. -
Mr. Sam Ii. Smith Opinion NO. JM-1025
Executive Director
Board of Tax Professional Re: Whether a taxing unit may
Examiners contract with a private firm
P. 0. BOX 15920 to perform all tax assessment
Austin, Texas 78761-5920 and collection functions
(RQ-1500)
Dear Mr. Smith:
On behalf of the Board of Tax Professional Examiners
you inquire about the authority of a taxing unit to contract
with a private firm for performance of all its property tax
assessment and collection functions, including collection of
current as well as delinquent property taxes. Your specific
question is as follows:
Is it legal under the State Constitution and
State law for a taxing unit not to employ a
tax assessor/collector or collector, or to
employ one who bears that title but does not
exercise position responsibilities enumerated
in the Tax Code, and, instead, contract with
a private firm for performance of all func-
tions related to the assessment and collec-
tion of property taxes, or related to the
collection of both current and delinquent
property taxes?
Your question involves the construction of certain
provisions of the Property Tax Code, which was enacted in
1979 as Title 1 of the Tax Code. &= Acts 1979, 66th Leg.,
ch. 841, at 2217. As you state in your request letter,
section 6.30(c) of the Property Tax Code provides that the
"governing body of a taxing unit may contract with any
competent attorney to represent the unit to enforce the
collection of delinquent taxes." This statute authorizes
taxing units to contract for delinquent tax collections,
assuming compliance with the statute. We will therefore not
specifically discuss contracts authorized by section
6.30(c). Since your major concern appears to be the absence
p. 5285
Mr. Sam H. Smith - Page 2 (JM-1025)
of provisions authorizing a taxing unit to delegate the
assessment of taxes and the collection of current taxes to a
private firs, we will not specifically discuss delinquent
tax collections. Attorney General Opinion
JM-1015 (1989). - a general question without
reference to a~ specific contract. Our response will
necessarily also be generalized and will not address or
approve any specific contract or contract provision.
A Yzaxing unit" subject to the property tax provisions
of the Tax Code is defined to mean
a county, an incorporated city or town (in-
cluding a home-rule city), a school district,
a special district or authority . . . or any
other political unit of this state . . . that
is authorized to impose and is imposing ad
valorem taxes on property even if the
governing body of another political unit de-
termines the tax rate for the unit or other-
wise governs its affairs.
Tax Code 5 1.04(12). The Tax Code also provides the follow-
ing definitions of llassessorll and %ollector*:
(14) \Assessor' means the officer or em-
ployee responsible for assessing property
taxes as provided by Chapter 26 of this code
for a taxing unit by whatever title he is
designated.
(15) 'Collector' means the officer or
employee responsible for collecting property
taxes for a taxing unit by whatever title he
is designated.
L 5 1.04(14), (15). Collection duties are set out in
chapter 31 of the Tax Code.
As can be seen from the definition of taxing unit
quoted above, several kinds of political subdivisions are
taxing units. Tax Code provisions establish who will serve
as tax assessor-collector for each category of political
subdivision. The assessor-collector for a county is deter-
mined as provided by article VIII, sections 14, 16, and 16a,
of the Texas Constitution. Tax Code g 6.21. The assessor
and collector for a home-rule city is determined by the
city's charter and ordinances. L 5 6.22(b). The assessor
and collector for a taxing unit other than a county or a
p. 5286
Mr. Sam II. Smith - Page 3 (JM-1025)
home-rule city is determined by the law creating the unit.
&& f 6.22(a).
Since you have not stated which taxing units you are
concerned about, we will discuss counties, independent
school districts, and home-rule cities. These are three
important classes of taxing units and the legal provisions
which determine the tax assessor-collector for each one are
different enough to merit separate discussion. Our discus-
sion of these three taxing units will also assist you in
answering your question in relation to other taxing units.
We will first address your question in terms of the county
tax assessor-collector, who holds a constitutional office.
Article VIII, section 14, of the Texas Constitution
provides in part:
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 . . . .
Article VIII, section 16, of the constitution excepts
counties of under 10,000 inhabitants from article VIII,
section 14, providing that the county sheriff shall be the
assessor and collector of taxes. Article VIII, section 16a,
establishes a procedure whereby the voters in such counties
may decide to have an elected assessor-collector of taxes.
