PRICE  DANIEL
ATTORNEYGENERAL


                                       December     8, 1952


         ‘Hon. Riley Eugene          Fletcher     Opinion No. V-1543
          County Attorney
          Navarro    County                       Re:   Authority of the Commission-
          Corsicana,    Texas                           ers’ Court, sittizg as a Board
                                                        of Equalization,   to place a tax-
                                                        payer’s   1952 assessed    vslua-
                                                        tion at a figure which will com-
                                                        pensate for an erroneously high
         Dear     Mr.   Fletcher:                       tax valuation in 1951.

                         You request the opinion of this office upon the question
         presented      in a letter addressed to you which isin part as follows:

                        “The Tax Assessor    and Collector   of this county
                  in computing the amount of State and County taxes
                  due for the year 1951 on the rendition of the shares
                  of the capital stock of [name of bank] made an error
                  in arriving at the taxable valuation in that he did not
                  use the same formula     applied to other bank stock,
                  which error resulted in an overpayment       of around
                  $1200.00   to the State and County.
                        u
                            . . .*

                        YThe Commissioners     Court wishes to rectify
                  this error and desires   that you submit the follow-
                  ing question to the Attorney General:

                        “‘Does the Commissioners     Court of Navarro
                  County, sitting as a Board of Equalization,   have
                  the authority to deduct from the assessed    valua-
                  tion of taxpayer’s   property for the year 1952 the
                  excess amount for which the property was erro-
                  neously valued for the year 1951, so as to permit
                  the taxpayer to receive credit for the amount of
                  overpayment    of State and County taxes for the year
                  19517’”

                     The commissioners’    court does not have any constitu-
         tional or statutory authority to credit an overpayment  of taxes
         for one year against the taxes for a subsequent year.   The court
Hon. Riley Eugene    Fletcher,   page 2 (V-1543)



is one of limited jurisdiction under the Constitution      of this State.
Section 18 of Article V of the Constitution provides       that the court

            ,a
              . . . shall exercise such powers and jurisdic-
      tion over all county business as is conferred by this
      Constitution and the laws of the State or as may be
      hereafter   prescribed.”


            Under this constitutional    provision it has been uniform-
ly held that the commissioners’     court possesses     and exercises    on-
ly such power as the Constitution     itself or the Legislature,    con-’
sistent with the Constitution,  may confer upon it. Bland v. Orr,
90 Tex. 492, 39 S.W. 558 (1897); Slaughter v. Hardernan County,
139 S.W. 662 (Tex.Civ.App.     1911, error ref.): Landman v. State,
97 S.W.2d 264 (Tex.Civ.App.     1936).   Galveston,   H. & S.A. Ry. Co.
v. Uvalde Count , 167 S.W.Zd 305 (Tex.Civ.App.         1942, error ref.
w.o.m.),  states t e rule concisely    in this language:

             “The Commissioners’     Court of a county has only
      such powers as are expressly      or by necessary  impli-
      cation given it by the Constitution and statutes of this
      State.   [Citing cases.] . . *”

           A comparatively   recent case by the Supreme         Court,
Canales v. Laughlin,  147 Tex. 169, 214 S.W. 451 (1948),        has stated
ihe same thmg m the following language:

            “The Constitution does not confer on the commis-
      sioners courts ‘general authority over the county busi-
      ness’ and such courts can exercise      only such powers
      as the Constitution itself or the statutes have ‘specif-
      ically conferred upon them’.      See Mills County v. Lam-
                       90 Tex. 603, 606, 40 S,,W 403 404168+?085.
                                                            A
                          137 Tex. 201. 203. 152’S.W.‘2d
      Whrle the commissioners       courts have a broad discre-
      tion in exercising    powers expressly   conferred on them,
      nevertheless    the legal basis for any action by any such
      court must be ultimately found in the Constitution or
      the statutes.”

            An examination   of the Constitution and statutes reveals
that no expressed    power has been conferred      upon the commission-
ers’ court to credit overpayment      of taxes against the taxes owing
by the taxpayer for subsequent years nor does this power arise by
necessary   implication  from any power expressly       conferred.  The
answer   to your question, therefore,    is in the negative.
.   .




        Hon. Riley   Eugene   Fletcher,   page 3 (V-1543)




                    This does not mean, however, that the taxpayer is with-
        out a remedy.    Since the overpayment       of taxes for the year 1951 re-
        sulted from a clerical     error which caused the taxpayer to pay upon
        a higher valuation than that actually fixed by the Board of Equaliza-
        tion, this error may be corrected       by the commissioners’     court to
        speak the truth and reflect the correct valuation which the court
        as a Board of Equalization      in fact determined.    The error does not
        invalidate the assessment.       The taxes should have been paid upon
        the valuation actually fixed by the Board of Equalization.        It is
        this actual valuation that constituted the real assessment        and not
        the erroneous   valuation.     This is covered in Attorney General’e
        Opinion V-485   (1948).

                    Since the taxes have actually been paid, we see no prac-
        tical reason for correcting  the error except to bring the assess-
        ment in line with the value upon which the taxes should have ac-
        tually been paid. The taxpayer would be entitled to a refund of the
        excess paid over the true valuation fixed by the Board of Equali-
        zation.  The commissioners’    court would have the authority to or-
        der a refund of the county portion of the taxes.   The Legislature
        would have the authority to make an appropriation     to reimburse
        the bank for this overpayment   of the State’s part of the taxes for
        the reason that in our opinion under the facts submitted by you the
        overpayment    resulted from a mistake of fact and not of law. The
        bank may present a claim to the next session of the Legislature.

                                    SUMMARY

                    The commissioners’     court does not have author-
              ity to authorize a credi,t against taxes owing for a
              subsequent year by reason of an overpayment       in a.prior
              year.   As the overpayment    resulted from a clerical er-
              ror in entering the value upon the assessment      rolls at
              a higher rate than fixed by the commissionera’      court
              (Board of Equalization),   the error may be corrected     to
              reflect the real action of the court in fixing the value.
              The taxpayer is entitled to a refund from the county which
              may be ordered by the commissioners’       court for the over-
              payment and the State’s part of the taxes may be refunded
    Hon. Riley Eugene      Fletcher,     page 4 (V-1543)




          by an appropriation          by the Legislature.

    APPROVED:                                  Yours    very   truly,

    W. V. Ceppert                                PRICE     DANIEL
    Taxation Division                          Attorney    General

    E. Jacobson
    Executive  Assistant

    Charles D. Mathews
    First Assistant                                    Assistant

    LPL:mw




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