.   -




        Mr. Sam Ii. Smith                       Opinion     NO.        JM-1025
        Executive   Director
        Board of Tax Professional               Re:    Whether a taxing unit may
            Examiners                           contract with    a private     firm
        P. 0. BOX 15920                         to perform    all tax   assessment
        Austin, Texas     78761-5920            and collection   functions
                                                (RQ-1500)

        Dear   Mr.    Smith:

              On behalf of    the Board of    Tax Professional     Examiners
        you inquire about the authority      of a taxing unit to contract
        with a private   firm for performance     of all its property     tax
        assessment   and collection   functions,   including  collection   of
        current as well as delinquent      property taxes.    Your specific
        question   is as follows:

                     Is it legal under the State Constitution   and
                     State law for a taxing  unit not to employ   a
                     tax   assessor/collector      or     collector,             or   to
                     employ one who bears that title but does            not
                     exercise position     responsibilities     enumerated
                     in the Tax Code, and, instead, contract            with
                     a private firm for      performance    of all     func-
                     tions related to      the assessment    and    collec-
                     tion of    property taxes,      or related     to   the
                     collection   of   both    current   and   delinquent
                     property   taxes?

                Your question     involves    the   construction     of   certain
        provisions    of the     Property Tax Code,      which was enacted       in
        1979 as Title 1 of the Tax Code.           &=   Acts 1979, 66th      Leg.,
        ch. 841,     at 2217.      As you    state in your request         letter,
        section 6.30(c) of the Property           Tax Code provides     that    the
        "governing    body    of   a taxing    unit    may contract     with    any
        competent    attorney     to represent     the    unit to   enforce     the
        collection    of   delinquent    taxes."      This statute     authorizes
        taxing units      to contract      for delinquent     tax   collections,
        assuming    compliance    with the statute.      We will therefore      not
        specifically      discuss      contracts    authorized      by    section
        6.30(c).     Since your major concern appears to be the absence




                                                p. 5285
Mr.   Sam H. Smith   - Page   2   (JM-1025)




of provisions      authorizing  a taxing     unit to     delegate     the
assessment   of taxes and the collection      of current taxes to a
private   firs, we    will not   specifically    discuss     delinquent
tax collections.                        Attorney     General     Opinion
JM-1015    (1989).      -           a general     question      without
reference    to    a~ specific   contract.     Our    response       will
necessarily    also   be generalized    and   will not     address     or
approve any specific contract or contract provision.

     A Yzaxing unit" subject to the           property     tax     provisions
of the Tax Code is defined to mean

          a county, an incorporated       city or town      (in-
          cluding a home-rule     city), a school district,
          a special district or authority       . . . or     any
          other political    unit of this state . . . that
          is authorized   to    impose and    is imposing     ad
          valorem   taxes    on    property    even   if     the
          governing  body of another political      unit     de-
          termines  the tax rate for the unit or         other-
          wise governs its affairs.

Tax Code 5 1.04(12).   The Tax Code also provides                 the   follow-
ing definitions  of llassessorll and %ollector*:

              (14)   \Assessor' means the officer or      em-
          ployee   responsible   for   assessing    property
          taxes as provided by Chapter 26 of this        code
          for a taxing unit     by whatever    title he     is
          designated.

              (15)  'Collector'  means   the   officer   or
          employee  responsible for collecting    property
          taxes for a taxing unit by whatever    title   he
          is designated.

L    5 1.04(14), (15).       Collection       duties     are     set    out   in
chapter 31 of the Tax      Code.

      As can   be   seen from    the   definition   of   taxing    unit
quoted above, several      kinds of    political   subdivisions      are
taxing units.     Tax Code provisions    establish   who will     serve
as tax   assessor-collector     for  each category      of   political
subdivision.    The assessor-collector      for a county is      deter-
mined as provided    by article VIII, sections      14, 16, and 16a,
of the Texas Constitution.        Tax Code g 6.21.      The   assessor
and collector     for a home-rule    city    is determined     by    the
city's charter and ordinances.       L     5 6.22(b).    The assessor
and collector   for   a taxing unit     other than a     county or     a




                                    p. 5286
Mr.   Sam II. Smith   - Page   3    (JM-1025)




home-rule   city   is determined     by   the   law creating     the   unit.
&&   f 6.22(a).

