Honorable  Carlos Valdez                    Opinion   No.   JX-833
Nueces County Attorney             .
901 Leopard, Room 206                       Re: Collection      of county
Corpus Christi, Texas          78401        taxes (RQ-962)

Dear   Mr. Valdez:

      You advise   that a tax assessor    collector   has   been
elected in Nueces County pursuant to article VIII, section
14, of the Texas Constitution,   and ask    about the validity
of two legislative   enactments that would    seemingly   permit
the collection   of county taxes by persons     other than that
officer.

       Article   VIII,   section   14, of the    constitution        reads:

             Except as provided       in Section 16 of       this
         Article,     there    shall    be   elected     by   the
         qualified    voters of each county, an Assessor
         and   Collector      of   Taxes,    who    shall    hold
         his office for       four   years     and   until    his
         successor    is elected and qualified;         and such
         Assessor    and Collector      of Taxes shall       ner-
         form    all     the   duties      with    reswect      to
         assessins    wrowertv   for the wurwose of         taxa-
         tion and     of   collectins    taxes,     as   may    be
         prescribed    bv    the   Lecrislature.       (Emphasis
         added.)

      When the constitution     was originally    adopted in 1876,
the Assessor     of Taxes    and the   Collector    of Taxes    were
separate   officers.      Article    VIII,   section     14,   which
originally   concerned   only the tax assessor,     then specified
no particular   duties for that officer       to perform,    leaving
the matter    to the    legislature.      The original    provision
read:

         There shall  be   elected   by  the  qualified
         electors of each county at the same time and
         under the same   law regulating  the   election
         of State and county officers,   an Assessor   of




                                P. 3991
                                            .
Honorable   Carlos     Valdez    - Page    2     (JM-833)




         Taxes, who  shall hold   his office   for                 two
         years and until his successor  is elected                 and
         qualified.

Tex . Const.    art.   VIII,    514    (1876).

      The collection  of taxes           was treated        in section   16, of
article VIII.    It originally           read:

         The Sheriff of each     county, in addition       to
         his other duties, shall be the collector          of
         taxes therefor.     But in counties having       ten
         thousand   inhabitants,   to be    determined     by
         the last    preceding   census   of    the   United
         States,    a Collector    of   taxes    shall     be
         elected to    hold office    for two    years    and
         until his    successor   shall be    elected     and
         qualified.

Tex.   Const.   art.   VIII,    516    (1876).

      While these original    provisions   of the    constitution
were still   in place,     the Texas   Supreme    Court    decided
Missouri.  K & T Railwav Co. of Texas v.       Shannon,   100 S.W.
138 (Tex. 1907).   The court wrote:

         It   is   argued    that    section    14,   properly
         construed,    means, not only that there          shall
         be an    assessor of     taxes elected      for    each
         county, but     that he     and no   other     officer
         shall be intrusted with any part of the duty
         of making     the   assessment.      We    think    the
         claim is too broad.        The section contains       no
         language    which      expressly    prohibits       the
         appointment    of a board to assess taxes in           a
         particular    case.    Unlike other wrovisions        of
         the Constitution       which create     offices.      it
         does not define the        duties of the     officer,
         from which     we think     it is to be       inferred
         that the scowe      of his duties      were left      to
         the determination      of the Leaislature.        While
         we think     that   the    Legislature     could    not
         strip the     assessor     of all   authority,      and
         probably   that it was intended by the framers
         of   the   Constitution        that   all    ordinary
         assessments    of property     for taxation     should
         be made by     him, still we      think it was      not
         intended to deprive        the Legislature     of   the
         power of     devolving     the duty    upon    another




                                     p. 3992

                                 .
Honorable   Carlos   Valdez   - Page    3   (JM-833)




        officer, or board to assess property           in some
        special    case,    where,    as    in the    present
        instance,   the county assessors       were    clearly
        unable from the means        at their disposal       to
        ascertain    with    any    reasonable     degree    of
        approximation    the    value of     the   intangible
        assets of    the railroad      company, and      still
        less capable     of   making     intelligently      the
        apportionment     due     to     their     respective
        counties.     (Emphasis added.)

