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                 GROV?IFI
                        SELLERS




                    Hon. B. T. Walters
                    County Auditor
                    Smith County
                    Tyler, Texas
                    Dear Sir:                       Opinion No. o-5862
                                                    Re: Filing suits   for the collection
                                                         of delinatientaersonal or insol-
                                                         vent tax& under the provisions
                                                         of Article 7297, R.C.S.
                             You submit for the opini.onof this department certkln
                    Questions contained in your letter of February 10, which reads
                    as follows:
                                “The flllng   of suits   In the JustIce    and’cbunty
                        Courts for     the collection    of delinquent    personal   or
                        itinaolvent taxes due to the State and County for the
                        past several ‘years in contqnplatad         by this County;         I
                        and in this oqnneotion        I wlah to submit the following
                        question8 for your opinion:

                                “1. Would the prbvislona       of Article 7297 Revised
                        Civil Statutes,      1925, apply in oaae of suits fjled”~for
                        the oolleotion     of taxes on personal      property     regulhrly
                        asaeaeed     eaoh year by the Tax Asseaeor end plaoed~.on the
                        tax roll for that year, either         on the unrendebed        or’ r&n-
                        d&red portion thereof,       where the oomblned total         of such
                        taxes sued for does not exoeed         the sum of $2g.OC; or does
                        that Artiole     apply to suits brought to OOlleOt'~taXd#on
                        perlrbnal property diaoovered       by the Tax Aeeeesor-Colleqtor
                        to have been unrendered and omitted from the roll for
                        previous yearn ‘end baok assessed         for auoh omitted yeare?
                        .*      “2 * Does the statutea     veet the Tax AasesrrbP with
                        authority     to add to R eigned’rendition       auoh persohal
                        propert     known by him to be owned by the lndlvidu~l                ’
                        making t he rendition      subjeot to ta’xati,on in the County,
                        when that individual      has omitted bama from his r&ildition.
                        If, in your opinion,      the Tax Assessor do&4 not,have’the
                        authority~to add the omitted personal           property,     ddsa   he.
                        have the authority      to refuse the algned, but incomplete,
                        rendition?
.   .




        Hon. B.T. Walters, page 2          o-5862



                   Your first question involves the construction of A,rt.
        7297,   R.C.S., which reads as follows:
                  "The di,strictor county attorney of the respective
            counties of this State, by order of the commissjoneps
            court, shall institute suit in the name of the State for
            recovery of all money due the State and county as taxes
            due and unpaid on unrendered personal property; and in
            all suits where judgments are obta,Fnedunder this law,
            the person owning the property on which there are taxes
            due the State and county shell be liable for' all cost?.
            The State and county shall be exempt from liabi,.l.lty
                                                                 for
            any costs growing out of such action. All suits brought
            under this article for the recovery of texes due on per-
            sonal property shall be brought against the person or
            persons who owned the property at the time such property
            should have been.listed or assessed for taxation. NO
            suit shall be brought until after demand is made by the
            collector for taxes due, and no suit shall be brought
            for an amount less than twenty-five dollars'*Such suits
            may be brought for all taxes so due and unpaid for which
            such delinquent tax payer may be in arrears for and since
            the year 1886.”
                  Your questlon No. 1 may be subdivided into two ques-
        tions :
                 (1) Where assessments have been regularly made by the
        Assessor each year, may suits'be filed as authorized under said
        article when the combined total of delinquent taxes due and sued
        for is less than $25.00?
                 (2). ~Does said article apply only to suits brought to
        collect delinquenttaxes on personal Property discovered by"the
        tax assessor to have been unrendered a::domItted from the tax
        rolls for previous years and.by the assessor asses~sedfor such
        omitted gears?.,
                  This article of the statute as observedby Its plain ~-
        terms does not purport to deal with delinquent taxes on personal
        property which has been regularly assessed either upon the ren-
        dered or unrendered rolls by the a8sessor. The statute says
        "for the recovery of all money due the State and County es taxes
        due unpaid'on unrendered persona.1property: O . ; all suits
        brought ulider this Article for the'recoverg of taxes due on per-
        sonal'property shall be brought against the person or persons
        who owned the property at the time su,chproperty should have been
        listed or assessed 'for taxation." Thus it seems clear to us that
        this article of statute deals only with unrendered, unlisted bnd
        unassessed personal property, We do not meanto say, however,
        that suit,for such delinquent taxes on personal property as this
.   ’




