                                                                        -.-- ...._ ~,_ _.
                                AvSnS.         TESAS

                                                              ;   ‘., ‘i.<   :y.

                                                             i
                             December      14. 1949          ‘-



Hon. L. A. Woods                         Opinion No. V- 966.
State Superintendent
Department    of Education               Re:   Validity of contract for re-
Aus tin, Texas                                 valuation of property within
                                               Grand Prairie Independent
                                               School District.

Dear   Sir:

              You have requested     the opinion of this office as to
whether the Trustees     of Grand Prairie Independent School District
had the authority to enter into a particular      contract.   a copy of
which is attached to your request.      We gather from the accompany-
ing file that the Grand Prairie Independent School District          has been
receiving   grants from the Federal Government         under the Lanham
Act, which provides for aid in the maintenance         and operation of
those school districts    wherein activities   of the Federal Government
have caused such serious financial burdens that the districts           can-
not finance the normal operation and maintenance           of school facil-
ities.  The Federal    grants supplement State and local funds avail-
able to school agencies.     Tit. 42, Sec. 1535, U.S.C.A.

              The Federal    authorities  have questioned the propriety
of the expenditure    of the District’s  funds under the contract in ques-
tion. If it was within the powers of the Board of Trustees       under
applicable  statutes to enter into the contract,    then school district
funds could be properly     used as provided therein; and the Federal
Government     will supplement    or contribute the maximum     amount
allowable as Federal aid; but if neither State nor local school funds
could legally be used to pay for the services      rendered under the
contract,  the amount expended under the contract cannot be consid-
ered in determining     the amount of the Federal    grant.

               The preamble      to the contract recites    that “the Tax As-
sessor   and Collector    of the . . . District does not have available in
his records,    lists or records     showing the actual value of all prop-
erty within the boundaries       of the . . . District;  . . . /&atf.    . . Due
to change’s in values over a long period of years thevarious                equal-
ization boards appointed by said . . . District         have been unable to
revalue the property      to meet the changing . . . values.        . .; and . . .
/&at7   it will be of inestimable      value . . . to the . . . board to have
ZvaiTbble . . . records     showing the different classes        of properties
and their values so that the said board may be able to efficiently
and correctly     fix the same proportionate       values on all classes      of
properties    in this . . . District   . . .”
                                                                                    a
Hon. L. A. Woods,      Page   2 (V-966)




             The contract proper is behveen the Grand Prairie    Inde-
pendent School District acting by and through its regularly  elected
Board of Trustees   and the Texas Educational Service Company,      a
Texas Corporation,   engaged in the business of valuation and apprais-
al. Its provisions  may be summarized    as follows.

              The Service   Company agreed to evaluate all land by ac-
tual view and to determine    the front foot value of all lots and par-
cels of land within the district.   In appraising every lot and parcel
of land the company was to follow the best evaluation practices       and
was to record the results of such appraisals      on land and improve-
ment record cards which were to become the permanent record of
the district.  Likewise   the company was to appraise and evaluate
all buildings and improvements      upon each tract of land, recording
numerous specific details with regard to said buildings and impiove-
ments on the land and improvement       cards above referred    to.

              The contract specifically       required the listing and ap-
praisal of “all tangible personal property,          machinery,   fixtures    and
easements    belonging    to utility companies,     pipe lines, communica-
tion systems,    transportation     systems,    tank farms, refineries,      gas
companies,    railroads    and oil companies.”       There was likewis~e a
specific requirement
and professional
                          to list. appraise and evaluate ‘all business
                     property,
als, business and professional
                                  such as stocks of merchandise.~ materi-
                                      tools, implements,     equipment,     vehi-
                                                                                    a
cles, machinery,     furniture and fixtures,      and libraries.”     Personal_
property in homes, automobiles,          jewelry,   stocks, bonds, and intan-
gible property were expressly         excluded from this provision        of the
contract.

