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GROV?IFI SELLERS 

Hon. B. T. Walters 

County Auditor 

Smith County 

Tyler, Texas 

Dear Sir: Opinion No. 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 

perlrbnal property 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 R eigned’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&4 not,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: 

"The di,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 on unrendered personal property; and in 

all suits where judgments are 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 shall be exempt from liabi,.l.lty for 

any costs growing out of such action. All suits brought 

under this article for the recovery of texes due on personal property shall be brought against the person or 

persons who owned the property at the time such property 

should have been. listed or assessed for taxation. NO 

suit shall be brought until after demand is made by the 

collector for taxes due, and no suit shall be brought 

for an amount less than twenty-five dollars'* Such suits 

may be brought for all taxes so due and unpaid for which 

such delinquent tax payer may be in arrears for and since 

the year 1886.” 

Your questlon No. 1 may be subdivided into two questi ons : 

(1) Where assessments have been regularly made by the 

Assessor each year, may suits'be filed as authorized under said 

article when the combined total of delinquent taxes due and sued 

for is less than $25.00? 

(2). ~Does said article apply only to suits brought to 

collect delinquenttaxes on personal Property discovered by"the 

tax assessor to have been unrendered a::d omItted 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 

property which has been regularly assessed either upon the rendered or unrendered 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'recoverg of taxes due on personal'property shall be brought against the person or persons 

who owned the property at the time su,ch property should have been 

listed or assessed 'for taxation." Thus it seems clear to us that 

this article of statute deals only with unrendered, unlisted bnd 

unassessed personal property, We do not meanto say, however, 

that suit, for such delinquent taxes on personal property as this 
. ’ 

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

article of the statute authorizes may be brought without an 

assessment by 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 suits be brought under this article of 

the statute where the combined amount sued for i.s less 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 

brings us 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 "taxes due and unpaid" on unrendered personal property, with 

the limitation of course that no suit shall be brought for less 

than'$25.00, as we have said in answer to the first part of your 

question. 

Article 7297 here under consideration was 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 suit was evidently brought 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 property at the time the same should have 

been listed or assessed for taxation. Our constructi~on 

of this~ artic'le, however, is not that it was 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 sued within the meanings of this Article, 

until there has been a valid assessment against him, 

either as known or unknown owner. . . .'I 

This article was subsequkntly reenacted and codified 

as Article 7661, R.C,S., and again ceme up 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 

rendered by the owner and assessed as such by the assessor on 

the unrendered rolls. It must be kept in mind that while the 

office of tax assessor is a constitutional office, the Constitution does not define his powers and duties; but the Legislature, as it may do under the Constitution, has conferred certain 
Hon. B, T. Walters, page Ir o-5862 

duties and powers upon him, beyond which he cannot go. 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 other words, the tax essessor is wlthout authority to list 

and assess personal property theretofore unrendered 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: 

"The provlsion in article 7661 'that no suit shall 

be brought until after demand is made by the collector 

for taxes due' necessarily destroys the contention that 

by that article a right of action exists without en 

assessment, because the tax collector could not make a 

lawful demand for taxes due until the amount of such 

taxes has been first determined by an assessment of 

the'propertg for taxation. We are of the opinion further that that article cannot be construed as impliedly 

authorizing an assessor to assess personal property 

for any year back to the year 1886, for, if it is so 

construed, it would repeal by implication, or else 

render useless, article 7566. . . . We are of the 

opinion 'further that it would be a stra,ined construction of article 7661 to sky that in enecti~ng it the 

Legislature intended thereby‘to extend the powerof 

the essessor to assess delinquent personal property 

,back to the gear 1886. Our construction of article 

7661 is that no more was intended than that suit should 

be instituted for collection of such delinquent taxes 

only as had been properly levied and assessed. 

"We think it clear that by article 7566 it was 

intended thetat 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 thereafter made 

could extend.'! 

In brief, the duty imposed upon the district or county 

attorney to file suits u~nder Article 7297, supra, when ordered 

to do so by the commissioners court presupposes a pre-existing 

valid assessment by the essessor of such persons1 property,~in 

the absence of which no right of action exists, for as said in 

the'cese of State v. Cage, surpe, said article provides: "That 

no'sult shell be brought until efter demand is made by the collector for taxes due, which necessarily destroys the contention 
. . 