      Since you have     not stated which      taxing units you       are
concerned   about,    we   will   discuss    counties,      independent
school districts,    and   home-rule   cities.      These are      three
important  classes of taxing      units and the legal        provisions
which determine   the tax assessor-collector        for each one      are
different  enough to merit separate discussion.           Our    discus-
sion of these    three taxing     units will also       assist you     in
answering  your question    in   relation to other taxing         units.
We will first address your       question   in terms of the       county
tax assessor-collector,     who holds a constitutional        office.

      Article VIII,       section   14,   of the     Texas     Constitution
provides   in part:

              Except as provided   in    Section 16 of    this
          Article,   there   shall    be   elected   by    the
          qualified  voters of each county, an       Assessor
          and Collector   of  Taxes, who      shall hold   his
          office for four years and until his successor
          is elected.and   qualified    . . . .

      Article VIII, section 16,           of the constitution        excepts
counties   of   under     10,000 inhabitants        from    article     VIII,
section 14, providing       that the      county sheriff shall be         the
assessor   and collector     of taxes.      Article VIII, section 16a,
establishes    a procedure     whereby the voters in such           counties
may decide to have       an elected assessor-collector           of   taxes.
The county     tax    assessor-collector        is   a public       officer.
Wilson v.     Galveston     Countv Central       Appraisal      Dist.,    713
S.W.2d 98 (Tex.       1986);    Green    v. Ste art       516 S.W.2d       133
(Tex. 1974);      see. e.a,,      Attorney    GenIral' Opinions       H-1120
(1978); M-986       (1971).     He    holds office      for   four    years,
subject    to     removal     for     cause    under     constitutionally
authorized    procedures.       Tex.    Const. art.      V,    5 24;    Local
Gov't Code     § 87.012(11).       To   qualify for      office, he      must
give bonds     to    the state     and    county, conditioned        on   the
faithful performance       of his duties.       Tax Code 5 6.28(a).         He
is otherwise    accountable       for his performance        in office      to
the voters, and not to the commissioners             court.

      The commissioners   court    may not take     action which      in
effect abolishes    the constitutional    office of the county tax
assessor-collector.     A   constitutional     office    may    not   be
abolished   without constitutional    authorization.      W ncrief
Gurlev, 609 S.W.Zd 863      (Tex. Civ. App.     - Fort WoEth      198:;
writ ref'd    n.r.e.); Cowell     v. Avers,    220 S.W.     764    (Tex.




                                     p. 5287
Mr.   Sam H. Smith   - Page   4    (JM-1025)




1920): Attorney    General Opinion NW-59 (1979).         See aenerallv
Tex. Const. art. XVI, S 44(e) (office of county surveyor may
be abolished     in certain    counties  and    commissioners      court
may employ or contract      with a qualified      person to      perform
surveyor's   functions).      Nor   may  the    commissioners      court
replace the    county    tax assessor-collector       by    contracting
with a private    firm.   $&.G Citv of CorpHg&hChristi v.        Nireur
214 S.W. 528 (Tex. Civ. App. - San Antonio          1919, writ ref'dj
(dicta stating that a corporation       could not be appointed          to
and exercise     the powers    of   an office);    Attorney      General
Opinion H-946 (1977) (county hospital        required by statute to
appoint a UsuperintendentO'     may not employ management        firm as
superintendent):    Letter    Advisory  No.   120 (1977)       (hospital
may not appoint husband and wife team as superintendent).

      The commissioners     court, moreover,      may not remove       all
functions   related to    the assessment     of   property    taxes    and
the collection      of  current    taxes from     the    tax   assessor-
collector   and leave him with only his title.           Chapter    151 of
the Local    Government   Code    provides   for   the employment        of
persons   to    assist   county    officers     in performing        their
duties.   A   county    officer    who requires      the    services     of
deputies,    assistants,     or   clerks    in   the    performance      of
his duties "shall      apply    to the   commissioners       court"     for
authority    to   appoint    the   employees.       Local    Gov't    Code
5 151.001(a).      The   commissioners      court    by   order      shall
determine   the number of employees      that may be appointed         and
authorize   their appointment,       and the    officer applying        for
the employees    may thereafter    appoint them.      &      f§ 151.002,
151.003.    Section    151.004    of   the   Local    Government      Code
provides  that:

              The commissioners    court or a member of the
          court    may   not  attempt    to  influence     the
          appointment    of  any   person   to  an   employee
          position   authorized  by    the court under    this
          subchapter.

