                         February 10, 1989




Honorable Donald M. Keith       Opinion Wo.    JM-1015
Criminal District Attorney
Polk County Courthouse          Re:   Validity  under article
Livingston, Texas   77351       VIII, section 14, of the Texas
                                Constitution, of section   6.30
                                of the Tax Code  (RQ-1479)

Dear Mr. Keith:

     you ask the following question:

          Does section 6.30 of the Texas Property Tax
       Code violate article VIII, section 14, of  the
       Texas Constitution insofar as it attempts   to
       ascribe duties incident to tax collections  to
       persons other than the County Tax Assessor-
       Collector?

     Section 6.30 of the Tax Code provides as follows:

          (a) The county attorney or, if there is no
       county attorney, the district attorney   shall
       represent the county to enforce the collection
       of delinquent taxes if the commissioners court
       does not contract with a private attorney   as
       provided by Subsection (c) of this section.

          (b)     [applies to taxing unit    other than   a
       county]

          (c) The governing body of a taxing unit
       may contract with any competent attorney  to
       represent the unit to enforce the collection
       of delinquent taxes. . . .

          (d)     [repealed]

          (e) A contract with an attorney that        does
       not conform to the requirements of this        sec-
       tion is void.

     Section 6.30 pertains to representation of the county
in enforcing  delinquent tax collections.   It provides no



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Honorable Donald M. Keith - Page 2   (JM-1015)




role for the county tax assessor-collector,   and for this
reason, you wish to know whether it violates article VIII,
section 14, of the Texas Constitution. This constitutional
provision reads as follows:

            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.
        ani2 Collector of Taxes shall         all the
         uties with resnect to assessj,Ba nrouertv for
                 ose of taxation and of collectinq
        taxes. as mav b     or cribed bv the Leaisla-
        w.1       (BmphasTs adizd.)

Tex. Const. art. VIII, S 14.

     The offices   of tax assessor    and tax collector    were
formerly   separate offices     established  respectively    by
sections 14 and 16 of article VIII. H.J.R. NO. 21, Acts
1931, 42d Leg., at 942; Acts 1933, 43d Leg. at xix. In 1932
these constitutional provisions were amended to consolidate
the two offices    into a single office of tax assessor-
collector.   The same amendment   added the underlined   clause
to article VIII, section 14. &

     The commissioners   court had statutory    authority   to
contract for attorneys to enforce delinquent tax collections
before the 1932 amendment   consolidated the tax collector's
and tax assessor's   offices. See Acts 1923, 38th Leg., 3d
C.S., ch. 13, at 31; Acts 1923, 38th Leg., 2d C.S., ch. 35,
at 78 (enacting predecessor of section 6.30 of Tax Code,
formerly codified as article 7335, V.T.C.S. (Vernon 1960)).
Judicial discussions of the relative powers of the commis-
sioners  court and the constitutional      tax collector    in
collecting delinquent taxes provide some insight into which
tax collection functions the legislature could at that time
allocate to other officers. See aenerallv Attorney    General
Opinion JR-911   (1988) at 17 ("core functionsn    of   county



     1. The second clause of article VIII,       section  14
should be read as if it stated:  Hall duties with respect to
assessing property . . . and to collecting taxes, as may be
prescribed by the Legislature."  G. Braden, The
                                              d Comoarativq
m,        638 (1977).
Honorable Donald M. Keith - Page 3       (JM-1015)




treasurer's office): Attorney General Opinion JW-833      (1987)
(county tax assessor-collector).

     In &J& Countv v. Maloney,    38 S.W.2d 868 (Tex. Civ.
APP. - Texarkana  1931, writ ref'd),  the court stated that
the tax collector*8   statutory authority   to receive   and
collect taxes meant that he was "to demand and enforce    in
the ordinary way" the payment of taxes on the assessmt;:
roll, but he did not have exclusive authority      over
collection of delinquent taxes.    38 S.W.Zd at 871.     The
commissioners court had authority to employ other persons to
assist in enforcing the collection of delinquent taxes. &

     In upholding   a provision    of former article   7335,
V.T.C.S., which authorized the commissioners court to Vw
for an abstract of property assessed or unknown     and un-
rendered" from the taxes, interest and penalty collected  on
such lands, the Texas Supreme Court rejected the view of the
Court of Civil Appeals that all duties regarding the collec-
tion of delinquent taxes were vested by the constitution
in a constitutional officer.    Cherokee Countv v. Odom,  15
S.W.Zd 538   (Tex. 1929).    The Supreme Court quoted the
following statement made by the court below:

           The Constitution provides for the election
        of a tax assessor in each county. . . .    The
        Constitution has also provided forthe    elec-
        tion of a tax collector in each county, to
        whom is committed the duty of performing   all
        the duties, gther than those involved       in
              al nroceedinas, which are necessary   in
        the collection   of taxes. It has likewise
        provided   for the election of county and
        district   attorneys, whose duty it is to
        represent the state and county in filing and
        prosecuting suits necessary   for the collec-
        tion of delinquent taxes.   (Emphasis added.)

