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                            The Attorney                     General of Texas
                                                     January   24, 1978
JOHN L. HILL
Attorney General


                        Hdnorable Joe Wyatt, Jr.                          Opinion No. H- 1120
                        Chairman, Committee on Ways and
                         Means                                            Re:      Validity of article 72444
                        Texas House of Representatives                    V.T.C.S., the Texas ; Assessors
                        Austin, Texas                                     Registration      and Professional
                                                                          Certification    Act.

                        Dear Chairman Wyatt:

                               You have requested our opinion regarding the constitutionality       of
                        article 7244b, V.T.C.S., enacted by the 65th Legislature, and several related
                        questions.

                              IJI enacting article    72444 the Legislature   intended that

                                     the assessing of property for taxation be practiced &d
                                     regulated as a learned profession and that the practi-
                                     tioners in this State be accountable to the public.

                        The purpke    of the statute    is

                                     to assure the .people of Texas that the responsibility of
                                     assessing property for taxation is entrusted only to
                                     those persons duly registered and competent according
                                     to the regulations provided by this Act.

                        V.T.C.S. art. 7244b, !i 1, Acts 1977, 65th Leg., ch. 391,106s.

                                 In order to effect the intent of article 72444 the statute creates a
                          Board of Tax Assessor Examiners, which is empowered to promulgate rules
                          and standards of professional conduct for assessors and to insure compliance
                          therewith.       .Certain classes of individuals, including “persons elected or
                          appointed to act aaassessors for a county,” are required to register vith the
                         .wd;       and the Board is directed to classify every registered individual as a
                          ,(1)registration: permit .+oldert (2) registered Texas ,a!+sessor, (3) registered
                       “‘Texas essessor and candidate-for certification,‘~or (4) registered profetiional
                        ‘%ssessor.~” Sets; -ll, 12. Then Board is authorized to suspend or revoke the
                          registration of any person who violates a provision of the statute or any rule
                           or regulation of the Board.




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        Honorable Joe Wyatt, Jr.     -   Page 2    (H-1120)



                Certain county tax assessor-collectors    may qualify for classification    as a
        registration    permit holder, “which includes newly elected or newly appointed
        assessors without previous experience as assessors.” Sec. 12(l). An applicant in this
        category may be issued a permit so long as he is a resident of the state, of good
        moral character, and supplies favorable recommendations       from three persons, one
        of whom must be a registered assessor.          sec. 15. Most county tax assessor-
        collectors,    however, will probably be classified initially as “registered Texas
        assessors.”     The qualifications for this category of registration are much more
        stringent,    including those relating to age, education and work experience.
         Registrants must pass a written examination and, within five years of their original
        registration,   demonstrate compliance with the requirements of section 17, which
        prescribes additional qualifications for a ‘candidate for certification.”       Sec. 16.
        Within five more years, such persons must qualify as “registered professional
        assessors” under section 18. Sec. 17(b).

               Since the registration requirement is made applicable to county tax assessor-
        collectors,   and since registrants    are required to qualify under the various
        categories of the statute, it is clear that article 7244b imposes qualifications upon
        the office of county tax assessor*olIector.     You first ask whether the Legislature
        is empowered to do so.

               Article 8, section 14 of the Texas Constitution establishes the elective office
        of Assessor and Collector of Taxes for each county.       It requires the occupant of
        that office to “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,” but it imposes upon him no qualifications necessary to hold the office.
        It is well established that,

                    where the Constitution      prescribes the qualifications  for
                    office it is beyond the legislative power to change or add to
                    the qualifications, unless the Constitution gives that power.

