The opinion
Honorable James E. Barlow Opinion No. M-328
Criminal District Attorney
County of Bexar Re : Who has the administra-
County Courthouse tlve responsibility of
San Antonio, Texas 78204 deciding the status of
property for ad valorem
tax exemption under the
Constitution and
Dear Hr. Barlow: Statutes of Texas?
Your request for an opinion from this office inquires
as to what official or of'flclals on the county level has the
responsibility of deciding which property shall be exempt from
taxation beoauae of the various provisions of the Constitution
and Statutes, when the tax exempt status ia disputed.
In connection with this request, It should be noted that
the final authority to decide If property is exempt from taxa-
tion rests with a court of competent jurisdiction. Your ques-
tion, therefore, has been interpreted to ask what admlnlstra-
tive authority is vested with the authority to initially deter-
mine if property is exempt from ad valorem taxation by virtue of
the Constitution and Statutes, and does any other administrative
body have the authority to review such a determination.
The Constitution and Statutes of Texas delegate the duties
of administering the ad valorem tax laws of the state to three
authorities, namely, the county tax assessor and collector, the
county commissioners court, sitting as a board of equalization,
and the county commissioners, functioning as a commissioners court.
An examination of these same laws, however, reveals that none of
these bodies is expressly granted the authority to Initially de-
termine whether property falls within a class that is tax exempt.
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Hon. James E. Barlow, Page 2 (M-328 )
Sections 14 of Article VIII of the Texas Constitution
establishes the office of assessor and collector of taxes and
provides therein that he
. . . shall perform all the duties with
respect to assessing orooertv for the nur-
pose of taxation and boliecting taxes as
may be prescribed by the Legislature.”
(Emphasis Added.)
Among the numerous duties of the tax aaaeasor as pra-
scribed by the Legislature is that of obtaining a full,
complete, and correct asaeaament of all taxable property slt-
uated in his respective county. See Art. 7189, et seq. Vernon’s
Civil Statutes.
An assessment of property for taxation has been defined
as the’listlng of property to be taxed~ ln aome form, and an
estimation of the sums which are to be a guide in the apportlon-
ment of the tax. See Sullivan v, Bitter, 51 Tex. 604, II3 S.1W.
193, (!fex.Clv.App. 1901B, no writ history). Article 7145,.
Vernon’s Civil Statutes, provides -.
“All property, real, personal or mixed,
except such a% may be hereinafter express-
ly exempted, la subdect to taxation. and
the same shall be rendered and llstedx
herein prescribed. ” (Emphasis Adde d . )
A summation of the above definition and provlalona
Indicates that only property subject to taxation Is to be listed,
and the duty of listing such property is vested with the assessor
and collector of taxes, It follows, therefore, that before the
assesaor can perform his duties he must make an initial decision
of whether or not property is exempt from taxation. If it Is ex-
empt, the assessor has no authority to assess the property. If it
1s not exempt, then it is made his duty under the statutes to
assess the same. It is the opinion of this office, therefore,
that the tax assessor and collector is granted the authority to
lnltlally decide if property is tax exempt under the Constitution
and Statutes of, Texas s
The next question to answer is whether the county
commissioners court, sitting as a board of equallzatlon, has the
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Hon. James E. Barlow, Page 3 (M-328)
authority to uasa on auestions relating to the tax exempt status
of property. -
Section 18 of Article VIII of the Constitution of !Psxaa
provides that:
?l?ha Legislature shall provide for equal-
izing, as near as may be, the valuation of
all property subject to or rendered for
The duties of the commissioners court, sitting as a
board of equalization, and Its authority as such board is defined
by Article 7206, Vernon's Civil Statutes. The other statutes that
have been enacted regarding the board simply clarify those duties
listed In Article 7206, supra. See Articles 7198, 7211, 7212,
7356, et seq., Vernon's Civil Statutes.
Article 7206 provides that the commissioners court shall
sit as a board of equalization and Is to receive all the asseaa-
ment lists or books of the assessors of their counties for
Inspection, correction or equalization and approval, Thereafter,
said Article, supra, provides in part as follows:
"1 . They shall cause the assessor to
bring before them . . . all assessment
lists, books, etc., for inspection, and
see that every person has rendered his
property at a fair market value, and
shall have the power to send for persons,
books, and papera, swear and qualify
persons, to ascertain the value of such
property, and to lower or raise the value
on same.