        Hon. B. T. Walters, page 3         O-5862


        article of the statute authorizes may be brought without an
        assessment by the assessor; quite to the contrary, as we point
        out in our answer to the second part of your first question to
        follow-. In no event can suits be brought under this article of
        the statute where the combined amount sued for i.sless than
         25 .oo. This is expressed in the plain language of the statute.
        tEmphasis added)
                 The answer to the second part of your questionNo. 1
        brings us to a more detailed consideration of the~construction
        to be given Article 7297, R.C.S., in its~general application as
        the courts have construed it. It is apparent on the face of it
        that the article deals with a method of enforcing the collection
        of "taxes due and unpaid" on unrendered personal property, with
        the limitation of course that no suit shall be brought for less
        than'$25.00, as we have said in answer to the first part of your
        question.
                 Article 7297 here under consideration was formerly ~.'
        Article 5212a, R.C.S., 1895, and was first construed in the case
        of Connell v. State, 55 S.W. 980, which was a'suit for delinquent
        taxes on personal property. In that case the court said:
                ,I     This suit was evidently brought under
           article j2;2a, which makes it the duty of the district
           or county attorney, by order of the commissioners court,
           to institute in the name of the state a suit to recover
           all money due the state and county as taxes on unrendered
           personal property. It is further provided in that arti~cle
           that all suits for the recovery of tflxesdue on personal
           property shall be brought against the person or persons
           who owned the property at the time the same should have
           been listed or assessed for taxation. Our constructi~on
           of this~artic'le,however, is not that it was intended to
           create any liability for taxes, but only to,provide an
           additional method of collecting taxes from the persons
           already liable. That is to say, the taxes are not 'due'-
           from the persons sued within the meaningsof this Article,
           until there has been a valid assessment against him,
           either as known or unknown owner. . . .'I
                 This article was subsequkntly reenacted and codified
        as Article 7661, R.C,S., and again ceme up for construction In
        the case of State v. Cage, 176 S.W. 928.  This.was also e suit
        by the State for delinquent taxes on personal property, not
        rendered by the owner and assessed as such by the assessor on
        the unrendered rolls. It must be kept in mind that while the
        office of tax assessor is a constitutional office, the Consti-
        tution does not define his powers and duties; but the Legisla-
        ture, as it may do under the Constitution, has conferred certain
Hon. B, T. Walters, page Ir        o-5862


duties and powers upon him, beyond which he cannot go. One of
these limitations is that he cannot assess personal property
which has been unrendered end omitted from the assessment rolls
for more than two years prior to the time he discovers such
omission. This is clearly the intent of Article 7208, R.C.S.
In other words, the tax essessor is wlthout authority to list
and assess personal property theretofore unrendered by the
owner, except for the two years i~mmedietelyprior to the dis-
covery of the omission from the rolls. This is made plain i,n
the case of State v. Cage, supra, in the following language:
         "The provlsion in article 7661 'that no suit shall
    be brought until after demand is made by the collector
    for taxes due' necessarily destroys the contention that
    by that article a right of action exists without en
    assessment, because the tax collector could not make a
    lawful demand for taxes due until the amount of such
    taxes has been first determined by an assessment of
    the'propertg for taxation. We are of the opinion fur-
    ther that that article cannot be construed as impliedly
    authorizing an assessor to assess personal property
    for any year back to the year 1886, for, if it is so
    construed, it would repeal by implication, or else
    render useless, article 7566. . . . We are of the
    opinion 'furtherthat it would be a stra,inedconstruc-
    tion of article 7661 to sky that in enecti~ngit the
    Legislature intended thereby‘to extend the powerof
    the essessor to assess delinquent personal property
   ,back to the gear 1886.   Our construction of article
    7661 is that no more was intended than that suit should
    be instituted for collection of such delinquent taxes
    only as had been properly levied and assessed.
        "We think it clear that by article 7566 it was
   intended thetat any time after the ena~cbnent of that
   statute the assessor could assess such personal property
   which had been omitted for two yeers prior to the time
   the assessor discovers such omission, and we overrule
   appellant's contention that by that article two years
   pri~orto its enactmen.iwas made the period to which
   all assessments of personel property thereafter made
   could extend.'!
         In brief, the duty imposed upon the district or county
attorney to file suits u~nderArticle 7297, supra, when ordered
to do so by the commissioners court presupposes a pre-existing
valid assessment by the essessor of such persons1 property,~in
the absence of which no right of action exists, for as said in
the'cese of State v. Cage, surpe, said article provides: "That
no'sult shell be brought until efter demand is made by the col-
lector for taxes due, which necessarily destroys the contention
.   .