             In addition to furnishing one set of sectional maps on
any property on which the District did not have such maps and to
bringing existing maps up to date, the service company was to bring
up to date all ownership sheets of all property within the school dis-
trict.  These sheets were to be on the same forms as the tax collec-
tor was then using, such forms to. be furnished by the district.

             The ‘experts”   of the service company were required
to instruct the ‘Assessors”    of the school district in the methods
of valuation and computation    used by the company *so that the sys-
tem may be continued and kept up-to-date      in the future.”

             Likewise    the company was to “cause a competent       rep-
resentative  . . . to attend the hearings of the next Board of Equal-
ization of the Grand Prairie Independent School District      . . . to ad-
vise with said board, make recommendations        to said board and to
defend any valuations     set under this contract . . . *
Hon. L. A. Woods,      Page   3 (V -966)




              In the event “any valuation set up under the contract is
attacked or contested in court or other legal proceedings      directly
or indirectly”   the company agreed to furnish a competent witness
to testify at such hearing as to the accuracy   of the valuations   “ar-
rived at under this contract.”

            A “deputy tax assessor”   was to be furnished by the com-
pany “to assist in assessing taxes for the thirty (30) day period be-
ginning December   26, 1949, and ending January 25, 1950.”

             Various other detailed provisions       of the contract are
not material to the present question.        For the performance    of the
various services    enumerated     in the contract the schooL district
agreed to pay the service      company $11,000.00     to be paid *as the
work progresses,     in installments,    as follows:  The first installment
of $1.000.00  shall be due and payable January 30, 1949.         Thereafter
payments of $1 ,OOO.OO each shall be due and payable on February
28, 1949, Mar~ch 3 1, 1949, April 30, 1949, May 31, 1949.         The bal-
ance of $6,000.00    shall be due and payable on completion       of thework
and acceptance    of report” by the District.

             The general rule is that school districts  may not enter
into any contract which is not expressly  authorized by law or im-
pliedly authorized from powers expressly    granted.   37 Tex. Jur. 943,
Schools, Sec. 75.

              The expenditure   of public free school funds is governed
by Article 2827, V.C.S.    Section 1 of this article provides that the
State and county available    funds shall be used solely for the payment
of teachers’ and superintendents‘     salaries,   fees for taking the scho-
lastic census,  and interest on money borrowed on short time to pay
salaries  of teachers and superintendents       until school funds for the
current year were available.

             Section   2 of Article    2827   reads   as follows:

              “Local school funds from district taxes, tuition
      fees of pupils not entitled to free tuition and other local
      sources may be used for the purposes enumerated           for
      State and county funds and for purchasing appliances         and
      supplies, for the payment of insurance       premiums,   jani-
      tors and other employes,     for buying school sites, buying,
      building and repairing    and renting school houses, and
      for other nurnoses    necessarv    in the conduct of the=b-   1



      Iic schools to be determmed’by       the Board of Trustees,
      the accounts and vouchers      for county districts  to be ap-
       proved by the county superintendent;      provided, that when
      the State available  school fund in any city or district is
      sufficient to maintain the schools     thereof in any year for
Hon.   L. A. Woods,   Page 4 (V-966)




       at least eight months, and leave a surplus, such sur-
       plus may be expended for the purposes mentioned here-
       in.” (Emphasis   ours.)

              The underscored    portion of the above quoted section
has peen construed by our courts in numerous          opinions.   It has been
held sufficiently broad to authorize the trustees       to expend local
school funds for the construction      of living quarters for teachers,
Adams v. Miles, 300 S.W. 211, affirmed 41 S.W.Zd 21 (Tex. Comm.
App. 1931); for establishing   a health department      as part of the school
system,   Mosely v. City of Dallas,     171 S.W.2d 36 (Tex. Comm. App.
1929); and for employing an attorney to represent         the trustees in a.
suit to cancel a teacher’s   contract.     Arrington  v. Jones, 191 S.W. 361
(Tex. Civ. App. 1917).

