TIEE ATTORNBY GENERAL OF TEXAS Auerrx~ ai,THgAa This Opinion ModifiesOpinionsO-5270 & o-5937
HonorableS. K. Long CountyAttorney JeffersonCounty Beaumont,Texas
D6ar Sir: OpinionBumbsrO-6765 Re: Allocationof money reoeived from governmentaldepartmentsand agenciesas "paymentsin lieu of taxes.'
You requestthe opinionof this departmentupon the questionpre- sented in your letter of August 14, whiohwe quote as follows:
"A questionhas arisen as to the propsr applicationsnd the breakdownof pay- ments made by the governmentor departmentsof the governmentin lieu of tax- es, both state end county. It is my opinionthat this paymentis handledthe ssme as taxes snd should be broken down and appliedto the proper funds as if it were the direct ad wlorau tax.
"The authorityfor the paymsn t is Seotion 1546 of Title 42 of the United States Code Annotated,there being no court deoisionthat I have been able to find other than the Moore et al vs. Board of Educationof Ruolid City School District,57 N. E. (2d) 116, dealingwith the meaning of 'in lieu.1
Briefly,your questionis: How shouldpymentr made by Federal housingauthoritiesand similarFederalagenciesin lieu of taxes be allooa- ted by ths taxing units, recipientsof such payments?
The questionyou present is clarifiedsomewhatby Senate Bill No. 61, pssed by the 49th Legislature,which is as follows:
'Section1. That all monies, funds, assets,or gifts authorizedby Federal statuteto be pid to the State of Texas in lieu of taxes or as a gift by the FederalPublic HousingAuthorityor sny other Federalagency. bs and the same is hereby acceptedby the Stats of Texas; that this acceptanceap- plies to any such tenders, gifts, or offers,whether they be mad? in the pest, present,or future.
"S6ction2. The Comptrollerof PublicAccounts is hereby dirsatedand au- thorizedto executesuch instrumentsas may be proper or necessaryto ef- fect aocsptanoeof suchmonies, gifts, or assets,and when so received by the Comptroller,he shstlldeposit ssme in the State Treasuryto the credit of the General RevenueFund. "Sec. 3. The Comptrollermay directthat such monies, when so paid by the FederalHousingAuthority,be remittedthrough the County Tax Assessor-Col- lector in the Countywhere lands are locatedon which the paymmt or tender is made in lieu of taxes by such Federalauthority,and requirethe Tax Assessor-Colleotor of such Countyto make remittanceto the State Treasury in the ssmemanner as he is now requiredto do *en rmitting for ad valor- em taxes: but in no event shall any Tax Assessor-Collector or any other County or State officialbe entitledto any fee for servicesin handling these funda."
It is si@ifioant to note that said Senate Bill NJ. 61 treats such paymentsin effect as ad valorsmtaxer. We think the conclusionis obviousthat since such paymentsare made in lieu of ad valorantaxes, the allocationshouldbe to the respectivefunds to which the ad valorem taxes upon said propertywould be allocatedas providedby law, the sams as the taxes would be if collectedinsteadof a sum in lieu thereof.
If the conclusionswe here express appear to be inconsistent with tso prior opinions of this department,DOS. O-5937 snd o-5270,the paasege by the 49th Legislatureof Senate Bill No. 61, occurringsubse- quent to these tvm opinions,render these inoonsistencies of no consequence. Taxes are not gifts, but a sovereie;n exactionupon citieensor