c .
E ATTCBRNEY GENERAL
OF
December 4, 1970
Honorable Hunter B. Brush Opinion No. M-741
Criminal District Attorney
Tyler, Texas 75701 Re: Is a Commlssioners~ Court
warranted in refusing to
certify as correct the lists
of insolvent taxpayers and
delinquent lands presented
by the Tax Collector, it
appearing that a large number
of businesses listed thereon
are still In business and
have personal property plainly
displayed for sale, and
Dear Mr. Brush: related questions?
You have requested the opinion of this office on the
hereinafter set-out questions concerning the collection of
ad valorem taxes due the State and County. The factual
background as presented by you is condensed as follows:
The Tax Collector of Smith County, in response to the man-
dates of @-ticlea 7263 and 7336, section (e), Vernon's Civil
Statutes, presented to the Commissioners' Court of such
county certified lists of delinquent or insolvent taxpayers
and lands and lots and/or property on which any taxes were
delinquent for approval and certification by such court and
credit to such tax assessor on final settlement of his accounts
for the amounts therein shown. Upon examination of the lists
presented to them, the Commissioners 1 Court refused to approve
and certify to their correctness for the reason that several
of the business establishments listed were still in operation
and displaying personal property for sale,
The first question presented by you is restated as
follows:
+ All Articles cited are as codified in VernonIs Civil
Statutes,
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r .
Honorable Hunter B. Brush, Page 2 (M- 741)
(1) Under the stated facts, has the Commissioners'
Court reasonable grounds to refuse to approve the
lists and to certify that the persons appearing
on the lists have no property out of which to
make the taxes assessed against them, or that they
have moved out of the county, and that no prop-
erty can be found in the county belonging to such
persona out of which to make the taxes due?
Your second, third and fourth questions are such as neces-
sarily arise from the first question and will have to be resolved
first in order to answer the primary question. They appear in
your brief as follows:
Can the Tax Collector levy on personal prop-
k2, of a taxpayer
real property?
for taxes assessed against his
(3) Article 3832 lists certain property as exempt
from forced sale, Does this Statute prohibit the
Tax Collector from levying on such exempt property
for the satisfaction of delinquent taxes?
4) If the exempt property designated in Article
i832 is subject to levy by the Tax Collector, is
his power to levy limited to the exempt property
on which the taxes are delinquent or may he also
levy on other exempt property of the tax debtor
to satisfy the delinquency?
Your Questions numbered 2, 3 and 4 are related and per-
tain to the legal sufficiency of the.reasons given by the
Commissioners' Court for their refusal or inability to make
the statutory certificate of approval of such lists. They
will be considered and answered together as follows:
Article 7272 provides, in part, that:
"All real and personal property held or owned by
any person in this State shall be liable for all
State and County taxes due by the owner thereof,
including tax on real estate, personal property
and poll tax; and the tax collector shall levy
on any personal or real property to be found in
his county to satisfy all delinquent taxes, tny
law to the contrary notwithstanding; e Q O O
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Honorable Hunter B. Brush, Page 3 (M-741)
The case of Shugart v. Nocona Indebendent School
Distrikt, 288 S.W.2d 243 (Tex.Civ.App. 1956, no writ hlst.),
held that a taxing authority can levy on and seize and sell
any personal property of a tax debtor to collect delinquent
taxes on its owner99real estate.
The Court In Stephens v. City of Aransas Pass, 364
S.W.2d 733 (Tex.Clv.App. 1963, no writ hlst.), held that
Article 3832, exempting certain property from forced sale
for the payment of debts except as therein provided, 9
not a tax exemption statute and such exemptions therein
contained do not pertain to taxation.
Although the personal property Involved In the
Stephens case was foreclosed upon only for the amount of
the delinquent taxes assessed against such property, the
rationale of the decisions in this and in the Shugart case,
supra, lead to the further conclusion that such property
could have been impressed also with the delinquent taxes
assessed against the owner on account of any other prop-
erty owned by him. Further In this regard, the early case
of Ring v. Williams, 35 S.W. 733 (Tex.Clv.App. 1896, no writ)
held that the laws exempting certain personal property from
the burden of taxation did not relieve such property fran
llabillty for taxes otherwise due from the taxpayer and
affirmed the judgment of the trial court approving the
levs. seizure and sale of a sewinn machine for dellnauent
poli-taxes due from the taxpayer.- See also City of Henrietta
v. Eustis, 87 Tex. 14, 26.~~~. 619 (1894); Mm-0 co., Inc. v.
