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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