The opinion
April 23, 1963
Honorable Jules Damiani, Jr. Opinion NO. C- 63
Criminal District Attorney
Galveston County Re: Whether the Commissioners
Galveston, Texas Court has authorization
to establish an industrial
oil and gas and public
utilities appraisal depart-
Dear Mr. Damiani: ment.
In your request for an opinion from this office, you
submit certain facts which we quote as follows:
"The Galveston County Tax Assessor and
Collector recently requested the Commissioners
Court for the County of Galveston to enter in-
to a contract with an appraisal firm to assist
him in the appraisal and assessment of oil and
gas, public utilities and industrial properties.
The Commissioners Court declined to enter into
any contract with an appraisal firm and on March
19, 1963, at a regular meeting of the Commissioners
Court the Commissioners Court voted to set up an
industrial oil and gas and public utilities ap-
praisal department under the supervision of the
County Commissioners Court to assist the Board
of Equalization and to work with the County Tax
Assessor and Collector's office.
"After the creation of this particular
department, the Court voted to hire an engineer
to head this particular department at an annual
salary of $13,500.00. This engineer is not res-
ponsible to the Tax Assessor and Collector and
is not a tax office employee or deputy. . . .
"It is understood that the hiring of this
particular engineer will in no way usurp the
authority of the Tax Assessor and Collector who
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Hon. Jules Damiani, Jr., page 2 (C- 63 )
has the specific duty to assess all properties. . ."
With regard to these facts you ask two questions
which we list as follows:
"Whether the Commissioners Court has
authorization to establish an industrial oil
and gas and public utilities appraisal depart-
ment.
"Whether the Commissioners Court is
authorized to hire an eigineer for the ap-
praisal of industrial oil and gas and public
utilities properties as an aid to the Commis-
sioners Court sitting as a Board of Equali-
zation."
Under Section 18 of Article V of the Texas Constitution,'
Commissioners' Courts are courts of limited jurisdiction, having
no authority except as is expressly or impliedly conferred, Von-
-
Rosenberg v. Lovett, 173 S.W. 508 (Civ.App. 1915); Miller v. Brown,
2 b S W 4 2 C' App. 1919) and Carroll v. Williams 09 T
2:2 S:W: 524 lGi6). Also the authority to create sick a dz&i!F'
ment is not conferred by the terms of Article 2351, Vernon's Civil
Statutes, which specifies the general powers and duties of Commis-
sioners' Courts.
Since the Commissioners' Court has no express authority
to establish an industrial oil and gas and public utilities ap-
praisal department, it cannot rely on its implied power for author-
izing the creation of this department. In Cmalee v. Laughlin,
147 Tex. 169, 214 S.W.2d 451 (1948), the Supreme Court stated:
"The Constftution does not confer cn the
commissioners courts 'general authority over
the county business' and such courts can exercise
only such powers as the Constitution itself or
the statutes have 'specifically conferred upon
them.' . . .While the commissioners courts have
a broad discretion in exercising powers ex!:ressly
conferred on them, nevertheless the legal ba,?Is
for any action by any such court must be ultimately
found in the Constitution or the statutes.'
For o,thercases denying the use of implied powers in
absence of a statute, see Lasater v. Lopez, 110 Tex. 179, 217 S.W.
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Hon. Jules Damiani, Jr., pa@;e3 (C- 63 )
373 (1919); Moon v. Alred, 277 S.W. 787 (Civ.App. 1925, error
dism. w.0.j.‘); Hill v. Sterrett, 252 S.W.2d 766 (Civ.App. 1952,
error ref. n.r.e.).
Attorney General's Opinion O-4557 (1942) held that
in the absence of express or implied authority, the Commissioners'
Court of Tarrant County could not legally employ a Board of
Equalization composed of skilled experts to value for taxation
purposes property in the county. Consequently, in the absence
of express constitutional or statutory authority, we must hold
the act of the Commissioners' Court in establishing an industrial
oil and gas and public utilities appraisal department, headed by
an engineer not responsible to the Tax Assessor and Collector,
is ultra vires and void.
Section 1.8of Article V of the Texas Constitution pro-
vides in part as follows:
"Each County shall. . .be divided into four
commissionerst precincts in each of which there
shall be elected by the qualified voters thereof
one county commissioner, who shall hold his office
for four years. . .The county commissioners so chosen
with the County Judge, as presiding officer, shall
compose the County Commissioners Court. . . ."
Section 18, Article VIII of the Texas Constitution,
provides as follows:
"The Legislature shall provide for equal-
izing as near as may be, the valuation of all
property subject to or rendered for taxation,
(the County Commissioner's Court to constitute
a board of equalization); and may also provide
for the classification of all lands with reference
to their value in the several counties.”
The Texas Constitution also provides that "Taxation
shall be equal and uniform. All property in this State, whether
owned by natural persons or corporations, other than municipal,
shall be taxed in proportion to Its value, which shall be as-
certained as may be provided by law." Section 1, Article VIII.
