                                                   Iiq3lied
                                                   overniledby
Honorable L. A. Woods                                O-6596and
State Superintendent of Public Instruction         v-1517
Austin, Texas

Dear Sir:                      Opinion No. O-2727
                               Re: May the board of school
                                    trustees of an independent
                                    school district which assesses
                                    and collects its own taxes re-
                                    lease or leave off charging the
                                    penalty and interest which has
                                    accrued on delinquent taxes.

          We are in receipt of your letter in which you request
the opinion of this department on several questions
concerning the authority of the board of trustees of an in-
dependent school district in tax matters.

          In your first question you inquire whether or
not the board of trustees of an independent school district
which assesses and collects its own taxes may release or
leave off charging the penalty and interest which has accrued
on delinquent taxes. The authority of a board of trustees
of an independent school district over the collection of the
taxes of said district is defined by Article 2701 of the Re-
vised Civil Statutes as follows:

          "The district tax assessor and collector
    shall have the same power and shall perform the
    same duties with reference to the assessment
    and collection of taxes for free school purposes
    that are conferred by law upon the city marshal1
    of incorporated towns or villages, and he shall
    receive such compensation for his services as the
    board of trustees may allow, except in cities
    and towns provided for, not to exceed four per
    cent of the whole amount of taxes received by him.
    He shall give bond in double the estimated amount
    of taxes coming annually into his hands, payable
Honorable L. A. Woods, Page 2



   to and to be approved by the president of the
   board, conditioned for the faithful discharge
   of his duties, and that he will pay over to
   the treasurer of the board all funds coming
   into his hands by virtue of his office as such
   assessor and collector; provided that in the en-
   forced collection of taxes the board of trustees
   shall perform the duties which devolve in such
   cases upon the city council of an incorporated
   city or town, the president of the board of
   trustees shall perform the duties which devolve
   in such cases upon the mayor of an incorporated
   city or town, and the county attorney of the
   county in which the independent school district
   is located shall perform the duties which in
   such cases devolve upon the city attorney of an
   incorporated city or town under the provisions
   of law applicable thereto. . . ."

          As the above quoted article gives the board of
trustees of an independent school district the same author-
ity that the city council has over the collection of city
taxes, it is necessary to next see what authority such city
council has in such a matter.  Article 1041 of the Revised
Civil Statutes provides as follows:

          "The city council may provide, by ordinance,
    for the prompt collection of all taxes assessed,
    levied and imposed under this title, and is au-
    thorized to sell or cause to be sold real as well
    as personal property, and may make such rules and
    regulations, and pass all ordrnances as they 'may
    deem necessary to the levying, laying, imposing,
    assessing and collecting of any tax herern pro-
    vided."   (Emphasis ours)

          Under the above quoted article it may be seen that
a broad power is placed in the board of trustees of an inde-
pendent school district over the collection of its taxes.
Based upon such statute, this department ruled in Opinion
NO. O-1801, as follows:
          II. . . An independent school district can
    elect to assess and collect its own taxes by and
    through its duly appointed and acting district
    assessor, district board of equalization and dis-
    trict collector, and in such case will have the
Honorable L. A. Woods, Page 3


    power and authority conferred by Article 2791,
    Revised Civil Statutes of Texas; Pruitt v. Glen
    Rose Ind. Sch. Dist., 84 S.W. (2d) 1004; and,
    although there is no specific statute upon the
    subject, it is our conclusion that this power
    and authority would embrace the right of the board
    of trustees to fix the time for the accrual of ad
    valorem taxes of an independent school district,
    and appropriate penalties and interest on such
    taxes as become delinquent.  Under Article 2791,
    Revised Civil Statutes, the power and duty of a
    board of trustees of an independent school dis-
    trict in the matter of the assessment and collec-
    tion of school taxes of such district, including
    the fixing of penalties and interest on delinquent
    taxes, are referable to similiar powers existing
    in the governing body of an incorporated city or
    town. Such city or town may provide, by ordin-
    ante, that municipal taxes shall become due and
    delinquent at a different time from general taxes.
    Eustis v. City of Henrietta, 37 S. W. 632. More-
    over, Article 1041, Revised Civil Statutes, im-
    pliedly gives and Article 1175, Subdivision 9,
    Revised Civil Statuted, expressly vests in the
    governing body of cities and towns power to fix
    the amount of penalties and interest upon delin-
    quest taxes. Articles 2784 and 2790, Revised
    Civil Statutes of Texas, provides that the board
    of trustees of an independent school district
    'shall have power to levy and cause to be collect-
    ed the annual taxes etc.' Therefore, we submit
    zat in those'instances where an independent
    school district has elected to assess and collect
    its taxes by its own officers, the board of trus-
    tees of such district have, under the foregoing
    statutes, the power and authority to fix the time
    for the accrual of such taxes and the amount and
    manner of collection of penalties and interest
    on delinquent taxes."