The county tax assessor-collector is a public officer.
Wilson v. Galveston Countv Central Appraisal Dist., 713
S.W.2d 98 (Tex. 1986); Green v. Ste art 516 S.W.2d 133
(Tex. 1974); see. e.a,, Attorney GenIral' Opinions H-1120
(1978); M-986 (1971). He holds office for four years,
subject to removal for cause under constitutionally
authorized procedures. Tex. Const. art. V, 5 24; Local
Gov't Code § 87.012(11). To qualify for office, he must
give bonds to the state and county, conditioned on the
faithful performance of his duties. Tax Code 5 6.28(a). He
is otherwise accountable for his performance in office to
the voters, and not to the commissioners court.
The commissioners court may not take action which in
effect abolishes the constitutional office of the county tax
assessor-collector. A constitutional office may not be
abolished without constitutional authorization. W ncrief
Gurlev, 609 S.W.Zd 863 (Tex. Civ. App. - Fort WoEth 198:;
writ ref'd n.r.e.); Cowell v. Avers, 220 S.W. 764 (Tex.
p. 5287
Mr. Sam H. Smith - Page 4 (JM-1025)
1920): Attorney General Opinion NW-59 (1979). See aenerallv
Tex. Const. art. XVI, S 44(e) (office of county surveyor may
be abolished in certain counties and commissioners court
may employ or contract with a qualified person to perform
surveyor's functions). Nor may the commissioners court
replace the county tax assessor-collector by contracting
with a private firm. $&.G Citv of CorpHg&hChristi v. Nireur
214 S.W. 528 (Tex. Civ. App. - San Antonio 1919, writ ref'dj
(dicta stating that a corporation could not be appointed to
and exercise the powers of an office); Attorney General
Opinion H-946 (1977) (county hospital required by statute to
appoint a UsuperintendentO' may not employ management firm as
superintendent): Letter Advisory No. 120 (1977) (hospital
may not appoint husband and wife team as superintendent).
The commissioners court, moreover, may not remove all
functions related to the assessment of property taxes and
the collection of current taxes from the tax assessor-
collector and leave him with only his title. Chapter 151 of
the Local Government Code provides for the employment of
persons to assist county officers in performing their
duties. A county officer who requires the services of
deputies, assistants, or clerks in the performance of
his duties "shall apply to the commissioners court" for
authority to appoint the employees. Local Gov't Code
5 151.001(a). The commissioners court by order shall
determine the number of employees that may be appointed and
authorize their appointment, and the officer applying for
the employees may thereafter appoint them. & f§ 151.002,
151.003. Section 151.004 of the Local Government Code
provides that:
The commissioners court or a member of the
court may not attempt to influence the
appointment of any person to an employee
position authorized by the court under this
subchapter.
See also Local Gov*t Code S 151.901 (commissioners court may
enter an order to employ and compensate secretarial
personnel for district, county, or precinct officer).
In counties in which a civil service system has been
established under chapter 158 of the Local Government Code,
the head of each department may assume responsibility for
selecting the persons who are employees of that department.
Local Gov't Code 5 158.010. m Local GovRt Code g 158.001
("departmentqO defined to include county officer that
has jurisdiction and control of performance of employees'
P. 5288
Nr. Sam H. Smith - Page 5 (JM-1025)
official duties). --Green EaEza,
(discussing application of civil service provisions to
county tax assessor-collector*s employees). Thus, authority
to choose the employees who assist the county tax assessor-
collector in performing his duties is vested in that
officer, and not in the commissioners court.
The commissioners court may not usurp the county tax
assessor-collector's duties by attempting to assign them to
persons under its control. The Texas Supreme Court, in
considering whether the commissioners court could contract
with a private evaluation expert to appraise all property in
the county, decided that the court could retain expert
advice to assist it in carrying out its own responsibilities
when meeting as the board of equalization. Pritchard &
Abbott v. McKenna 350 S.W.2d 333 (Tex. 1961). m Tex.
