The opinion
.
July 14, 1987
Bonorable Robert W. Post Opinion No. JM-747
County Attorney
Dewitt County Courthouse Re: Whether a commissioners court
P. 0. Box 110 way call an election for the purpose
Cuero, Texas 77954 of consolidating tax assessing and
appraisal functions in the office of
county tax assessor-collector
Dear Mr. Post:
You ask whether a commissioners court may call an election for
the purpose of consolidating tax assessing and appraisal functions in
the office of the elected county tax assessor-collector. You inform
us that a petition calling such an election has been presented to the
.- commissioners court. The commissioners court refused to verify the
signatures, because it felt that it was without authority to call such
an election. We agree. We conclude that a commissioners court is
without authority to call an election for the purpose of consolidating
tax assessing and appraisal functions; it possesses the authority to
call an election for the consolidation of tax assessing and/or
collecting functions only.
Section 6.26, Tax Code, permits an election for the purpose of
consolidating assessing and collecting functions and provides the
following:
(a) The qualified voters residing in an
appraisal district by petition submitted to the
county clerk of the county principally served by
the appraisal district may require that an
election be held to determine whether or not to
require the appraisal district; the county
assessor-collector, or a specified taxing unit
within the appraisal district to assess, collect,
or assess and collect property taxes on property
appraised by the district for all taxing units.
(b) The qualified voters of a taxing unit that
assesses, collects, or assesses and collects its
own property taxes by petition submitted to the
governing body of the taxing unit may require that
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Honorable Robert W. Post - Page 2 (SW-7471
an election be held to determine whether or not to
require district, the county
assessor-c%ectraisalor another taxing unit that is
assessing and collkting property taxes to assess,
collect, or assess and collect the unit's property
taxes.
. . . .
(e) If the commissioners court or the govern-
ing body finds that the petition is valid, it
shall order that an election be held in the dis-
trict or taxing unit on the next uniform election
date prescribed by the Texas Election Code that is
more than 60 days after the last day on which it
could have acted to approve or disapprove the
petition. At the election, the ballots shall be
prepared to permit voting for or against the
proposition: 'Requiring the (name of entity or
office) to (assess, collect, or assess and
collect, as applicable) property taxes for (all
taxing units in the appraisal district for
county or name of taxing unit
or units, as applicable.)'
. . . .
(j) An appraisal district may not be required
by an election to assess, collect, or assess and
collect taxes on property outside the district's
boundaries. A taxing unit way not be required by
an election to assess, collect, or assess and
collect taxes on property outside the boundaries
of the appraisal district that appraises property
for the unit. (Emphasis added).
See also Tax Code §§6.24 (authorizing contracts for assessing and
collecting); 6.27 (compensation for assessing and collecting).
Section 6.23, Tax Code, sets forth the duties of a tax assessor-
collector and sets forth the following:
(a) The county assessor-collector shall assess
and collect taxes on property in the county for
the county. He shall also assess and collect
taxes on property for another taxing unit if:
(1) the law creating or authorizing
creation of the unit requires it to use the
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Honorable Robert W. Post - Page 3 (JM-747)
county assessor-collector for the taxes the
unit imposes in the county;
(2) the law creating or authorizing
creation of the unit does not mention who
assesses and collects its taxes and the unit
imposes taxes in the county;
(3) the governing body of the unit
requires the county to assess and collect its
taxes as provided by Subsection (c) of Section
6.22 of this code; or
(4) required by an intergovernmental
contract.
(b) The assessor and collector for a taxing
unit other than a county shall assess, collect, or
assess and collect taxes, as applicable, for the
unit. He shall also assess, collect, or assess
and collect taxes, as applicable, for another unit
if:
(1) required by or pursuant to the law
creating or authorizing creation of the other
unit; or
(2) required by an intergovernmental
contract.
We have already concluded that "assessing" does not comprise the
activity of "appraising." In Attorney General Opinion JM-35 (1983).
we declared the following:
Whatever the term "assess" may have meant prior
to January 1, 1982, see Attorney General Opinion
MW-4 (1979), it is clear that the term does not
presently encompass the activity of valuing
property. The Tax Code contemplates a three-step
process: (1) appraisal of property, see, e.g.,
916.01-6.08, chs. 23. 24, 25, Tax Code;
(2) assessment, 888 896.21-6.30. ch. 26; and
(3) collection of taxes, see ch. 31. An
'assessor' is 'the officer or employee responsible
for assessing property taxes as provided by
Chapter 26 of the Code for a taxing unit by
whatever title he is designated.' (Emphasis
added). Tax Code 91.04(14).
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Honorable Robert W. Post - Page 4 (JM-747)
Our construction of the relevant Tax Code provisions was
impliedly upheld in Wilson v. Galveston County Central Appraisal
District, 713 S.W.2d 98 (Tex. 1986). wherein a county tax assessor-
collector sought to enjoin the county appraisal district from removing
him from the process of appraising property in the county. The county
tax assessor-collector argued that article VIII, sections 14 and 18.
of the Texas Constitution should be read together to require that the
county tax assessor-collector must be the person who is required to
conduct the single county-wide appraisal of property for ad valorem
tax purposes. The relevant portion of article VIII, section 14, of
the Texas Constitution creates the constitutional office of county tax
assessor-collector and provides that sach officer
shall perform all the duties with respect to
assessing property for the purpose of taxation and
of collecting taxes, as may be prescribed by the
legislature.
