Honorable J. W. Edgar                Opinion No. M-859
Commissioner of Education
Texas Education Agency               Re:   Whether a County Tax As-
Austin, Texas                              sessor Collector can re-
                                           fuse to assess and collect
                                           independent school district
                                           taxes under Section 23.94,
                                           Texas Education Code, at
                                           a valuation different from
                                           or higher than the val-
                                           uation assessed for state
                                           and county purposes and
                                           whether the Commissioner's
                                           Court should be the Board
                                           of Equalization under
Dear Mr. Edgar:                            Section 23.94.
    Your request for opinion poses the following questions:
          "1 . When an Independent school district, pursuant
          to Section 23.94, Texas Education Code, designates
          the county tax assessor-collector to assess and
          collect its school district taxes, and to assess
          Its taxable property at a greater rate (or at
          greater valuations) of value than that same pro-
          perty is assessed for state and county purposes,
          legally may he refuse to perform?
          "2. When under Section 23.94, the county tax assessor-
          collector Is so designated to assess and collect,
          and assess on higher valuations, does the commls-
          sloners court automatically become the board of
          equalization of property values for the Independent
          school district; or does the law contemplate the
          district shall appoint Its own board of equaliza-
          tion for handling protests, hearing and adjustment
          purposes, and a preparation of a tax roll approved
          by a board of equalization?"
     Section 23.94, Education Code, Vernon's Civil Statutes,
which became effective September 1, 1969, reads as follows:
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        Honorable J. W. Edgar, Page 2                (M-859)


                  "(a) The board of trustees of any independent school
                  dlstrlct may designate as Its assessor and collector
                  of taxes for the school district the county tax
                  assessor-collector.

                 "(b) The property In the school district may be
                 assessed at a greater rate of value than the same
                 property is assessed for state and county purposes,
                  "(c) When the county tax assessor and collector Is
                  required to assess and collect the taxes of an indepen-
                  dent school district, the board of trustees of such
                  school district may contract with the commissioners
                  court of said county for payment for such services
                  as they may see fit to allow, not to exceed the
                  actual cost incurred in assessing and collecting
                  said taxes.
                 "(d) The county official so selected shall turn over
                 all Independent school district taxes collected by
                 him to the depository of the independent school
                 district."
             Various statutory provisions preceded the enactment of
        Section 23.94 and related to the valuation to be used by a
        county tax assessor-collector in assessing ad valorem taxes for
        an independent school district. Under such previous statutes a
        county tax assessor-collector was limited, except for a brief
        period, In assessing ad valorem taxes on property in independent
        school districts to the value used to assess for county and
        state purposes.
             In the case of McPhall v. Tax Collector of
                                                     -- Van Zandt
        County, 280 S.W. 260~(Tex.~Fi.~p.,    1925, error ref.),the
        -stated:
                 "The law provides with reference to the assessment of
                 property for Independent school districts, when as-
                 sessed by the county assessor, that the same shall
                 not be assessed at a greater value than that for which
                 it is assessed for county and state purposes.  If,
                 however, the assessment Is made by a special assessor,




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Honorable J. W. Edgar, Pace 3                 (M-859)


         . . . property may be assessed at a greater value than
         that for whlc; It was assessed for state and county
         purposes. ... (at p. 264).
         Accord: Underwood v. Chlldress I. S. &, 149 S. W.
         773 (Tex. Civ. App.7912, error nsm7.

     Section 23.94, Texas Education Code now provides that
when a county assessor assesses Independent school district
property that he may assess such property at a greater value
than that used for state and county purposes. Therefore,
the question is whether a county tax assessor-collector can
refuse to assess and collect at a rate of value levied by a
school board greater than the rate for which property situated
within such school district was assessed for state and county
purposes.
     The Texas Supreme Court In Aldlne Independent School District
%Sta;d;le;, 154 Tex. 547, 280 Smd2a-578     (1933) mued
           2 which was the predecessor statute to Section 23.94.
The special assessor-collector appointed to assess the school
taxes In this Instance was not the county tax assessor-collector;
however, Article 2792 and related statutes were Involved In the
case. In discussing the authority of the board of trustees and
an appointed tax assessor-collector, the court said:
         "We think It apparent from a reading of the above
         statutes, that an assessor-collector of taxes ap-
         pointed by a school board Is ... only an agent or
         employee of such school board at Its discretion.
         The board alone has the power to levy and cause to
         be collected the annual taxes ... ."
           ...
          ... a reading of the statutes relative to the as-
         sessment and collection of taxes... shows that this
         power Is lodged by the Legislature and Constitution
         in the school board, and not in the office of the
         assessor-collector. He Is but an agent or employee
         of the Board to discharge the clerical duties
         necessary to carry out the school board's powers of
         taxation."