        Ron. B. T, Walters, page 5          o-5862


        that by said article a right of acti~onexists without an a33ess:
        ment, because the tax collector could not make a lawful demand
        for texes'due until the amount of such taxes has been first deter-
        mined by an assessment of the property for taxation. Moreover
        this same case is an author!~tyfor the 1im:tation placed upon
        the assescor by the two ycsr period prior to his discovery of
        the omission of such personal property from the tax rolls in
        making his assessment of such property. This is found in the
        following language:
                 'We are of the opinion further that that article
            could not be construed a3 impliedlg authorizing the
            assessor to essess persona1 property for any year back
             to the year 1886, for, if it 13 30 construed, it would
            repeal by implication, or else render useless, Article
            7566 (now Article 7'08). . . We ere of the opinion fur-
            ther that it would be a strenge construction of Article
            7661 to say that in enacting it the Legislature in-
            tended thereby to extend the power of the assessor to
            assess delinquent property beck to the year 1886."
                 In summing up the court said:
                 "Our construction of Article 7661 (now Art. 7297)
            is that no more was intended then that suit should be
            instituted for collection of'such delinquent texes only
            as had been properly levied 'and assessed."
                 This case furtber makes'clear that by Article 7566 (now
        Art. 729?) it was intended that any time after the enactment of
        that statute the asses3or could assess such'personal property
        wh!ch~had been omitted for two years prior to the time the assessor
        discovered such omission, and not otherwise.
                 Passing nw to the consideration of your.second question,,
        we have impliedly answered it in our discussion of the firstques-
        tion submitted by you; but to be more specific we direct your
        attention to other provisions of the statute dealing with the
        duties end powers of the assessor in assessing unrendered prop--
        erty? which of course,comprehends property intentionally or
        inadvertently omitted by the owner from his rendition. Articles
        7192-7193, R.C.S., cover3 such situations. They read as follows:
                "In every causewhere eny person whose duty it 13
           to list eny property for taxation has refused or neglected
           to list the same when called on for that purpose by the
           assessor of'taxes, or has refused to subscribe to the
           oath in regard to the truth of his statement of property,
           or any pert thereof, when required by the tax assessor,
           the assessor shall not.2 in a book the name of such person
Hon. B. T. Walters, page 6           o-5862


