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GROV?IFI

SELLERS

Hon. B. T. Walters County Auditor Smith County Tyler, Texas

Dear Sir: OpinionNo. 

### o-5862 Re: Filing 

### suits for the collection of delinatient

aersonal or insolvent tax& under the provisions of Article 7297, R.C.S.

You submit for the opini.on of this department certkln Questions contained in your letter of February 10, which reads
as follows:



### “The flllng of suits In the JustIce and’cbunty Courts 

### for the collection of delinquent personal or itinaolvent taxes due to the State and County for the past several ‘years in 

### contqnplatad by this County; I and in this oqnneotion I wlah to submit 

### the following question8 for your 

### opinion:

“1. Would the prbvislona of Article 

### 7297 Revised Civil Statutes, 1925, apply in oaae of suits fjled”~for the oolleotion of taxes on personal property regulhrly asaeaeed eaoh year by 

### the Tax Asseaeor 

### end plaoed~.on the tax roll for that year, 

### either on the unrendebed or’

### r&nd&red portion 

### thereof, where the oomblned total of such taxes sued for 

### does not exoeed 

### the sum of $2g.OC; or does that Artiole apply to suits brought to OOlleOt'~taXd# on perlrbnalproperty diaoovered by 

### the Tax Aeeeesor-Colleqtor to 

### have been unrendered and omitted from

### the roll for previous yearn ‘end baok 

### assessed for auoh omitted yeare? .*

“2 * 

### Does the statutea veet the Tax AasesrrbP with authority to add 

### to Reigned’rendition auoh persohal propert making t known by 

### him to be 

### owned by the lndlvidu~l ’

he rendition subjeot to ta’xati,on in the County, when that individual has omitted bama from his r&ildition. If, in your opinion, the Tax Assessor 

### do&4not,have’the authority~



### to add the omitted personal property, ddsa 

### he. have the authority to refuse the algned, but 

### incomplete, rendition?. .

Hon. B.T. Walters, page 2 o-5862

Your first question involves the construction of A,rt. 7297, R.C.S., which reads as follows:

"Thedi,strict

or county attorney of the respective counties of this State, by order of the commissjoneps court, shall institute suit in the name of the State for recovery of all money due the State and county as taxes due and unpaid onunrendered personalproperty; and in all suitswhere judgmentsare obta,Fned under this law, the person owning the property on which there are taxes due the State and county shell be liable for' all cost?. The State and county shallbe exempt from liabi,.l.lty for any costs growing out of such action. All suits brought under this article for the recovery of texesdue on personal property shallbe brought against the person or personswho owned the propertyat the time such property shouldhave been.listed or assessed for taxation. NO suit shall be broughtuntil after demand is made by the collector for taxes due, and no suit shall be brought for an amount less than twenty-fivedollars'* Such suits may be brought for all taxes so due and unpaid for which suchdelinquent tax payermay be in arrears for and since the year 1886.”

Your questlonNo. 1 may be subdivided into two questions:
(1) Where assessmentshavebeen regularlymade by the Assessor each year, may suits'be filed as authorizedunder said articlewhen the combined total of delinquent taxes due and sued for is less than $25.00?

(2).~Doessaid article apply only to suits brought to collectdelinquenttaxes on personal Propertydiscovered by"the tax assessor to have been unrendered a::domItted from the tax rolls for previous years and.by the assessor asses~sed for such omitted gears?.,

This article of the statute as observedby Its plain ~- terms does not purport to deal with delinquent taxes on personal propertywhich has been regularlyassessed eitherupon the rendered orunrendered rolls by the a8sessor. The statute says "for the recovery of all money due the State and County es taxes due unpaid'on unrendered persona.1 property: O

. ; all suits brought ulider this Article for the'recovergof taxes due on personal'property shallbe brought against the person or persons who owned the property at the time su,ch property should havebeen listed or assessed 'fortaxation." Thus it seems clear to us that this article of statutedeals onlywith unrendered, unlisted bnd unassessed personal property, We do not meanto say, however, that suit,

for such delinquent taxes on personalproperty as this. ’