             In general it may be said that “trustees    are authorized
to expend funds derived from local sources    and the surplus of the
State and county available  school funds, for any and all purposes
enumerated by law, and for such other purposes as, in the discre-
tion of the board, may be reasonably   necessary    in the maintenance..
of the schools.”   37 Tex. Jur. 970, Schools,  Sec. 98.

             Articles  2791, 2792, and 2792b. V.C.S.,        expressly  deal
with assessing   and collecting taxes for independent        school districts.
Article  2791 reads as follows:

               “There is hereby created the office of assessor
       and collector    of each independent school district,       wheth-
       er created by special or general law, who shall be ap-
       pointed by the Board of Trustees         thereof, and 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
       assessor    and collector   of taxes in and for any incorpo-
       rated city, town or village,      or upon the person or officer
       legally performing      the duties of such assessor      and col-
       lector,and-tre    shail receive such compensatinnfor          his
       services   as the Board of Trustees        may allow, except in
       cities and towns provided for, not to exceed four (4)
       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 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 com-
       ing into his hands by virtue of his office as such asses-
       sor and collector;     provided that in the enforced collec-
       tion of taxes the Board of Trustees         shall perform the
       duties which devolve in such cases upon the city council
Hon.     L. A. Woods,   Page 5 (V-966)




         of an incorporated     city or town, the president of the
         Board of Trustees      shall perform the duties which de-
         volve 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, or the
         city attorney of the incorporated        city in which said dis-
         trict or a part thereof is located, shall perform the
         duties which in such cases devolve upon the city attor-
         ney of an incorporated      city or town under the provisions
         of law applicable    thereto.    It shall be within the discre-
         tion of the Board of Trustees        of any independent school
         district to name an assessor        of taxes who shall assess
         the taxable property within the limits of the independ-
         ent school district within the time and in the manner
         provided by existing laws, in so far as they are appli-
         cable, and when said assessment           has been equalized
         by a Board of Equalization appointed by the Board of
         Trustees   for that purpose, shall prepare the tax rolls
         of said district and shall duly sign and certify same to
         the county tax collector,      or the city tax collector    as
         provided for in the succeeding article.           The said asses-
         sor of taxes shall receive a fee of two (2) per cent of
         the whole amount of taxes assessed           by him as shown by
         the completed    certified tax rolls.”

                This article is applicable to the “tax assessor        and col-
lector    of the Grand Prairie Independent School District.”

               Article 2792 provides an alternative      method by author-
izing the Board of Trustees to have the taxes of their district as-
sessed and collected,     or collected only, by the county assessor      and
collector,  or by the city assessor      and collector  of an incorporated
city or town in the limits of which the school district or a part there-
of is located.    Other provisions    of this article pertain to valuation,
payment of assessors      and collectors,    etc.

              Article    2792b authorizes  the trustees   of independent
school districts    lying partly within and partly without the limits of
any incorporated      city or town to have separate    Boards of Equaliza-
tion and separate Assessors       and Collectors   for such two portions
of the district under certain circumstances.

             The above quoted and summarized     articles  thus confer
upon Boards of Trustees   of Independent School Districts    expressly
enumerated   powers in connection with assessing    and collecting   dis-
trict taxes.

                An assessor    and collector appointed in pursuance of the
provisions     of Article  2791 is “as to powers (Art. 1147, R.S.) . . .
Hon. L. A. Woods,     Page   6 (V-966)




