                        November 2, 1949


Hon. Cullen B. Vance             Opinion No. V-943.
County Attorney
Jackson County                   Re:   The authority of the tax col-
Edna; Texas                            lector to collect a common
                                       school district tax levied
                                       prior to a consolidation with
                                       an independent school dis-
                                       trict, and related questions.

Dear Mr. Vance:

           Your letter request reads as follows:

             “On August  13, 1949, the Navidad Common School
     District and the Arenosa   Common     School District were
     consolidated with the Edna Independent School District
     under Article 2806 of the Revised Civil Statute,+.    Prior
     to the election these common school districts had a tax
     rate of $.75 and the Edna Independent School District
     had a rate of $1.00. An election is being held on Sep-
     tember 23, 1949, for the purpose of establishing a.uni-
     form rate of $1.00.    On August 8, 1949, the Commis-
     sioners’ Court of this County made its annual tax levy,
i    including a levy for school taxes in each of these dis-
     tricts.   The question now presented is whether the Tax
     Collector should proceed with the collection of the tax-
     es in these hvo districts or whether the taxes should be
     relevied subsequent to the election to be held on Septem-
     ber 23, assuming, of course,    that this election results
     in a uniform rate.

             “I have before me your opinion V-375 dated Sep-
     tember 15, 1947, rendered to Honorable L. A. Woods,
     State Superintendent, and written by Chester E. Ollison
     where it was held that where common school districts
     were duly incorporated into an independent school dis-
     trict no b y could levy further maintenance taxes on
     the proper“R of the incorporated districts until the new
     district voted the taxes, because the old common school
     district ceased to exist and all maintenance taxes there-
     tofore voted by it ceased  to be in force, This opinion
     was based on the case of Pyote Independent School Dis-
     trict Vs. Dyer, 34 S.W. 2nd 578.
    Y&m. Cullen B. Vance, Page   2 (v-943)



                  “Apparently in the Pyote case the common school
         district was incorporated into the independent district
         before the tax levy was made by the Commissioners’
         Court, In the case of the Navidad and Arenosa School
         Cistrict and the Edna Independent School District the
         election incorporating was held subsequent to the time
         the tax levy was made by the Commissioners’ Court..
         In the former situation where no levy has been made
         the solution is rather simple; but in the latter~ situation
         after a levy has been made it does not seem possible
         to apply the rule in the Pyote case, In other words at
         what stage in the tax process must a common school
         district   cease to exist in such a manner as to make void
         a11 action taken by the Commissioners’ Court and the
         Tax Collector toward assessing, levying and collecting
         the taxes fof school purposes. If, as was stated in the
         Z?yOtac~OU, when a common school district is incorpo-
         rated into an independent district the common school
         district   no longer exists, then it would seem that such
         incorporation would have the effect of wiping out all de*
         lirquent taxes owing for school purposes to the common
.
         school district.

                “It will, therefore, be appreciated if you will ren-
          der an opinion on the following propositions:

                “1. Where a common school district is incorpo-
         rated into an independent district after the annual levy
         for taxes has been made by the Commissioners’ Court
         and after tax statements have been prepared and are
         r,eady for mailing, is the County Tax Collector preclud-
         ed from collecting these taxes for the current year?

                “2. Where a common school district is incorpo-
         rated into an independent school district subsequent to
         October 1st and after some of the taxes for the current
         year have been paid, is the County Tax Collector pre-
         cluded from collecting the remainder of the taxes in
         arid common school district for the current year ?

                 “3. Are delinquent taxes owing to a common school
         distiict that has been incorporated into an independent
         school district rendered uncollectible by such incorpora-
          tion.
               “In all situations on which an opinion is requested
         above, there are no bonded or other obligations owing
         by the common school districts involved,”




                  .
Hon. Cullsn B. Vance,lPage        3 (V-943)



               Section 15 of Article     VIII of the Texas Constitution pro-
vides:

                 “The annual assessment made upon landed prop-
         erty shall be a special lion thereon; and all property
         . . . shall be liable to seizure and sale for the payment
         of all taxes and penalties . . . under such regulations
         as the Legislature mey prescribe. ”

               Article   7172, V.C.S.,   provides:

                “All taxes upon real property shall be a lien upon
         such pralperty until the same mh*ll have been paid. And
         should the assessor   fail to assess any real estate for
         any one or more years, the lien shall be good for every
         year that he should fail to assess for; and he may, in
         listing property for taxes any year thereafter, assess
         all the back taxes due thereon, accordinS to the provi-
         sions of this title.”

             Taxes do not accrue against property until after there
have been both an assessment and a levy. After a proper assess-
ment and a legal levy, a tax liability exists in favor of the taxing
authority, together with a lien on the property, until the tax has been
paid. Geffert v. Yorktown Independent School District, 285 S.W. 345,
351 (Tex. Civ. App. 19Zb error granted - reversed on other grounds);
Cracker v. Santo Consol.’ Ind. Sch. Dist., 116 S.W.2d 750 (Ter. Civ.
App. 1938, error dism.).

               Section 55 of Article     III of our State Constitution reeds
as follows:

                “The Legislature shall have no power to release
         or extinguish, or to authorize the releasing or extin-
         guishing, in whoie or in part, the indebtedness, liability
         or obligation of any corporation or individual, to this
         State, or to any county, or defined subdivision thereof,
         or other municipal corporation therein, except delin-
         quent taxes which have been due for a period ofat least
         ten years. ”

             The courts have held that accrued taxes are a liability
within the provisions of said Section 55 of Article III. State v. Pio-
neer Oil & Refining Co., 292 S.W. 869, 871 (Comm. App. 1YL I)
bniver v. City of Houston, 93 Teat. 206, 54 S.W. 940, 943 (19001; city
oi Hemietta v. Eustis, STTex. 14, 26 S.W. 619 (1894). Inasmuch as
taxes which have accrued,   by reason of a levy made by the Commis-
sioners’ Court, become a fixed liability and cannot be released, it
zucessarily follows that your three questions should be answered in
                                                       !   ,^




Hon. Cullen 8. Vance, Page 4 (V-943)



the negative. It would be the duty of the county tax collector to col-
lect the accrued taxes for that year and for all other prior years
upon which delinquent taxes are owing, as trustee for the newly cre-
ated independent school district and upon collection should remit
same to the independent school district.

                                SUMMARY

             If a common school district is consolidated into
      an independent school district after the annual levy for
      taxes has been made by the Commissioners’ Court, the
      tax liability for that year has been fixed and such liabil-
      ity could not be released or extinguished. The newly
      created independent school district could not thereafter
      make a levy for taxes against the property in the com-
      mon school district. It would be the duty of the county
      tax collector to collect the accrued taxes for that year
      and for all other prior years upon which delinquent
      taxes are owing, as trustee for the newly created inde-
      pendent school district and upon collection should re-
      mit same to the independent school district.      Tex. Const.
      Art.  III, Sec. 55, and Art. VIII, Sec. 15; Art. 7172, V.C.S.

                                              Yours very truly

                                   ATTORNEYGENERALOF             TEXAS




                                              W, V, Geppert
                                                Assistant

W VG/mwb




                                   FIRST ASSISTANT
                                   ATTORNEY GENERAL
