Hon. Geo. H. Sheppard
Comptroller   of Public Accounts
Austin, Texas                                   Opinion   No. V-524

                                                Re:   The collection  of delin-
                                                      quent taxes on lands aft-
                                                      er cancellation  of subdi-
                                                      visions under Art. 7227,
                                                      V.C.S.

Dear    Mr.    Sheppard:

         You request our opinion as to the correct amount of
penalty and interest to be collected   where a subdivision has been
canceled under the provisions    of Article  7227, V.C.S., and the
property included therein reassessed      on an acreage basis for
the years for which it is delinquent.

              Article’7227,   V.C.S.,   reads    in part as follows:

             “Any person, firm, association        or corporation
       owning lands in this State which lands have been
       subdivided into lots and blocks or small subdivisions,
       may make application        to the commissioners       court of
       the county wherein any such lands are located for
       permission     to cancel all or any portion of such sub-
       division or subdivisions,       so as to throw the said lands
       back into acreage      tracts as it existed before such sub-
       divisions   were made.       When such application       is made
       by the owner or owners of such land, and it is shown
       that a cancellation     of such subdivisions,     or portion
       thereof, will not interfere      with the established      rights
       of any purchaser      owning any portion of such subdivi-
       sions; or if it be shown that said person or persons
       agreed to such cancellation,        said commissioners         court
        shall enter an order, which order canceling           said sub-
       division shall be spread upon the minutes of suchcourt
       authorizing     such owner or owners of such lands to can-
        cel the same by written instrument         describing      such
        subdivisions,    or portions thereof so cancelled         as des-
        ignated by said court.      When such cancellation        is filed
        and recorded     in the deed records     of such county, the
        tax assessor     of such county shall assess      such proper-
        ty as though it had never been subdivided          . . . If such
                                                                                             .-
                                                                                         .


2x;
      Hon. Geo.    H. Sheppard,   Page   2 (V-524)




           lands are delinquent for taxes for any preceding
           year, or years, and such application       is granted as
           hereinbefore   provided, the owner or owners of
           said land shall be permitted      to pay such delinquent
           taxes upon an acreage basis, the same as if said
           lands had not been subdivided,       and for the purpose
           of assessing  lands for such preceding       years the
           county assessor    of taxes shall back assess     such
           lands upon an acreage     basis..   . .”

                 In order to determine   what penalty and interest        should
      be collected   on the back assessments,      it is necessary     to deter-
      mine whether the reassessment        as authorized     in Article   7227 is
      valid.  If the taxes delinquent under the original assessment            have
      become a liability to the State and other subdivisions          thereof,
      then that portion of said Article    in releasing    such liability is vio-
      lative of Section 55 of Article   III of the Texas Constitution,       which
      in 1919 read as follows:

                “The Legislature    shall have no power to re-
           lease or extinguish,   or to authorize  the releasing
           or extinguishing,   in whole or in part, the indebted-
           ness, liability or obligation of any incorporation    or
           individual, to this State, or to any county or other
           municipal corporation     therein.”

      This Section of the Constitution was amended in 1932, so as to ex-
      cept from the provisions   thereof “delinquent taxes which have been
      due for a period of at least ten years.”

                  The Texas   Constitution   in Section   15 of Article   VIII further
      provides:

                “The annual assessment     made upon landed               ’
           property shall be a special lien thereon; and all
           property . . . shall be liable to seizure and sale
           for the payment of all taxes and penalties..  . .*

               The Commission        of Appeals in State v. Pioneer Oil 61 Re-
      fining Company,‘292 S.W.       869, after quoting Section 55 of Article III,
      supra. said:

                 ‘We do not stop to consider whether a delin-
           quent tax is an ‘indebtedness’    or ‘obligation.’
           within the meaning of the language quoted, for
           that it is a ‘liability’ cannot be doubted.    Olliver
           v. City’of Houston, 93 Tex. 206, 54 S.W. 940, 943;
           City of Henrietta v. Eustis,    87 Tex. 14, 26 S.W.
           619.”
Hon. Geo.   H. Sheppard,‘Page     3 (V-524)




         The Supreme Court of Texas           in Rowan Drilling    Company
v. Sheppard, 87 S.W. (2d) 706 held:

           “When we read the various tax provisions       of
     our Constitution   singly, and in the light of each
     other, we are convinced by necessary       implication,
     if not by direct language, it prohibits more than
     one valuation of property for ad valorem      tax pur-
     poses for the same tax year..    . .”

           It is clear to us that under the above Constitutional         pro-
visions the Legislature       is inhibited from passing any act that in
effect releases     or extinguishes,     or authorizes   the extinguishing
of any taxes due the State or other subdivisions           thereof, except
those which have been due more than ten years.              It is equally clear
that Article    7227’attempts     to extinguish  the fixed tax liability of the
owners of the property and create another tax liability in a lesser
*mount.

           Of course, if the prior assessments     are invalid the Com-
missioners    Court has the authority under Articles     7346 and 7347,
V.C.S..  to refer same to the tax assessor     for reassessment.    A
void or invalid assessment     is a nullity and amounts to no assess-
ment. In this connection we quote from the Supreme Court in State
v. Mallet Land and Cattle Co,, 08 S.W. (2d) 471:

           “The rule has been repeatedly       announced that,
     in the absence of fraud or illegality,      the action of a
     board of equalization     upon a particular    assessment
     is final; and, furthermore,      that such valuation will
     not be set aside merely upon a showing that the same
     is in fact excessive.     If the board fairly and honestly
     endeavors    to fix a fair and just valuation for taxing
     purposes,    a mistake on its part, under such circum-
     stances,   is not subject to review by the courts.        (Cit-
     ing authorities).    However,     the rule has been declar-
     ed that if a board of equalization      adopts a m&hod
     that is illegal,  arbitrary,   or fundamentally     wrong,
     the decision of the board may be attacked and set
     aside. *

           It is therefore   our opinion that the portion of Article  7227
which purports to extinguish a fixed tax liability is unconstitutional;
and the tax collector     should collect taxes.on  the property involved
as shown by the delinquent tax records        based upon the original as-
sessments,     together with eight per cent penalty and six per cent in-
terest as levied by Article      1336, V.C.S.
Hon. Geo.   H. Sheppard,.   Page 4 (V-524)




          We are enclosing  herewith Attorney General’s    Opinions
O-930 and O-7412 which were considered     by us in holding said por-
tion of Article 7227 unconstitutional.


                            SUMMARY

          That portion of Article   7227 which permits the
    owner of land in a subdivision     to pay his delinquent
    taxes upon a reassessment       on an acreage basis, in
    lieu of taxes delinquent on original assessments,
    after the subdivision  has been canceled as provided
    in Art. 7227, V.C.S..  is unconstitutional    because in
    violation of Sec. 55 of Art. UI of the Texas Consti-
    tution. The tax collector     should collect taxes on
    the land as shown by the delinquent tax records,
    based upon the original assessments        together with
    S% penalty and 6% interest.       Art. 7336, V.C.S.;
    State v. Pioneer Oil 81 Refining Co., 292 S.W. 869;
    State v. Mallet Land and Cattle Co., 88 S.W. (2d) 471.


                                             Yours   very   truly

                                 ATTORNEYGENERALOFTEXAS




                                              W. V. Geppcrt
                                                Assistant
WVG/JCP
ENCLS. (2)

                                 APPROVED




                                         ASSISTANT
