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                                  July 14, 1987




     Bonorable Robert W. Post         Opinion No. JM-747
     County Attorney
     Dewitt County Courthouse         Re:   Whether a commissioners court
     P. 0. Box 110                    way call an election for the purpose
     Cuero, Texas 77954               of consolidating tax assessing and
                                      appraisal functions in the office of
                                      county tax assessor-collector

     Dear Mr. Post:

          You ask whether a commissioners court may call an election for
     the purpose of consolidating tax assessing and appraisal functions in
     the office of the elected county tax assessor-collector. You inform
     us that a petition calling such an election has been presented to the
.-   commissioners court. The commissioners court refused to verify the
     signatures, because it felt that it was without authority to call such
     an election. We agree. We conclude that a commissioners court is
     without authority to call an election for the purpose of consolidating
     tax assessing and appraisal functions; it possesses the authority to
     call an election for the consolidation of tax assessing and/or
     collecting functions only.

          Section 6.26, Tax Code, permits an election for the purpose of
     consolidating assessing and collecting functions and provides the
     following:

                  (a) The qualified voters residing in an
               appraisal district by petition submitted to the
               county clerk of the county principally served by
               the appraisal district may require that an
               election be held to determine whether or not to
               require the appraisal district; the county
               assessor-collector, or a specified taxing unit
               within the appraisal district to assess, collect,
               or assess and collect property taxes on property
               appraised by the district for all taxing units.

                  (b) The qualified voters of a taxing unit that
               assesses, collects, or assesses and collects its
               own property taxes by petition submitted to the
               governing body of the taxing unit may require that




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Honorable Robert W. Post - Page 2   (SW-7471




         an election be held to determine whether or not to
         require                    district, the county
         assessor-c%ectraisalor another taxing unit that is
         assessing and collkting property taxes to assess,
         collect, or assess and collect the unit's property
         taxes.

             .   .   .   .

            (e) If the commissioners court or the govern-
         ing body finds that the petition is valid, it
         shall order that an election be held in the dis-
         trict or taxing unit on the next uniform election
         date prescribed by the Texas Election Code that is
         more than 60 days after the last day on which it
         could have acted to approve or disapprove the
         petition. At the election, the ballots shall be
         prepared to permit voting for or against the
         proposition: 'Requiring the (name of entity or
         office) to (assess, collect, or assess and
         collect, as applicable) property taxes for (all
         taxing units in the appraisal district for
                              county or name of taxing unit
         or units, as applicable.)'

             .   .   .   .

            (j) An appraisal district may not be required
         by an election to assess, collect, or assess and
         collect taxes on property outside the district's
         boundaries. A taxing unit way not be required by
         an election to assess, collect, or assess and
         collect taxes on property outside the boundaries
         of the appraisal district that appraises property
         for the unit. (Emphasis added).

See also Tax Code §§6.24 (authorizing contracts for assessing and
collecting); 6.27 (compensation for assessing and collecting).

     Section 6.23, Tax Code, sets forth the duties of a tax assessor-
collector and sets forth the following:

             (a) The county assessor-collector shall assess
          and collect taxes on property in the county for
          the county. He shall also assess and collect
          taxes on property for another taxing unit if:

                  (1) the law creating or authorizing
             creation of the unit requires it to use the




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Honorable Robert W. Post - Page 3      (JM-747)




            county assessor-collector for the         taxes the
            unit imposes in the county;

                  (2) the law creating or authorizing
             creation of the unit does not mention who
             assesses and collects its taxes and the unit
             imposes taxes in the county;

                  (3) the governing body of the unit
             requires the county to assess and collect its
             taxes as provided by Subsection (c) of Section
             6.22 of this code; or

                  (4) required        by   an   intergovernmental
             contract.

              (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. He shall also assess, collect, or assess
          and collect taxes, as applicable, for another unit
          if:

                  (1) required by or pursuant to the law
             creating or authorizing creation of the other
             unit; or

                  (2)    required     by   an   intergovernmental
             contract.