State, 168 S.W.2d 510 (Tex.Civ.App. 1943, error ref.),
Therefore, in answer to Questions Nos. 2, 3, and 4, it
is the opinion of this office that the tax collector is not
prohibited by law from levying upon any~personal property of
the taxpayer in satisfaction of his delinquent taxes, regard-
less of whether such taxes accrued againet such property, or
against his real property, or against other personal property
of the taxpayer. The homestead of a family Is exempt from
all taxes except those assessed against It. Tex. Const. Art.
XVI, Sec. 50.
Before applying these rules to the facts Involved in
Question No. 1, it Is necessary to consider the following
statutes outlining the relevant duties of the Commissioners'
court :
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Honorable Hunter B. Brush, Page 4 (M-741)
Article 7263 requires the Tax Collector to make a list
of delinquent or insolvent taxoayers for the purpose of obtaining
credit on final settlement of his accounts upon the allowance of
such list by certificate of the Commissioners' Court. Such
Article reads as follows:
"The tax collector shall make out on forms to be
furnished for that purpose by the Comptroller, between
April first and the fifteenth of each year, list of
delinquent or insolvent taxpayers, the caption of
which shall be, the 'list of delinquent or insolvent
taxpayers.' In this list he shall give the name of
the person, firm, company, or corporation from whom
the taxes are due, in separate columns; and he shall
post one copy of these delinquent or insolvent lists
at the courthouse door of the county, and one list at
the courthouse door, or where court is usually held,
in each justice precinct in his county; and the tax
collector, upon the certificate of the commissioners
court that the persons appearing on the insolvent or
delinquent lists have no property out of which to make
the taxes assessed against them, or that they'have
moved out of the county, and that no property can be
found in the county belonging to such persons, out of
which to make the taxes due, shall be entitled to a
credit on final settlement of his accounts,for the
amounts due by the persons, firms, companies, or
corporations certified to by the commissioners court,
as above provided for."
Article 7336, section (e), also requires such Tax
Collector to make up a list of the lands and lots and/or property
on which taxes are delinquent, charging against the same all
unpaid taxes assessed against the owner thereof. The portion of
said section (e) pertinent to your Inquiry is quoted as follows:
"Said list shall be made in triplicate and presented
to the Commissioners' Court for examination and
correction and after being so examined and corrected
said list in triplicate shall be aooroved by said
Court, One copy thereof shall be filed with the
County Clerk or Auditor, one copy retained and filed
by the Assessor and Collector of Taxes, and
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Honorable Hunter B. Rrush, Page 5 (M- 741)
one copy forwarded to the Comptroller with the
annual settlement report of the Assessor and
Collector of Taxes. Said list, as compiled by
the Assessor and Collector of Taxes, and corrected
by the Commissioners' Court, or the rolls or books
on file in the office of the Assessor and Collector
of Taxes, shall be prima facie evidence that all the
requirements of the law have been complied with by
the officers of courts charged with any duty there-
under, as to regularity of listing, assessing, and
levying all taxes thereln set out, and that the
amount assessed against said real estate is a true
and correct charge. If the description of the real
estate In said list or assessment rolls or books
is not sufficient to identify the same, but there
is a sufficient description of the Inventories in
the office of the Assessor and Collector of Taxes,
then said Inventories shall be admissible as
evidence of the description of said property."