    who refused to list or to swear; and in every case where
    any person required to iist property for taxation has
    been absent or unable fr:omsickness to list the same,
    the tax assessor shall note in a hook such fact, together
    with the name of such person.
         "In all cases of failure to obtain a statement of
    real and personal property from any cause, the assessor
    of taxes shall ascertain the amount and value of such
    property and assess the same as he beli,evesto be the
    true an3 full val~uethereof; and such assessment shall
    be as valid and binding RS if such property had been
    rendered by the proper owner thereof."
         In construing the above Article 7193, Judge Speer of
the Fort Worth Court of Civil Appeals, in the case of Texas
Public Utilities Corporaticn v. Holland, 123 S.W. (2d) 1028,
said:
         "However, as seen by Art. 7193, quoted above,
    If for any cause the owner does not take advantage of
    the priviiege given to ;;husrender his pro;?ertyand
    have the benefits pointed out, it becomes the duty of
    the assessor to ascertain the amount and value of the
    property and assess it according to his own ideas of
    values, under which condition the assessment so made
    hisas binding upon the ownerand ,theproperty assessed
    as if 5-t.
             found Its way to the tax rolls by means of
    the first provision discussed. . e .I'
             To the same effect is the holding in Town of Pleasanton
v. Vance, 4 S.W. (2d) 247, (San Antonio Court of Civil Appeele)
from which we quote as fol;ous:
             ?i
              . . . Whjle it is true that the law mekes i~t
    the duty of the owner to.render his property f~or
    taxation     (article 7152, Revise&Statutes 1925) it Is
    also the duty of the assessor io render it Iancases
    where the owner fails from any cause +;odo so. Article
    7193, Revised Statutes 1925."
         The case -ofFerguson, et ux, v. Steen. Tax Assessor,
et al.; 253 S.W. 313, (El P:'roCourt of ;:1~ilAp&;:ls) affirmed
the right ,ofthe assessor, by virtue of Articles 7190, 7192 and
7193, R.C.S., to assess property omi,tteUfrom the owner's rendl-
tion. The property owners in this case rendered their interest
in the surface of the land ;nvolved, but refused to render the
mi,neralor royalty interest. The court said:
                We think, u~nder tne authority of articles
    7190, j1.92:and 7193; Revised Statutes of 1925,'the tax
    .   -


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            Hon. B. T. Walters, page 7         o -5862


                assessor had the right to assess appellants' royalty
                interest in said land, as the court found he did do,
                at $30,870. . . . ."
                      True, the royalty or mi~neralinterest here involved
            constituted an interest in land; the court held in effect that
             if treated as personal pro;:erty,in which e:lentit would have
            been listed and valued seoarately, no harm resulted to the tax-
            payer for the amount of his taxes would not be diminished or
            decreased thereby, for in any Event he would pay on the same
            assessed value. The matter of increasj~ngthe value of property
            listed and assessed by the assessor, or the rendition voluntar-
            ily made by the owner, is altogether a different matter. This
            cannot be done in any event without notice to the owner and
            consequent right to be heard; Hoffling v. City of San Antonio,
            3g S.W. 919, by the Supreme Court of Texas. Summarizing, your
            second question is answered as follows: Articles 7190, 7192 and
            7193, R.C.S., are sufficient authority for the tax assessor to
            assess personal property omitted by the property owner from hits
            rendi~tion. We are of the oilinionthat the assessor would not
            have the authority to refuse the renditicn by the property owner
            of such property as he, in the exercise of his statutory rights,
            personally renders; but such property owner cannot circumvent,
            by rendering only 8 part of h's property, the statutory duties
            imposed upon the tax assessor to list, value, and assess such
            personal property as he may intentionally or otherwise omit from
            his rendition. It would appear, however, from the language of
            the court in the case of W.T. Waggoner Estate v. Electra Inde-
            pendent'Schoo1 District, 1.57S.W. (2d) 721. that the assessor
            should assess property omitted by the owner from his rendition,
            whether intentional or otherwise, on the unrendered rolls; rather
            than by adding it to the voluntary rendi~tionof the owner. In
            this case the court said:
                    "In its petition the school dlstrj.ctseems to
               allege that the Estate did not render its mineral
               interests, and that the board of equalization added
               the mineral interests to the rendition. If it did do
               this, i.thad no legal right to do so. The board of
               equalization may, under prooer procedure, change the
               valuations, but it may not add, to the rendition, proper-
               ties not included in the rendition. Such unrendered
               prooerties could only be nlaied on the unrendered rolls
               by the assessor.  Cracker v. Santa Consol. Independent
               School District, Tex. Civ. App., 1.16S.W. 2d 750, and
               cases therein cited." (Emphasis added)
                     We trust we have made sufficiently clear our snswers to
            your questions.
                                                         ..   -




Hon. B. T. Walters, page 2           O-5862


                                Yours very truly
                             ATTORNEY GENERAL OF TEXAS
                                By: s/L.P. Lollar
                                      L. P. Lollar
                                      Assistant
LPL:AMM:wc

APPROVED MAR 17, 1944
s/Gee. P. Blackburn
(Acting) ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/A.W. Chairman