          It is evident that the Legislature has delegated
to the board of trustees of an independent school district
that chooses to collect its own taxes full authority over
such assessment and collection, which we believe includes
not only the authority to assess and collect appropriate
penalties but also the authority to release or charge-off
such penalties after the same have been assessed. As stated
by the Supreme Court of Tennessee in the case of Burns v. City
of Nashville, 221 S. W. 828, "If the board of commissioners  had the
power to affix penalties and interest, they had the power to remit
them by ordinance."
Honorable L. A. Woods, Page 4

           It then becomes necessary to see whether or not
the Legislature itself could have constitutionally allowed
the release or charging-off of the interest and penalty on
delinquent taxes. The Supreme Court of Texas   in the case
of Jones?" Williams, 45 S. W. (2d) 130, upheld the validity
of an act of the Legislature which released the interest and
penalties which had accrued on certain state, county and
district taxes. The court held that interest chargeable
was in fact a penalty and such release was not violative
of Article 3, Section 55, of the Constitution, which pro-
hibits the Legislature from releasing or extinguising or
authorizing the releasing or extinguishing in whole or in
part the indebtedness, liability or obligation of any incor-
poration or individual to this State or to any county or other
municipal corporation therein. The court held that the Leg-
islature would have the authority to release the interest and
penalty accrued on delinquent taxes of the State and county
as well as of the districts and subdivisions of the State.
It is our opinion that this broad authority has been delegated
by the Legislature to the board of trustees of the indepen-
dent school districts as well as to the city council of in-
corporated cities and towns.

          Your attention is called to an opinion dated Septem-
ber 11, 1936, written by Assistant Attorney General Clark Wren
to Honorable Paul G. Groggan, County Attorney, Montgomery
County, in chich it was held that the Conroe Independent School
District could not remit penalty and interest for a period of
ninety days in order to invite collections of taxes delinquent
to that district.  It does.not appear from the contain-
ed in that opinion whether or not the Conroe Independent
School District assessed and collected its own taxes or whet-
her the same were assessed and collected by the county collec-
tor and assessor.  Insofar as such opinion may appear in con-
flict with the opinion expressed herein the same is express-
ly overruled.

          It is the opinion of this department that your
first question should be answered in the affirmative and
that the board of school trustees of an independent school
district that assesses and collects its own taxes has the
power to release or charge-off the interest and penalty which
has accrued against such taxes.

          In your second question you inquire whether or not
it is mandatory for the independent school district to col-
lect the one dollar tax assessor-collector fee set out in
Article 7331 of the Revised Civil Statutes. Article 7331 pro-
vides for the on dollar fee to be collected by the county
tax assessor-collector in suits brought for the collection of
State and county taxes
Honorable L. A. Woods, Page 5



         Article 7337 provides as follows:

         "Any incorporated city or town or school
    district shall have the right to enforce the
    collection of delinquent taxes due it under the
    provisions of this chapter."

          Article 7343 of the Revised Civil Statutes reads
in part as follows:

         "All laws of this State for the prupose of
    collecting delinquent State and county taxes are
    by this law made available for, and when invoked
    shall be applied to, the collection of delinquent
    taxes of cities and towns and independent school
    districts in so far as such laws are applicable."

          The Commission of Appeals of Texas in the case of
Duclos V. Harris County, 298 S. W. 417, held that the above
quoted articles authorize the municipal corporations named
therein to collect the fees provided in Article 7332 of the
Revised Civil Statutes, which article sets the fees for the
district clerk and county and district attorney. The author-
ity to collect such fees, however, depends under Article
7343 upon such provisions of the tax statutes having been
invoked by the district in question. We believe that the
same rule of law should be applied to the fee provided in
Article 7331. It is our opinion that such fee may be collect-
ed when such authority is invoked by the board of trustees
of an independent school district. We are of the opinion,
however, that it is not mandatory upon such independent
school districts to collect said fee when it does not choose
to invoke this provision of the statutes relating to the
state and county taxes in the collection of the district
taxes.
          In your third question you inquire whether or not
the board of trustees of an independent school district may
reduce assessments against property in the district previous-
ly made when the original assessment was made by the duly
elected board of equalization for the particular year.
          In our Opinion No. O-930 we held an act of the
Legislature which authorized the commissioners' court to do
just this thing which you inquire about to be unconstitution-
al in that it violated several sections of the Constitution
of Texas including Article 3, Section 55. Said Section reads
as follows:
                                                                    .
                                                                        .




Honorable L. A. Woods, Page 6



             "The Legislature shall have no power to
        release or extinguish, or to authorize the re-
        leasing or extinguishing, in whole or in part,
        the indebtedness, liability or obligation of any
        incorporation or individual, to this State, or
        to any county or other municipal corporation
        therein."

           As the Legislature would      not have the authority
to release such obligations to the       municipal corporation in
question it follows that the board       of trustees of such dis-
trict also does not have the power       or authority to do the
same. A copy of Opinion No. O-930        is enclosed for your in-
formation.

          We trust that the foregoing will be sufficient
to enlighten you as to the authority of the board of trus-
tees in the matters you inquire about.

                                         Yours very truly
                                ATTORNEY GENERAL OF TEXAS



                                /s/ Billy Goldberg
                                         Assistant

BG:db

Enclosure
                APPROVED OCT 2.2, 1940



                /s/ Gerald Mann
                ATTORNEY GENERAL OF TEXAS




                                   APPROVED OPINION COMMITTEE
                                   By BWB
                                      Chairman