     We have already concluded that "assessing" does not comprise the
activity of "appraising." In Attorney General Opinion JM-35 (1983).
we declared the following:

             Whatever the term "assess" may have meant prior
          to January 1, 1982, see Attorney General Opinion
          MW-4 (1979), it is clear that the term does not
          presently encompass the activity of valuing
          property. The Tax Code contemplates a three-step
          process: (1) appraisal of property, see, e.g.,
          916.01-6.08, chs.     23.   24,   25,  Tax   Code;
          (2) assessment, 888 896.21-6.30. ch. 26; and
          (3) collection of    taxes, see ch. 31.         An
          'assessor' is 'the officer or employee responsible
          for assessing property taxes as provided by
          Chapter 26 of the Code for a taxing unit by
          whatever title he is designated.'        (Emphasis
          added). Tax Code 91.04(14).




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Honorable Robert W. Post - Page 4   (JM-747)




     Our construction of the relevant Tax Code provisions was
impliedly upheld in Wilson v. Galveston County Central Appraisal
District, 713 S.W.2d 98 (Tex. 1986). wherein a county tax assessor-
collector sought to enjoin the county appraisal district from removing
him from the process of appraising property in the county. The county
tax assessor-collector argued that article VIII, sections 14 and 18.
of the Texas Constitution should be read together to require that the
county tax assessor-collector must be the person who is required to
conduct the single county-wide appraisal of property for ad valorem
tax purposes. The relevant portion of article VIII, section 14, of
the Texas Constitution creates the constitutional office of county tax
assessor-collector and provides that sach officer

          shall perform all the duties with respect to
          assessing property for the purpose of taxation and
          of collecting taxes, as may be prescribed by the
          legislature.

The relevant portion of article VIII, section 18, of           the Texas
Constitution was amended in 1980 to read:

            (b) A single appraisal within each county of
         all property subject to ad valorem taxation by the
         county and all other taxing units located therein
         shall be provided by general law. The Legisla-
         ture, by general law, may authorize appraisals
         outside a county when political subdivisions are
         situated in more than one county or when two or
         more counties elect to consolidate appraisal
         services. (Emphasis added).

The general law passed by the legislature pursuant to article VIII,
section 18(b), was the Property Tax Code.

     Relying upon Attorney General Letter Advisory No. 117 (1976), the
county tax assessor-collector argued that article VIII, section 14, of
the constitution impliedly granted to him the authority to appraise
property for ad valorem taxation, because the term "assess" in article
VIII, section 14, encompasses the activity of valuing or "appraising"
property. He argued further that article VIII, section 18(b), should
be read together with article VIII, section 14, to require that the
county tax assessor-collector be the officer who must conduct the
single county-wide appraisal. The Texas Supreme Court, however,
disagreed. The court reviewed the history of the property tax reform
legislation and concluded:

          Assuming a constitutional amendment was necessary
          to separate 'appraisal' from the express assessing
          function of the county tax assessor-collector, the




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      Honorable Robert W. Post - Page 5   (JM-747)




               amendment to Article VIII, Section 18 accomplishes
               this. . . . In unequivocal language, Section
               18(b) directs the Legislature to provide for a
               single appraisal within each county. The Legisla-
               ture has done this by enacting the Property Tax
               Code which creates appraisal districts in each
               county and charges them with the responsibility
               for appraising property within their districts.

                  The Property Tax Code provides the appraisal
               district with     two  alternative methods     for
               producing a single, district-wide appraisal of
               property. The district may either establish an
               appraisal office administered by        a   'chief
               appraiser' appointed by the board of directors, or
               it may contract with a taxing unit in the district
               to perform the duties of the appraisal office in
               which case the head of the taxing unit [sic]
               serves as 'chief appraiser.' [Citation omitted].
               . . . The Property Tax Code, however, clearly
               confines the selection and tenure of the 'chief
               appraiser' to the discretion of the appraisal
,,-            district board of directors. [Citation omitted].
               We have found no constitutional provision which
               limits the appraisal district's discretion in this
               matter. (Emphasis added).

