        OFFICE   OF THE    ATTORNEY       GENERAL   OF TEXAS
                                 AUSTIN




I$onorable John 0. Marburger
County Attorney
Fayette a0paty
La Grange, Texas

Dear    Sir:




1939,     In whloh   you reque


rore made of
tire, Ino. base
or ~hiuh YOU r0


  u oonoluded




                           bent  has r.endered Opinion No. O-1342,
                           rable E. W. Xasterllng,   county Attorney,
                           Uaont, Texas, In whioh a question    similar
                            in your letter we8 answered.    This
                           ioles 734& and 7347 of the Revised Civil



aoted fraudulently   or h+d adopted a fundamentally   wrong mthod
of assessment.    A copy of? this opinion is enclosed for your
further lnepeotlon .

                ::'eBave examined with Interest the petition of the
Fayette     Eleotrio   CooperatZv&,  Inc. whioh me filed before the
Eonorable   John   0. marburger,   Page   2



Comalesionem~  Court of Fayette Couuty.     There ie no oon-
tontion in the petition that the Btatutory nmthod of asmen-
mati and of giving noLOtfce to appear before the Commleaioners*
Court or the Board of $qwllzation    was not oomplied wlth.

            Apparently appellant 18 badng  ltm petition for re-
OQW&W    the asrossnant  OS thi6 property on rour grounds.   It
lr naoemary    that eaoh of these grounds be uonaldarad  in the
light or the rule bat down by the Supreme Court of Taxaa ln
the ease of State vn. Xallet Land and Cattle Co., 88 2. W.
(2d) 471, a8 followr:

                  *The rule haui beau repeatedly
            annouuoed   that, in the absenoe or fraud
            or lll6gallty.   the aotlon of a board of
            equalization   upon a partioular ammso-
            ment is final; and, furthermore,     that
            auoh valuation   willnot   be set aside
            merely upon a showing that the aanm ie
            In raot exces8i~e.     If tha board rtdiy
            and honestly endeavore to ffr a fair
            and juet valuation ror taxing ~urpotm~
            a a&stake on itr part, under euoh olroura-
            etaarms, is not rrubjsot to review by the
            oourto.    Texas b Paoffio Ry. Co. v. City
            of 21 Paso ~(Tex. Sup.) 83 S. W. (26)
            245; Rowland V. City of Tyler (Tex. CO&
            App.) 6 S. W. (2d) 756: Druesdow v. Raker
            (Tex. Corn. App.) 229 3. W. 493, Duak v.
            Pealez, 74 Tex. 258, ll 5. W. llll; State
            v.. Chioago, R. I. h 0. Ry. Co. (Tex. Corn.
            App.) 863 8. W. 249; 8uuday Lake Ircin Co.
            v. Wcbfleld,    247 U. S. 350, 38 S. Ct. 496,
            62 L. Xd. 1154;    However, the rule haa b&en
            declared that If a bo+rd of equalization
            adopts a ma6hod that Is illegal     arbitrary,
            or fundazmntally   wrong, the de&ion    of
            .the board nay be attacked and set aside."

           Firat, it is alleged in the petition that the essese-
xwmt waa made arbitrarily   by the Comnleelonera* Court. ACOOrd-
fag to the racte submitted   in the opinion request, the property
of this oorporation  was assessed at a valuation   leas than other
proparty In the mime oounty.    If thls 1s truqthe   oorporation
hae not been injured aad would have no right to have thls prop-
wtp  re-aewaaied.   If thle were not true, .It would be neoeeeary
                                                                        170


Xonorabla   John   C. karburger,   Rage   3



for the appellant   to ahou~that the Gommissloner8* Court had
acted fraudulently   before it would be entitled to have it8
property re-asoessed   under this that  allegation.

            The rreoond allegation   in the appellant*8    petition
is that the original as8eoament     was made without     uelng or
taking Into uonalderation     the proper method of a8sessment.
Ii the SaotB are a8 stated in the letter that appellant*8
property wa8 assessed at a value lower than other property
In the aounty then thI8 allegation      would avail them nothing.
Bowever,   oven assuming that appellant's     prop8rty was assessed
at a value greater than oorrespondlng       property   in the oounty,
than under the above allegation,      it would be neoeasery,for
it to ahow that the method of aeaeosment        adopted by the Com-
mI8oIonerev    Court was fundamentally   wrong and suah as would
allow a dietrict    court of thie State to eet aside the original
as8888me~t.