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Honorable J. W. Edgar, Page 4                (M-859)


     This reasoning would apply also to a county assessor-
collector appointed under Article 2792 because he Is likewise
only an "agent" appointed at the discretion of the Board, which
'alone has the power to levy and cause to be collected the
annual taxes.,. .'
     Although the wording has been changed in the Education
Code from the language of Article 2792 and its related Articles,
the relationship between a school board and a tax assessor-
collector designated by it as Its assessor and collector of
taxes Is virtually the same. We see no reason to doubt that
the county tax assessor-collector as designated by the Board
under the Education Code Is an agent of the Board to carry out
the Board's powers of taxation as the Board may dictate.
     The power to determine the rate to be used Is vested In
the Board and not in the assessor-collector. Once the Board
designates the tax assessor-collector Its agent for assessing
and collecting and Instructs him on the rate of value that the
Board has levied on property within the school district to be
used, the tax assessor-collector Is obligated to assess and
collect at the rate instructed. The language In Section 23.94
(b) that the property "may be assessed at a greater rate of
value' does not grant any discretion to the tax assessor-col-
lector to determine the rate to be used or to refuse to assess
at a certain rate of value. It merely removes the prior
llmltatlon on the rate of value which the Board could levy.
Therefore, It Is the opinion of this office that when an lndep-
endent school district, pursuant to Section 23.94, designates
the county tax assessor-collector to assess and collect Its
school district taxes, and to assess Its taxable property at a
greater rate of value then that same property is assessed for
state and county purposes, the county tax assessor-collector
Is bound to the rate of value as levied by the Board and, as
the Boards' agent, he has no discretion to assess such taxes
at any other rate.
     The second question posed relates to whether the County
Commissioner's Court or a board appointed by the Board of Trustees
is to serve as a Board of Equalization under Section 23.94,
Education Code.
     Article 8, Section 18, Texas Constitution, provides:
          "The Legislature shall provide for equalizing, as


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Honorable J. W. Edgar, Page 5                (M-859)



          near as may be, the valuation of all property sub-
          ject to or rendered for taxation, (the County Com-
          missioner’s Court to constitute a board of equal-
          ization); and may also provide for the class-
          ification of all lands with reference to their
          value In the several counties.”
     However, in discussing Section 18, the Court in Board of
Equalization of Clt of Port Worth v- McDonald, 133 Ta52r
 29 s . w . 26 Ir35-&5g)mtF

           ... It has been held that the reference to the
          Commissioners’ Court pertains to state and county
          taxes, and not to city taxes, but the requirement
          for creation of an agency for equalizing values
          does apply to cities and towns, The necessity
          for some agency ... for assessing values and
          equalizing same, ,.. is obvious. ...I’(at p. 1139).
     It is apparent that the Constitutional requirement for
the use of the Commissioner’s Court Is limited to state and
county taxes. However, the Texas Supreme Court In Miller
v. Vance, 107 Tex. 485, 180 S. W. 739 (1915) determmat
meCommIssIoner’s   Court could properly he designated as a Board
of Equalization In a situation where the county--taxassessor-
collector was selected by an Independent school district to
assess and collect Its taxes, and where he was limited by statute
in assessing to the rate of value used for state and county
purposes. The reasoning was that It would be senseless to
establish a board which would be powerless to equalize values,
inasmuch as it could not raise the rate of valuation.
     As hereinbefore stated, Section 23.94(b) granted to the
school board the authorlty to levy a greater rate of value on
property In the school district than the same property Is
assessed for state and county purposes. In Section 23.94
there Is no express requirement that a board of equalization
be appointed; however Section 23.93 providing for the appolnt-
ment of an assessor-collector for the district by the board of
trustees requires the assessment be equalized by a board of
equalization appointed by the board of trustees. Inasmuch as
the county tax assessor-collector as deslgnated under Section
23.74 serves the same function as a tax assessor-collector
apnolnted under the authority of Section 23.33. the llke au-
thority for equalization of the asoessmenl under Section 23.94,


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        Honorable J. W. Edgar, Page 6               (M-859)


        by a board of equalization can be reasonably presumed when
        considered together with the other two methods provided in such
        Education Code for selecting an assessor and collector (Sections
        23.95 and 23.96). In both cases, a board of equalization is
        provided. The overall scheme of equalization for such school
        districts appears to be by a board of equalization appointed
        by the school districts and not a board of equalization composed
        of the Commissioner's Court. Based upon the above reasoning,
        it Is the opinion of this office that under Section 23.94 the
        independent school district should appoint its own board of
        equalization.

                             SUMMARY

                       When an independent school district, pursuant
                  to Section 23.94, Texas Education Code, designates
                  the County tax assessor-collector to assess and
                  collect Its taxes and designates him to assess Its
                  taxable property at a greater rate of value than
                  that same property is assessed for state and county
                  purposes, he, as an agent only, has no discretion
                  to do otherwise in the matter. When the county
                  tax assessor-collector Is so designated under
                  Section 23.94, the statutory Intent is that the
                  Board of Trustees of the Independent School
                  District should appoint its own Board of Equal-
                  ization.
                                               ?
                                          You&very   truly,




        Prepared by Harriet D. Burke
        Assistant Attorney General
        APPROVED:
        OPINION COMMITTEE
        Kerns Taylor, Chairman
        W. E. Allen, Co-Chairman


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Honorable J. W. Edgar, Paqz '7   (M-859)



Sob Lattlmorc?
James McCoy
Fisher Tyler
James #.uuick
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executl.veAssistant
NOLA I;'HITFi
First Assistant




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