      Wilson v. Galveston County Central Appraisal District, 713 S.W.2d at
      101. Section 6.26, Tax Code, permits a consolidation election regard-
      ing assessing and collecting, not appraising and collecting. In the
      instance of a special election, the exercise of a grant of authority
      to call an election must be in strict conformity with the provisions
      of the legislative grant. West End Rural High School District of
      Austin County v. Columbus Consolidated Independent School District of
      Colorado County, 221 S.W.2d 777 (Tex. 1949) [hereinafter West End];
      Mesquite Independent School District v. Gross, 67 S.W.2d 242 (Tex.
      1934). As the Texas Supreme Court has declared: "When a statute
      which authorizes a special election . . . prescribes the form in which
      the question shall be submitted to the popular vote, we are of the
      opinion that the statute should be strictly complied with." Reynolds
      Land & Cattle Co. v. McCabe, 12 S.W. 165 (Tex. 1888); Coffee v. Lieb,
      107 S.W.2d 406, 411 (Tex. Civ. App. - Eastland 1937, no writ).

           In West End, the special election at issue was one to consolidate
      school districts; the issue was whether the petition to call the
      election was defective. The petition failed to identify correctly the
      school districts involved. In discussing the conditions precedent
      necessary to call the election, the court declared the following:




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Honorable Robert W. Post - Page 6   (JM-747)




         Article    2806   [governing    school    district
         consolidation elections] does not purport to
         confer unlimited power, or jurisdiction, upon a
         county judge to call special elections for the
         purpose of effecting consolidation of       school
         districts.   The statute expressly limits his
         jurisdiction to the instances in which he is
         Presented with a petition complying with the
         above-noted requirements; in other words, with a
         Proper petition. The requirements pointed out are
         conditions precedent to invoke the jurisdiction of
         a county judge to call an election for creating a
         district or districts by consolidation; and con-
         sequently the requirements limit his potential
         jurisdiction. (Emphasis added).

221 S.W.2d at 779. Since we believe that the petition requirements of
section 6.26 are clear and unambiguous, it follows that it must be
enforced according to its express language. Cail v. Service Motors,
Inc., 660 S.W.2d 814, 815 (Tex. 1983).

     Subsection (c) of section 6.26, Tax Code, provides:

            A petition is valid if:

            (1) it states that it is intended to require
         an election in the appraisal district or taxing
         unit on the question of consolidation of assessing
         or collection functions or both;

             (2) it states the functions to be consolidated
          and identifies the entity or office that will be
          required to perform the functions; and

            (3) it is signed by a number of qualified
         voters equal to at least 10 percent of the number
         of qualified voters, according to the most recent
         official list of qualified voters, residing in the
         appraisal district, if the petition is authorized
         by Section (a) of this section, or in the taxing
         unit, if the petition is authorized by Subsection
         (b) of this section, or by 10,000 qualified
         voters, whichever number is less.

Clearly, the petition about which you inquire fails to satisfy
subsections (c)(l) and (c)(2); the commissioners court is without
authority to call an election pursuant to a non-conforming petition.
Specifically, a commissioners court may not call an election for the
purpose of consolidating tax assessing and appraisal functions in the




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Honorable Robert W. Post - Page 7    (JM-747)




office of county tax assessor-collector. Section 6.26, Tax Code,
permits an election for the consolidation of tax assessing and
collecting only.

                              SUMMARY

             A commissioners court may not call an election
          for the purpose of consolidating tax assessing and
          appraisal functions in the office of county tax
          assessor-collector.   Section 6.26, Tax Code,
          permits an election for the consolidation of tax
          assessing and collecting only.




                                        Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STRAKLN
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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