15 S.W.Zd at 540 (guoting aerokee     County v. Odom, 297 S.W.
1055 (Tex. Civ. App.  -  Texarkana  1927), m      15 S.W.2d   530
(Tex. 1929)).  The   Supreme  Court  disagreed  'with the   lower
court, stating the the duty,of      "performing these arduous,
laborious, and  technical    services   for a county"     is not
placed by the constitution or the statutes upon the county
tax assessor,  the county tax collector,         the county or
district attorney, or   any other  officer of  government.    Id.
at 541.

     Of particular interest in addressing your question    is
the lower court*s exclusion  of duties involved in judicial
proceedings from the tax collector*8 area of responsibility.


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Honorable Donald Al. Keith - Page 4   (JW-1015)




Although that court believed that a broad range of tax col-
lection functions may be performed only by the county tax
collector, it did not include duties      involving   judicial
proceedings   among his constitutionally    mandated   duties.
Section 6.30 of the Tax Code concerns the legal representa-
tion of the county by an attorney in enforcing the collec-
tion of delinquent taxes, u,     tax collection duties which
may involve judicial p;;eedings.     &=R wn       v. Earne 8t ,
34 S.W.2d   685 (Tex.     . ALP. - San Antonio     1930, writ
dism'd)   (attorney could be compensated      for   collecting
delinquent taxes even though he did not bring suit there-
for).

     The 1932 amendment to article VIII, section 14, of    the
Texas Constitution  was submitted to the voters under      the
following ballot proposition:

        'For amendment   to the Constitution   of the
        State of Texas, combining into one office of
        Assessor and Collector of Taxes, the offices
        of Assessor  and Tax Collector*:     and . . .
        *Against the amendment to the Constitution of
        the State of Texas, combining into one office
        of assessor    and collector  of taxes, the
        offices of assessor and tax collector.#

H.J.R. No. 21, Acts   1931, 426 Leg., f 3, at 943.     Thus,
according to the ballot proposition and also the caption to
the resolution  proposing  the amendment,   the reason    for
adopting this provision   was to consolidate   the offices.
Neither the caption nor the ballot proposition     mentioned
the clause stating that the tax assessor-collector    "shall
perform all the duties with respect to assessing        pro-
pe*y   . . . and of [sic] collecting     taxes as may      be
prescribed by the I.egis1ature.w

     This clause may only have been intended to mean that
the new tax assessor-collector would perform all the duties
formerly performed by the two separate officers, even if the
statutes placed such duties on the "tax assessor'* or the
"tax collector.n   Duties with respect to tax assessment   and
tax collection   had in the past been prescribed      by the
legislature and would still be prescribed    by the legisla-
ture. The added clause    is not the basis of any limits on
the legislature*8   power to change     "core functions"    of
the tax assessor-collector;   these limits already     existed
with respect to the separate offices and after 1932 applied
to the combined    office of tax-assessor    collector.    See
fissouri. K. & T. Rv. Co. of Tevas v. Shannon   100 S.W. 138
142 (Tex. 1907).     The explicit   statement 'that the tak
assessor-collector   "shall perform all the dutiesw       with



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Honorable Donald W. Keith - Page 5   (JM-1015)




respect to tax assessment and collection in effect codifies
the view that the constitution  delegates a certain body of
tax assessment and tax collection functions to the county
tax assessor-collector  so that the legislature      may not
delegate them by statute to other persons.          Green V.
Stewart,  516 S.W.2d 133 (Tex. 1974); AttoEy          General
Opinion JW-833 (1987); Letter Advisory No. 117 (1976): S&Z
            v. Galveston Countv Central             Dist&&
713 S.W.2d 98 (Tex. 1986) (discussing article VIII,   sectio;l
18, of Texas Constitution,  which mandates single appraisal
and single board of equalization in each county).

     Neither the legislature nor the courts treated the 1932
amendment  as repealing    existing  law on contracts     for
delinquent tax collections   or otherwise radically  changing
the legislature's   power to define tax assessment        and
collection duties. The first legislative     session to meet
after the amendment was approved by the voters adopted    the
following provision to implement it:

           Hereafter, whenever the words    *Assessor,*
        *Assessor of Taxes,*  'Collector,* 'Collector
        of Taxes,* or 'Tax Collector'        are used,
        either in Articles 7181 to 7359 . . . as well
        as the Revised Code of 192.5 . .' . same shall
        be applicable to and mean the one office or
        officer of Assessor  and Collector of Taxes,
        and shall be so construed    as to accomplish
        the object and intent and carry out the
        purpose of Sections 14 and 16 of Article     8,
        of the Texas Constitution, as the same was
        amended on November 8, 1932.

