         THE     ATTORNEY                 GENERAL
                        OF     TEXAS
                     Am4TIN.   TlEXaR    78711
                     December 17, 1968



Mr. Joe Resweber, County Attorney         Opinion No. M-321’
Harris County Courthouse
Houston, Texas 77002                      Re:    Effect of payment of
                                                 ad valorem taxes on
                                                 land to one of two
                                                 adjoining counties
                                                 when the boundary
                                                 line between them Is
                                                 not fixed on the
Dear Mr. Resweber:                               ground.
     You ask our opinion in answer to two questions:
           1. Can Harris County assess and collect delinquent
county ad valorem taxes on a tract of land under the facts
Immediately hereinafter recited?
           2. If Harris County cannot assess and collect such
taxes then what procedure should it take in canceling the tax
assessment8 it has made?
      It appears that location of the county line on the
ground between Harris and Montgomery counties in the area
where the land is located, as between the two counties, was
in good faith disagreement. Apparently the boundary line was
not definitely fixed on the ground with substantial markings
as required by the law for the recognized establishment of a
county boundary line. The land in question was carried on
the tax rolls of both counties for the period 1945 through
1965, and the ad valorem taxes for these years were paid to
Montgomery County. A subsequent re-survey of the county line
in this area and agreement be,tweenthe two counties has fixed
the line on the ground so that the land now lies in Harris
County.




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Mr. Joe Resweber, County Attorney, Page 2      (M-321)

                  ANSWER TO FIRST QUESTION
      Our opinion is that Harris County can not assess or
collect ad valorem taxes on this land for these years in the
event such taxes were validly assessed and collected by
Montgomery County, By the term "validly assessed and
collected' we mean, except for the boundary issue under
consideration, that the taxes were otherwise validly assessed
and collected by Montgomery County according to law.
      We believe the law is settled to the effect that there
must be a substantial marking upon the ground as provided by
statute in order to establish a county boundary line. In
Travis County v. Williamson County, 4 S.W.2d 610, 613 (Tex.
Civ.App. 1928 error diem. w.o.j., at 15 S.W.2d 577 Comm.App.),
the Court said:
            11     Nothing short of a substantial
      marking upon the ground as provided by a
      statute will suffice to establish a county
      boundary line. , . , Those field notes
      and surveys do not show that the line was
      actually marked and identified on the ground.
      The proof Is to the contrary, There is no
      showing whatever that survey lines were
      marked at the point where the county line wa5
      supposed to have crossed them 80 that land-
      owners might know their rights. And the mere
      formal adoption or approval by the commissioners8
      courts of the surveyor's reports and field notes
      will not suffice, because another survey in
      accordance  with the field notes so approved Is
      neoessary to actually mark ar;tdestablish the
      line upon the ground. . . .     (P. 613).
      Of course this line, as further stated by the Court In
its opinion, must be actually recognized by both counties
(P. 613). Field notes and plats, even though agreed to by
the counties whose boundary lines are in question, are not
sufficient to definitely fix those boundaries.
v. Caines County 139 Tex. 442 163 S W 2d 393 (:w
County V. Brews&   Counx, 25O'S.W. 3iO'(Tex.Civ.APp. lm,
error dism. w.0.j.)




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Mr. Joe Resweber, County Attorney, Page 3        (M- 321)

      Articles 7154 and 7338, Vernon's Civil Statutes,
;g~;;; the answer to your first question. They read as
       :
           Article 7154:
                "Lands lying on county boundaries,
           which have not been accurately and legally
           surveyed, determined or fixed, shall not
           be assessed or taxed In more than one county." 0)
           Article 7338:
                "Real estate which may have been
           rendered for taxes and paid under erroneous
           description given in a8sSSSment rolb, or
           lands that may have been duly assessed and
           taxes paid on one assessment, or lands which
           may have been assessed and taxes paid thereon
           ‘ina county other than the one in which they
           are located, or lands which may have been sold
              th State and upon which taxes have been
           pzid kd through error not credited in the
           assessment rolls, shall not be deemed subject
           to the provisions of this chapter. When calred
           upon, the Land Commlssloner shall furnish the
           county judge of any county compiling its own
           delinquent tax record with such Information as
           may enable him to determine the validity or


           (1) This Article was enacted in 1879 (Acts 16th
           Leg., R.S., 1879, p. 153, ch. CXLI, Qammels Laws
           of Texas, Vol. 8, 14th Leg., 1874-79) In the
           same identical wording and has been carried for-
           ward in each codification without any change in
           language.
                We add     as a comment that Article 71.56, not
           controlling     In our opinion, but possibly relevant
           to show the     general policy of the k?giSlatUre,
           was enacted     as Section 2 of this same Act.