See also Local Gov*t Code S 151.901    (commissioners   court may
enter   an  order   to   employ   and compensate      secretarial
personnel  for district,  county, or precinct   officer).

      In counties   in which a civil      service system has      been
established   under chapter 158 of the Local Government          Code,
the head of    each department   may    assume responsibility      for
selecting   the persons who are employees      of that   department.
Local Gov't Code 5 158.010.      m     Local GovRt Code     g 158.001
("departmentqO    defined   to    include    county   officer     that
has jurisdiction    and   control of    performance   of   employees'




                                    P. 5288
Nr.   Sam H. Smith     - Page   5   (JM-1025)




official duties).     --Green                                 EaEza,
(discussing   application     of   civil   service  provisions     to
county tax assessor-collector*s      employees).   Thus, authority
to choose the employees    who assist the county tax      assessor-
collector   in performing      his   duties    is vested   in   that
officer,  and not in the commissioners      court.

      The commissioners    court    may not usurp     the county      tax
assessor-collector's     duties by attempting     to assign them       to
persons under     its control.      The   Texas Supreme     Court,      in
considering   whether the     commissioners    court could      contract
with a private evaluation      expert to appraise     all property      in
the county,    decided    that   the court     could   retain     expert
advice to assist it in carrying out its own responsibilities
when meeting    as the    board    of equalization.       Pritchard      &
Abbott v. McKenna       350 S.W.2d     333 (Tex.    1961).    m      Tex.
Const. art. VIII,'5     18 (1876, amended 1980).       In determining
that the commissioners     court had     not usurped the powers        of
the tax assessor-collector,        the court,    however,    stated    as
follows:

          We quite agree that the County         Commissioners
          Court is not     charged     with   the   management
          and control of all      of the County's      business
          affairs.   Epch      of   the     various     elected
          officials.  includina    the   Assessor-Collector.
                       .  .
          law   and  wlth?n    which   the    Commissioner
           ou*   mav not interfere   or ERROR .    (Emphasii
          added.)

350 S.W.2d    at 335    (dicta).

      Chapters   26 and 31 of the       Tax Code set out the        statu-
tory   duties    of   the   tax    assessor-collector.         The     com-
missioners   court    has   no    authority    to   delegate     the    tax
aassessor-collector's      powers and duties to another person or
to a private     firm, by contract       or otherwise.      &,G    Cameron
Countv       Ri era      Docket    No. 13-87-449~CV,       Tex.    App.    -
Corpus Zrist:,       tiov. 23,    1988 (unreported)       (commissioners
court interfered      with    county clerk's      exclusive     statutory
duty to record its proceedings         by appointing    another     person
to this duty).       See also Attorney       General Opinions       JN-911
(1988) at 17 (legislature       may not delegate      "core    functionsl'
of county    treasurer's      office to     other   officers):      JN-833
(1987) (limits      on legislative      power to    divest the      county
tax asessor-collector       of   duties     respecting     the     assess-
ment and    collection     of county     taxes).     But see     Attorney
General Opinion H-80 (1973) (questioning           whether county       tax




                                    p. 5289
Mr.   Sam H. Smith   - Page   6   (JM-1025)




assessor-collector    had implied   authority   to contract    inde-
pendently   with individuals    or private    appraisal  firms   for
assistance).

      We next consider     the Education    Code provisions   which
provide for the     assessment   and collection    of taxes for   an
independent   school district.     Chapter   23, subchapter  F,   of
the Education   Code sets out the procedures     whereby the board
of trustees   of an independent    school district   is to choose a
tax assessor-collector.      Section 23.93 of the Education     Code
states as follows:

              (a) The board of trustees of any indepen-
          dent school district mav aoooint an ass ssor
          collector   of taxes  for the  district.e   &
                 tment shall be for a term not to exceed
          three (3) vears as determined  by the board.

