L      .




                 THEAYTORNEY              GENERAL




    Honorable P. L. Marquess
    CoiintyAuditor
    Wharton.Countg
    Wharton, Texas
    Dear Sir:                Opinion No. O-2364
                             Re:




                                  15th.
                                                          ,.
            We are In receipt of your letter of May 15, 1940, in
    which you request the opinion of this department on the fol-
    lowing question contained therein:
            "Would it be possible for the Commissioners'
        Courts of the several counties to levy the cdunty
        taxes in the year 1940 at the regular term in
        August If all members were present and there had
       been held a public hearing on the county budget
        subs~equentto August 15th, yet wlthln theregular
        term, and the Commissioners' Court had 'calculated
        the rate and adjusted the taxes levied in their
        respective counties for general purposes to the
        taxable values shown by the assessment rolls.'?"
            The following Articles of the Revised Civil Statutes
    direct the manner of levy of the county tax:
               "Art. 7045:
               "The commissioners courts of the several
           counties, all the members thereof being present,
           at either a regular or special session, may at any
           time after the tax assessors of their respective
           counties have forwarded to the Comptroller the
           said certificate and prior to the tlniewhen the
           tax collector of such county shall have begun to
           make out his receipts, calculate the rate and aa-
           just the taxes levied In their respective counties
           for general purposes to the taxable values shown
           by the assessment rolls."
Honorable P. L. Marquess, page 2         O-2364


        "Art. 2354.
        "No county tax shall be levied except at a
    regular term of the court, and when all members
    of said court are present."

        The date when such regular term of the Commissioners'
Court may meet for the purpose of levying the county tax aside
from the above requirements is affected by Article 68ga-11
of Vernon's Annotated Civil Statutes, which provides 1n part
as follows:
        "The Commissioners' Court In each county shall
    each year provide for a public hearing on the
    county budget--which hearing shall take place on
    some date to be named by the Commissioners' Court
    subsequent to August 15th and prior to the levy
    of taxes by such Commissioners' Court. * * *"
    (Underscoring ours)
        You are advIsed therefore that it 1s necessary that
the public hearing on the county budget be held on some date
subsequent to August 15th and that the Commissioners' Court
may not levy the tax unt11 after such time. There Is no re-
qulrement however that the Commissioners' Court must wait un-
til September to levy the county tax.
        It is the opinion of this department that If, as you
outline In your letter, the Commissioners' Courtis in session
at a regular term of said court In August on a date subsequent
to the date on which the public hearing on the county budget
was held that the Commissioners' Court may on such date levy
the county tax.
        You call our attention to an opinion written by 9.rs.t
AssistantAttorney General Scott GaWes to Honorable Charle's
K;~Leslie, Jr., County Auditor, Hidalgo County, dated July 31,
1936. In that opinion Mr. GaMes was answering the following
questTon:
        "IF the tax levy were set prior to the
    public hearing, but at a regular term of the
    Commlssloners' Court, would said tax levy be in-
    valid? In other words, can we set the tax levy
    during the regular term of the~court, during
    the week of August lOth, whereas the public
    hearing cannot be held until after that week."
        In answer to such question Mr- Gaines stated as fol-
lows:
Honorable P. L. Marquess, page 3          O-2364


        "The terms of Article 68ga-11 preclude
    the Commissioners Court from holding the hear-
    ing on the budget prior to August 15th. It
    Is equally clear that the tax levy be made after
    such a hearing and adoption of a budget for the
    succeeding year.
        "It is true that the commissioners' court may
    not legally levy the tax until the September Term
    l   **?4 *   ’


        Mr. Gaines' answer must be construed in connection
with the question asked him. Und,erthe facts submitted to
him the budget hearing could not be held until after the reg-
ular August term of Commissioners' Court had been held and
had passed. Under those facts it was clear that the Commls-
sioners' Court could not legally levy the tax until the Sept-
ember Term. However, as stated by Mr. Gaines, the only re-
qulrement Is that the tax levy be made at a regular meeting
of the Commissioners' Court subsequent to the hearing on the
budget. Under the facts you submit, the tax levy would be
made subsequent to such public hearing on the budget and at
a regular term of the Commissioners' Court.
        It Is our opinion, therefore, that Mr. Gaines' opinion
would not be in conflict with our opinion expressed herein to
t~heeffect that the tax levy could be made at such regular
meeting in August subsequent to the public hearing on the
budget.
        We call your attention to another opinion written by
Assistant Attorney General Scott Gaines to Hon. H. L. Washburn,
County Auditor, Harris County, dated August 4, 1932. In that
oplnlon the question was asked whether or not the Commissioners'
Court had the authority to watt until September Term of court
to levy the county tax. Mr. Gaines quoted from the three
articles of the civil statutes previously quoted in this opi.nion
and then concluded as follows:
       "The levy of taxes by commissioners' courts
   should be made at such regular term of the court
   with a full membership present, after the taxable
   valuations of property have been finally fixed by
   the commissioners' court sitting as a board of
   equalization, as will allow the county tax assessor
   sufficient time in which to prepare and have ap-
   proved his tax rolls for the current year, in
   order for this official to have the tax rolls in
   the hands of the county tax collector so as not
   to delay the commencement of the collection of
Honorable P. L. Marquess, page 4         O-2364


    taxes on October 1st df each year; and it seems
    that the August regular term of
                                  ,- the commissioners'
                                         ..
    court has been uniformly adopr;eaas r;nemosr;ap-
    propriate time for this purpose. However, in the
    opinion of the writer, a valid levy for current
    takes kay be made by the commissioners' court, all
    members theredf being presentfiat the regular
    September term of said court.
        It Is the opLnion Of this department that th&conclu-
sion stated by Mr. Ga~lnesis correct and that the CommLsslon-
ers' Court may levy the county tax at a regular term 6f said
court and at a time subsequent to the holding of the public
hearing on the county budget on a date after August 15th.
This would be t??.ze
                   whether such regular term of the Commis-
sioners' Court at which the county tax was levied was either
In August or in September.
                              Very truly yours
                            ATTORNEY GENERAL OF TEXAS

                              By s/Billy Goldberg
                                   Billy Goldberg
                                        Assistant
BG:EP:wc

APPROVED JlJN12, 1940
s/Gerald C. Mann
ATTORNEYGENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
