                                        Arrclx-IN    1,. X-IGKAH
PRICE  DANIEL
ATTORNEYGENERA,.
                                    December        14, 1948


      Hon. Sam Lee                             Opinion    No. V-734
      County Attorney
      Brasoria  County                         Re:     Legality  of paying State and Coun-
      Angleton, Texas                                  ty ad valorem taxes without at the
                                                       same time paying drainage dis-
      Dear    Mr.     Lee:                             trict taxes on the same tax roll.

                     You request     an opinion     upon the following   questions:

                  “Drainage   District No. 4, located entirely within
             Braaoria   County, Texas, was cr,eated under Section
             52 of Art. 3 of the Constitution of the State of Texas
             and subsequently   availed itself of the benefits of Art.
             16, Section 59 of the Constitution without change of
             nnme .

                  “The Commissioners’     Court of Braxoria County
             determines  the tax valuation of the drainage district
             aa a board of equaliaatioa and sets the fax levy as
             well as adopts the budget for the drainage district.

                  “Due notices of hearings   were given and hear-
             ings were held on the questions of values and bud-
             get for the district. but no taxpayer appeared  and
             entered a protest on the values, the budget or lev-
             ies.  The Tax Collector   and Asressor for Braxor-
             i& Cauoty, Texas has made up his tax rolls for the
             y8ar 1948 aad io now receivi.mg taxes for the gear
             1948. The drainage dirtrict tax Is on the Mme tax
             roll ae the stat, and couMy taxec and is payable at
             the eame timt the state and county taxes are paya-
             Me.   The Tax ColLcfor    has asked me the following
             qllestionnr

                    “1, Cur a tarpafelr orniy    property loeatad
             withIn the draiange district and taxable by such
             district.   par hfe state aad couuty taxes on hi,s
             property    located wffhf8 such drofnage district,
             without   4t the same time. pnpirr   his drrfnage
             district taxes on this propwiy?

                     “2.     Ia the event that such state and county
             tares     4rr    payable without the drainage   district
Hon. Sam Lee,    Page      2 (V-734)



     tax being paid, am I. as Tax Collector,        autborieed
     to give the taxpayer a receipt showing        his state and
     c,ounty taxes paid?

           ““3. In the event that a taxpayer tendered pay-
     ment of his State and county taxes prior to Novem-
     ber 2nd without the payment of his drainage district
     taxes and I refused the same, is such taxpayer en-
     titled to the percentage   reduction provided by sPat-
     ute for the payment of taxes on or before November
     2ad? -

          We note briefly tbe status of drainage dis%ricts.  Such
districts are created by constitutional  and statutory authority,
and exist separate and apart from the counties wherein they are
located.  The following authorities  support this view:  American
Surety Company of New York v. Hidalgo County, 283 S.W. 267
(writ refused); Harris   County Flood Control District  v. Mann,
135 Tex. 239, 140 S.W.(i?d) 1098. From the firs% case we quote:
     w
       0 D . The drainage district is as much an en%ity as
     is the city@ and clothed with the authority to ‘sue
     and be sued in all courts of this state in the name
     of such drainage district,   and all cour%s of this
     state shall take judicial notice of the establish-
     ment of all such districts.’   Hidalgo county in this
     suit has appeared for it as would %he next friend
     for a minor or a lunatic, but thaU has not des%roy-
     ed ite separahe existence as a drainage dis%ric%.
     Matagorda    County Drainage   DistricU v. Gaines g
     Corbett (Tex.Civ.    App.) 140 S.W. 370.“’

           Neither the State of Texas nor the County of Braaoria
has any iatereet in the funds or taxes of the drafnage district.
The fad that the Commissioners’        CourU, the Tax Aseessor-
Collector,   the County Auditor;;and    the County Treasurer      lnave
certaim d&e@ conferred       upon them by law in the admiwiis%ra-
tion of the fiscal a%fairs of the d&strict does not change this.
In the performance     of these dutfes tb.ey are merely perform-
ing additional duties, not iwconairhent with those     ordinarily    re-
quired of them under the law. That such additioauel duties may
be required    of them by the Lagiala%ure has been approved by
our cou~te, and for this they receive no addi%ional compensa-
tion. Settegast v, Harris     County, 159 S.W.(2d)  543 (Ct.Civ.Appd,
writ of error denied).     The State and County taxes cowstitute
separate and distinct obligations     of Qhe Uaxpayer, quite sepa-
rate and diiitinct from the drainage district taxes.