"2 . They shall have power to correct
errors In assessments.
“3 . +**
"4. After they have Inspected and
equalized as nearly as possible, they
shaI.1 approve said lists on books and
return same to the assessors for making
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Hon. James E. Barlow, Page 4 (M-328)
up the general rolls, when said
board shall meet again and approve
thea same if found correct.
***
::g- !l!he assessors of taxes shall furnish
said board . . . a certified list of names
of all persons who either refuse to swear
or to qualify or to have signed the oath
required by law, together with the assess-
ment of said person's property made by him
through other information; and said board
shall examine. eclualize and correct assess-
ments so made by the assessor, and when so
revised, equalized,,and corrected, the same
shall be approved.
In the case of Harris County v. Bassett, 139 S.W.2d 180,
(Tex.Clv.App., 1940, writ of error refused) the Court, dlscusa-
ing Art. 7206, suprag as well as other statutes, said:
II
the authorities are uniform In
hildiig that the Board of Equalization is
concerned only with the properties on the
rolls and with the correction of valuations
placed thereon by the Tax Assessor, and
that the board may not add to the rolls
property not entered, nor eliminate there-
from entries appearing thereon.
consent, e (citing authorities).-. D
(Emphasis Added,)
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Ron. James E. Barlow, Page 5 (M-328 )
Furthermore, In the case of Roach v. First Savings &
Loan 203 S.Y.2d 1006, 1012 (Tex.Civ.App. 19471, the Court
esslng the powers of the county commissioners acting ai the
board of equalization, observed that the latter is given the power
of reconsideration and revision of the tax assessor-collector's
real property valuations. The Court further said:
"The jurladlotlon of the Commlasioners Court
sitting as a board of equalization la fixed
bs Art. VIII. Sec. I8 of the Constitution.
Vknon*a AxmISt. It Is conceded by all
authorities that ihe Board of Equalization
Is without power to add to or take from the
assessment rolls property plaoed thereon or
round thereon, but its power 1s limited to
matters affecting valuationa.” (Emphasis Add,ed.)
In the oaae of Bavls v. Burnett, 77 Wx.3, 13 S.W. 613
(1890). the Supreme Court naa conoerned with the queetlon of
rihethir the apiellee would be entitled to a writ cif Injunction
to prohibit the oolltctlon of an Illegal tax. The taxing
authorities had assessed property that uas tax exempt. The
appellant (tax authority) had urged the appellee had a remedy
by applloatlon to the board of equallution, and that therefore
he was ZI& entitled to a writ of In¬ion. That Court declared:
The above articles and the court Interpretations placed
thereon clearly define the scope of authority of the county
commissioners court sitting as a board of equalization with respect
to what matters may be brought before them for their oonslderatlon.
It la the opinion of this office that such scope of authority does
not include the power to decide whether property is exempt from
taxation by the Constitution and Statutes.
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Hon. James E. Barlow, Page 6 (M- 328)
If the county commissioners court, sitting as a board of
equalization, does not have
_ _this authority, do the county commlsslon-
ers functioning as a commlssloners court have any control over
assessments or exemptions therefrom made by the tax a~ssessor and
collector?
Art. V, Section 18 of the Texas Constitution provides that
the County Commissioners Court shall exercise such powers and
jurisdiction over all county business, as Is conferred by the
Constitution and laws of the State. Pursuant thereto, the
legislature enacted in the year 1905 Articles 7346 and 73479 Vernon’s
Civil Statutes, giving the county commissioners court certain author-
ity to reconsider and revise the tax rolls, Article 7346 pre-
scribes, in part, as follows:
“Whenever any commissioners court shall
discover through notice from the tax
collector or otherwise that any real
property has been omitted from the tax
rolls for any years since 1884, OP
enforce collection of taxes on said
properties, they may-, at a meeting of
the Court, order a list of SW+
properties to be made i ;, II )
(Emphasis Added s )
Art. 7347, provides, in part, that when the list referred
to in Art. 7346 has been compiled,
II
. the commissioners
* 0 court m2J at
any meeting, order a caneellatio n of such
properties in said list that al:e known
to have been previously assessed, but which
assessments are found to be fnvalia
have not been canoelled by any for ?i&r order
of the commissioners court, or by decree of
any district court; and shall then refer such
list of properties to be assessed OP re-assessed
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Hon. James E. Barlow, Page 7 (M-328 )
to the tax assessor who shall proceed at once to
make an assessment of all said properties, from
the data given by said list . . . and when com-
pleted shall submit the same to the commlssion-
ers court, who shall pass upon the valuations
fixed by him; and, when approved as to the
values, shall cause the taxes to be compc!ted
and extended at the tax rate in effect for
each separate year mentioned in said list;. . .