Const. art. VIII,'5 18 (1876, amended 1980). In determining
that the commissioners court had not usurped the powers of
the tax assessor-collector, the court, however, stated as
follows:
We quite agree that the County Commissioners
Court is not charged with the management
and control of all of the County's business
affairs. Epch of the various elected
officials. includina the Assessor-Collector.
. .
law and wlth?n which the Commissioner
ou* mav not interfere or ERROR . (Emphasii
added.)
350 S.W.2d at 335 (dicta).
Chapters 26 and 31 of the Tax Code set out the statu-
tory duties of the tax assessor-collector. The com-
missioners court has no authority to delegate the tax
aassessor-collector's powers and duties to another person or
to a private firm, by contract or otherwise. &,G Cameron
Countv Ri era Docket No. 13-87-449~CV, Tex. App. -
Corpus Zrist:, tiov. 23, 1988 (unreported) (commissioners
court interfered with county clerk's exclusive statutory
duty to record its proceedings by appointing another person
to this duty). See also Attorney General Opinions JN-911
(1988) at 17 (legislature may not delegate "core functionsl'
of county treasurer's office to other officers): JN-833
(1987) (limits on legislative power to divest the county
tax asessor-collector of duties respecting the assess-
ment and collection of county taxes). But see Attorney
General Opinion H-80 (1973) (questioning whether county tax
p. 5289
Mr. Sam H. Smith - Page 6 (JM-1025)
assessor-collector had implied authority to contract inde-
pendently with individuals or private appraisal firms for
assistance).
We next consider the Education Code provisions which
provide for the assessment and collection of taxes for an
independent school district. Chapter 23, subchapter F, of
the Education Code sets out the procedures whereby the board
of trustees of an independent school district is to choose a
tax assessor-collector. Section 23.93 of the Education Code
states as follows:
(a) The board of trustees of any indepen-
dent school district mav aoooint an ass ssor
collector of taxes for the district.e &
tment shall be for a term not to exceed
three (3) vears as determined by the board.
(b) - (d) [repealed]
(e) The assessor-collector for such
.service shall receive such compensation as
the board of trustees may allow, not to
exceed four percent of the total amount of
taxes received pv hb. (Emphasis added.)
Educ. Code J 23.93.
Other provisions of subchapter F authorize the board of
trustees to have taxes collected by the county tax collector
or the tax collector of a city wholly or partly within the
limits of the school district, and, in the case of an
independent school district located within the boundaries of
an incorporated city, to permit the city tax assessor and
tax collector to act as its tax assessor and tax collector.
Educ. Code 55 23.95: 23.96. See also Educ. Code 5 23.97
(school districts may cooperate to appoint same person as
assessor-collector for all the districts).
In some taxing units, the tax assessor-collector will
be an officer, while in others he will be an employee. See
Tax Code 5 1.04(14), (15); Attorney General Opinion JW-499
(1986) (tax assessor-collector of school district and water
control and improvement district is an employee and not a
civil officer of emolument within article XVI, section 40,
of the Texas Constitution). The school tax assessor-
collector is "an agent or employee of the Board to discharge
the clerical duties necessary to carry out the school
Board's powers of taxation." wne Index. School Dist. v,
p. 5290
Mr. Sam H. Smith - Page 7 (JM-1025)
.
Standley, 280 S.W.Zd 578, 583 (Tex. 1955). Subchapter F of
the Education Code contemplates that the school district
tax assessor-collector will be a natural person accountable
to the board as an employee, and not a private firm
under contract with the board. Section 23.93(a) of the
Education Code authorizes the appointment of a tax assessor-
collector. "Appointmentw is defined as the "designation of
a person . . . to fill an office or public function and
discharge the duties of the same." Black's Law Dictionary
91 (5th ed. 1979). Section 23.93(e) refers to the assessor-
collector by the personal pronoun whim," further indicating
that a natural person is meant. Finally, section 23.97 of
the Education Code, which authorizes two or more independent
school districts to appoint the same person as assessor-
collector for all the districts, includes the following
provision:
(e) If the assessor-collector selected is
a regularly licensed attorney, the partici-
pating boards of trustees may by agreement
include in his duties~ the collecting of
delinquent taxes . . . .