granted all of the authority that is prescribed         in Ch. 5, Title 28,
relating to cities,     towns and villages.”     Republic Ins. Co. v. High-
land Park Independent School Dist.. 123S.W.Zd             184 IYZ (Tex. Civ.
App. lY38. Dismissed          W. 0. J. - Correct   Judgment’-    see explana -
tion 125 S.W.td      270).    Independent school districts    are governed
generally in matters        of taxation by the group of statutes applicable
to cities and towns rather than by the statutes applicable            to the
State and counties.        Republic Ins. Co. v. Hyde Park Independent
School District,      141 Tex. 224 1 II S . W . 2d 342 (1943) . I t is thus ap-
parent    that the statutes con&n        express  directions   for assessing
and collecting     school district taxes and that no express        statutory
provision authorizes        a contract of the type under consideration.
Therefore,    if the Board of Trustees was authorized          to enter into
this contract,    such authorization     must be implied from the provi-
sion in Article 2827, Section 2, previously         quoted, which author-
izes the expenditure        of local school funds for *purposes      necessary
in the conduct of the public schools;”        and the question is whether
such authority can be implied in view of the specific statutory pro-
visions above cited or summarized.

             Contracts  similar to the one under consideration          have
become   the subject of litigation in our courts.

              In Roper v. Hal:. 280 S.W. 289 (Tex. Civ. App. 1926),
the court held that the Commissioners’      Court of Freestone  County
had authority to make a contract with a private individual to list
owners of all producing oil and gas properties     within the county and
make a valuation of all pipe lines, refineries,   tank farms, and tank-
age. etc., used in connection with oil and gas development,     including
transportation   facilities.  The court reasoned that the particular
property involved could not have been assessed      by an ordinary per-
son, and therefore     the Commissioners’   Court under its general
powers had the authority to secure expert assistance.       The conten-
tion that duties imposed by law on the Tax Collector     and Commis-
sioners’ Court had been unlawfully delegated was rejected.        The
court said:

              *It does not appear that it was the intent or ef-
       fect of the contract that Pickett should perform the
       duties imposed by law on any of the offices concerned.
       On the contrary    it does appear that its purpose was
       merely to aid such offices in the respective    perform-
       ance of their duties,”

             In Simkins  v. City of Corsicana.   86 S.W.2d 792 (Tex.
Civ. App. 1935), suit was brought by the City of Corsicana     against
Mrs. Eliza J. Simkins to recover delinquent taxes for the years
1921 to 1929. inclusive, and to foreclose   a tax lien on the land a-
gainst which the taxes had been assessed.      The defendant alleged
Hon. L. A. Woods,    Page   7 (V-966)




that in 1928 the city had entered into a contract with one Erinborg
under which he was to place a value for tax purposes on all real
property within the city; that defendant’s    property had been exces-
sively valued by said Erinborg;    that the city had arbitrarily   and
without hearing adopted said valuation over defendant’s       protest,
that said action was illegal and void, and that therefore the city
had no right to collect the taxes.   The court held that the trial court
had erred in not submitting   to the jury the question of whether the
valuation as fixed by the board was grossly excessive       and reversed
and remanded the case.     In the course of the opinion the court,
speaking through Judge Alexander,      said:

             “We know of no valid reason why a tax board can-
      not employ an expert to assist      it in arriving at the true
      value of taxable property,     and when such expert has
      been employed the board should have a right to take in-
      to consideration    the information    so furnished by him
      in ascertaining   the true value of property for tax pur-
      poses.   . . . But it must be remembered        that such ex-
      perts so employed bear no official relationship         to the
      property owner and have no statutory         authority to fix
      the value at which the property      is to be assessed    . . .*
      (P. 794)

             In Marquax t v. Harris County, 117 S.W.2d 494 (Tex.
Civ. App. 1938, error dism.),     a contract which contemplated   a re-
valuation by two firms of a-1 the property within Harris County “of
the type now generally   assessed    for taxation” was held to be void.
The court first stated that the contract as a whole showed that it
was made by the Commissioners’         Court “in connection with the col-
lection of delinquent taxes” within the meaning of Articles     7264a
and 7335a and that since it had not been approved by either the Comp-
troller or Attorney General,    nor by both acting together, was pro-
hibited by these statutes.

