            TB~EATTORMSY                GENERAL
                        OF   TEXAS




Honorable R. L. Lattlmore    Opinion No. C-757
Criminal District Attorney
Edlnburg, Texas              Re:   Jurisdiction of suits
                                   for delinquent personal
                                   property taxes, plus
                                   interest and penalties,
                                   where the total amount
                                   sued for is over $200
Dear Sir:                          but lesa than $500.
     You have requested the opinion of this office in regard
to the proper jurisdiction of suit8 for delinquent personal
property taxes plus penalties ard interest where the total
amount In controversy la over $200 but less than $500, exclu-
sive of interest and costs.
     We quote from your letter, requesting the opinion, as
follows:
          "A aerloua question has arisen concerning
     the collection of Delinquent Personal Property
     Taxes for Hldalgo County as to whether the
     District Court or County Court has jurisdiction
     when the amount of taxes Involved, Including
     penalty and Interest, 1s over $200.00 but less
     than $500.00. The question can further be broken
     down with regard to the following three situations:
     One: If suit Is original1 filed by the State
     (For State or County TaxesT? Two: If suit IS
     originally filed by a City or Independent School
     District? Three: If suit is originally filed
     by a City or Independent School Dlstrlct and the
     State should Intervene In such suit?"
                       Situation One.
     Since 1876 the Constitution of the State of Texas has
provided that the District Court shall have original juria-
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Hon. R. L. Lattimore, Page 2 (C-757)


diction in all suit8 in behalf of the State to recover
penalties.
     Section 8, Article V, of the Conatltutlon of Texaa,
reada, in part, as follows:
          "The District Court ahall have original
     jurisdiction . . . in all suits in behalf of
     the State to recover penalties. . . ."
     (Emphasis aupplled)
Article 1906, Vernon's Civil Statutes, also confers orlg-
inal jurisdiction upon the District Court In such cases,
providing that:
          "The dlatrict court shall have original
     jurisdiction in civil cases of:
          1. Suits in behalf of the State to
     recover ~;;;en:;;,s~;;f;;;~s and escheats.
     . . .11
     Section 16, Article V, of the Constitution states
in part:
          "The County Court . . . shall have exclu-
     sive Jurisdiction In all civil case8 vhen the
     matter in controversy shall exceed in value
     $200, and not exceed $500, exclusive of inter-
     eat . . .'
     Article 1949, Vernon's Civil Statutes, confers exclu-
sive orlginal jurisdiction in such cases in the County
Court.
     We have been unable to find a case directly in point
with regard to ad valorem taxes, but the case of State v.
Kfnnham, 361 S.W.2d 191 (Tex.Sup. 1962) Involving a suit
for delinquent unemployment compensation contributions
and penalties arising by virtue of failure to pay the
taxes on time, held that jurisdiction of the suit by the
State for the penalties was conferred upon the District
Court. In that case the Court stated the question and
decided it aa follows: (Beginning at page 192)



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Hon. R. L. Lattlmore, Page 3 (C-757)


          “Aa the case la before us, the ~control-
     ling question la whether this suit Is for a
     ‘penaltyI a8 uaed In Art. V, Sec. 8, State
     Conatitutlon, Vernon’s Annotated Statutes,
     ao aa to confer jurladictlon on the Diatrlct
     Court to try this cause, or whether thia la
     a suit for a debt consisting of taxes 8nd aa
     a part thereof penalties, governed by Article
     V, Section 16, which gives exclusive juris-
     diction to the Courty Court In all civil
     case8 where the matter in oontroveray shall
     exceed $200 and not exceed $90 exclusive of
     Interest. . . .‘I
          “The reasoning in the case of Jonea v.
     Wllllama (1931) 121 Tex. 94, 45 S.W.2d 130,
     79 A.L.R. 983, settles the question before
     us. After a lengthy and thorough diacusalon,
     that case holds that the interest and the
     penalty exaction8 added to delinquent taxes
     by the various conatitutlonal and atatutory
     provisions are ‘penalty’ rather than lnter-
     eat eo nominee. The Court says:
               ‘The lmposltlon of penalties
         la the means provided to prevent
         tax delinquencies, and since the
         word imPlie some form of Duniah-
         ment , It Is obvloua all leglala-
         tlon competent under the constitu-
         tion must be of that nature. . . . I
         @mphaala theirs)
                 The case of Jonea v. Williama,
     supra,‘d;cides that the &nalty and interest
     added to delinquent taxes la not an Incident
     of the taxes, but Is a separate and distinct
     Item provided by the Leglalature aa a punlsh-
     ment for failure to pay taxea prior to delln-
     quency, and therefore, a ‘penalty’ within
     the meaning of the Constitution. . . .‘I
     It has been consistently held by this office that both
the State and County ad valorem taxes upon any single sep-
arately assessed Item of property must be paid at the aame


