i    D      I   5’




            Trn~      A-ITOENEY       GENERAL
                         OP   TEXAS




Hon. Perry L. Jones
County Attorney
Travis County
Austin, Texas
Dear Sir:                opinion No. O-725%
                         Ret Under the provisions of Article
                             '7346-D,Rev~isedCivil Statutes
                             of Texas, does the Commission-
                             srs.Court of Travis County, as
                             a Board of Equalization, have
                             the authority to remove and
                             oanoel from the delinquent tax
                             rolls of Travis County taxes,
                             penalties and interest that
                             have been erroneously assessed
                             against property that is exempt
                             from taxation by statute aooord-
                             ing to findings of the Commis-
                             sioners Court of said County?
          In your letter of May 28, 1946, you request the
opinion of this department, tiioh for the purpose of this
opinion we quote the last paragraph:
          "Under Aots of 46th Regular Session of the
     Texas~Leglslature, page 659, H. B. No. 456, approved
     May 15, 1939, and otherwise identified as Artlole
     7345-D, Revised Civil Statutes of Texas, 1925, does
     the Commiss1oners~ Court of Travis Counby, Texas,
     as a Board of Equalization, have the authority to re-
     move and canoe1 from the delinquent tax rolls of
     Travis County, taxes, penalties and interest that
     have been erraneouslg assessed against property that
     is exempt from taxation by statute according to
     findings of the Commissioners* Court of seld County?"
          As we construe your opinion request it ls assulded
that the poo-Tertyin question; Newman Hal%, tiihh is used
as a dormitory for girls attending the University of Texas,
which Is owned end operated by the Dominican Sisters of
Houston, Texas, a religious and charitable corporation,
without oapltal stook and not incorporated for profit, is
exempt under the Constitution and statutes of this State
Hon. Perry L. Jones, page 2, O-7251


from ad valorem taxes. We therefore assume, as your opinion
request does, that the property in question is exempt from
taxation under the Constitution and statutes of this State,
but do not decide this question. Briefly, we are called upon
to answer whether or not the Commissioners Court, as a board
of equalization, is authorized under the terms of H. B. No.
456, approved May 15, 1939, and otherwise identified as
Art. 7345-D, R. C. S. of Texas, 1925, to cancel and remove
property from the tax rolls against which taxes had been
erroneously assessed.
          We have held in two opinions of this department
that Art. 7345-D, R. C. S of Texas, 1925, is unconstitutional.
The first of these opinions, No. O-930, was approved July 11,
1939, and a copy of this opinion is herewith enclosed for your
information. The second opinion is No. O-6257, approved
Dec. 1, 1944, a copy of whiah is he-ewith enclosed.
          it does not necessarily follow, however, from these
opinions that the Commissioners Court is without authority to
cancel and remove from the tax rolls the levy and assessment
of taxes which the State and County had no authority in the
first instance to tax because of its exempt status under the
Constitution and statutes of this State from ad valorem taxes.
The Legislature has no authority to impose taxes upon pro-
perty exempt under the Constitution, and neither has the tax
assessor authority to assess taxes against property which
the Legislature has exempted under constitutional authority.
We are not confronted, assuming that the property is exempt
from taxati-on,with the problem of an unreasonable and
excessive valuation, such as was attempted to be comprehended
in Art. 7345-D, supra, which as we have heretofore stated, has
been by this department held to be invalid, but with the
simple proposition that the assessment was null and void
ab iniLtiofor the simple reason that the tax collector and
the commissioners court had no authority in the first in-
stance to place the property on the tax rolls as though it
were subject to taxation.
          We said in opinion No. O-6257 the following:
           Ylhe jurisdiction of the Commissioners Court is
     defined in the latter part of Sec. 18 of said Article
     5 , supra, in the following words:
          "*The county commissioner so chosen, with the
     count;- ,'~dgeas presiding officer, shall compose the
     countv so;unissionerscourt, and shall exercise such
     powers and jurisdiction over all county business as
     is conferred by this constitution and the laws of the
     state, or may be hereafter prescribed.? (Emphasis ours)
Hon. Perry L. Jones, page 3, O-7251


         "we think, however, there is an express limitation
    upon the jurisdiotion thus conferred, that is, it must
    be 'county business.* &en acting within the scope of
    the jurisdiotion thus conferred such judgments import
    verity, and are not subject to collateral attack.
         "In a former opinion of this department, No. O-2912,
    what constitutes 'county business' has beenwell ex-
    pressed, and we quote from said opinion as follows:
         l'rTheterm "county business* should be given a
    broadband liberal construction, so as not to defeat the
    purposes of the law.
         “‘We are of the opinion that the matter of examining,
    investigating and considering an assessment of taxes,
    and determining whbther the same is invalid or not; and,
    if found to be invalid, to do the things as authorized
    by law to have the property covered thereby re-assessed
    in such manner as that the taxes thereon may be collected,
    all pertains to "county business.s It would seem that it
    is as much "county business" to examine into, ascertain
    and determine an assessmentto be invalid and to have
    the same re-assessed in a.valld manner, 'as it is to
    inspect tax renditions, hear evidenoe thereon, and
    determine and equalize the valuations, which matters are
    unquestionably county business and properly intrusted to
    the commissioners' court, aoting as a board of equali-
    zation.*"
          While tnere was not involved in the problem con-
SideFed in said opinion the question of the exemption of the
property, there was involved the power of the Comzissioners~
Court to ascertain and determine an assessment to be invalid,
and if found to be invalid to have the same reassessed in a
valid manner. The Commissioners~ Court would in our view,
consistent with the views expressed in the foregoing opinion,
have authority to cancel or remove from the tax roll-san
invalid assessment which the tax assessor had no authority
to assess in the first instance because of the exempt
character of the property.
          In the recent case of the City of Austin v. Sheppard,
190 S.W. (2.d)486, the Supreme Court granted a mandamus      -
requiring the cancellation of assessments against property
owned by the City of Austin acquired in tax foreclosure
sales because of the exempt character of the property; and
we think it ..'~llows
                    that as to exempt property the law
requires that such assessments be cancelled because invalid,
as we have said here from the begirning. If this were not
the law the Court would have refused to grant the writ of
mandamus in the case of the City of dustin v. Sheppard,
supra.
Hon. Perry L. Jones, page 4, O-7251


               Assuming, without deoiding that the poperty in
     question is exempt from taxation, it is the opinion of this
     departtmentthat the Commissioners~ Court would have the
     authority to oanoel and remove from the tax rolls any taxes,
     penalties and interest assessed against such property.

                                   Yours very truly
                              ATTORNEY GENERAL OF TEXAS
                               a/ L. P. Lollar

                              BY
                                           L. P. Lollar
                                              Assistant
     APPROVED JUNE 24, 1946
     s/ Carlos C. Ashley
     FIRST ASSISTANT ATTORNEY GENERAL

     Approved Opinion Committee
     By BWB, Chairman

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