c       .




                   E   ATTCBRNEY          GENERAL

                           OF




                             December 4, 1970

    Honorable Hunter B. Brush       Opinion No. M-741
    Criminal District Attorney
    Tyler, Texas 75701              Re:   Is a Commlssioners~ Court
                                          warranted in refusing to
                                          certify as correct the lists
                                          of insolvent taxpayers and
                                          delinquent lands presented
                                          by the Tax Collector, it
                                          appearing that a large number
                                          of businesses listed thereon
                                          are still In business and
                                          have personal property plainly
                                          displayed for sale, and
    Dear Mr. Brush:                       related questions?
           You have requested the opinion of this office on the
    hereinafter set-out questions concerning the collection of
    ad valorem taxes due the State and County. The factual
    background as presented by you is condensed as follows:
    The Tax Collector of Smith County, in response to the man-
    dates of @-ticlea 7263 and 7336, section (e), Vernon's Civil
    Statutes, presented to the Commissioners' Court of such
    county certified lists of delinquent or insolvent taxpayers
    and lands and lots and/or property on which any taxes were
    delinquent for approval and certification by such court and
    credit to such tax assessor on final settlement of his accounts
    for the amounts therein shown. Upon examination of the lists
    presented to them, the Commissioners 1 Court refused to approve
    and certify to their correctness for the reason that several
    of the business establishments listed were still in operation
    and displaying personal property for sale,
           The first question presented by you is restated as
    follows:



    +   All Articles cited are as codified in VernonIs Civil
        Statutes,


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Honorable Hunter B. Brush, Page 2 (M- 741)

          (1) Under the stated facts, has the Commissioners'
          Court reasonable grounds to refuse to approve the
          lists and to certify that the persons appearing
          on the lists have no property out of which to
          make the taxes assessed against them, or that they
          have moved out of the county, and that no prop-
          erty can be found in the county belonging to such
          persona out of which to make the taxes due?
       Your second, third and fourth questions are such as neces-
sarily arise from the first question and will have to be resolved
first in order to answer the primary question. They appear in
your brief as follows:

               Can the Tax Collector levy on personal prop-
          k2,  of a taxpayer
          real property?
                             for taxes assessed against his


          (3)  Article 3832 lists certain property as exempt
          from forced sale, Does this Statute prohibit the
          Tax Collector from levying on such exempt property
          for the satisfaction of delinquent taxes?
           4) If the exempt property designated in Article
          i832 is subject to levy by the Tax Collector, is
          his power to levy limited to the exempt property
          on which the taxes are delinquent or may he also
          levy on other exempt property of the tax debtor
          to satisfy the delinquency?
        Your Questions numbered 2, 3 and 4 are related and per-
tain to the legal sufficiency of the.reasons given by the
Commissioners' Court for their refusal or inability to make
the statutory  certificate of approval of such lists. They
will be considered and answered together as follows:
       Article 7272 provides, in part, that:
          "All real and personal property held or owned by
          any person in this State shall be liable for all
          State and County taxes due by the owner thereof,
          including tax on real estate, personal property
          and poll tax; and the tax collector shall levy
          on any personal or real property to be found in
          his county to satisfy all delinquent taxes, tny
          law to the contrary notwithstanding; e Q O O



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Honorable Hunter B. Brush, Page 3 (M-741)

       The case of Shugart v. Nocona Indebendent School
Distrikt, 288 S.W.2d 243 (Tex.Civ.App. 1956, no writ hlst.),
held that a taxing authority can levy on and seize and sell
any personal property of a tax debtor to collect delinquent
taxes on its owner99real estate.
       The Court In Stephens v. City of Aransas Pass, 364
S.W.2d 733 (Tex.Clv.App. 1963, no writ hlst.), held that
Article 3832, exempting certain property from forced sale
for the payment of debts except as therein provided, 9
not a tax exemption statute and such exemptions therein
contained do not pertain to taxation.
       Although the personal property Involved In the
Stephens case was foreclosed upon only for the amount of
the delinquent taxes assessed against such property, the
rationale of the decisions in this and in the Shugart case,
supra, lead to the further conclusion that such property
could have been impressed also with the delinquent taxes
assessed against the owner on account of any other prop-
erty owned by him. Further In this regard, the early case
of Ring v. Williams, 35 S.W. 733 (Tex.Clv.App. 1896, no writ)
held that the laws exempting certain personal property from
the burden of taxation did not relieve such property fran
llabillty for taxes otherwise due from the taxpayer and
affirmed the judgment of the trial court approving the
levs. seizure and sale of a sewinn machine for dellnauent
poli-taxes due from the taxpayer.- See also City of Henrietta
v. Eustis, 87 Tex. 14, 26.~~~. 619 (1894); Mm-0 co., Inc. v.
State, 168 S.W.2d 510 (Tex.Civ.App. 1943, error ref.),
       Therefore, in answer to Questions Nos. 2, 3, and 4, it
is the opinion of this office that the tax collector is not
prohibited by law from levying upon any~personal property of
the taxpayer in satisfaction of his delinquent taxes, regard-
less of whether such taxes accrued againet such property, or
against his real property, or against other personal property
of the taxpayer. The homestead of a family Is exempt from
all taxes except those assessed against It. Tex. Const. Art.
XVI, Sec. 50.
        Before applying these rules to the facts Involved in
Question No. 1, it Is necessary to consider the following
statutes outlining the relevant duties of the Commissioners'
court :