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Hon. R. .L. Lattimore, Page 4 (C-757)


time in order to obtain a dlacount under Article 7255b,
Vernon18 Civil Statutea. Attorney Oeneral’a    lnlon Nos.
o-1262, o-6124, o-1187, o-6397, v-734 and C-33
                                             3 . It IS
therefore inconceivable that a suit would be filed for
state taxes and not for county taxes or vice versa. It
might also be noted that Article 7332, Vernon’s Civil
Statutes, provides that the Diatrlct or County Attorney
shall represent the State and County in all aulta against
delinquent taxpayera.
     It ia therefore, our opinion that aults for the
collection of delinquent personal property taxes owing
to either the State or County must Include the tax owing
to the other and will invariably Include penalties and
Interest, and thus be suits in behalf of the State for
penalties aa defined by the Kingham case. We hold that
exclusive jurladlctlon for such suits is conferred upon
the District Court.
                        Situation Two.
     In considering where jurladlction is conferred In
suits brought by cities and independent school districts
for personal property taxes, where the amount In contro-
versy la between $200 and $500, we turn again to Article
V, Section 16, of the Texas Constitution, which directs
all such suits are to be brought in the County Court.
Article 1949, confers exclusive original Jurisdiction
upon the County Court for these suits.
     An exception to the law as expressed by the preceding
statute exists when the value of the property against which
the lien la asaerted exceeds $500. When the value of the
property exceed8 $500, the District.Court has concurrent
jurladlctlbn with the County Court except in cases where
the value of the property exceeds $1,000, in which case
.the.DlatrSqt .Court haa.exclusive jurlsdlctlon.
      ; .;.
          ‘.,    a.   Amount in Controversy
   ~’ Considering the problem of amount in controversy, the
Court in Billingaley v. City of Fort Worth, 278 S.W.2d 869
(Tex.Clv.App.1955, error ref.n.r.e.) held, in a suit by a
city and school district for delinquent taxes assessed
agalnat personal property of the defendant, that:



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Hon. R. L. Lattlmore, Page 5 (C-757)


          II
            . .  . the enaltles on delinquent taxes
     ,$ty and school  _p must be conaldered aa In
     the nature of damage8 and a8 such are to be
     conaldT,redas part of the amount In contro-
     veray .    (Bracketed lnaert supplied)
     It would aeem that this holding alao aupports the pro-
position that a suit by a city or Independent school district
for taxes and penaltlea la not a suit in behalf of the State
and thus not subject to the rule as later laid down by the
Klngham case, aupra, and that proper jurisdiction for such
Suits la conferred upon the County Court.
                   b.   Existence of Lien
     Article 1060, Vernon’s Civil Statutea, provides a lien
against personal property in behalf of cities, stating In
part, . . . All taxes shall be a lien upon the property
upon which they are asseased. . .”
     Article 106Ca, Vernon’s Civil Statute8 amended In 1963,
oonfers upon all school districts the benefit of all liens and
remedies for the security and collection of their taxes which
are granted incorporated cities and towns. Therefore, the
provisions of Article 1060 are likewise applicable In favor
of school districts. Article lC6Ca provide8 aa follows:
          “(a) All of the provisions of Title 122A,
     of the Revised Civil Statutes of Texas of 1925,
     be, and the same are made available Insofar as
     same may be applicable and necessary to all
     school districts and municipal corporations
     organized under any general or special law of
     this State and which have power and authority
     to levy and collect their own taxes, and that
     each of such school dlatricts and such munic-
     ipal corporations shall have the benefit of
     all liens and remedies for the security and
     collection of taxes due them as is provided
     in said Title In the case of taxes due the
     State and County, and as otherwise provided
     by the General Laws of this State in the case
     of taxes due Incorporated cities and towns.”
     {Emphasis supplied)




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Hon. R. L. Lattlmore,    Page 6 (C-757)


                    c.   Value of Property
     Concurrent jurisdiction is conferred upon the District
Court and the County Court if the value of the propert
against which the taxes sued for are assessed exceeds i 500
but does not exceed $1,000 and the taxing authority Is
provided with a lien against such property. The case of
Texas & N.O.R. Co. v. Rucker, 88 S.W. 815 (Tex.Clv.App.
1905, released after being affirmed on certified question,
99 Tex.125, a7 s.w. ala)states as foilows:
          “It Is a well-settled general rule of
     decision in this state that In a suit to
     enforce a lien upon personal property the
     value of the property upon which the lien
     Is asserted, and not the amount of the debt
     claimed, determines the Jurlsdlctlon of the
     court. Marshall v. Taylor, 7 Tex. 235; Smith
     v. Qlles, 65 Tex. 341; Cotulla v. Goggan, 77
     Tex. 32, 13 S.W. 742; Real Estate Co. v. Bahn,
     87 Tex. 583, 29 S.W. 646, 30 S.W. 430; Lane
     v. Howard, 22 Tex. 7."