               (b) - (d)   [repealed]

              (e) The    assessor-collector        for     such
         .service shall   receive such    compensation       as
          the board   of  trustees    may   allow,     not   to
          exceed four percent    of the   total amount       of
          taxes received pv hb.      (Emphasis added.)

Educ.   Code   J 23.93.

      Other provisions    of subchapter   F authorize   the board of
trustees to have taxes collected       by the county tax collector
or the tax collector     of a city wholly or partly within         the
limits of    the   school district,     and,    in the  case    of  an
independent   school district    located within the boundaries      of
an incorporated    city,   to permit the     city tax assessor     and
tax collector    to act as its tax assessor and tax        collector.
Educ. Code    55 23.95: 23.96.       See also Educ.    Code    5 23.97
(school districts    may   cooperate   to appoint    same person    as
assessor-collector     for all the districts).

      In some taxing units,      the tax assessor-collector       will
be an officer, while in others he will be an employee.             See
Tax Code 5 1.04(14),    (15);   Attorney General Opinion       JW-499
(1986) (tax assessor-collector      of school district     and   water
control and improvement      district   is an   employee   and not    a
civil officer of emolument      within article XVI, section        40,
of   the  Texas   Constitution).       The  school    tax   assessor-
collector is "an agent or employee of the Board to discharge
the clerical    duties   necessary     to  carry    out   the   school
Board's powers of taxation."       wne     Index. School Dist.       v,




                                  p. 5290
    Mr.   Sam H. Smith   - Page       7     (JM-1025)
.




    Standley,   280 S.W.Zd 578, 583 (Tex. 1955).         Subchapter     F of
    the Education     Code contemplates      that the    school    district
    tax assessor-collector      will be a natural person       accountable
    to   the   board    as   an   employee,   and   not   a private      firm
    under contract with       the   board.   Section    23.93(a)     of   the
    Education   Code authorizes     the appointment    of a tax assessor-
    collector.     "Appointmentw    is defined as the "designation         of
    a person   . . . to fill       an office   or public     function     and
    discharge   the duties of      the same."    Black's Law     Dictionary
    91 (5th ed. 1979).       Section 23.93(e) refers to the assessor-
    collector   by the personal pronoun whim," further           indicating
    that a natural person is meant.          Finally,   section 23.97      of
    the Education    Code, which authorizes      two or more independent
    school districts       to appoint    the same   person as     assessor-
    collector   for   all    the districts,    includes    the    following
    provision:

                  (e)  If the assessor-collector      selected  is
              a regularly   licensed    attorney,  the   partici-
              pating boards     of trustees    may by   agreement
              include    in his    duties~ the    collecting    of
              delinquent   taxes . . . .

    Educ. Code    j 23.97(e).           only a natural    person may   be  a
    licensed~attorney.     m          Gov*t Code 55 82.004, 82.023-82.030.

          The   Tax  Code   contemplates   that the  tax   assessor-
    collector   for a taxing unit, including    a school   district,
    will be responsible    in his own right for the assessment    and
    collection   of taxes.   Section 6.23 of the Tax Code   provides
    as follows:

                  (b) The    assessor   and   collector    for  a
              taxing unit other than a county shall assess,
              collect,   or  assess   and   collect   taxes,   as
              applicable,   for the unit.

    Section 6.29     imposes      a       bonding   requirement   on   the   tax
    collector:

                  (a) A taxing unit,      other than a county,
              that has its own collector      shall require    him
              to give    bond   conditioned    on  the   faithful
              performance    of his duties.

          These Education   Code and    Tax Code   provisions     demon-
    strate that the    tax assessor-collector     for an    independent
    school district    will  be   a natural    person    who   will    be
    ultimately  responsible  for performing   his statutory      duties.




                                             p. 5291
Mr.   Sam H. Smith   - Page   8   (JM-1025)




It would be contrary     to these provisions       for the board     of
trustees   to delegate   to a private     firm    all authority     and
responsibility    for  carrying   out   assessment   and    collection
functions,   whether the board     contracts   with a private      firm
instead of appointing    a tax assessor-collector,       or   appoints
a tax assessor-collector      while attempting      to transfer     his
statutory   powers and duties to a private firm.

