Honorable San A. Rough, Jr.
County Attorney
Bocksprings, Texas

Dear Sir:                        Opinion iSo.O-2861
                                 Rer mhsther county tax assessor and
                                      collsctor, also acting as such
                                      for Vance Indopondent School
                                      District which has less than 150
                                      scholastics, must require payment
                                      of the school district tax44 along
                                      with county and State taxes.

       In your latter of Decmber 14, 1940, you request our opinion in
reap&se to the question 4s to mhothor the tax collectors of Edwards and
Real Counties must require the payment of taxes due tha Van04 Indapend-
snt School District 4s R condition to their paynent of county and State
t4xas.  You adviae us that tho following ar4 tha portincnt facts;

      ..TheDistrict was craota? by special act of the Lo&islaturs in 1921
(Spscial Laws, 37th Leg., Ch. 56, p. 157), is located on the line of Real
and Edwards Cwnties, has less than 150 scholastics, and itstaxes 4ro
assessad 4nd collaoted by the (1ss48sor4and colleotors of ths two counties.
The colleotors do not make a s::Jaratacolon 011the county and Stats tax
rolls, showing in separate figurbs to each individual tnxpayar the mount
of 4ohool tax44 he pay4 to ouch school district, including the Vanes Dis-
trict. Saotions 2 and 3 of the Act creating the district roads a4 follows:

             “Sec. 2.  Ths managswsnt and control of tho public
       fro4 schools of the Vance Indapsndsht School District 04
       created by this Act ir horsby vested in a board of five
       trustoos, to ba electod in acmrdanco with the laws of
       the Stat4 of Texas, in such ~a.144mada and provided; pro-
       vided that tho present Board of Trust444 of the Vanes Com-
       mon School District shall continua to s4rv4 as trustee of
       the distriot w-sated by this Act until the next regular
       truatca election in April 1921.

             ‘Sec.  3. The Vanes Independent School District a4
       oreatsd by this Act shall hava and axervisa and is haraby
       vested with 411 the rir.hts,powers, privilege4 and duties
       of 4 town or village incorporated unt'.er
                                               the general law4
       of the State of Texas for free school purposes only, and
       the Board of Trustaos of raid Vance Independent School
’   .




        Honorable Sam A. Hough, Jr. (o-2861) Pago 2.



               District shall have and exercise and are hereby vested       -. .> : 1c
               and charged with all the riGhts, powers, privilegas and
               duties conferred and imposed by the General Laws of
               this Stats upon the trustees under the gsncral laws of
               Taxas for free school purposes only."
                                                                      .' .~.. ~
               It seems evident from the above that thore is no,diffsrsnoe be-
        tnresnthis district and ona created under general laws, so far as the
        question you ask is concsmad.

               In 1913, Assistant Attorney General K. A. Keeling wrote that "j.f
        the county tax collector also collaots for tho district (indapendent),
        it would be his duty to demand full payment of tnxus, both distriot,
        county and state." (pO 649, Attornoy General's Reports, 1912-1914.) C.
        L. Stone, Assistant Attorney General, expressed the same view in 1926.
        (Vol. 279, Lsttor Opinions, pe 889). In 1929, Assistant Attorney Gsnor-
        el Khitehurst advised "that wheratharo is a separate tax roll for the
        indapendent school district kept by ths tax collector of a county, it
        is not necessary for tho colkctor to collectthe taxes for the independ-
        ent school district at tho same time that tho county and state taxer ax-4
        collactcd, but that where ths taxes ax-oassessed and colloctad by the
        county tax assessor and the county tax collector, tho same.rule applies
        that is enunciated in tho opinion of the Attorney General in 191geR
        (Vel. 300, Lsttor Opinions, p0 456).                      I

               It was said by the Suprcmo Court in Richoy vss Eoor, 249 S.K. 172,
        that "the citi.?.sn
                          always has tho right to pay the amount of any one tax
        listed against him," While the quoted language was dicta it is apparcnt-
        ly tl.3general rule in the absonca of legislation expressly or impliedly
        making a diffsrant one. Section 61, C.J. 966, and ceses cited in foot-
        nota 37; Cooley on Taxation, 4th Ed., Sec. 1253, pe 2492; Howsll vsO
        Lambsrson, 231 S.K 872, Arkansas Supreme Court.

               In the last cited cas4s9 the county collector refused to accept
        payment of state and county taxes without payment at the same time of
        drainage and road improvement taxes. Under the Arkansas statutes he
        MS requirad to collect the installments of road improvement district
        taxes at the time ho collected tho gcnaral taxer and a penalty ms pra-
        scribed for fniluro to do soa &on the opinion, holding that ho could
        not refuse to accept the county and state taxes eventhough not aocompa-
        aisd by payment of the other tax, 1~0quoter

                     "In the absence of a statute to tho contrary,
               I taxnaysr always has the right to pay tho amount of
               any one tax listed against his land while refusing
               to pay other taxes listed separately against it.
               Coolsy on Taxation (3d Ed.) vol. 2, ppO 808 and 809;
               37 Cyca p. 1164.
Honorable Sam   A.   Hough, Jr. (O-2861) Page 3.



            n     e Under ths terms of the statute, the colle&-
       or coul; iot refuse to acospt a voluntary payment of tha
       general taxes because the landowner wished to contsat the
       payment of his improvsment taxes and on that account re-
       fused to pay tha same0 The language of the statute is in
       no sense directed against the landowner, and his right to
       Pay his gsnsral taxas Nithout paying the improvement taxes
       cannot be takon away by any supposed intcndmant ontho part
       of the Legislature. Such a right is a valuable one to the
       landowner and could in no event be taken awas without di-
       rect and express languags to that sffoot on tha part of
       the legislature."