A suit for collection of delinquent taxes is in the nature
of an action for debt. City of Henrietta v. Eustis, 87
Tex. 14, 26 S.W. 619 (1894)
      The statutory lien of cities, granted by Article 1060,
and of school districts, granted by Article 106Ca, Is upon
the whole of the property taxed and all of such property
is subject to sale for the taxes. Such being the character
of the lien,sought to be enforced, the value of the property
upon which the lien Is asserted must be considered In deter-
mining the jurisdiction of the court. Texas & N.O.R. Co. v.
Rucker, supra. Compare Southwestern Drug Corp. v. Webster,
mW.2d       241 (Tex.Clv.App.1951). The rule Is well stated
in 15 Tex.Jur.2d 523 Courts, Sec. 83, as follows:
           “In actions to foreclose liens on per-
      sonal property the amount sued for as well as
     t.he value of the property on which foreclosure
      is sought are both considered in determining
     the amount In controversy; the greater amount
     determining the jurisdiction. . . .‘I




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 Hon. R. L. Lattimore,   Page 7 (C-757)


      Although we find no oaae directly In point wherein
 thla proposition haa been applied to delinquent tax aults
 for personal property taxes, we believe that the follow-
 ing statement from the case of Ball v. Beaty, 223 S.W.
 552 (Tex.Civ.App.1920) wherein the court refers to the
 Texas & N.O.R. co. v. Rucker caee, aupra, la a correct
 statement of the law. The court aald, at page 556:
           “It may be considered aa establiahed
      by the decision in the case of T & N.O.
      Railway v. Rucker, approved by the Supreme
      Court, that the rule to the effect that
      the value of the peraonal property upon
      which a lien is sought to be foreclosed,
      if in excess of the amount of the debt,
      controls in determining jurisdiction Is
      not limited to contract liena, but applies
      to co;mon-law liens, and atatutory lines.
      . . .   (Emphasis supplied)
                         Situation Three.
       In responae to your last question, no problem is
  presented if the suit has been filed In the Matrlct Court
  by a city or independent school district and jurisdiction
. is conferred upon the District Court. Certainly the State
  and County could Intervene in such suit for the purpose of
  collecting taxes and penalties due to them so long as the
  rules regarding interventions are followed.
      However, where jurisdiction Is not conferred upon the
 District Court, i.e. the amount in controversy being less
 than $500 and the value of the property against which the
 taxes are assessed being less than $500, under the holding
 of the Kingham case, supra, it is clear that the District
 Court is the only Court that has jurisdiction In which the
 State and County may properly file suit for delinquent per-
 sonal property taxes, penalties and interest. The County
 Court does not have jurladlctlon of such suita. Therefore,
 the suit for the collection of State and County taxea should
 be filed in the District Court, where any proper lnterven-
 tlons by other taxing authorities may be accomplished under
 the applicable rules of law.




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Hon. R. L. Lattlmoret Page a (C-757)


                      SUMMARY
          Jurisdiction for all suits in behalf of
     the State and County for penalties, regardless
     of amount Is conferred exclusively upon the
     District Court.
          Jurisdiction for cases filed by cities or
     independent school districts seeking recovery
     in an amount between $200 and $500 is conferred
     exclusively upon the County Court unless the
     property against which the taxes are assessed
     is of a value of more than $500, in which
     lnatance the District Court ha8 concurrent
     jurisdiction so long as ruch value does not
     exceed $1,000.
          The State and County may not intervene
     in suits In County Court for collection of
     State and County taxes where penaltles are
     Involved, such action being a suit In behalf
     of the State, jurladlctlon for which is con-
     ferred exclusively upon the Dlatrlct Court.
                           Very truly yours,
                            WAGGONER CARR




JFP:ck
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Alan H. Minter
Marietta McGregor Payne
Malcolm L. Quick
Brandon Blckett
APPROVED FORTHEATTORNEY   GENERAL
BY: T. B. Wright

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