Educ. Code j 23.97(e). only a natural person may be a
licensed~attorney. m Gov*t Code 55 82.004, 82.023-82.030.
The Tax Code contemplates that the tax assessor-
collector for a taxing unit, including a school district,
will be responsible in his own right for the assessment and
collection of taxes. Section 6.23 of the Tax Code provides
as follows:
(b) The assessor and collector for a
taxing unit other than a county shall assess,
collect, or assess and collect taxes, as
applicable, for the unit.
Section 6.29 imposes a bonding requirement on the tax
collector:
(a) A taxing unit, other than a county,
that has its own collector shall require him
to give bond conditioned on the faithful
performance of his duties.
These Education Code and Tax Code provisions demon-
strate that the tax assessor-collector for an independent
school district will be a natural person who will be
ultimately responsible for performing his statutory duties.
p. 5291
Mr. Sam H. Smith - Page 8 (JM-1025)
It would be contrary to these provisions for the board of
trustees to delegate to a private firm all authority and
responsibility for carrying out assessment and collection
functions, whether the board contracts with a private firm
instead of appointing a tax assessor-collector, or appoints
a tax assessor-collector while attempting to transfer his
statutory powers and duties to a private firm.
The Tax Code and Education Code provisions we have
discussed would not, however, prohibit the board of trustees
of a school district from contracting with a private firm to
provide ministerial and clerical assistance to the appointed
tax assessor-collector under his control and supervision.
Moreover, we believe that the board of trustees has implied
authority to contract for clerical and ministerial assis-
tance for its assessor-collector.
The trustees of a school district shave the exclusive
power to manage and govern the public free schools of the
district.H Educ. Code 5 23.26(b). They are empowered to
"levy and collect taxes," Educ. Code 5 23.27, and to appoint
an assessor-collector of taxes who is their agent and
employee. Educ. Code 5 23.92; w Aldine Indeoendent School
pist. v. St- E!JEKB. Implicit in this statutory
authority is the auihority to hire other people to assist in
the ministerial and clerical work of tax assessment and
collections. The courts have held that a school board may
contract with a private firm to provide this assistance.
In Crosbv v. P. L . Marauess & Co.. 226 S.W.2d 461 (Tex.
Civ. App. - Beaumont 1950, writ ref#ll n.r.e.), the court
held that the trustees of a school district had implied
authority to contract with a private company to appraise
improvements on land for tax purposes. 226 S.W.2d at 464.
It found nothing in the contract indicating an intent to
confer any powers of the tax assessor upon the company. In
Attorney General Opinion V-1054 (1950) this office, relying
on Crosby, determined that the board of trustees of a school
district had implied authority to contract with a private
company to compile and record information relating to the
appraisal and valuation of property for the district's use
in assessing and collecting ad valorem taxes. See aenerally
Attorney General Opinion V-966 (1949) (reconsidered and
overruled by Attorney General Opinion V-1054). The Texas
Supreme Court subsequently ruled that the commissioners
court had implied authority, based on its duty to act as the
county board of equalization, to contract with a private
firm to appraise all property in the county. Pritchard &
Abbott v. WcKennq, 350 S.W.2d at 334.
p. 5292
Mr. Sam H. Smith - Page 9 (JM-1025)
We note that school districts, as taxing units, have
certain specific authority to contract for assistance in tax
assessment and collections. Section 6.24 of the Tax Code
permits contracts between taxing units for the performance
of duties relating to the assessment or collection of taxes.
See also Educ. Code 5 23.96 (assessment of school district
taxes by tax assessor and collector of municipality in which
school district is located).
Although the legislature has granted school districts
some express authority to contract with other taxing units
for assistance in tax assessment or collection, it has not
necessarily banned similar contracts between a school
district and a private entity. Attorney General Opinion
v-1054 (1950), in holding that a school district had implied
authority to contract with a private company for information
on the appraisal and valuation of property, expressly
reconsidered and OVerNled an opinion holding to the
contrary. &S Attorney General Opinion V-966 (1949). The
holding of the prior opinion had been undermined by Crosby,
a. Attorney General Opinion V-1054 at 5.