       You have called our attention to Article 2763, Revised Civil Stat-
utes, providing that 'all incorporatsd distriots, having each fewer than
150 scholastics according to the latest census. shall be govsmed in the
general administration of their schools by the laws which apply to corn-
mon school distriots." Rowover, we do not balievo that this statute has
anything to do with the levy of such a district's taxes, but that such
levy must be made by the trustees of the distriot. Article 2784, Revised
Civil Statutes, provides powor for the trustees of independent school dis-
tricts generally "to levy and cause to be colloctod the annual taxes and
to issue bonds" as thoroin authorized. Again, Article 2790, Revised Civil
Statutes, provides for tho boards of trustees of indapendsnt school dis-
tricts generally to annually levy and cau44 to bo assessed and colleotcd
* maintenance tax. Thon Articla 2796, Revised Civil Statutes reads8

             'The provisions of tho twelve preceding articles
       relative to tax and boud elections in common school
       districts shall also apply to Common county line school
       distriots. The provisions hereof relative to tax and
       bond elections in independent school diatriots shall
     ~-apply to any such district incorporated under general
       or special laws for school purposes only, and shall
       also apply to all such incorporated districts having
       sach fewer than one hundred and fifty scholastias
       locording to the latest censuson
       The tax of ths district is thus levied by a different body from
the one levying the State and county taxes, it is colloctsd for the use
of a different corporate body, and for different purposss. In our opin-
ion the district tax is a different ono from that levied and collected
for State and county purposes -- unaffected by the fact that a common
assessor and collector is used. To hold that all such taxes collsoted
by a singls~collector are in effect but on.4tax and that in tha absence
of permissive legislation the collector must demand and receive payment
of all of thornas a condition to tho payment of any one would bo to
sncumbor the collection of State and county taxes withthe requirement
that the taxes of many other political subdivisiolr be paid. For, Arti-
cl4 1042b, Vernon's Civil Statutes, authorizes "any inoorporated city.,
-   .:   T.


I             Honorable Sam A.   Rough, Jr. (O-2861) Pago 4.



              town, or village, independsnt school distriot, common school district,
              drainage district, water oontrol and improvsment district, water im-
              provement district, or navigation district"by resolution or order to
              require the county tax assessor and colleotor to also aot as such for
              any such body. There is no oxpress statute roquiring tho collector
              to reject the county and State tax without ho is also tondored theso
              othsr taxes, and in our opinion, before the citizen should be denied
              the privilcga of paying some of those taxes without paying all of
              them, them should be express legislation to that effact or the impli-
              cation should be vary plain.

                     X4 have oonsidored Artiolo 73364, Vernon's Civil Statutes, which
              purports to authorize the payment of school district taxes in advance of
              the payment of other taxes v;harothe sasm a~4 "collectable from the 8~14
              roll with any other tax." Doubtless the Legislature enacted this statute
              in light of the Whitehurst opinion, which in our view was orroneouso In
              other words, it is our thought that this statute logalisodncthing that
              nas not already legal. In effect it but partially deolared,almady oxist-
              ing rights. Vfehave also considoacd Artiola 7328-1, Vernon 8 Civil
              Statutes, by the Forty-sixth Legislature, simplifying the potition and
              aitation in delinquent tax suits, and note that the form of approved pe-
              tition oosvaenoos"The State of Texas 0 0 0 brings this suit in behalf of
              itself,       County, and for tho use and benefit of all political sub-
              divisions whose taxes are collected by the Asclnsor and Collector of
              taxos for said County." This statute would fit invery well with a re-
              quiromant for tho collection of all -- or none -- of the different taxes
              at tha same time, But, it fits in just as easily with permission for
              separate colloctioq, And, the provisions of Attic145 7345a (pertaining
              to tho transfer of tax lions), 7335, 7335a (omploymont of attc~moys to
              collect taxes for county and State), 7343 (undor this statuts !.ndopondsnt
              districts may avail themsolveL of Artiolas 7335 and 73350. Bell vs.,Mans-
              field Independent School District, 129 S,W. (2d) 629), and Article 7345b
              (Requiring all taxing units to be impleaded), Vernon's Civil Statutos,
              simply vould not square with the requirement for sll.suoh taxes to b4 paid
              at one and the same time.

                      In our opinion the proper answer to your question is a negatiw   one*
                                                                                              .
                                                               Yours vary truly

                                                       ATTOIWY    GENERAL OF TEXAS

                                                        By /s/Glenn R. Lewis
              GRL:LU:ogw                                       Glenn R, Lewis
                                                                     Assistant
              APPROVED JAN 30, 1941
              /*/ GKRALD.C. PlARN
              ATTOBHY GFNSAL OF TEXAS