      The Tax   Code and   Education    Code provisions     we   have
discussed  would not, however, prohibit      the board of trustees
of a school district    from contracting   with a private    firm to
provide ministerial    and clerical assistance    to the appointed
tax assessor-collector     under his    control and    supervision.
Moreover,  we believe that the board of trustees      has    implied
authority  to contract    for clerical    and ministerial      assis-
tance for its assessor-collector.

      The trustees   of a school district        shave the    exclusive
power to manage and     govern the public        free schools of     the
district.H    Educ. Code     5 23.26(b).     They    are empowered     to
"levy and collect taxes," Educ. Code 5 23.27, and to appoint
an assessor-collector      of   taxes    who    is their     agent    and
employee.    Educ. Code 5 23.92; w        Aldine Indeoendent      School
pist.   v.   St-          E!JEKB.    Implicit     in   this   statutory
authority   is the auihority    to hire other people to assist in
the ministerial     and clerical     work    of tax    assessment     and
collections.     The courts have held      that a school board       may
contract with a private firm to provide this assistance.

      In Crosbv v. P. L . Marauess       & Co.. 226 S.W.2d 461 (Tex.
Civ. App. - Beaumont      1950,    writ ref#ll n.r.e.), the          court
held that    the trustees     of a    school district       had   implied
authority   to  contract with      a private     company to      appraise
improvements   on land for tax       purposes.    226 S.W.2d at       464.
It found nothing      in the    contract   indicating     an intent      to
confer any powers of the tax assessor upon the company.                  In
Attorney  General Opinion V-1054        (1950) this office,       relying
on Crosby, determined     that the board of trustees         of a school
district  had implied     authority    to contract      with a private
company to compile      and record information        relating    to   the
appraisal   and valuation    of   property    for the district's       use
in assessing   and collecting     ad valorem taxes.       See aenerally
Attorney  General    Opinion     V-966    (1949)    (reconsidered      and
overruled   by Attorney    General Opinion       V-1054).     The    Texas
Supreme Court     subsequently      ruled   that    the   commissioners
court had implied authority,        based on its duty to act as the
county board    of equalization,        to contract     with a private
firm to appraise    all property      in the county.        Pritchard     &
Abbott v. WcKennq,     350 S.W.2d at 334.




                                    p. 5292
Mr.   Sam H. Smith   - Page   9     (JM-1025)




      We note that    school districts,    as   taxing units,     have
certain specific authority     to contract    for assistance    in tax
assessment   and collections.     Section 6.24 of      the Tax    Code
permits contracts   between taxing     units for the     performance
of duties relating to the assessment       or collection   of taxes.
See also Educ. Code 5 23.96      (assessment    of school    district
taxes by tax assessor and collector      of municipality     in which
school district   is located).

      Although   the legislature       has granted school         districts
some express authority       to   contract with other taxing           units
for assistance     in tax assessment       or collection,     it has     not
necessarily     banned    similar     contracts     between     a     school
district   and   a private      entity.    Attorney     General     Opinion
v-1054   (1950), in holding that a school district had implied
authority   to contract with a private company for information
on   the   appraisal     and    valuation     of  property,       expressly
reconsidered     and    OVerNled      an   opinion    holding      to    the
contrary.    &S    Attorney   General     Opinion V-966 (1949).          The
holding of the prior opinion had been undermined              by    Crosby,
a.        Attorney   General Opinion V-1054 at 5.

      At the time Attorney General Opinion V-1054 was issued,
predecessor    provisions   to    section 6.24(a) of       the Tax     Code
expressly   authorized    interlocal    contracts   for tax assessment
and collection     services under some circumstances.          See. e .a
Acts 1945, 49th Leg., ch. 351, at 610 (formerly codified                  a;
V.T.C.S.   art. 1066b), reDealed       bv Acts 1979, 66th Leg.,No;i.
841, 5 6(a) (11, at 2329 (adopting Property Tax Code).                      -
theless,   the board     of trustees     was found     to have      implied
authority   to contract with       a private entity for        assistance
in tax assessment      and collections,       and we believe     it   still
has such implied contractual          authority   despite    its    express
authority   to   contract     with    other taxing     units     for    such
assistance.     A school    board may therefore        contract with        a
private   firm to provide ministerial         and clerical     assistance
to the school      district's   tax    assessor-collector      under     his
supervision    and control.