At the time Attorney General Opinion V-1054 was issued,
predecessor provisions to section 6.24(a) of the Tax Code
expressly authorized interlocal contracts for tax assessment
and collection services under some circumstances. See. e .a
Acts 1945, 49th Leg., ch. 351, at 610 (formerly codified a;
V.T.C.S. art. 1066b), reDealed bv Acts 1979, 66th Leg.,No;i.
841, 5 6(a) (11, at 2329 (adopting Property Tax Code). -
theless, the board of trustees was found to have implied
authority to contract with a private entity for assistance
in tax assessment and collections, and we believe it still
has such implied contractual authority despite its express
authority to contract with other taxing units for such
assistance. A school board may therefore contract with a
private firm to provide ministerial and clerical assistance
to the school district's tax assessor-collector under his
supervision and control.
We finally consider your question with respect to the
assessment and collection of taxes by a home-rule city.
Section 6.22(b) of the Tax Code provides as follows:
The assessor and collector for a home-rule
city are determined by the city*~s charter and
ordinances.
Other provisions relevant to the tax assessor-
collector for a home-rule city demonstrate that this
P- 5293
Mr. Sam H. Smith - Page 10 (JM-1025)
position must be filled only by a natural person. Section
6.23(b) of the Tax Code provides in part:
(b) The assessor and
collector for a
shall assess,
collect, or assess and collect taxes, as
applicable, for the unit.
assess. collect. or as es8 and 5Gitkee
as applicable, for ano:her unit [undek
specific conditions]. (Emphasis'add;d.)
Tax Code 5 6.23(b).
Section 6.29 of the Tax Code provides in part:
(a) A taxing unit, other than a county,
that has its own collector
hime to aive bondconditioned s
ul serf rma of his duties. The
governin: boi?may require a new bond at any
time, and failure to give new bond within a
reasonable time after demand is a ground for
removal from office. (Emphasis added.)
Tax Code f 6.29(a). The legislature's use of personal
pronouns and its requirement of a performance bond in these
provisions show its intent that the tax assessor-collectorgs
responsibilities and duties be vested in a natural person.
Both quoted provisions apply to a "taxing unit other
than a county." A "taxing unit" for purposes of the
Property Tax Code is defined in part as nan incorporated
city or town (includina a home-rule cite)." Tax Code
5 1.04(12) (emphasis added). Thus, both provisions apply to
a home-rule city and require its tax assessor-collector to
be a natural person.
A home-Nle city may not adopt a charter provision or
an ordinance inconsistent with statute. Tex. Const. art.
XI, 5 5; s.G!~ CitY Of SWeeQ&iter v. Gerpn 380 S.W.2d 550
(Tex. 1964). The Property Tax Code "supersedes any pro-
vision of a municipal charter or ordinance relating to
property taxation." Tax Code 5 1.02. The legislature has
adopted provisions demonstrating its intent that a natural
person be accountable for the performance of the tax
assessment and collection duties set out in the Property Tax
Code. A home-Nle city may not contract with a private firm
to assume responsibility for those duties. It may, however,
p. 5294
Mr. Sam H. Smith - Page 11 (JM-1025)
contract with a private firm to provide clerical and minis-
terial assistance to the city tax assessor-collector,
subject to his authority and supervision. &.g Whit v v.
Gitv of Terrell. 278 S.W.2d 909 (Tex. Civ. App. - Wacrl955
no writ). See Tax Code S 6.29(b) (bonding requiremen;
where taxes are collected by a person other than taxing
unit's own collector).
SUMMARY
The Property Tax Code requires that a
natural person serve as tax assessor-collector
of the taxing units subject to it. Taxing
units may not delegate all responsibilities of
the tax assessor-collector to a private firm.
The commissioners court of a county may not
choose the persons who assist the county tax
assessor-collector in performing his duties.
The governing body of a school district or a
home-rule city may contract with a private
firm to provide ministerial and clerical
assistance to the tax assessor-collector under
his control and supervision.
-5IM MATTOX
Attorney General of Texas
NARYXXLLXR
First Assistant Attorney General
mu MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STRAXIHY
Special Assistant Attorney General
RICX GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 5295