      Later,    after   the   Supreme   Court   in    Shannon   had
construed   section 14 of article VIII       to permit definition
by the    legislature   of   the scope   of   the tax   assessor's
duties and     to  permit its    placement    of some   assessment
duties elsewhere,     both sections 14 and 16      of article VIII
were amended.     In 1932,    section 14 was amended      to change
the title of the      officer to "Tax Assessor      and Collector"
and to add the following      language:

        [A]nd such Assessor    and Collector of  Taxes
        shall perform all the duties with respect to
        assessing  property for the purpose of   taxa-
        tion and of collecting   taxes, as may be pre-
        scribed by the Legislature.

See H.J.R. 21, Acts 1931,       42d Leg., at 942.    At   the same
time, section    16 was amended       to  make the   sheriff    the
"Assessor  and Collector   of    Taxes!' for the county,     but to
require the    election   of    a separate    Tax   Assessor    and
Collector  "as   provided    in   Section 14"    in  counties    'of
10,000 inhabitants    or more.    Id. at 943.1

      It is possible to read the added        language of section
14 in different    ways.   It can be argued that the provision
intends the    words    "all  duties"    to   be   read   as    "such
duties,"   so  that    the officer    is to perform      only    such
duties as the legislature     prescribes,    much   as article IV,
section    23,  of   the   constitution     specifies     that    the
comptroller    of   public    accounts,     the   treasurer,      and
the commissioner     of   the   general   land    office     are   to



       1. In 1954, section 16a was added to article     VIII,
allowing the election of a separate assessor-collector      of
taxes in  counties having  less than   10,000   inhabitants.
See H.J.R. 8, Acts 1953, 53d Leg., at 1175.




                              p. 3993
Honorable    Carlos    Valdez   - Page   4 (JIG833)




"perform such duties as      are or may     be required by      law."
Alternatively,   the   language    may   be read    to   mean    "all
duties with respect to assessing       property    for purposes    of
taxation   and  of collecting     taxes8' that the      lesislature
prescribes   are to   be performed   by    that officer.     It   was
read in this way     by Attorney   General Letter      Advisory   No.
117 (1976),    based on   Green v.     Stewart,    516 S.W.Zd     133
(Tex. 1974).     See   also   Attorney     General   Opinion     M-70
(1967).

      In Green v. Stewart,        m,      the Texas     Supreme Court
considered    a Court of Civil Appeals        decision holding that
deputy    tax    assessors-collectors       performed    governmental
functions    in   their    own   right,   making    them    **officers*'
excluded   from civil      service coverage.      The   supreme court
began    its    review     of   the    case   by   juxtaposing      the
constitutional      language and the statute:

             Article VIII,     Section     14 of    the     Texas
         Constitution,    Vernon's Ann. St.,        authorizes
         the election     of   an    assessor-collector          of
         taxes in    each    county who      shall    hold     his
         office for     four years     and until      his    suc-
         cessor is     elected and     qualified.      It    then
         states that 'such Assessor        and Collector         of
         Taxes shall     perform     all   the    duties     with
         respect    to   assessing       property     for      the
         purpose of taxation and collecting           taxes, as
         may   be   prescribed     by    the     Legislature.'
         Article    7252     authorizes       the     assessor-
         collector   of taxes     to appoint deputies           'to
         assist himI and among other things provides,
         'and the    deputies    appointed     in   accordance
         with the provisions      of this Article shall do
         and   perform     all   the   duties     imposed       and
         required by law of Assessors         and   Collectors
         of Taxes: and all acts of such deputies             done
         in conformity    with law     shall be as       binding
         and valid     as if   done by     the Assessor         and
         Collector   of Taxes in person.'         (Emphasis by
         the court.)

Id.   at 134-35.      The   supreme   court   then   said:

            Any possible   conflict between the       statute
         and the   Constitution     which might     arise   by
         reason of their different      delegations   of   the
         same totality    of   powers    to   the   assessor-
         collector   and   also    to   each   one   of    his




                                 p. 3994
Honorable   Carlos   Valdez   - Page   5   (JP-833)




         appointees   is avoided by the additional        words
         of   Article     7252   which     state   that     the
         assessor-collector     may   appoint deputies       'to
         assist him.'      The Constitution      and   statute
         are thus harmonized     since it is the assessor-
         collector    who    is  charsed     with    all     the
         duties. and it      is the   dewuties who      'assist
         him' in    the   werformance     of  those    duties.
         (Emphasis added.)

Id.   at 135.