The relevant portion of article VIII, section 18, of the Texas
Constitution was amended in 1980 to read:
(b) A single appraisal within each county of
all property subject to ad valorem taxation by the
county and all other taxing units located therein
shall be provided by general law. The Legisla-
ture, by general law, may authorize appraisals
outside a county when political subdivisions are
situated in more than one county or when two or
more counties elect to consolidate appraisal
services. (Emphasis added).
The general law passed by the legislature pursuant to article VIII,
section 18(b), was the Property Tax Code.
Relying upon Attorney General Letter Advisory No. 117 (1976), the
county tax assessor-collector argued that article VIII, section 14, of
the constitution impliedly granted to him the authority to appraise
property for ad valorem taxation, because the term "assess" in article
VIII, section 14, encompasses the activity of valuing or "appraising"
property. He argued further that article VIII, section 18(b), should
be read together with article VIII, section 14, to require that the
county tax assessor-collector be the officer who must conduct the
single county-wide appraisal. The Texas Supreme Court, however,
disagreed. The court reviewed the history of the property tax reform
legislation and concluded:
Assuming a constitutional amendment was necessary
to separate 'appraisal' from the express assessing
function of the county tax assessor-collector, the
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Honorable Robert W. Post - Page 5 (JM-747)
amendment to Article VIII, Section 18 accomplishes
this. . . . In unequivocal language, Section
18(b) directs the Legislature to provide for a
single appraisal within each county. The Legisla-
ture has done this by enacting the Property Tax
Code which creates appraisal districts in each
county and charges them with the responsibility
for appraising property within their districts.
The Property Tax Code provides the appraisal
district with two alternative methods for
producing a single, district-wide appraisal of
property. The district may either establish an
appraisal office administered by a 'chief
appraiser' appointed by the board of directors, or
it may contract with a taxing unit in the district
to perform the duties of the appraisal office in
which case the head of the taxing unit [sic]
serves as 'chief appraiser.' [Citation omitted].
. . . The Property Tax Code, however, clearly
confines the selection and tenure of the 'chief
appraiser' to the discretion of the appraisal
,,- district board of directors. [Citation omitted].
We have found no constitutional provision which
limits the appraisal district's discretion in this
matter. (Emphasis added).
Wilson v. Galveston County Central Appraisal District, 713 S.W.2d at
101. Section 6.26, Tax Code, permits a consolidation election regard-
ing assessing and collecting, not appraising and collecting. In the
instance of a special election, the exercise of a grant of authority
to call an election must be in strict conformity with the provisions
of the legislative grant. West End Rural High School District of
Austin County v. Columbus Consolidated Independent School District of
Colorado County, 221 S.W.2d 777 (Tex. 1949) [hereinafter West End];
Mesquite Independent School District v. Gross, 67 S.W.2d 242 (Tex.
1934). As the Texas Supreme Court has declared: "When a statute
which authorizes a special election . . . prescribes the form in which
the question shall be submitted to the popular vote, we are of the
opinion that the statute should be strictly complied with." Reynolds
Land & Cattle Co. v. McCabe, 12 S.W. 165 (Tex. 1888); Coffee v. Lieb,
107 S.W.2d 406, 411 (Tex. Civ. App. - Eastland 1937, no writ).
In West End, the special election at issue was one to consolidate
school districts; the issue was whether the petition to call the
election was defective. The petition failed to identify correctly the
school districts involved. In discussing the conditions precedent
necessary to call the election, the court declared the following:
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Honorable Robert W. Post - Page 6 (JM-747)
Article 2806 [governing school district
consolidation elections] does not purport to
confer unlimited power, or jurisdiction, upon a
county judge to call special elections for the
purpose of effecting consolidation of school
districts. The statute expressly limits his
jurisdiction to the instances in which he is
Presented with a petition complying with the
above-noted requirements; in other words, with a
Proper petition. The requirements pointed out are
conditions precedent to invoke the jurisdiction of
a county judge to call an election for creating a
district or districts by consolidation; and con-
sequently the requirements limit his potential
jurisdiction. (Emphasis added).
221 S.W.2d at 779. Since we believe that the petition requirements of
section 6.26 are clear and unambiguous, it follows that it must be
enforced according to its express language. Cail v. Service Motors,
Inc., 660 S.W.2d 814, 815 (Tex. 1983).
Subsection (c) of section 6.26, Tax Code, provides:
A petition is valid if:
(1) it states that it is intended to require
an election in the appraisal district or taxing
unit on the question of consolidation of assessing
or collection functions or both;
(2) it states the functions to be consolidated
and identifies the entity or office that will be
required to perform the functions; and
(3) it is signed by a number of qualified
voters equal to at least 10 percent of the number
of qualified voters, according to the most recent
official list of qualified voters, residing in the
appraisal district, if the petition is authorized
by Section (a) of this section, or in the taxing
unit, if the petition is authorized by Subsection
(b) of this section, or by 10,000 qualified
voters, whichever number is less.
Clearly, the petition about which you inquire fails to satisfy
subsections (c)(l) and (c)(2); the commissioners court is without
authority to call an election pursuant to a non-conforming petition.
Specifically, a commissioners court may not call an election for the
purpose of consolidating tax assessing and appraisal functions in the
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Honorable Robert W. Post - Page 7 (JM-747)
office of county tax assessor-collector. Section 6.26, Tax Code,
permits an election for the consolidation of tax assessing and
collecting only.
SUMMARY
A commissioners court may not call an election
for the purpose of consolidating tax assessing and
appraisal functions in the office of county tax
assessor-collector. Section 6.26, Tax Code,
permits an election for the consolidation of tax
assessing and collecting only.
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STRAKLN
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
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