           The third allegation   in appellant's  petition is
t&t   the Comlselonorag    Court did not seek to asoertein  the
aotual reasonable    oash market value a8 provided by Artiole
72ll or the Revised civil Statutss. Artiole 72l.l of Vernon*8
Annotated  8tatuts8 reads as follows:

                   WZiereafter when any person, firm or
            oorporation    renders his, their or its
            property    in thI8 State for taxation to
            any tax assessor,     and makes oath as to
            the kind, aharauter,      quality and quantity
            or suoh proplrrty, and the Bald offioer
            aooeptlng    said rendition from such person,
            rlrn or corporation      of such property is
            satiefled    that It is oorreotly    and proper-
            ly valued aooordlng      to the reasonable
            oash market value oi euoh property on the
            .market at the time of it8 rendition,       he
            shall list the same accordingly;        but, If
            the esseseior is ratlsfled that tha value
            Is below the reasonable       aash market value
            of such property,     he shall ut,onoe place
            on said rendition      oppoalte saoh piece of
            property    so rendered   an anaunt equal to
            the reasonable     oash market value of auoh
              roper60 at the time of its rendition,        and
            1 f such property shall be found to have
            no market value by suoh officer, then at
HOnorable   John   C. Maiburgr,   Bag8   4



            Such SU!S 98 said OffiOer Shari deem th8
            real or lntrinslo talus 0r the property;
            and ir the person llatlng such property
            or the owner thereof Is not aatlsfled
            with the value plaoed on the property by
            the a88ea8or,  he shall 80 WJtiiy the
            a88688Or, aqd if desiring 80 t0 do paak8
            oath before the a8tse88orthat      the vdlua-
            tion 80 .iixed by said orriicar on said
            property 18 excessive;     suoh offloer to    .
            furnish euoh rsnditlon,     together with
            his valuation thereon sad the oath of,
            auoh person, ilrm or otrioar 0s any oorpora-
            tion, ff any euqh oath.has been made, to
            the 00ncnl8810rLer8' aoupt   0s the oountp 'In
            whloh said rendition w&s made, whloh oourt
            shall hear evidence and determine the true
            value of such propmty on January First, 19
            (here give year for which e8ses6memt      is mad$
            as la herein provided;     ouah orfloer or oo~rt
            8halltaks   into W3~8ld8ra~iOikwhat said
            property oould hare b86ll sold for any time
            within Sir months n8Xt before the SirSt
            day 0s Jamary    0s the y8ar for whloh the
            property la rendered."

           hu examination    of the above quoted article indioatea
that certain notioe is neasssqry       to be given'to a taxpayer
before a hearing is held by the Commis810wrst         Court aotlng
es a Board ot Fiquallzatlon.      There is nothing in eppell8nt*s
petition whiah alleges that this notice Was not'glven        and
that the hearln(J was sot regular in all. of its details.        or
ooUrs6, the facts as set out in your letter that the aorpore-
tiOn'8 prOpeJ?ty 0168 aSSeS86d at a V8lU6 less than Other prop-
erty in the ooUnty would nullify this third allegation.          How-
ever, uuder any situation it would be neoessary tor appellants
iutder this allegation    to prove that'ite property had been
aSSesSed et a greater Vah8       than Other prOptU+y iU the BOUnty
and that  this es3e88ment    was a result of fraudulent    eotiOn on
the pa    Of the CO;pmi88iOu8rS * court or cr result 0r their hay-
iIIg used a,tundamentally    wrong method of aS888Em8&.

          AQ~8lbIlt'S  &St and fOUS'th all8gatiOn'lil its peti-
tion is that all other property We8 a8ssssed at alxty (t%$)
par sent of its reasonable  cash niarke& value while the property
                                                                                  4.72


honorable   Johu   a. Jifarburger, Page      3



of that   corporation  wa8 arbltrarlly,   unlawfully   aud without
ju8tftiCatiOn    and WithOUt the a88 Of the. Pl-Op- LC8thOd Of
68868smen6,    a88688Od at a prlae or veluatioa in i3xo888 0s
its eatnal oaeh market value.      A?p8llMt    cctit8nds that this
is ololatlve    of the 14th &wn6.aient or the Federal Conetltu-
tion.   Of 00ur86, this allegation     is based on a Sac6 whloh
is dircratlyin cOntllO6 with the Paata sub%ltted In your
latter.    Thir fourth allegation   seem8 to be a "catch all"
allegation.     This allegation  see88 to inolude aeoh of the
other three.     It is the opixiion Of this DOpaitant, there-
fOr8, that before the Fayette Elsatric      Cooperative,    Ino.
OluI StU4tafn it8 QO8itiOI.I Of hIWing it8 prior 8BS88808ut
opened and its property rS-as8088ed      it will be neoassary
to prove what they have alleged in their rourth allegation
- that is, that Its       roQ8rty wss 888eSSed at a value greater
thau other oorrespon d! ng property in the.couuty      and that such
aa8888amnt   was a result either of rraudulen.eatlon       on the
part 0s the County Comlssfoaer8*       Court or that said court
in making the aSSe88iiWll% had adopted a fundameutally       wrong
method.

             We trust     that the above information will 88m8             a8
a basis for the OOuSidWatiOB   oKthe  applloation               o? Fayette
Bleotrlc Qooperatlve,  Ino. to have its property               re-aa8asa8d.

                                                     Yours   vary truly
                                                 ATTOREfmOEZ?ERALOF       TEXAS




BC:RS       APZOVEDNOV        17, 1939

            5%--L&4.--
            ATTORNEY     G-       OF TEXAS