Also the statutory law places upon the Commissioners'
Court sitting as the County Equalization Board a heavy respon-
sibility. Section 1 of Article 7206 of Vernon's Civil Statutes,
provides as follows:
-3os-
Hon. Jules Damiani, Jr., pas 4 (C- 63 )
"They shall cause the assessor to bring
before them at such meeting all said assess-
ment lists, books, etc., for inspection, and
see that every person has rendered his property
at a fair market value, and shall have power
to send for persons, books and papers, swear and
qualify persons, to ascertain the value of such
vw$tY 9 and to lower or raise the value on the
Article 7!.Zl2
of Vernon's Civil Statutes, states in
part:
"The boards of equalization shall have
power, and it is made their official duty,
to supervise the assessment of their respective
counties, and, if satisfied that the valuation
of any property is not in accordance with the
laws of the State, to increase or diminish the
same and to affix a proper valuation thereto,
as provided for in the preceding article; and,
when any assessor in this State shall have fur-
nished said court with the rendition as provided
for in the preceding article, it shall be the
duty of such court to call before it such per-
sons as in its judgment may know the market
value or true value of such property, as the
case may be, by proper process, who shall tes-
tify under oath the character, quality and quan-
tity of such property, as well as the value there-
of. Said court, after hearing~the evidence shall
fix the value of such property in accordance with
the evidence so introduced and as provided for in
the preceding article; and their action in such
case or cases shall be final; . . .'
It has been definitely decided by our courts, however,
that the Commissioners1 Court has the implied power to employ
independent assistants to assist in arriving at the value to be
fixed by the Commissioners1 Court as a Board of Equalization
where technical or special knowledge is necessary and which know-
ledge the Commissioners' Court would not be presumed to possess,
such for example as oil property or any other type of property
in which skilled or technical knowledge is necessary in order to
attain a fair valuation. One of the first cases to consider the
authority of the Commissioners1 Court to employ outside help in
valuating property is Roper v. Hall, 280 S.W. 289 (Tex.Civ.App.
1926), in which the court held that the Commissioners' Court of
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,
Hon. Jules Damiani, Jr., page 5 (C- 63 )
Freestone County had authority to make a contract with a
private individual to list owners of all producing oil and
gas properties within the county and make a valuation of all
pipelines, refineries, tank farms, tankage, etc., used in
connection with oil and gas development including transportation
facilities. The court based its decision upon the premise that
the value of the particular kind of property involved could not
have been determined by one who possessed only ordinary know-
ledge as to such property and hence the court had the implied
authority to secure the services of an expert as to the value of
such property. The court was careful to point out, however,
that the contract precluded the possibility that the expert would
perform any of the duties imposed by law on the Tax Assessor-
Collector or the Board of Equalization, stating that the purpose
of the contract was merely to aid such officers in the perform-
ance of their duties. The next case in which the court had
occasion to consider the power vested in a taxing authority to
employ assistants in arriving at fair appraisals is Simkins v.
City of Corsicana, 86 S.W.2d 792 (Tex.Civ.App. 1935). In this
case the court said:
"We know of no valid reason why a tax
board cannot employ an expert to assist it in
arriving at the true value of taxable property,
and when such expert has been employed the board
should have a right to take into consideration
the information so furnished by him in ascertaining
the true value of property for tax purposes. . .
But it must be remembered that such experts so
employed bear no official relationship to the
property owner and have no statutory authority to
fix the value at which the property is to be as-
sessed. . .'
The same problem was later presented and ruled upon in
the case of Marquart v. Harris County 117 S.W.2d 4914 (Tex.Civ.
App. 1938, error dism.), and the cont;act considered in that case
was condemned by the court because of its broad application to
all of the taxable property in the county and, in effect, super-
seded the statutory powers of the Tax Assessor-Collector. The
case followed, however, the previous decisions that contracts of
employment of experts to aid in valuing certain types of property
were legal and constituted an appropriate expenditure of public
funds.
Another case to consider this problem is Crosby v.
P. L. Marquess and Co., 226 S.W.2d 461 (Tex.Civ.App. 1950, error
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Hon. Jules Damiani, Jr., page 6 (C- 63 )
ref. n.r.e.), which case upholds the validity of an appraisal
and valuation contract which had been entered into by the trustees
of the Kuntz Independent School District and P. L. Marquess and
Company. This case went further than any prior case in uphold-
ing the validity of a contract to appraise property in behalf
of a taxing district. The most recent case concerned with this
problem is Pritchard and Abbott, et al. v. McKenna, 162 Tex.
617, 350 S.k.2d 333 (lgol). In this case the Supreme Court
reversed the First Court of Civil Appeals, and followin the
reasoning of Roper v. Hall, 280 S.W. 289 (Civ.Apn. Federal,
Royalty Co. v. St t 4 SW.2d 670 Civ.Ap 1931) and Whelan
V. t a T& z82.S W 2d 37Q (19557' held ihat "while
155 Tex.
the Czmt%ssioners* Co:rt is ;oE expressly c&hed with constitu-
tional or statutory authority to contract with a private firm
for the appraisal of in the county, that authority
is implied from the been expressly granted to
and the duties imposed upon that body by law." (Emphasis added),.
On the basis of the foregoing authorities, you are
advised that the Commissioners1 Court is authorized to hire an
engineer for the appraisal of industrial oil and gas and public
utilities properties as an aid to the Commissioners' Court sitting
as a Board of Equalization.
SUMMARY
The Commissioners' Court does not have the express
or implied authority to establish an independent industrial
oil and gas and public utilities appraisal department. How-
ever, the Commissionersf Court is authorized to hire an en-
gineer for the appraisal of industrial oil and gas and pub1-l.c
utilities properties as an aid to the Commissioners' Court
sitting as a Board of Equalization.
Sincerely,
WAGGONER CARR
Attorney General
By:.+&&-%,.
I.,Raymond Williams, Jr. P
Assistant
IRW:mkh
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Hon. Jules Damiani, Jr., page 7 (C- 63 )
APPZG?JED:
OPINION CCMMITTEE
W. V. Geppert, Cha'rrnan
J. C. Davis
J?hn Reeves
H. Grady Chandler
Albert Pruitt
APPROVED FOR THE ATTCRNEY GENERAL
BY: Stanton Stone
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