                    AUSTIN.    TEXAS    78711

                     December 16, 1968




Honorable Robert S. Calvert
Comptrqller of Public Accounts
Austin, Texas
                                Opinion No. ~-318
                                Re:    Effect of Subsection No. 5
                                       of new Section l-e of
                                       Article 8-i& the Texas
                                       Constitution, known as
                                       Amendment No. 7, adopted
                                       at the General Election of
                                       November 5, 1968.
Dear Mr. Calvert:
      Your request for an opinion reads, in part, as ':
follows:
      "The electorate'of the State of Texas, at the General
      Election held November 5, 1968, passed Constitutional
      Amendment No. 7, which calls for the phasing out of
      certain sections of the State Ad Valorem Tax during the
      next several years. Sub-section No. 5 of Amendment
      No. 7 reads as follows:
          'The fees paid by the State for both assessing
          and collecting state ad valorem taxes shall not
          e+zeed two per cent (2s) of the State taxes
          collected. This sub-section shall be self-
          executing.'
      "The,commission fees being paid at this date for State
      tax collections areeas follows:
          i,l) ARTICLE 3939 - Collecting Commission:
               F~:ic~20,00C.0C       @
                                     @




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HbnT Robe&S.   Calvert, Page*2’(M-3x8)

           (2.) ARTICLE 7331.- Addition,al,
                                          Commiss.ion~on :.~
                                                           ,I
                Re'demptionCollections:
                Total amount          @       '., ,'5$  " :,
                                                 ,:


                                                      '~
                                                       County)
                                                         :,
        "Our first and primary question is - iWhat'effect:l'~'
        will:Sub-section No. 5 have on the commission fe,es,!,
     : listed above?' January'l, 1969, will be the 'dateeof.~'
        the beginning of the reductionin the StateTax'Rate
       land we would like for you to state.when a change in
        commission fees will be in effec.t;,ifyou,determine
        a change is in order.                         :, ~.
                                                                      .,   .~'
       "My second'question is -~ 'Under Sub-section Ro. 5,;                    1,
       can the Comptroller in 1969 pay the Assessing Commis- ,'
       sion Fee to the County Tax Assessor-Collector.as set
     : forth in ARTICLE 3937?' I list the following:schedule
       of assessing commissions paid prior to the,pas~sageof
       Amendment No. 7:
           First $5,000,000.00 z       .95~ per       100.00 tax value
           Next. $95,000,000.00        .03i per       100.00.tax.~value'
           Baiance                     .02& per
           (One-half of the above ~ommi~ssionis
           'and ,one-halfby County)        '~,
       "Question No. 3 is - 1Can the     State continue .to,ma,ke
       additional commission payment     to an attorney who has.,~,
       Eontracted with the 'State and    County for.the collection
       of delinquent taxes under the     terms of Article 7335-a,?"
      In Attorney General Opinion No.'v-851 (1949), the Attorney
General ruled on questions concerning amendments toArticles
3937 and 3939, Vernon's Civil Statutes, vihichincreased the    :           :
compensation for assessing'and collecting taxes. These:statu-
tory amendments became effective on June 19, 1949. The summary'
of the opinionreads as follotis:
           "The assessor-collector should be compensatdd
           for taxes assessed and,collected:prior to ~.'::
           June 19, 1949, at the r~tes,provlded.in'4rtbcle.s"
           3937 and 3939.before their s$endment,by~SL B::,.
 Hon. Robert S. Calvert, Page 3,.(M-318)             .
                                                 .

            211, 51st Legislature. They’should be compen-’ ~’      :
            sated for taxes assessed and collected after
            June 18, at the rates prescribed in S.B. 211.”
       The returns of the General Election.of November 5, 1968,
 were canvassed on November 22, 1968,‘and it was asce.rtained
 that a majority of votes cast were in favor of Amendment
 NO. 7. Therefore, Amendment 7 became a part of the Constitu-
 tion’of the State of Texas on November 22, 1968; and subsection
 No. 5, being self-executing, became effective on that date.
 Attorney General Opinion Nos. M-296 (1968); o-6278 (1944); o-
 2841 (1940); o-6821 (1945).
        The Constitution declares the organic law,of the,State,
  and its pronouncements are supreme. Thus, constitutional
  provisions are controlling over all.statutory provisions which
  are in conflict therewith, to the extent of the ~conflict.
‘f-12Tex.Jur.2d 359, Constitutional Law, 88 9 and 10. It is
  also the rule that unless the contrary is manifest, a consti-
  tutional provision will be construed to operate prospectively
  only. 12 Tex.Jur.2d 360, Constitutional Law, g 11.
        In applying these rules and precedents to your first
  two questions, it is the opinion of this office that the fees
  paid by the State to Tax Assessors-Collectors should,be governed
  as follows:
        (1) As to all State taxes which were both agsessed Andy
  collected before’the effective .date of the amendment, ~fees
  should be~paid in acoordance with the applicable assessment
  and,collection fee statutes.which were in eff,act‘immediately
  prior to such effective date.
        (2) As to all State taxes which are both asnessed and
  collected on and after,the effective date of the amendment,
  the .only fees paid by the State should be 2s of the amount of       <;’
  taxes actually collected. This rule applies to redemption and
  supplemental items as well as ordinary collections and assess-,
  merits.
        (3)’ As to all State taxes assessed but not collected
  before the effective date of the amendment, the fees paid for
  such a,ssessmentservice should be In accordance with the appll-
  cable assessment fee statutes which were,in effect immediately
  prior to such effective date.
        (4) ,,As to all State taxes assessed on and after the
  effective date of ttieamendment no fees should be paid for the
  assessment service alone, but a fee of 2% of the amount’of such