      We finally     consider your  question with respect to   the
assessment  and      collection of  taxes   by a home-rule   city.
Section 6.22(b)      of the Tax Code provides  as follows:

          The assessor   and collector  for a home-rule
          city are determined  by the city*~s charter and
          ordinances.

      Other    provisions    relevant        to    the   tax   assessor-
collector     for   a home-rule    city       demonstrate    that    this




                                     P- 5293
Mr.   Sam    H. Smith     - Page   10    (JM-1025)




position must be filled            only   by a natural       person.    Section
6.23(b) of the Tax Code            provides  in part:

                 (b)    The   assessor      and
                                              collector     for  a
                                                    shall assess,
             collect,   or   assess   and   collect    taxes,   as
             applicable,    for   the  unit.
             assess. collect.     or as es8 and 5Gitkee
             as applicable,     for ano:her unit            [undek
             specific   conditions].     (Emphasis'add;d.)

Tax   Code    5 6.23(b).

       Section     6.29    of the Tax     Code    provides   in part:

                 (a) A taxing unit,        other than a county,
             that has    its   own    collector
             hime to aive    bondconditioned       s
              ul serf rma         of   his   duties.         The
             governin:   boi?may     require a new bond at   any
             time, and failure to       give new bond within    a
             reasonable   time after demand is a ground      for
             removal   from office.      (Emphasis added.)

Tax Code    f 6.29(a).    The  legislature's    use   of  personal
pronouns   and its requirement  of a performance    bond in   these
provisions   show its intent that the tax assessor-collectorgs
responsibilities    and duties be vested in a natural person.

      Both quoted provisions       apply to a    "taxing unit     other
than a    county."     A   "taxing   unit"   for   purposes    of   the
Property Tax Code      is defined    in part   as nan    incorporated
city or    town    (includina    a home-rule     cite)."    Tax    Code
5 1.04(12)    (emphasis added).     Thus, both provisions     apply to
a home-rule    city and    require its tax assessor-collector         to
be a natural person.

      A home-Nle      city may not     adopt a charter provision        or
an ordinance     inconsistent     with statute.        Tex. Const.    art.
XI, 5 5; s.G!~ CitY Of       SWeeQ&iter    v. Gerpn      380 S.W.2d    550
(Tex. 1964).        The Property    Tax   Code    "supersedes   any   pro-
vision of     a municipal      charter or      ordinance    relating    to
property   taxation."      Tax Code    5 1.02.     The legislature     has
adopted provisions      demonstrating     its   intent that a     natural
person    be    accountable    for    the   performance     of   the   tax
assessment    and collection     duties set out in the Property        Tax
Code.    A home-Nle     city may not contract with a private          firm
to assume responsibility       for those duties.        It may, however,




                                          p. 5294
Mr.   Sam   H. Smith    - Page    11    (JM-1025)




contract with a private firm to provide clerical        and   minis-
terial   assistance    to   the  city   tax    assessor-collector,
subject to his    authority   and supervision.      &.g Whit   v v.
Gitv of Terrell.    278 S.W.2d 909 (Tex. Civ. App. - Wacrl955
no writ).   See        Tax Code S 6.29(b)    (bonding   requiremen;
where taxes    are collected    by a person other      than   taxing
unit's own collector).

                                  SUMMARY

                    The Property     Tax   Code requires     that    a
              natural person serve as tax assessor-collector
              of the    taxing units     subject to   it.     Taxing
              units may not delegate all responsibilities           of
              the tax assessor-collector       to a private     firm.
              The commissioners    court     of a county may       not
              choose the persons who       assist the county       tax
              assessor-collector     in performing    his    duties.
              The governing    body of    a school district     or   a
              home-rule   city   may   contract with     a private
              firm   to   provide    ministerial    and     clerical
              assistance    to the tax assessor-collector      under
              his control and supervision.




                                             -5IM      MATTOX
                                              Attorney  General   of Texas

NARYXXLLXR
First Assistant        Attorney    General

mu   MCCREARY
Executive   Assistant      Attorney      General

JUDGE ZOLLIE STRAXIHY
Special Assistant  Attorney            General

RICX GILPIN
Chairman,  Opinion       Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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