      The supreme     court   in Green v.      Stewart    apparently
construed   article    VIII,    section   14, to    mean   that    the
legislature   could    decide    what needed    to   be done     (what
duties should     be   performed)     with respect    to   assessing
and collecting    taxes,    but   that it   could    not usurp     the
constitutional    authority   of the Tax    Assessor-Collector      to
discharge   those    duties   himself.     In   other    words,    the
legislature   might designate     others   to assist him,      but it
could not supplant him.

      The question   in Attorney General Letter         Advisory   No.
117 (1976), was whether the legislature           could, consistent
with section    14   of   article    VIII,    vest    the   appraisal
function of the county tax assessor-collector           in an office
or unit   independent    of   that   officer.     After   concluding
that the   appraisal    function    was part     of the   assessment
duty, this office concluded,       relying on     Green v. Stewart,
that "the duties of the assessor-collector            with regard to
the assessment   of property     for county    taxation"    could not
be transferred   to another individual      without     amendment   of
the constitution.

      Thereafter,      in   1980,    a    constitutional      amendment
dealing    with    appraisals     was   adopted    in     response    to
Attorney   General     Letter    Advisory    No.   117.     Wilson    v.
Galveston   Countv Central Awwraisal        District,    713~ S.W.2d 98
(Tex. 1986).     Section 18      of article VIII, was        changed to
read [with subsections        (b), (c), and     (d) representing     new
language]:

             (a) The Legislature      shall   provide    for
         equalizing,   as near as may be, the valuation
         of all property   subject    to or rendered     for
         taxation,    and  may   also   provide    for   the
         classification   of all   lands with     reference
         to their value in the several counties.




                               p. 3995
Honorable   Carlos   Valdez   - Page    6   W-833)




            (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 Legislature,      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.

            (c) The     Legislature,      by   general    law,
        shall   provide       for   a    single    board     of
        equalization      for     each   appraisal      entity
        consisting     of   qualified     persons    residing
        within   the    territory      appraised    by    that
        entity.    Members of      the board of     egualiza-
        tion may    not be     elected officials       of  the
        county or of the governing        body of a taxing
        unit.

            (d) The Legislature      shall prescribe         by
        general    law   the   methods,    timing,          and
        administrative   process for implementing           the
        requirements   of this section.

      In   Wilson    v.   Galveston     Countv    Central    Awwraisal
District,    suwra, the     Texas Supreme     Court held that      this
amendment     separated     the   appraisal    function      from   the
"express assessing      function"     of the county      tax assessor-
collector    and   authorized     the   legislature    to   place   the
appraisal     function    elsewhere.       We  conclude      that   the
Constitution     of Texas, article VIII, section 14, continues
to mean that all duties with respect to assessing             property
for purposes     of county    taxation    and of   collecting    county
taxes    that    the   legislature     prescribes     --   except   the
appraisal    function   (now    permitted   by the    constitution    to
be placed elsewhere)        -- are    to be   performed    by the    tax
assessor-collector      of the county.

      We turn   now to   the statutes     about    which you       have
asked.   The   two  statutory   provisions      in   question       are
sections  6.24   and 6.26   of the    Tax   Code.    Section       6.24
states:

            (a) The governing  body of a taxing    unit
        other than a county may contract   as provided
        by the Interlocal   Cooperation  Act with   the
        governing body of another    unit or with   the




                              p. 3996
Honorable     Carlos   Valdez   - Page     7 (m-833)




        board of directors   of an appraisal   district
        for the other unit    or the district to    per-
        form duties   relating to   the assessment    or
        collection  of taxes.

            (b) The     commissioners     court  with    the
        awwroval of     the   countv   assessor-collector
        may contract as      provided by    the Interlocal
        Cooperation   Act with     the governing   body   of
        another taxing unit       in the   county or    with
        the board    of   directors    of   the   appraisal
        district   for the other unit or the       district
        to perform duties relating to the assessment
        or collection    of taxes for the county.       If a
        county contracts     to have its taxes     assessed
        and collected    by another    taxing unit or     by
        the appraisal    district,    the contract     shall
        require the other      unit or    the district    to
        assess and collect all       taxes the county      is
        required to assess and collect.

              (c) repealed    (by Acts        1983,    68th   Leg.,
        ch.    851, at 4829).

            (d) A'contract     under this   section   may
        provide for the    entity that collects     taxes
        to contract with an attorney,     as provided   by
        Section 6.30 of this code, for collection       of
        delinquent  taxes.    (Emphasis added.)