              It has been held that.a contract made by an independent
school district with an attorney for collection     of delinquent taxes
did not have to be approved by the Attorney General and the Comp-
troller, although the amount of the fee for such services       was lim-
ited to that provided by law for State and county taxes.       Beil v. Mans-
field Independent School District,     133 Tex. 403. 129 S.W.Zd 629 (lY3q.
Therefore,   the first reason for invalidating   the contract in the Mar-
quart case is not applicable     here even if we were of the opinion that
the contract~under    consideration   was in the nature of a contract “in
connection with the coklection of delinquent taxes,” a point which we
do not need to decide.

              However,   the court found the contract void for the fur-
ther reason   that it amounted to an attempted deiegation of the duties
Hon.   L. A. Woods,   Page 8 (V ,966)




devolved by law upon the tax assessor         and collector.     We quote
from the opinion of the court at pages        502, 503:

               “(4) (5) While the Commissioners’          Court may
       validly employ ‘skilled experts ’ to value for taxation
       purposes property in special instances,           where tech-
       nical equipment is required,        since this contract--,by
       its express terms --embraces          a valuation of the entire
       taxable property of Harris        County, as reflected by its
       tax records,    it necessarily    supersedes     the powers,
       duties, and functions of the tax assessor          and collector,
       and since those duties are devolved by law upon him,
       such an attempted employment           by that body of other
       persons to, in the first instance,       per,form such duties
       instead, is an expenditure       of public funds for an unau-
       thorized purpose.      Article   5. sec. 18, State Constitu-
       tion; Sec. 18 and Sec. 14, as amended November              8, 1932,
       of Art. 8, State Constitution;      Sections 6 and 10 of Art.
       16, State Constitution;     Section 3 of Art. 1, State Consti-
       tution; Art. 3, Sets. 44, 53, and 55 of State Constitution;
       Articles    7148. 7161, 7162, 7183, 7184 to 7205. inclusive,
       all of the Revised Civil Statutes of 1925; Missouri,           K.
        & T. Ry. Co. v. Shannon, 100 Tex. 379, 100 S.W. 138,
        10 L.R.A.N.S.,    681; Maud v. Terrell,       109 TEX. 07, 200
       S.W. 375, Von Rosenberg        v. Lovett, Tex. Civ. App.,
        173 S.W. 508; Roper Y. Hall, Tex. Civ. App.. 280 S.W.
       289; Federal Royalty Co. v. State, Tex. Civ. App., 42
       S.W.2d 670; Id., 124 Tex. 290, 77 S.W.Zd 1021, 80 S.W.
       2d 741.

               “(5) No extended discussion        will be indulged in
       under this last-stated       ground.  Suffice it to say that
       such an apparent       undertaking of a commissioners’
       court to itself initially     revalue the entire taxable p:op-
       erty of a county, under the guise of using the same for
       its own information      and guidance when sitting as a Board
       of Equalization.    does not seem to this court to square
       with the balanced system of relatrve powers and duties
       conferred    upon that body by our laws, as comparable
       to the correlative     ones conferred     upon the county tax
       assessor-coilector;       it may be, as much testimony in
       the statement of facts indicates,       that in this instance
       the commissioners’        court concluded that the tax asses-
       sor-collector’s     office had broken down, and that its so
       occupying his place and performing          his functions Instead,
       justified an original assumption        of such power upon its
       part; but it is not this court’s understanding        that our
       statutes in such cases conferred         upon it any such authcr-
       ity; on the contrary,      it would seem to have been the tax
Hon.   L. A. Woods,    Page 9 (V-966)




       assessor-collector’s   legal right to independently per-
       form the duties actually conferred    upon him by law.
       Terre11 v. Greene, 88 Tex. 539, 31 S.W. 631, 634; 34
       Tex. Jur. p. 444.

