Honorable Joe Resweber       Opinion No. C-781
County Attorney
Harris County Courthouse     Re:   Back assessment of real e&ate
Houston, Texas 77002               for ad valorem taxes.
Dear Mr. Resweber:
        You ask our opinion in answer to four questions. We
answer them in the order ln,which they are asked. All Articles
of the statutes herelnafter referred to ar.eArticles of Vernon's
Civil Statutes.
                            1.
       Your first question is:
                 "Is it mandatory that the County Tax
           Assessor-Collector  back assess newly dis-
           covered improvtiments,.~inthe case where
           the land was on the tax rolls and was pre-
           viously assessed and the taxes paid thereon?"
Our answer is "No, the property cannot be back assessed."
        We assume that the taxes on the realty upon which the
improvements are located were properly assessed and that such
improvements constitute a part of the realty.
        Real property for purposes for ad valorem taxation
includes all buildin s, structures, improvements, and fixtures
thereon. Artlc~l&71&6 and 7319.
        Articles 7207, 7346, and 7347 require the tax assessor
to "back" assess any real property which has been omitted from
the tax rolls.
        However, your question relates not to land which was
omitted from thk tax rolls but rather to the under valuation
of.l_andwhich Is on the tax rolls. Therefore, Articles  720’[,
7346, and 7347 have no application.


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Honorable Joe Resweber, Page 2 (c-781)


        The land and the Improvements thereon having been
duly assessed for taxes and such taxes paid, the state and
county may not now, under any guise, make any claim for
taxes against the land for the years in question. Article
7338, In its pertinent portion, prohibits any claims or
demands for additional taxes under ,thesecircumstances; it
reads:
               ,I
                . . . lands that may have been duly
          assessed and taxes paid on one assessment,
                shall not be deemed subject to the
          provisions of this chapter. . , .'
The chapterin which this Article 7338 is found relates to
delinquent taxes and their collection. Our position Is
supported by Rowen v. Hauptmann, 352 S.W.2d 158 (Tex.Clv.
App. 1961).
        It was the duty of the assessor to Inform himself of
the value of the property and it was also the duty of the
Board of Equalization to do the ssme thing. The law con-
clusively presumes, in the absence of fraud or Illegality,
that the value determined by a Board of Equalization is
correct and Is final and the value assigned by that Board
cannot subsequently be questioned and is binding on the
taxi   bodies. State v. Mallet Lands& Cattle Co., 126 Tex.
392,3 8 S.W.2d 471 (1935); State v. Houser, 136
156 S.W.2d 968 (1941); McMickle v. Rochelle, 12,‘.Yi 2$i
 Tex.Civ.App. 1910 ; Ramey v. City of Tyl er, 45 S.W.id 359
tTex.Civ.App. 19321 , -The valuation placed upon real estate
and its Improvements by the Board of Equalization when such
value was materially less than the true value of the prop-
erty was held to be final in State v. Chicago, R. I. & G.
y,";;;.%f;.L;:    @+~2~c;~.~pfpfi~~~;~~in which 241 S.W.

                            2.
        Your second question Is:
                'Is It mandatory that the tax office
           charge penalty and interest on back assess-
           ments of real property?"
Our answer Is 'Yesn.



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            Honorable Joe Resweber, Page $ (c-781)


                    It Is mandatory that the tax office charge a penalty
            as provided by Article 7347, and Interest as provided in
            Article 7348, Attorney General's Opinion V-166 (1947).

                                                3.
                       Your third question is:
                              "In the situation where real property
                         is actually located In Harris County, but
                         taxes thereon have been assessed and paid
                         In the adjoining county, can the Harris
                         County Tax Assessor back assess sa;d real
                         property, for County tax purposes?
            Our answer is "Yes".
                    The following excerpt from Frost v. Fowlerton Consoli-
            dated School Dist.'Wo. 1, 111 S.W.2d 754 (Tex.Civ.App. 193r
            Is helpful in discerning the intent of the Legislature under
            these circumstances. The court quoted from another jurisdiction,
            as follows:
                               11
                                    . The property of respondent was
                                        .   .

                          wholly outside of the taxing jurisdiction
                          or taxing district of Stanley county, and
                          was therefore not taxable at all in that
                          county, and the amounts so paid by respon-
                          dent to said Stanley county were in fact
                          not a tax at all. Stanley county was
                          wholly without jurisdiction or authority
                          to levy and collect such sums as a tax
                          against the property of respondent".
                          (at P. 757).
                    On the other hand, you should consider whether your fact
            situation Is one to which Article 7156 would apply. This Article .
            covers a situation where land was assessed in a county according
            to the abstract of land titles and the tax paid thereon,
                    Since the land is actually located in Harris County and
            has not been assessed In that County, It should be assessed for
            county tax purposes by the Assessor of Harris County pursuant
            to Articles 7207, 7346, and 7347. Attorney General's Opinion




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            Honorable Joe Resweber, Page 4 (c-781)



            v-973 (1949). The adjoining county which assessed and col-
            lected the county tax has the authority to refund to the tax-
            payer, the amount of county tax erroneously collected.
                                       4.
                    Your fourth question Is:
                            “In the situation where real property
                       is actually located In Harris County, but
                       taxes thereon have,been assessed and paid
                       in the adjoining county, can the Harris
                       County Tax Assessor back assess said real
                       property, for State tax purposes?”
            Our answer is “No”.
                    Since the land has been assessed for State taxes and
            those taxes paid, the land may not again be assessed for State
            taxes. The authorities considered and cited In answer to your
            first question (supra) support this proposition.
                                  SUMMARY
                                        1.
                            Real property upon which ad valorem
                       taxes have been duly assessed and paid may
                       not be back assessed even though the land
                       was under-valued for tax purposes.
                                        2.
                            The penalty and interest prescribed
                       In Articles 7347 and 7348 against lands
                       which are back assessed pursuant to Art-
                       icle 7207 and 7346 is mandatory.

                                        3.
                            Real property    located in Harris County
                       which has not been    assessed.
                                             .  _ _ for county
                                                            _ - taxes
                       by tnat county may    ae oack assesses for such
                       taxes.




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               Honorable Joe Resweber, Page 5 (c-781)


                                             4.
                                 Real property actually located In Harris
                            County, but heretofore thought to be in an
                            adjoining county and upon which State taxes
                            have been paid, may not be back assessed by
                            Harris County for State taxes.
                                                   Your8 very truly,
                                                   WAGGONER CARR
                                                   Attorney General of Texas



                                                   BYW.lo.8.~
                                                         E. Allen
                                                       Assistant
               WEA:ck
               APPROVED
               OPINION COMMIm:
               W. V. Geppert, Chairman
               James Evans
               Gordon Cass
               John Banks
               Roaer Tyler
               API;ROti FOR THE ATTORNEY GENERAL
               BY: T. B. Wright




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