        Burroughs v. Lyles, 181S.W.2d 570, 574 (Tex. 1944); Dickson v. Strickland, 265 S.W.
        1012, 1015 (Tex. 1924); Ex arte Lefors 347 S.W.2d 254 255 (Tex. Crim. 1961). No
                                 erect Y a ressed, however, tie auestion of whether the
        Texas court has ever +-I76
        Legislature   may impose quaiifications   upon a constitutional   office where the
        Constitution itself has not done so.
,
                The general rule in other jurisdictions      is that, where the Constitution
        prescribes no qualifications, the Legislature is authorized to do so. See Annot., 34
        A.L.R.2d 155. 174 (19541. This view has been uoheld as to a wisvarietv                  of
        constitutional  offices.   See Opinion of the Justices, 285 So.2d 87, 90 (Ala. 1973);
        State ex rel. Askew v. Gas,        293 So.2d 40, 43 (Fla. 19741; State ex rel. Lippincott
                          -3610              19401. See also State ex rel. Flynn v. Board of
        i!i==2g
           ections of Cuyahoga
                            --    County, 129 N.E.2dm          (Ohio 1955).




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Honorable Joe Wyatt, Jr.    -   Page 3   (h-1120)



       The most instructive case for our purposes is a 1934 decision from Florida,
where the Court upheld the Legislature’s authority to prescribe qualifications for
the constitutional     office of county surveyor.   The Court fully subscribed to the
Texas view that, where the Constitution creates an office and lists its eligibility
requirements, the Legislature may not impose additional qualifications.         But, the
Court held, it does not necessarily follow that, where the Constitution is silent as
to qualifications      for a particular office, a statute     fixing qualifications    is
unconstitutional.      State ex rel. Landis v; Ward, 158 So. 273, 274 (Fla. 1934). The
office of county surveyor IS one of a “techmcal character,” and it is reasonable to
expect the holder of it to be competent. The statute, by establishing professional
standards for surveyors, and making them applicable to persons holding the
constitutional    office of county surveyor, cannot be said to conflict with any
constitutional provision. g at 275.

      These decisions indicate that the Texas Supreme Court would probably uphold
the validity of the qualifications imposed upon tax assessor-collectors by article
7244b. See Phagan v. State, 510 S.W.2d 655 (Tex. Civ. App. - Fort Worth 1974, writ
ref’d n.rx.

       Your next question is whether R county tax assessor-collector    may be
prosecuted for failure to register with the Board. Section 24 of article 7244b
states that

            [a) person who is required under Section 11 of this Act to
            register with the board commits a Class A misdemeanor if
            he fails to register.

Since a county tax assessor-collector    is one of those persons required to register
under section 11, it seems clear that the occupant of that office may be prosecuted
for failure to register with the Board.

       You also ask whether the registration of a county tax assessor-collector   may
be revoked for a violation of Board rules.         As noted previously, section 10
authorizes the Board to suspend or revoke the license of any registrant for violation
of the statute or of any Board rule or regulation. The Board is required to conduct
a hearing on any such violation with adequate notice to the registrant.

       Your final question is whether revocation of his registration acts to remove a
county tax assessor-collector    from office.. Article 7244b does not so provide, but
the court in Phagan, E,       held that the disbarment of a district attorney served to
effect his immediate removal from office and that, after the effective date of the
judgment of disbarment, he became a usurper of the office, subject to ouster by
quo warrant0 proceedings.      510 S.W.2d at 662. We are not at liberty to disregard
this pronouncement, and must advise, therefore, on the basis of Phagan, that a
revocation of the registration of a county tax assessor-collector       acts to remove
him from office.     We note, however, that article 5970, V.T.C.S., provides that a




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Honorable Joe Wyatt, Jr.       -   Page 4    (H-1120)



county tax assessor%ollector     is among those officers subject to removal “from
office by the judge of the district court for incompetency, official misconduct or
becoming intoxicated by drinking intoxicating liquor . . . .”

                                       SUMMARY

                Article 72444 V.T.C.S., will probably be upheld against the
                contention that it unconstitutionally  imposes qualifications
                for the office of county tax &essor-coUector.       A county
                tax assessor+oHector      may be prosecuted under article
                7244b for failure to register with the Hoard of Tax Assessor
                Examiners.     The registration   of a county tax assessor-
                collector  may be revoked for violation of Hoard rules.
                 Revocation of the registration of a county tax assessor-
                collector acts to remove him from office.




                                               Attorney General of Texas

APPROVED:



?z&h&lLd     M. KENDALL, Pust Assistant




Opinion Committee

w




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