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Honorable Hunter B. Brush, Page 4 (M-741)

       Article 7263 requires the Tax Collector to make a list
of delinquent or insolvent taxoayers for the purpose of obtaining
credit on final settlement of his accounts upon the allowance of
such list by certificate of the Commissioners' Court. Such
Article reads as follows:
         "The tax collector shall make out on forms to be
         furnished for that purpose by the Comptroller, between
         April first and the fifteenth of each year, list of
         delinquent or insolvent taxpayers, the caption of
         which shall be, the 'list of delinquent or insolvent
         taxpayers.' In this list he shall give the name of
         the person, firm, company, or corporation from whom
         the taxes are due, in separate columns; and he shall
         post one copy of these delinquent or insolvent lists
         at the courthouse door of the county, and one list at
         the courthouse door, or where court is usually held,
         in each justice precinct in his county; and the tax
         collector, upon the certificate of the commissioners
         court that the persons appearing on the insolvent or
         delinquent lists have no property out of which to make
         the taxes assessed against them, or that they'have
         moved out of the county, and that no property can be
         found in the county belonging to such persons, out of
         which to make the taxes due, shall be entitled to a
         credit on final settlement of his accounts,for the
         amounts due by the persons, firms, companies, or
         corporations certified to by the commissioners court,
         as above provided for."
       Article 7336, section (e), also requires such Tax
Collector to make up a list of the lands and lots and/or property
on which taxes are delinquent, charging against the same all
unpaid taxes assessed against the owner thereof. The portion of
said section (e) pertinent to your Inquiry is quoted as follows:
         "Said list shall be made in triplicate and presented
         to the Commissioners' Court for examination and
         correction and after being so examined and corrected
         said list in triplicate shall be aooroved by said
         Court, One copy thereof shall be filed with the
         County Clerk or Auditor, one copy retained and filed
         by the Assessor and Collector of Taxes, and




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Honorable Hunter B. Rrush, Page 5 (M- 741)

          one copy forwarded to the Comptroller with the
          annual settlement report of the Assessor and
          Collector of Taxes. Said list, as compiled by
          the Assessor and Collector of Taxes, and corrected
          by the Commissioners' Court, or the rolls or books
          on file in the office of the Assessor  and Collector
          of Taxes, shall be prima facie evidence that all the
          requirements of the law have been complied with by
          the officers of courts charged with any duty there-
          under, as to regularity of listing, assessing,  and
          levying all taxes thereln set out, and that the
          amount assessed against said real estate is a true
          and correct charge. If the description of the real
          estate In said list or assessment rolls or books
          is not sufficient to identify the same, but there
          is a sufficient description of the Inventories in
          the office of the Assessor and Collector of Taxes,
          then said Inventories shall be admissible as
          evidence of the description of said property."
          (underlined for emphasis)
       Credit for the delinquent taxes reported and allowed
in accordance with the two next-foregoing quoted Statutes is
provided by the terms of Article 7271 which reads as follows:
         "The provisions of this chapter pertaining to the
         duty of tax collectors in the matter of the
         collection of delinquent and insolvent taxes shall
         apply as well to taxes owing by persons who own
         real property as to those who do not own real
         property, and no tax collector in thfs State shall
         be entitled to or be allowed either by the county
         or by the Comptroller credit as approved by Article
         7263 for any taxes reported or returned as either
         delinquent or insolvent under Article 7263 or 7336
         until he makes affidavit entered upon or attached
         to both his lists of insolvent tax payers prepared
         under said Article 7263 and his lists of delinquent
         lands prepared under Article 7336, that said lists
         are true and correct and that he has fully complied
         with and exhausted all resources to collect such
         taxes as authorized and required by Articles 7264,
         7266, 7267, 7268, 7269, 7270, 7272, 7273, 7274,  and
         7336, and does not know of, and has made delfgent
         Qnqufry and has been unable to learn of, any personal