      A statute is to be given, if possible,            a meaning that
is agreeable    to   the constitution.         See 12    Tex. Jur.     3d
Constitutional     Law 537, at 537.      We think such a construc-
tion can reasonably      be given section 6.24.         Subsection    (a)
of   the   statute    exempts     counties     from    those   entities
authorized   to    contract   (by    "Interlocal    Cooperation     Act"
contract)   to have another governmental          body perform duties
relating to     the   assessment    or    collection     of its    taxes
except as    provided    in   subsection     (b).     The latter    sub-
section permits such a contract only "with the awwroval of
the countv assessor-collector."

      We construe this    language as authorizing        a contract
to obtain assistance     for the    assessor-collector,     not    to
supplant him.     Cf.   Pritchard    & Abbot    v.   McKenna,    350
S.W.2d 333    (Tex. 1961):    Attornev    General Owinion      M-986
(1971).   This   reading. his   reasonable     in   light   of   the
preceding  section,    section    6.23,   which    states,    "m




                                 p. 3997
Honorable   Carlos   Valdez    - Page   8   (J’S833)




countv assessor-collector     shall    assess and collect      taxes
on WrOWertv   in the countv    for the state and       the county."
Although  the "with    the approval"     phrase in section       6.24
could be    given a different,     broader    meaning,   a   statute
should be construed    in a restricted      manner when necessary
to preserve   its constitutionality,     if it    is reasonable    to
do so.   Citv of Waco    v. Landinsham,     157 S.W.2d     631 (Tex.
1941).

      We cannot assign to the legislative         act   an intent to
authorize   the   assessor-collector,     by   his "approval,"       to
divest himself      of    power, authority,    and    responsibility
invested   in him      by   the constitution     --   something    the
legislature    itself could not      do.   It must be     assumed the
legislature    intended     to enact   a valid law.        Industrial
Accident   Board v. O'Dowd, 303 S.W.2d 763 (Tex. 1957).            cf.
Uwshur Countv     Commissioners      Court v.   Central     Education
Asency    697 S.W.Zd 443 (Tex. App. - Austin 1985, no writ).
As co&trued,     section      6.24 of the   Tax Code is valid, in
our opinion.

      The other statute, section 6.26 of the Tax Code,             is a
different  matter.   As amended in 1983, it reads:

            (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  reouire    the   awwraisal
        district.     the countv assessor-collector,         or
        a swecified     taxinc unit within the awwraisal
        district to assess.        collect, or assess      and
        Collect WrOWertV taxes on wrowertv          awwraised
        bv the district      for all taxina 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 an election
        be held    to   determine     whether     or   not    to
        require the awwraisal        district,    the    countv
        assessor-collector,      or   another taxina       unit
        that is    assessins    and   collectins      wrowerty
        taxes to    assess.     collect,    or    assess     and
        collect the unit's wrowertv taxes.

            (c)   A petition     is valid    if:




                                 p. 3998
I


    Honorable   Carlos          Valdez   - Rage    9   (m-833)


-




                      (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
                collecting   functions   or both;

                      (2)   it states the    functions  to   be
                consolidated   and identifies   the entit.
                office that will     be recuired to    perform
                the functions.    . . .

                .   .   .   .

                (e)   If the     commissioners     court     or   the
            governing    body     finds that     the petition       is
            valid, it shall        order that     an election      be
            held in the district         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,
            applicable)     property taxes       for (all     taxi::
            units    in     the     appraisal      district       for
                                 county     or, name     of   taxing
            unit or units,       as applicable).'          (Emphasis
            added.)

          Although   it is    the duty     of the    courts -- and      this
    office -- to strive to adopt a          construction    that supports
    the   constitutionality       of   the   statute,      Uwshur    County
    Commissioners    Court, 697 S.W.2d       at 447, it is      not proper
    to ascribe to      a statute     a meaning    at variance    with    its
    plain import     so   as to    conform     it to   constitutionality
    or wisdom.     Citv of    Austin v. Cahill,       88 S.W. 542      (Tex.
    1905).