          Your   request     reveals   that you have dowe a commend-
Hon. Sam Lee,    Page   3 (V-734)



able amount of work and research   upon the questions presented,
but after careful consideration WC have reached opposite con-
clusions from those expressed   by you. We have concluded that
all three questions should be answered  in the affirmative, In
the case of Richey, Tax Collector  v. Moor, 112 Tax. 493, 249
S.W. 172, Chief Justice Cureton, speaking for the Supreme
Court, said:

           “In considering   the rule requiring    the full pay-
     ment of the taxes, we think it an appropriate        deduc,-
     tion from the authorities     to say that, where it is nec-
     essary for any one, in order to preserve         unimpaired
     his property rights, to pay the taxes due on any sep-
     arate tract or parcel of land which has been separate-
     ly assessed,    he has the right to do so; and, where the
     statutes can be construed to accomplish         this end, they
     should be so construed.      Under the constitutional     pro-
     vision before us, the right of the citincn to have any
     tract of his land free of any lien, except that to secure
     the taxes levied against it, is an important,       substan-
     tial, and real property right, not limited by the Con-
     stitution by any obligation to pay all other taxes due
     by him.    If we were to say that the taxpayer cannot
     pey%      taxes on one tract of his land without paying
     on all, or paying all of his taxes, in its final effect
     on him, as previously     stated, vu would be awarding
     a lien not provided by the Constitution,       or imposing
     a quasi-distraint    not warranted   by that instrument.
     The general rule that all taxes due must be paid at
     one time is not to be so blindly followed as to sub-
     vert the plain meaning of the organic law. We arc
     of the opinion that the tax against such separate
     tract or parcel of land, insofar as the right of pay-
     ment is concerned.     is to be reuarded    as a rewrate
     tract, and may be paid without>t the same tilt           pay-
     ing other taxes.” (Emphasis       supplied)

           It is true that the identical question before the court in
thin eato is not the same as here, but we think the principle         is
the same.      fudge Cureton was speaking specifically     of taxes up-
on separate     tracts of land separately  assessed, but from the
laogutgt    used it seems it would apply with equal force to sepa-
rate taxes upon~the same property.        Note some of the laagnagt
used by Judge Cureton in this opinion.        FOP example he says:
 *The taxpagtr     ia not required  to pay all other taxes due by him;
 . . . or paying all of his taxes* without at the same time paying
other taxes.      The drainage tax is a part of the taxpayer’s    other
taxes. and is a part of all other taxes due by him.
  Hen. Sam Lee,        Page     4 (V-734)



            Moreover, as observed by Judge Cureton, if we were to
  hold that tat taxpayer must pay his drainage district taxes at
  the same tima he pays hit State and Couuty taxes, we would in
  effect bt tndteroriop  to enforce a lien for the payment of one
  tax to require the payment of another separate and distinct
  tar, and to place     upon the taxpayer        a distraint     as to the pay-
  ment of tie Stat8 and Cou@ty taxte not provided for in the Con-
  sbktutioo or sbetutes.

            In the absence of some statitory authority requiring the
  taxpayer to pay his drainage tax, which is a separate tax and aecnr-
  td by a separate   lien, at the same time he pays his State and
  County taxes, such a requirement        is unauthorieed,  notwithstand-
  ing his drainage tax is upon the same tax roll as the State and
  County taxes.    The facts that the Commissioners’       Court acts
  as a board of equalization     as to the drainage taxes and that the
  County Tax Collector     collects the tax, are not sufficient within
1 themselves   to require   the taxpayer to pay the drainage tax at
  the same time he pays his State and County taxes, if he chooses
  not to do 80. The Legislature      has made ample provision      for the
  collection of drainage district taxes, both current and delinquent
  (Arts. 8135 to 8144, V.C.S.); but placing a distraint upon the tax-
  payer at to the plrymcnt of bke State aad County taxes unless his
  draimg# bq~~t we petd at bbt same time is not one cd tho mtth-
  tds prevl+Td by tkt LeStrltture.

            It is, theraforc, our conclusion that a tatpayer may pay
  hia State and County taxes at any time thsy are due and payable,
  natwithstandiq       he may chosse not to py          at the same time his
  dauinqt   district     futs     eerearrtd    on the State and County ~011s.

                                      SUMMARY

              State and C?usty tart8 may be paid without re-
       quiriag the taxpayer to pay drainage diatricb baxtc
       upa the same property, notwithrbandia~ the drain-
       age district taxes are assessed upon the same tax
       rolls.    American  Surety Co. of New York et al v.
       Htdalgo County et al, 283 S.W. 267 (writ refused);
       Harris  County Flood Control District  v. Mann, 135
       Ttx. 239, 140 S.W,(td)  1098; Richey, Tax Collector
       V. Mow,   112 Tex. 493, 249 SAW. 172; Arts. 8135 to
       0144, V.CSs.

                                                    Yours      very truly

                                            ATTORNEY     GENERAL        OF TEXAS