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Honorable Hunter B. Brush, Page 6 (M- 741)

         property belonging to any person or persona
         against whom such taxes are shown on said lists
         to be unpaid that he was authorized by law to
         seize, levy upon and sell for the purpose of
         enforcing the payment of such taxes or any part
         thereof, nor until the commlsslonerst court of
         his county, after full consideration and
         investigation, has entered uDon or attached to
         both the insolvent lists and lists of delinQUent
         lands the certificate required by said Article
         )7263,and no compensation that at the time, or at
         any time thereafter, may be due or owing to
         the tax collector, either by the State or county,
         shall be retained by or paid to the tax collector
         until he has made the affidavits as provided by
         this article. Nothing in this article is intended
         or shall be construed as requiring any tax collector
         to levy upon and sell real property for the purpose
         of enforcing the payment of such taxes.”
         (underscoring added)
       It plainly appears from the express wording of these
Articles 7263, 7336, and 7271 that no credit is to be allowed
the tax collector until his properly certified lists have
been allowed and certified a8 correct by the Commissioners’
Court after full consideration and investigation.
       A certification by such court merely showing reliance
on the tax collector’s certificate as the basis for its approval
of the insolvent lists and lists of delinquent lands Is not
sufficient to comply with the provisions of Article 7263. See
Attorney General’s Opinion No. O-4046 (19&l), a copy of which
Is furnished you herewith.
       The phrase “full consideration and investigation” as a
prerequisite to approval and certification by the Commissioners’
Court plainly denotes the bestowing of discretionary authority
upon the court to approve or not approve such lists as Its
judgment or findings warrant.
       In any event, in order for credit to be allowed the tax
collector the lists must show the certificates of the tax
collector and the Commissioners’ Court in the exact terms of
Articles 7263 and 7271. The fact that it appears to the
Commissioners’ Court, from an examination of such lists, that




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    Honorable Hunter B. Brush, Page 7 (M-741)

    some of the taxpayers listed thereon have personal property
    in their possession subject to a levy for delinquent taxes
    by the tax collector is sufficient to prohibit the said
    court from certifying directly to the contrary. We believe
    the foregoing statement fully answers your Question No. 1.
           It is noted, however, that in reference to the lists of
    lands and lots and/or property directed to be made by the
    tax collector by Article 7336, section (e), the term
    “correctlon” is used as a duty designated to the Commissioners’
    Court in conjunction with the term “examined”, in reference
    to the delinquent land list therein provided. This would
    seem to Impose a general duty of the court to act in some
    manner In regard to all such lists, delinquent insolvents and
    delinquent lands, lots and/or property as well, rather than
    just refuse to take any action. In the instant case correction
    of the lists could consist of striking from such lists the
    name8 of all persons appearing thereon who, in the judgment
    of the court, are not certifiable as having no property out
    of which to make the taxes assessed against them, or as having
    moved out of the county and no property can be found in the
    county belonging to such persons out of which tc make the
    taxes due, and certifying to the correctness of the remainder
    of such lists.
                             SUMMARY
                   The tax collector is not prohibited by law from
              levying upon any personal property of the taxpayer
              in satisfaction of his delinquent taxes, regardless
              of whether such taxes accrued against such property,
              OP against his real property, or against other
              personal property of the taxpayer.
                   Upon examination of the tax collector’s lists
              of delinquent or Insolvent taxpayers and lands and
              lots and/or property on which any taxes are delin-
              quent, the discovery by the Commfsslonerss Court
              of persons listed thereon having personal property
              in their possession subject to a levy for
              delinquent taxes fs sufficient to warrant such
              court to refuse approval and certfffcatlon of such
              lists D




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Honorable Hunter B. Brush, Page 8   41)




                                          eneral of Texas

Prepared by R. L. Lattlmore
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Harriet Burke
Max Hamilton
Arthur Sandlin
John Banks
Meade F. Griffin
Staff Legal Assistant
Alfred Walker
Executive Assistant
Nola White
First Assistant




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