AUSTIN. TEXAS 78711
December 16, 1968
Honorable Robert S. Calvert
Comptrqller of Public Accounts
Austin, Texas
Opinion No. ~-318
Re: Effect of Subsection No. 5
of new Section l-e of
Article 8-i& the Texas
Constitution, known as
Amendment No. 7, adopted
at the General Election of
November 5, 1968.
Dear Mr. Calvert:
Your request for an opinion reads, in part, as ':
follows:
"The electorate'of the State of Texas, at the General
Election held November 5, 1968, passed Constitutional
Amendment No. 7, which calls for the phasing out of
certain sections of the State Ad Valorem Tax during the
next several years. Sub-section No. 5 of Amendment
No. 7 reads as follows:
'The fees paid by the State for both assessing
and collecting state ad valorem taxes shall not
e+zeed two per cent (2s) of the State taxes
collected. This sub-section shall be self-
executing.'
"The,commission fees being paid at this date for State
tax collections areeas follows:
i,l) ARTICLE 3939 - Collecting Commission:
F~:ic~20,00C.0C @
@
-1547-
.
HbnT Robe&S. Calvert, Page*2’(M-3x8)
(2.) ARTICLE 7331.- Addition,al,
Commiss.ion~on :.~
,I
Re'demptionCollections:
Total amount @ '., ,'5$ " :,
,:
'~
County)
:,
"Our first and primary question is - iWhat'effect:l'~'
will:Sub-section No. 5 have on the commission fe,es,!,
: listed above?' January'l, 1969, will be the 'dateeof.~'
the beginning of the reductionin the StateTax'Rate
land we would like for you to state.when a change in
commission fees will be in effec.t;,ifyou,determine
a change is in order. :, ~.
., .~'
"My second'question is -~ 'Under Sub-section Ro. 5,; 1,
can the Comptroller in 1969 pay the Assessing Commis- ,'
sion Fee to the County Tax Assessor-Collector.as set
: forth in ARTICLE 3937?' I list the following:schedule
of assessing commissions paid prior to the,pas~sageof
Amendment No. 7:
First $5,000,000.00 z .95~ per 100.00 tax value
Next. $95,000,000.00 .03i per 100.00.tax.~value'
Baiance .02& per
(One-half of the above ~ommi~ssionis
'and ,one-halfby County) '~,
"Question No. 3 is - 1Can the State continue .to,ma,ke
additional commission payment to an attorney who has.,~,
Eontracted with the 'State and County for.the collection
of delinquent taxes under the terms of Article 7335-a,?"
In Attorney General Opinion No.'v-851 (1949), the Attorney
General ruled on questions concerning amendments toArticles
3937 and 3939, Vernon's Civil Statutes, vihichincreased the : :
compensation for assessing'and collecting taxes. These:statu-
tory amendments became effective on June 19, 1949. The summary'
of the opinionreads as follotis:
"The assessor-collector should be compensatdd
for taxes assessed and,collected:prior to ~.'::
June 19, 1949, at the r~tes,provlded.in'4rtbcle.s"
3937 and 3939.before their s$endment,by~SL B::,.
Hon. Robert S. Calvert, Page 3,.(M-318) .
.
211, 51st Legislature. They’should be compen-’ ~’ :
sated for taxes assessed and collected after
June 18, at the rates prescribed in S.B. 211.”
The returns of the General Election.of November 5, 1968,
were canvassed on November 22, 1968,‘and it was asce.rtained
that a majority of votes cast were in favor of Amendment
NO. 7. Therefore, Amendment 7 became a part of the Constitu-
tion’of the State of Texas on November 22, 1968; and subsection
No. 5, being self-executing, became effective on that date.
Attorney General Opinion Nos. M-296 (1968); o-6278 (1944); o-
2841 (1940); o-6821 (1945).
The Constitution declares the organic law,of the,State,
and its pronouncements are supreme. Thus, constitutional
provisions are controlling over all.statutory provisions which
are in conflict therewith, to the extent of the ~conflict.
‘f-12Tex.Jur.2d 359, Constitutional Law, 88 9 and 10. It is
also the rule that unless the contrary is manifest, a consti-
tutional provision will be construed to operate prospectively
only. 12 Tex.Jur.2d 360, Constitutional Law, g 11.
In applying these rules and precedents to your first
two questions, it is the opinion of this office that the fees
paid by the State to Tax Assessors-Collectors should,be governed
as follows:
(1) As to all State taxes which were both agsessed Andy
collected before’the effective .date of the amendment, ~fees
should be~paid in acoordance with the applicable assessment
and,collection fee statutes.which were in eff,act‘immediately
prior to such effective date.
(2) As to all State taxes which are both asnessed and
collected on and after,the effective date of the amendment,
the .only fees paid by the State should be 2s of the amount of <;’
taxes actually collected. This rule applies to redemption and
supplemental items as well as ordinary collections and assess-,
merits.
(3)’ As to all State taxes assessed but not collected
before the effective date of the amendment, the fees paid for
such a,ssessmentservice should be In accordance with the appll-
cable assessment fee statutes which were,in effect immediately
prior to such effective date.
(4) ,,As to all State taxes assessed on and after the
effective date of ttieamendment no fees should be paid for the
assessment service alone, but a fee of 2% of the amount’of such
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..
Ron. Robert S. Calvert, Page 4 (M-318)
assessed taxes which are actually collected should.be paid.
as compensation for the complete service of both assessing
and collecting such taxes.
(5) As to all State taxes which were assessed before
the effective date of the amendment but which are:collec:ted
on and after that date, the State should pay 2$of the :~
amount of taxes collected, This conclusionsis.reached on ~..
grounds that'the amendment contemplates.that feesinA,some. 1.
amount will be paid for tax money actually .collected~that/
the fees paid under ,the prkexisting:statutes for &s&ssmehts"
were earned'before the effective date of the amendment';"that
the amendment.provides no measure whatsoever whereby a specific
part of the 2% fee can be allocated for collection alone; that
a reasonable construction of the amendment should Abe given so
as to do,equity and to give rise to as few questions inits
application as possible. 12 Tex.Jr.2d, 362-368, Constitutional
Law, f+814-22.
We now proceed to your third question which has regard.
to the effect of the amendment on Article 7335a, Vernon's Civil
Statutes.
Article'7335, Vernon's'Civil Statutes, provides for "
commissioners' courts to contractwith,attorneys ,to enforce or
assist in the 'enforcement of the .collectionof:delinquent:~State
and'county taxes for a percentage of the,taxes, penaIty,and
interest actually collected. Article 7335a,provides that no
such contract shall be made where the compensation to be paid
the attorney is more than 15% of the amount collected.
The amendment in question speaks of fees to be paid by,
the State for both assessing and collecting State Ad Valorem
Taxes. The thrust of this language is toward the dual function
f. of assessing and collecting State'taxes. This dual function
can only be accomplished by county Tax Assessors-Collectors.
In Texas there is no separate office of Tax Collector, and there
is no separate office of Tax Assessor. The only office appli-
cable to these tax functions is that of Assessor and.Collector.