          The plain import of section         6.26 of the Tax      Code is
    to permit    the electorate,      if it    chooses,    to place    the
    assessment    and   collection     duties    of   the     county   tax
    assessor-collector     elsewhere,     contrary to     the intent    of
    article VIII,     section    14,   of   the   Texas    Constitution.
    Section 6.26 could      be saved    by reading      it to   encompass
    only the awwraisal     function of the tax assessor-collector,
    because the    amendment    of   section 18,     article VIII,     had
P




                                         p. 3999
Honorable   Carlos   Valdez   - Page     10   W-833)




separated   the appraisal      function from the      assessment    and
collection     functions    of   the    county   assessor-collector
before section      6.26  was    amended to     embrace    counties.2
Wilson v. Galveston      Countv     Central    Awwraisal    District,
suwra.    But such    a reading     would restrict the       functions
other taxing units are allowed by the statute             to place in
the hands of     an appraisal     district,    and   would not be      a
reasonable   conclusion     to   draw    from   the   words    of   the
statute; we cannot give it that          construction.     See County
School Trustees     of Orance    Countv v. District       Trustees   of
Prairie View Common School District No. 8,             153 S.W.2d 434
(Tex. 1941).

      We conclude     that section       6.26 of    the   Tax Code    is
unconstitutional       as    applied     to     the  assessment      and
collection   duties     of county     tax assessors-collectors        --
except as the      appraisal    function of      the office has     been
separated   from those     duties by      the amendment    of   article
VIII, section      18, of    the constitution.         But the   entire
statute need     not    fail    if   its    provisions    are   not   so
connected   in subject matter,         so dependent    on  each other,
or otherwise    so connected     together    in meaning    that it can
be presumed    that the legislature       would have passed the law
without    the   provision     found     unconstitutional.       Countv    -,
School Trustees     of Oranae      Countv v. District      Trustees   of
Prairie View Common School District No. 8, suwra.

      In this   case, the     legislature,    in   1979, did   enact
section    6.26  without     unconstitutionally      including   the
section 14 assessment     and collection    duties    of county tax
assessors-collectors     within its scope,3 and       nothing about



       2.   Section 6.26 was originally        enacted as part       of
Title 1 of the Tax Code in 1979, to take effect January              1,
1982.   See Acts 1979, 66th Leg., ch. 841, at 2217.             It was
amended in 1981, see Acts 1981, 67th Leg., ch. 13, at 125,
effective   January 1, 1982, and again amended         in 1983,     see
Acts 1983, 68th Leg., ch. 785, at 4612.          The amendment       to
article VIII, section 18, of the constitution           was    adopted
in 1980 pursuant to a legislative         proposal made in       1979.
See   H.J.R.    No.   98,   Acts   1979,   66th    Leg.,    at   3229.
Orisinallv.   section     6.26   awwlied onlv    to   taxins     units
"other than a county."       The   exception   was removed by       the
1981 amendment    to the statute.

       3.   See   note   2.




                               p. 4000
Honorable   Carlos   Valdez   - Page    11      (JM-833)




the subsequent      amendments  to   the   section suggests      that
changes affecting     other taxing    units  would   not   have  been
approved   if   counties had    remained    entirely   outside    the
ambit of the statute.       We  do not believe section       6.26 is
rendered   invalid in     its entirety by    its unconstitutional
attempt to embrace the assessment        and collection    duties of
the county    tax    assessor   contemplated    by   article    VIII,
section 14, of the constitution.

      Your questions     concerned    the   validity     of   placing
elsewhere   the assessment      and collection   duties     of county
assessors-collectors     regarding   county    taxes.    In view    of
our resolution     of   the   matter   based    on   article    VIII,
section 14 of     the constitution,    we   do not address      other
constitutional    arguments.     cf.  Tex . Const. arts.      I, 528:
II, 91.
                            SUMMARY

            The   legislature    may    not   authorize      the
        electorate   to divest the county tax assessor-
        collector   of duties respecting      the assessment
        and collection     of county     taxes, other       than
        appraisal   functions.     Tex.    Const. art     VIII,
        5514, 18.    Section 6.24      of the Tax Code,       as
        construed,    is valid,     but    section     6.26   is
        unconstitutional     insofar    as   it    contravenes
        article VIII,     section 14,      of the    constitu-
        tion.




                                             JIM      MATTOX
                                             Attorney  General   of Texas

MARY KELLER
Executive  Assistant     Attorney     General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney         General

RICK GILPIN
Chairman,  Opinion     Committee

Prepared by Bruce Youngblood
Assistant Attorney General




                              p. 4001