Hon. B. T. Walters, page 3 O-5862

article of the statuteauthorizesmay be broughtwithout an assessmentby the assessor;quite to the contrary, as we point out in our answer to the second part of your first question to follow-. In no event can suitsbe broughtunder this article of the statutewhere the combined amount sued for i.sless than

t 25.oo. This is expressed in the plain language of the statute. Emphasis added)

The answer to the second part of your questionNo. 1 bringsus to a more detailed consideration of the~construction to be given Article 7297,R.C.S., in its~ general application as the courts have construed it. It is apparent on the face of it that the article deals with a method of enforcing the collection of "taxesdue and unpaid" on unrendered personalproperty,with the limitation of course that no suit shallbe brought for less than'$25.00,as we have said in answer to the first part of your question.

Article 7297 hereunder considerationwas formerly ~.' Article 5212a, R.C.S., 1895, and was first construed in the case of Connell v. State, 55 S.W. 980,which was a'suit for delinquent taxes on personal property. In that case the court said:

,I This suitwas evidentlybrought under article j2;2a,which makes it the duty of the district
or county attorney,by order of the commissioners court, to institute in the name of the state a suit to recover all money due the state and county as taxes on unrendered personal property. It is further provided in that arti~cle that all suits for the recovery of tflxes due on personal property shall be brought against the person or persons who owned the propertyat the time the same should have been listed or assessed for taxation. Our constructi~on of this~

artic'le,

however, is not that itwas intended to create any liability for taxes,but only to,provide an additional method of collecting taxes from the persons already liable. That is to say, the taxes are not 'due'- from the persons suedwithin the meaningsof this Article, until there has been a valid assessment against him, either as known orunknown owner.
. . .'I
This articlewas subsequkntlyreenacted and codified
as Article 7661, R.C,S., and again cemeup for construction In the case of State v. Cage, 176 S.W. 928. This.was also e suit by the State for delinquent taxes on personal property, not renderedby the owner and assessed as suchby the assessor on theunrendered rolls. It must be kept in mind thatwhile the office of tax assessor is a constitutionaloffice, the Constitution does not define his powers and duties; but the Legislature, as it may do under the Constitution,has conferred certainHon. B, T. Walters, page Ir o-5862

duties and powersupon him, beyondwhich he cannotgo. One of these limitations is that he cannot assess personal property which has been unrendered end omitted from the assessment rolls for more than two years prior to the time he discovers such omission. This is clearly the intent of Article 7208, R.C.S. In otherwords, the tax essessor is wlthout authority to list and assess personalproperty theretoforeunrendered by the owner, except for the two years i~mmedietely prior to the discovery of the omission from the rolls. This is made plain i,n the case of State v. Cage, supra, in the following language:

"Theprovlsion in article 7661 'thatno suit shall be brought until after demand is made by the collector for taxes due' necessarilydestroys the contention that by that article a right of action existswithout en assessment,because the tax collectorcould not make a lawfuldemand for taxes due until the amount of such taxes has been first determinedby an assessment of the'propertg for taxation. We are of the opinion further that that article cannotbe construedas impliedly authorizingan assessor to assess personal property for any year back to the year 1886, for, if it is so construed, itwould repealby implication,or else renderuseless, article 7566.

. . .We are of the opinion 'furtherthat itwould be a stra,inedconstruction of article 7661 to sky that in enecti~ng it the Legislature intended thereby‘to extend the powerof the essessor to assess delinquentpersonalproperty ,backto the gear 1886. Our constructionof article 7661 is that no morewas intendedthan that suit should be institutedfor collection of suchdelinquent taxes only as had been properly levied and assessed.