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

that by said article a right of acti~on exists without an a33ess: 

ment, because the tax collector could not make a lawful demand 

for texes'due until 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:tation placed upon 

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 construed a3 impliedlg authorizing the 

assessor to essess persona1 property for any year back 

to the year 1886, for, if it 13 30 construed, it would 

repeal by implication, or else render useless, Article 

7566 (now Article 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 property beck to the year 1886." 

In summing up the court said: 

"Our construction of Article 7661 (now Art. 7297) 

is that no more was intended then that suit should be 

instituted for collection of'such delinquent texes only 

as had been properly levied 'and assessed." 

This case furtber makes' clear that by Article 7566 (now 

Art. 729?) it was intended that any time after the enactment of 

that statute the asses3or could assess such'personal property 

wh!ch~had been omitted for two years prior to the time the assessor 

discovered such omission, and not otherwise. 

Passing nw to the consideration of your.second question,, 

we have impliedly answered it in our discussion of the firstquestion submitted by you; but to be more specific we direct your 

attention to other provisions of the statute dealing with the 

duties end powers of the assessor in assessing unrendered prop-- 

erty? which of course,comprehends property intentionally or 

inadvertently omitted by the owner from his rendition. Articles 

7192-7193, R.C.S., cover3 such situations. They read as follows: 

"In every cause where eny person whose duty it 13 

to list eny property for taxation has refused or neglected 

to list the same when 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 required by the tax assessor, 

the assessor shall not.2 in a book the name of such person 
Hon. B. T. Walters, page 6 o-5862 

who refused to list or to swear; and in every case where 

any person required to iist property for taxation has 

been absent or unable fr:om sickness to list the same, 

the tax assessor shall note in a hook such fact, together 

with the name of such person. 

"In all cases of failure to obtain a statement of 

real and personal property from 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~ue thereof; and such assessment shall 

be as valid and binding RS if such property had been 

rendered by the proper owner thereof." 

In construing the above Article 7193, Judge Speer of 

the Fort Worth Court of Civil Appeals, in the case of Texas 

Public Utilities Corporaticn v. Holland, 123 S.W. (2d) 1028, 

said: 

"However, as seen by Art. 7193, quoted above, 

If for any cause the owner does not take advantage of 

the priviiege given to ;;hus render his pro;?erty and 

have the benefits pointed out, it becomes the duty of 

the assessor to ascertain the amount and value of the 

property and assess it according to his own ideas of 

values, under which condition the assessment so made 

his as binding upon the ownerand ,the property assessed 

as if 5-t. found Its way to the tax rolls by means of 

the first provision discussed. . e .I' 

To the same effect is the holding in Town of Pleasanton 

v. Vance, 4 S.W. (2d) 247, (San Antonio Court of Civil Appeele) 

from which 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 (article 7152, 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's rendltion. 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~nder tne authority of articles 

7190, j1.92: and 7193; Revised Statutes of 1925,'the tax 
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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~neral interest here involved 

constituted an interest in land; the court held in effect that 

if treated as personal pro;:erty, in which e:lent it would 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 he would pay on the same 

assessed value. The matter of increasj~ng the value of property 

listed and assessed by the assessor, or the rendition voluntarily made by the owner, is altogether a different matter. This 

cannot be 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 

second question is answered as follows: 

7193, R.C.S., 

Articles 7190, 7192 and 

are sufficient authority for the tax assessor to 

assess personal property omitted by the property owner from hits 

rendi~tion. We are of the oilinion that the assessor would not 

have the authority to refuse the renditicn by the property owner 

of such property as 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 statutory duties 

imposed upon the tax assessor to list, value, and assess such 

personal property as he may intentionally or otherwise omit from 

his rendition. It would appear, however, from the language of 

the court in the case of W.T. Waggoner Estate v. Electra Independent'Schoo1 District, 1.57 S.W. (2d) 721. that the assessor 

should assess property omitted by the owner from his rendition, 

whether intentional or 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 school dlstrj.ct seems to 

allege that the Estate did not render its mineral 

interests, and that the board of equalization added 

the mineral interests to the rendition. If it did do 

this, i.t had no legal right to do so. The board of 

equalization may, 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." (Emphasis added) 

We trust we have made sufficiently clear our snswers to 

your questions. 
. . - 

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

Yours very truly 

ATTORNEY GENERAL 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 Committee By s/A.W. Chairman