(underlined for emphasis)
Credit for the delinquent taxes reported and allowed
in accordance with the two next-foregoing quoted Statutes is
provided by the terms of Article 7271 which reads as follows:
"The provisions of this chapter pertaining to the
duty of tax collectors in the matter of the
collection of delinquent and insolvent taxes shall
apply as well to taxes owing by persons who own
real property as to those who do not own real
property, and no tax collector in thfs State shall
be entitled to or be allowed either by the county
or by the Comptroller credit as approved by Article
7263 for any taxes reported or returned as either
delinquent or insolvent under Article 7263 or 7336
until he makes affidavit entered upon or attached
to both his lists of insolvent tax payers prepared
under said Article 7263 and his lists of delinquent
lands prepared under Article 7336, that said lists
are true and correct and that he has fully complied
with and exhausted all resources to collect such
taxes as authorized and required by Articles 7264,
7266, 7267, 7268, 7269, 7270, 7272, 7273, 7274, and
7336, and does not know of, and has made delfgent
Qnqufry and has been unable to learn of, any personal
3406-
Honorable Hunter B. Brush, Page 6 (M- 741)
property belonging to any person or persona
against whom such taxes are shown on said lists
to be unpaid that he was authorized by law to
seize, levy upon and sell for the purpose of
enforcing the payment of such taxes or any part
thereof, nor until the commlsslonerst court of
his county, after full consideration and
investigation, has entered uDon or attached to
both the insolvent lists and lists of delinQUent
lands the certificate required by said Article
)7263,and no compensation that at the time, or at
any time thereafter, may be due or owing to
the tax collector, either by the State or county,
shall be retained by or paid to the tax collector
until he has made the affidavits as provided by
this article. Nothing in this article is intended
or shall be construed as requiring any tax collector
to levy upon and sell real property for the purpose
of enforcing the payment of such taxes.”
(underscoring added)
It plainly appears from the express wording of these
Articles 7263, 7336, and 7271 that no credit is to be allowed
the tax collector until his properly certified lists have
been allowed and certified a8 correct by the Commissioners’
Court after full consideration and investigation.
A certification by such court merely showing reliance
on the tax collector’s certificate as the basis for its approval
of the insolvent lists and lists of delinquent lands Is not
sufficient to comply with the provisions of Article 7263. See
Attorney General’s Opinion No. O-4046 (19&l), a copy of which
Is furnished you herewith.
The phrase “full consideration and investigation” as a
prerequisite to approval and certification by the Commissioners’
Court plainly denotes the bestowing of discretionary authority
upon the court to approve or not approve such lists as Its
judgment or findings warrant.
In any event, in order for credit to be allowed the tax
collector the lists must show the certificates of the tax
collector and the Commissioners’ Court in the exact terms of
Articles 7263 and 7271. The fact that it appears to the
Commissioners’ Court, from an examination of such lists, that
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, .
Honorable Hunter B. Brush, Page 7 (M-741)
some of the taxpayers listed thereon have personal property
in their possession subject to a levy for delinquent taxes
by the tax collector is sufficient to prohibit the said
court from certifying directly to the contrary. We believe
the foregoing statement fully answers your Question No. 1.
It is noted, however, that in reference to the lists of
lands and lots and/or property directed to be made by the
tax collector by Article 7336, section (e), the term
“correctlon” is used as a duty designated to the Commissioners’
Court in conjunction with the term “examined”, in reference
to the delinquent land list therein provided. This would
seem to Impose a general duty of the court to act in some
manner In regard to all such lists, delinquent insolvents and
delinquent lands, lots and/or property as well, rather than
just refuse to take any action. In the instant case correction
of the lists could consist of striking from such lists the
name8 of all persons appearing thereon who, in the judgment
of the court, are not certifiable as having no property out
of which to make the taxes assessed against them, or as having
moved out of the county and no property can be found in the
county belonging to such persons out of which tc make the
taxes due, and certifying to the correctness of the remainder
of such lists.
SUMMARY
The tax collector is not prohibited by law from
levying upon any personal property of the taxpayer
in satisfaction of his delinquent taxes, regardless
of whether such taxes accrued against such property,
OP against his real property, or against other
personal property of the taxpayer.
Upon examination of the tax collector’s lists
of delinquent or Insolvent taxpayers and lands and
lots and/or property on which any taxes are delin-
quent, the discovery by the Commfsslonerss Court
of persons listed thereon having personal property
in their possession subject to a levy for
delinquent taxes fs sufficient to warrant such
court to refuse approval and certfffcatlon of such
lists D
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Honorable Hunter B. Brush, Page 8 41)
eneral of Texas
Prepared by R. L. Lattlmore
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Harriet Burke
Max Hamilton
Arthur Sandlin
John Banks
Meade F. Griffin
Staff Legal Assistant
Alfred Walker
Executive Assistant
Nola White
First Assistant
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