"We think it clear thatby article 7566 it was intendedthetat any time after the ena~cbnent of that statute the assessor could assess such personal property which had been omitted for two yeers prior to the time the assessor discovers such omission,and we overrule appellant's contention that by that article two years pri~or to its enactmen.i

was made the period to which all assessments of personel property thereaftermade could extend.'!

Inbrief, the duty imposedupon the district or county attorney to file suitsu~nder Article 7297, supra,when ordered to do so by the commissionerscourt presupposesa pre-existing valid assessmentby the essessor of suchpersons1 property,~in the absence ofwhich no right of action exists, for as said in the'cese of State v. Cage, surpe, saidarticle provides: "That no'sult shellbe brought until efter demand ismade by the collector for taxes due, which necessarilydestroys the contention. .

Ron. B. T, Walters, page 5 o-5862

thatby said article a right of acti~on existswithout an a33ess: ment,because the tax collector could not make a lawful demand for texes'dueuntil the amount of such taxes has been first determined by an assessment of the property for taxation. Moreover this same case is an author!~ty for the 1im:tationplacedupon the assescor by the two ycsr period prior to his discovery of the omission of such personal property from the tax rolls in making his assessment of such property. This is found in the following language:

'We are of the opinion further that that article could not be construeda3 impliedlgauthorizing the
assessor to essess persona1 property for any year back to the year 1886, for, if it 13 30 construed, itwould repeal by implication,or else renderuseless, Article 7566 (nowArticle 7'08).

. .We ere of the opinion further that it would be a strenge construction of Article 7661 to say that in enacting it the Legislature intended thereby to extend the power of the assessor to
assess delinquent propertybeck to the year 1886."

In summingup the court said:

"Our construction of Article 7661 (nowArt. 7297) is that no more was intendedthen that suit should be instituted for collection of'suchdelinquent texes only
as had been properly levied 'andassessed."

This case furtber makes'clear that by Article 7566 (now Art. 729?) itwas intended that any time after the enactment of that statute the asses3or could assess such'personalproperty wh!ch~had been omitted for two years prior to the time the assessor discovered such omission, and not otherwise.

Passing nw to the considerationof your.secondquestion,,
we have impliedlyanswered it in our discussion of the firstquestion submittedby you; but to be more specificwe direct your attention to otherprovisions of the statutedealing with the duties end powers of the assessor in assessing unrendered prop-- erty?which of course,comprehendsproperty intentionallyor Articles inadvertently omittedby the owner from his rendition. 7192-7193,R.C.S., cover3 such situations. They read as follows:

"In every cause

where eny personwhose duty it 13 to list eny property for taxation has refused or neglected to list the samewhen called on for that purpose by the
assessor of'taxes, or has refused to subscribe to the oath in regard to the truth of his statement of property,
or any pert thereof,when requiredby the tax assessor, the assessor shall not.2in a book the name of such personHon. B. T. Walters, page 6 o-5862

who refused to list or to swear;and in every casewhere any person required to iist property for taxation has been absent orunable fr:om sickness to list the same, the tax assessor shall note in a hook such fact, together with the name of such person.

"Inall cases of failure to obtain a statement of real and personalpropertyfrom any cause, the assessor of taxes shall ascertain the amount and value of such property and assess the same as he beli,eves to be the true an3 full val~uethereof; and suchassessment shall be as valid and binding RS if such propertyhad been renderedby the proper owner thereof."

In construing the above Article 7193, Judge Speer of the Fort Worth Court of CivilAppeals, in the case of Texas PublicUtilities Corporaticnv. Holland, 123 S.W. (2d) 1028, said:

"However,as seenby Art. 7193, quoted above, If for any cause the owner does not take advantage of the priviiegegiven to ;;hus render his pro;?erty and have thebenefits pointed out, itbecomes the duty of the assessor to ascertain the amount and value of the propertyand assess it according to his own ideas of values, underwhich condition the assessment so made his as binding upon the ownerand ,the property assessed
as if 5-t.

found Itsway to the tax rolls by means of the firstprovisiondiscussed.