(Emphasis Added. )
These statutes speak of those situations where the
commissioners court "shall discover" or "shall find" that real
property has been omitted from the tax rolls or a previous
assessment thereon is Invalid. In such Instances, it becomes the
duty of the commissioners court to make a list of said properties
and refer said list to the tax assessor to be properly assessed or
reassessed.
In Couch v Earnest, 62 S.W.2d 988, 992 (Tex.Civ.App. 1933,
error dism.) the San Antonio Court 01' civil Appeals declalseu bnat
I,. . . The t:x roll of a county is not like the law of the Medes
and Persians, irrevocable and unchangeable. When property is
found to have been omitted from the rolls, it is the right and the
bounden duty of the commissioners court to have a corrected roll
prepared. . . ." (Emphasis Adde d . )
It is our view that Articles 7346 and 7347 expressly
authorize the commissioners court, in its discretion, to inquire
Into real property assessments and any and all exemptions there-
from made by the tax assessor and to declare the same to be invalid
for any reason (including the matter of exemptions); and should the
commissioners court decide an assessment is invalid, they have the
authority to strike said assessment from the tax rolls. This
position is supported by prior opinions from this office. See
Attly. Cen. Opinion Nos. O-7251 (lg46), V-973 (19&q), and M-321
(1968). If the real property Is not assessed because found to be
exempt by the assessor, who omits the property from the tax rolls,
the commissioners court may, at any meeting of the court, determine
that the property is not exempt and order that such property be
listed on the tax rolls and asaeased. If that real property is
assessed because found not to be exempt by the assessor, who lists
the property on the tax rolls, the commissioners court may, at any
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Ron. James’E. Barlow, Page 8 (M- 328)
meeting of the court, declare the assessment invalid and
order the same to be cancelled from the tax rolls. ThUS,
the county commissioners court functions here as the
general governing body of the county, and exercising
administrative and quasi-judicial functions, as contem-
plated and authorized by Article V, Section 18,
Constitution of Texas, and the cited statutes enacted
pursuant thereto.
This opinion should not be interpreted as saying
or implying that the county commissioners court is nec-
essarily required to review all tax assessments or exemp-
tions therefrom, or that action by that authority is a
condition precedent to the maintenance of an action in
Court concerning invalid assessments or tax exempt
properties. The commissioners 1 court Is jurisdiction
and- duty Is Invoked only when it shall discover through
notice that real vrooertv has been omitted from the tax
rolls, or shall find-any-previous assessments to be
invalid, or to have been declared invalid for any reason
by any district court, as expressly set out in Article
7346.
SUMMARY
It Is the opinion of this office that
the administrative responsibility of
deciding whether property Is exempt
from taxation by the Constitution
and Statutes of Texas is vested with
the county tax assessor and collector,
and the county commissioners, functlon-
ing as a county commissioners court, has
the authority to reconsider and revise
his decisions with reference to all real
property; the county commissioners court,
sitting as a board of equalization, has
no authority, expressly or impliedly, to
consider questions relating to tax
exemptions, but its authority is limited
to matters affecting valuations.
s very truly,
‘2. MARTIN
orney Qeneral of Texas
. .
Hon. James E. Barlow, Page 9 (M-328 )
Prepared by Edward H. Esqulvel
Assistant Attorney General
APPROVED:
OPINION COMMITTgE
Kerns !lkylor, Chairman
Bill Allen
John Reeves
James McCoy
Alfred Walker
Gabriel QutSmrez
HAWTRORNEPHILLIPS
EICECUTIVE
ASSISTANT
.,.,, ., . ~(. ..a.. ,.. I
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