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Mr. Joe Resweber, County Attorney, Page 4          (M-321)

                looality of such surveys and granta as
                have not been shown by the print
                abstracts of the Land Office.” PSI
            .   (Bmphasls added).

       The only questi,on remaining 1s whether these Articles
are constitutional within the provisions   of Article VIII,
Section 11 of our State Constitution   whfah reads:


      and the taxes pa%3 1 the countj where sltuate(i,
      but the Leglslatwe  i&y  By a two-thlrrls   vote,
      authorize the payment oi taxes of non-reiildents
      of counties to be made at the oiiioe    of the
      Cckptroller of Public Adoounts. And all lands
      and other property not Fendered for taxation      by
      the owner thereof shall be assesaed at Its fair
      value by the proper officer.” (Emphasis added).
       Article 7154 wae enacted in 1879, within three      ars
after the adOptiOn of our present Constitution in 187 i? and
has been on our statutes    unaltered, for 89 years.  Article 7338,
enacted in 1895, has been on OUF statutes,    unaltered, for 73
year&.     Further, Article 7154 was re-enacted in the codlfioatlon
of our civil    statutes In 1895, and both of said AzMcles   were.
again re-enacted in the oodlfloatlons of 1911 and 1925. Thus
we see that our Legislature has construed Article    VIII, Section 11,
of our Constitution several times and has exercised Its power to
designate where lands lying on oounty boundaries which have not
been accurately and legally surveyed, determined or fixed, shall
be situated within the purview of Article VIII, Section 11. This
exercise of Legislative authority is entitled to great weight,
and we cannot hold It without constitutional warrant unless it
Is plainly    so beyond a reasonable doubt.  oreat Southern Life
Ins. Co. v. City of Austin, 112 Tex. 1, 243 S.W. -2).


                (2) this Article was first enacted in 1895,
                Acts 24th Leg., KS., p. 50, oh. 421 sec. 12,
                the Act entitled “Delinquent Taxes.




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Mr. Joe Resweber, County Attorney, Page 5       (M-321)

With further reference to this constitutional provision that
taxes shall be paid in the county where property is situated,
the Court further sa‘idIn tne Great Soutnern case:
           "Even as to lands and live stock, the
      Legislature and courts of the state have not
      always given this constitutional provision a
      literal construotlon or application. Revised
      Statutes, art. 511 and 7513 (originally
      enacted in 18791 ; article 7512, passed In
      1889; Court v. O'Connr, 65 Tex.,334; Nolan v.
      San Antonio Ranch Co., 81 Tex. 315, 317,
      16 S.W. 1064; Cammack v. Matador Land &
      yt$";" C&j.30(Tgx.Civ.A~~. 421, 70 S.W. 454."

      We are convinced that the Legislature has acted within
its constitutional limitations and within the limitation In
Article VIII Section 11 under consideration, in enacting
Articles 7154 and 7338.
      While we do not find any case which directly passes on
the constitutionality of either Article 7154 or 7338 relative
to land and under an analagous fact situation to the one
under consideration, we do find several cases which have
expressly held that statutes providing for the payment of
taxes on personal property in a county other than the one
where the property was actually and physically situated were
constitutional within the terms of Article VIII, Section 11.
See C&eat Southern Life Ins. Co. case, last cited; also
Nolan v. San Antonio Ranch Co., 81 Tex. 315, 16 S.W. 1064
           1 & Jahns v. Lofton, 165 S.W. 67 (Tex.Civ.App. 1914
no writ); and Cm                 71 Tex. 678, 10 S.W. 336 (1888).
See also Attorney Oeneral's Opinion No. O-860 (1939).
      In view of the foregoing authorities and In the absence
of anything presented to show any invalidity, we are required


           (3)  The article numbers cited are those of
           the 1911 codification. The current codification,
           the Revised Civil Statutes of 1925, carries
           these articles as followsr 7511 now 7154,
           7513 now 7156 and 7512 now 7155.