               ‘(6)   The authorities      cited under ground (5) supra
       seem to make it quite clear that this contract did evi-
       dence an undertaking to in effect usurp the official priv-
       ileges and obligations        of the tax assessor-collector,       as
       vouchsafed     in the statutes there collated.        while upon the
       other hand, the differing and correlative            duties of the
       commissioners’         court--as    a Board of Equalization--
       are embraced within R.S. Articles             7206, 7211, and 7212.
       Under them it would seem never to have been contem-
       plated that the Board of Equaiization            should act upon
       anything other than the assessments             first rendered to
       them by the tax assessor-collector.             and not initially up-
       on their own motion.          County of Galveston      v. Galveston
       Gas Co., 72 Tex. 509. 1O.S.W. 583.             Further,    under R.S.
       Article    7217--after     the assessor-collector        had discharged
       his duties under those preceding           statutes and had fur-
       nished the lists therein called for to that Board--it             is ob-
       ligated to return the same to him for presentment                to the
       Grand Jury of his county.”

            In Aldrich v. Dailas County,    167 S.w.Zd 560 (Tex. Civ.
App. 1942, error dism.).   the court stated at page 565 that they per-
ceived no material difference     between the contract there under con-
sideration and the one involved in the Marquart      case and that the
contract was therefore   invalid.

             Neither the Marquart case nor the Aldrich case refers
to Simkins v. City of Corsicana,     supra.  We think that the decisions
in obese two cases conflict with the 1anauaEe used by Judge Alexan-
der in the City of Corsicana   case.    No &it was applied for in the
City of Corsicana   case.  In view of the fact that applications  for
writs of error were refused in the Marquart      and Aldrich cases.    we
are of the opinion that we must be guided by these derisions.

              The contract made by Grand Prairie     Independent School
District  varies, of course, from the contracts   considered  in these
two cases, but we think in view of these decisions    it would be clear-
ly outside the powers of a commissioners’     court.

              As we have previously     stated. school districts are gov-
erned generally in matters of taxation by a different group of stat-
utes than are counties,    i.e., by those provided for cities, towns and
villages.   It is true that these statutes are less numerous and less
specific  than those which apply to the State and counties; but they
Hon. L. A. Woods.    Page   10 (V-966)




none the less clearly    contemplate that the assessor      and collector
shall make up the assessment      rolls of all property taxed, Art. 1044.
V.C.S.;  and that he shall make out a list of all property which has
not been given in for assessment      and assess    same in the name of
the owner if known, etc.. and shall present same to the board of
equalization   for valuation by the board.    Arts.   1045. 1046. V.C.S.
Further specific    duties are set out in Articles    1047, 1050, 1052,
1055, and 1057. V.C.S.      For an excellent  summary      of the assessor’s
powers.    see Blew&t v. Richardson Independent School Dist.. 240
S.W. 529, 532, 533 (Tex. Civ. App. 1922).

             We think that the contract with the Service Company
was, for practical  purposes,   a contract to list and revalue all the
taxed property within the district.     (The only property excepted
from its terms was personal property in homes, automobiles,         jewel-
ry. stocks and bonds and intangible property.)      We are of the opin-
ion that in view of the specific statutes providing for the manner of
listing and valuing property there is no room for finding implied
authority in the Board of Trustees     to contract for the performance
of these duties, and the contract is therefore void.


                                SUMMARY

               The Board of Trustees of Grand Prairie Inde-
       pendent School District had no authority to enter into
       a property listing and valuation contract which pro-
       vided for the performance    of duties devolved by law
       upon the District’s   Tax Assessor    and Collector. and
       said contract is therefore void.    Cf. Marquart v. Har-
       ris County, 117 S.W.Zd 494 (Tex. C-iv. App. 1938, error
       dism.);   Aldrich v. Dallas County, 167 S.W.2d 560 (Tex.
       Civ. App. 1942, error dism.).

                                                Yours   very     truly

APPROVED                             ATTORNEYGENERALOFTEXAS




FIRST ASSISTANT
ATTORNEY    GENERAL
                                                     Assistant

MMC/mwb