Acts 1933, 436 Leg., ch. 197, 5 5, at 600       (codified as
V.T.C.S. art. 7181a (1925), repealed by     Acts 1979, 66th
Leg., ch. 841, 5 6(a)(l), at 2329). In determining        the
meaning of a constitutional   provision, a court will give
weight to a legislative construction,    particularly   to a
contemporaneous construction  which has been acquiesced    in
and adhered   to for a long period of time.      Director  of
                                      nt v. P&tina     Indus
P80):
we8   Ass~,   600 S.W.2d 264 (Tex.         mer     v. Bal&
196 S.W.Zd 324 (Tex. 1946).

     In 1938, the Texas Supreme Court, in holding a 1937
county contract for collection  of delinquent taxes  invalid
because it was not approved by the comptroller      and the
attorney general as required by statute, stated as follows:

           The Legislature has the sole power to
        provide  for the collection of delinquent



                             p. 5244
Honorable Donald H. Keith - Page 6     (JM-1015)




        taxes and to fix the compensation to be paid
        for such services.   It is also true that the
        commissioners~ courts derive their power to
        execute contracts      with respect    to  the
        collection of delinquent     taxes exclusively
        from the statutes.    -mterwood   v. Ii-
        $&!,&y, Tex. Corn. App., 62 S.W.Zd 65.

White v. McGm,    114 S.W.2d 860, 863 (Tax. 1938).    Neither
the parties   nor the court raised any question    as to the
validity of the statute under article VIII,     section   14.
Nonetheless, the court's unqualified statement     about the
legislature's   power and its citation    of Fasterwood    v.
Henderson,          62  S.W.Zd 65  (Tex. Comm'n  App.   1933,
judgmt. adopted), a case involving a pre-1932 contract    for
delinquent tax collections, suggest that no such constitu-
tional issue even vaguely troubled the court.

     In Pritchard & Abbott v. MclQhh&  350 S.W.2d 333   (Tex.
1961), the Supreme Court determined that the commissioners
court had implied authority to contract for the appraisal of
all properties in the county to assist .it in carrying    out
its duties as a board of equalization   for the county.    In
upholding the contract the court rejected the argument   that
it resulted   in the commissioners  court taking over the
functions of the county tax assessor and collector.       350
S.W.Zd at 336-338. The court also rejected the argument
that the contract was invalid under the reasoning of White
v. McGill, stating that:

        [T]he contract between Galveston County and
        Pritchard & Abbott was not entered into in
        connection with the collection of delinquent
        taxes and so for that reason did not require
        the approval of the State Comptroller.   Con-
        sequently the decisions in Mar-     v. Harris
                                   are not in point.

350 S.W.Zd at 338. Thus, even in a case where the Supreme
Court explicitly dealt with an issue of usurpation of the
tax assessor-collector's  authority,  the court matter-of-
factly referred to the collection      of delinquent   taxes
pursuant to a contract authorized by the commissioners court
under a predecessor of section 6.30 of the Tax Code.

     The authorities discussed in this opinion show that the
legislature and the courts have long assumed the contractual
procedure authorized by section 6.30 and its predecessors to
be consistent  with the constitutional     authori.ty of the
county tax collector    and tax assessor-collector.      Such
constructions of constitutional  provisions are entitled   to



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Honorable Donald M. Keith - Page 7        (JM-1015)




great weight.    &S Director   of Deoartment of Aariculture     h
Environment v. Printina Industries Assnc, zunra.      Moreover,
section 6.30 of the Tax Code pertains to collection      efforts
by the district or county attorney or by a private      attorney
with whom the commissioners     court has contracted. As the
court of civil appeals in me          Countv v. Odom suggested,
legal representation in the collection of delinquent       taxes
is outside the scope of        the tax     assessor-collector's
constitutional functions. 297 S.W. 1055 (Tex. Civ. App. -
Texarkana 1927), rev'd on other aroul&      15 S.W.2d 538 (Tex.
1929).    The courts have not decided wh& powers and duties
comprise the county tax assessor-collector's      non-delegable
duties, S.Q~ Green v. Stewart, sunra, and we need not address
that question.    The courts' long acceptance of the contracts
now authorized    by section 6.30 and the history        of the
amendment    to article VIII, section      14, of the      Texas
Constitution convince us that the procedures authorized       by
section 6.30 of the Tax Code do not violate that constitu-
tional provision.      See also Tex. Const. art. V, 0 18;
?ritchard G m                    , m;       Cherokee Countv V.
sT!asm,3u2mr    (authority  of  commissioners   court to make
contracts for the county).

                          SUMMARY
               Section 6.30 of the Tax Code does not
          violate article VIII, section 14, of the
          Texas Constitution.

                                 dzyh
                                            MATTOX
                                    Attorney General of Texas

WARYKELLER
First Assistant Attorney General

Lou l4ccREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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