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     Ron. Robert S. Calvert, Page 4 (M-318)

     assessed taxes which are actually collected should.be paid.
     as compensation for the complete service of both assessing
     and collecting such taxes.
           (5) As to all State taxes which were assessed before
     the effective date of the amendment but which are:collec:ted
     on and after that date, the State should pay 2$of the :~
     amount of taxes collected, This conclusionsis.reached on ~..
     grounds that'the amendment contemplates.that feesinA,some. 1.
     amount will be paid for tax money actually .collected~that/
     the fees paid under ,the prkexisting:statutes for &s&ssmehts"
     were earned'before the effective date of the amendment';"that
     the amendment.provides no measure whatsoever whereby a specific
     part of the 2% fee can be allocated for collection alone; that
     a reasonable construction of the amendment should Abe given so
     as to do,equity and to give rise to as few questions inits
     application as possible. 12 Tex.Jr.2d, 362-368, Constitutional
     Law, f+814-22.
           We now proceed to your third question which has regard.
     to the effect of the amendment on Article 7335a, Vernon's Civil
     Statutes.
           Article'7335, Vernon's'Civil Statutes, provides for        "
     commissioners' courts to contractwith,attorneys ,to enforce or
     assist in the 'enforcement of the .collectionof:delinquent:~State
     and'county taxes for a percentage of the,taxes, penaIty,and
     interest actually collected. Article 7335a,provides that no
     such contract shall be made where the compensation to be paid
     the attorney is more than 15% of the amount collected.
           The amendment in question speaks of fees to be paid by,
     the State for both assessing and collecting State Ad Valorem
     Taxes. The thrust of this language is toward the dual function
f.   of assessing and collecting State'taxes. This dual function
     can only be accomplished by county Tax Assessors-Collectors.
     In Texas there is no separate office of Tax Collector, and there
     is no separate office of Tax Assessor. The only office appli-
     cable to these tax functions is that of Assessor and.Collector.
     <Article~VIII, Sections 14, 16 and 16a.of the Constitliti,on
                                                                of
     Texas. Therefore; we construe the,amendment as applying 'only
     to'fees to be paid by the State to county Tax Assessors7 ~~
     Collectors. Of course, a delinquent tax attorney is notan
     Assessor in any sense of the word.




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                ,,   ,,          /,“i
       .                    .,            ,,’
Hon. Robert S. Calvert, Page 5 (M-318)

      Furthermore, we interpret Articles 7335 and 7335a
as having to do with legal services rendered (in ,the words
of Article 7335) "To enforce or assist in the enforcement
of the collection of any delinquent State and c'ounty
taxes. . . ." Thus, the compensation allowed the attorney
is in the nature of legal fees for enforcement services
and does not smack of the fees for assessment and collection
contemplated by the amendment in question.
      We conclude, then, that the amendment in question does,.
not..ffect the terms and provisions of Articles 7335 and
7335a.
                        SUMMARY
      Subdivision 5 of the new Section l-e added to
      Article 8 of the Constitution of the State of'
      Texas became effective on November 22, 1968.
      Tax Assessors-Collectors should be compensated
      for taxes assessed or collected prior to
      November 22, 1968, at the rates prescribed in
      the applicable fee statutes preexisting the
      amendment . They should be compensated for taxes
      assessed and collected on and after November 22,
      1968, at the rate of,2$ of ,the amount of assessed
      taxes which are actually collected; and they
      should be paid at the rate of 2% of the.amount of
      taxes collected on and after November 22,'1968,
      butwhich were asse,ssedprior thereto. Articles
      73~r3tin;t7335a,V.C.S., were not affected by the

                                You&very   truly,




Prepared by Alfred Walker
Assistant Attorney General                                          .; ,!,’



APPROVED:
OPINION COMMITTEE
Kerns B. Taylor, Chairman
John Reeves
Bill Craig
.Fisher Tyler                              A.,~& Carubbi, Jr.
Jack Goodman                               Staf,ffLegal Assistsnt
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