Board 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 such meeting all said assessment lists, books, etc., for inspection, and 

see that every person has rendered his property 

at a fair market value, and shall have 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: 

"The boards 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 accordance with 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 shall have furnished said court with the rendition as provided 

for in the preceding article, it shall be the 

duty of such court to call before it such persons as in its judgment may know the market 

value or true value of such property, as the 

case may 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 accordance with 

the evidence so introduced and as provided for in 

the preceding article; and their action in such 

case or cases shall be final; . . .' 

It has been definitely decided by our courts, however, 

that the Commissioners 1 Court has the implied power to employ 

independent assistants to assist in arriving at the value to be 

fixed by the Commissioners 1 Court as a Board of Equalization 

where technical or special knowledge 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 technical knowledge is necessary in order to 

attain a fair valuation. One of the first cases to consider the 

authority of the Commissioners 1 Court to employ outside help 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 contract with a 

private individual to list owners of all producing oil and 

gas properties within the county and make a valuation of all 

pipelines, refineries, tank farms, tankage, etc., used in 

connection with oil and gas development including transportation 

facilities. The court based its decision upon the premise that 

the value of the particular kind of property involved could not 

have been determined by one who possessed only ordinary knowledge as to such property and hence the court had the implied 

authority to secure the services of an expert as to the value of 

such property. The court was careful to point out, however, 

that the contract precluded the possibility that the expert would 

perform any of the duties imposed by law on the Tax AssessorCollector or the Board of Equalization, stating that the purpose 

of the contract was merely to aid such officers in the performance of their duties. The next case in which the court had 

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: 

"We know of no valid reason why a tax 

board cannot employ an expert to assist it in 

arriving at the true value of taxable property, 

and when such expert has been employed the board 

should have a right to take into consideration 

the information so furnished by him in ascertaining 

the true value of property for tax purposes. . . 

But it must be remembered that such experts so 

employed bear no official relationship to the 

property owner and have no statutory authority to 

fix the value at which the property is to be 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 condemned by the court because of its broad application to 

all of the taxable property in the county and, in effect, superseded the statutory powers of the Tax Assessor-Collector. The 

case followed, however, the previous decisions that contracts of 

employment of experts to aid in valuing certain types of property 

were legal and constituted an 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 contract which had been entered into by the trustees 

of the Kuntz Independent School District and P. L. Marquess and 

Company. This case went 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 concerned with this 

problem is Pritchard and 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 Civil Appeals, 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.S W 2d 37 Q (19557' held ihat "while 

the Czmt%ssioners* Co:rt is ;oE expressly c&hed with constitutional or statutory authority to contract with 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." (Emphasis added),. 

On the basis of the foregoing authorities, you are 

advised that the Commissioners 1 Court is authorized to hire an 

engineer for the appraisal of industrial oil and gas and public 

utilities properties as an aid to the Commissioners' Court sitting 

as a Board of Equalization. 

SUMMARY 

The Commissioners' Court does not have the express 

or implied authority to establish an independent industrial 

oil and gas and public utilities appraisal department. However, the Commissionersf Court is authorized to hire an engineer for the appraisal of industrial oil and gas and pub1-l.c 

utilities properties as an aid to the Commissioners' Court 

sitting as a Board of Equalization. 

Sincerely, 

WAGGONER CARR 

Attorney General 

By:.+&&-%,. 

I.,Raymond Williams, Jr. P 

Assistant 

IRW:mkh 

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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 

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