. e .I'

To the same effect is the holding inTown of Pleasanton
v.Vance, 4 S.W. (2d) 247, (SanAntonio Court of Civil Appeele) fromwhich we quote as fol;ous:

?i

. . .Whjle it is true that the law mekes i~t the duty of the owner to.render his property f~or taxation (article7152, Revise&Statutes 1925) it Is also the duty of the assessor io render it Ian cases where the owner fails from any cause +;o do so. Article 7193,Revised Statutes 1925."

The case -of

Ferguson, et ux, v. Steen. Tax Assessor, et al.; 253 S.W. 313, (El P:'ro Court of ;:1~il

Ap&;:ls) affirmed the right ,of

the assessor, by virtue of Articles 7190, 7192 and 7193, R.C.S., to assess property omi,tteU from the owner'srendltion. The property owners in this case rendered their interest in the surface of the land ;nvolved,but refused to render the mi,neral

or royalty interest. The court said:

We think,u~ndertne authority of articles 7190, j1.92:

and 7193;Revised Statutes of 1925,'the tax. -

.

Hon. B. T. Walters, page 7 o-5862

assessor had the right to assess appellants' royalty interest in said land, at $30,870.

. . . ." as the court found he did do,

True, the royalty or mi~neralinteresthere involved constitutedan interest in land; the court held in effect that if treated as personalpro;:erty, inwhich e:lentitwould have been listed and valued seoarately, payer for the amount of his taxes no harm resulted to the taxwould not be diminished or decreased thereby, for in any Event hewould pay on the same assessed value. The matter of increasj~ng the value of property listed and assessedby the assessor, or the rendition voluntarily made by the owner, is altogethera different matter. This cannotbe done in any event without notice to the owner and consequent right to be heard; 3g S.W. Hoffling v. City of San Antonio,

919, by the Supreme Court of Texas. Summarizing,your secondquestion is answered as follows: 7193, R.C.S., Articles 7190, 7192 and

are sufficientauthority for the tax assessor to
assess personal property omittedby the property owner from hits rendi~tion.We are of the oilinion that the assessorwould not have the authority to refuse the renditicnby the property owner of such propertyas he, in the exercise of his statutory rights, personally renders;but such property owner cannot circumvent, by rendering only 8 part of h's property, the statutoryduties imposedupon the tax assessor to list,value, and assess such personal property as he may intentionallyor otherwise omit from his rendition. Itwould appear, however, from the language of the court in the case ofW.T. Waggoner Estate v. Electra Independent'Schoo1District, 1.57 S.W. (2d) 721. that the assessor should assess property omittedby the owner from his rendition, whether intentionalor otherwise, on the unrendered rolls; rather than by adding it to the voluntary rendi~tion of the owner. In this case the court said:

"In its petition the schooldlstrj.ctseems to allege that the Estate did not render its mineral interests,and that the board of equalizationadded the mineral interests to the rendition. If it did do this, i.t

had no legal right to do so. The board of equalizationmay, under prooer procedure, change the valuations,but it may not add, to the rendition, properties not included in the rendition. Such unrendered prooerties could only be nlaied on the unrendered rolls by the assessor. Cracker v. Santa Consol. Independent School District, Tex. Civ.App., 1.16 S.W. 2d 750, and
cases therein cited." (Emphasisadded)

We trust we have made sufficiently clear our snswers to your questions... -

Hon. B. T. Walters, page 2 O-5862

Yours very truly

ATTORNEYGENERAL OF TEXAS
By: s/L.P. Lollar L. P. Lollar Assistant

LPL:AMM:wc

APPROVED MAR 17, 1944 s/Gee. P. Blackburn (Acting)ATTORNEY GENERAL OF TEXAS
Approved Opinion CommitteeBy s/A.W. Chairman