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Mr. Joe Resweber, County Attorney, Page 6      (M-321)

to Indulge every reasonable lntendment and presumption in
favor of the constitutionality and validity of the statutes.
‘8 Tex.Jur.26 277 - 278 Statutes, Sectlon 184.
                ANSWERTo SECOND QUESTION

      In the event the Oommlssloners Court of Harris County
determines that the taxes paid to Xontgomery County were
“validly assessed and collected”, as stated at the outset of
our Answer to First Question, then we answer your seoond
question as follows.
      The Commissioners Court may proceed pursuant to
Articles 7346 and 7347, Vernon’s Civil Statutes, and find
that the previous assessments on the real property for the
years under consideration are Invalid and enter its order
canceling and removing such assessments from Its tax rolls.
The pertinent provisions of these Articles read as followst
           Article 7346:
                Whenever any oommlssioners court shall
           discover through notice from the tax collector
           or otherwise that any real property has been
           omitted from the tax rolls for any year or
           years since 1884, or shall rind that any
           previous assessments on any real property for
           the years mentioned are invalid, or have been
           declared invalld for any reason by any distriot
           aourt in a suit to enforoe the oollection of
           taxes on said properties, they may, at any
           meeting of the court, order a list of suoh
           properties to be made in trlpllaatc and fix
           a compensation therefor; the said list to
           show a complete description of such proper-
           ties and for what years suah properties were
           omitted from the tax rolls, or for what years
           the assessments are found to be invalid and
           should be canceled and re-assessed or to
           have been declared Invalid and thereby canceled
           by any district court in a suit to enforce the
           collection of taxes. . . .”




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            Mr. Joe Resweber, County Attorney, Page 7          (n- 321)


                       Article   7347:

                             “When said list has been so made up
                       the aommlssioners oourt may, at any meeting,
                       order a cancellation of suoh properties in
                       said list that are shown to have been
                       previously  assessed, but whlah assessments
                       are found to be Invalid and have not been
                       canceled by any former order of the
                       commlssloners court, or bx decree of
                       any district court; . . .
                  We belleve that these Artloles constitute statutory
            authority for the Commissioners Court to aat in this respeat.
            We agree with the holdln s In prior Attorney Oeneral’s
            Opinions Nos. O-7251 (19&6), 0-6257 (1944) and V-973 (1949)
            In support of this authority. Also, Raley y. Bitter,
            170 S.W. 857 (Tex.Clv.App. 1914, error rer.).


                                    SUMMARY

                       When the aounty line between adjoln-
                  lng counties is not marked upon the ground
                  as required by law and agreed,to by both
                  counties and both counties assessed land
                  on the basis of Its being situated In their
                  county, the payment of such taxes to either
                  of the counties absolves the taxpayer from
                  payment of the taxes assessed by the other
                  county. This holding Is predicated on the
                  assumption that the taxes paid were validly
                  assesaed and aolleated by the county to
                  whom they were paid when considered apart
                  from the question of looatlon on the ground
                  of the county boundary line. Articles 7154
                  and 7338, Vernon’s Civil Statutes.
                       Under the facts   just stated, the
                  county whloh did not   reaelve payment of
                  the taxes may cancel   its assessments and
                  remove them from Its   tax rolls under




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          Mr. Joe Resweber, County Attorney, Page 8         (M-321)

                authority of Articles 7346 and 7347,   Vernon’s
                Civil   Statutes.

                                                        s very truly,

                                                                               .
                                                                  eneral of Texas

          Prepared by Bill Allen
          Assistant Attorney General
          APPROVED:
          OPINION COMMITTEE
          Kerns B. Taylor, Ohairman
          Harold Kennedy
          Alfred Walker
          Houghton Bromlee
          W. 0. Shultz
          IiAWmomqE PHILUPS
          Staff Legal Assistant




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