W’ILL WILSON
A1TORNEY #3EnmRA+
August 39 i962
Hon. R. L. Lattimore Opinion No.
Criminal District Attorney
Hidalgo County Re: Whether a tax assessor and
Edinburg, Texas collector of an independent
school district must reside
Dear Mr. Lattimore: within such district.
You have requested'an opinion from this office upon the
question of whether a tax assessor and collector of an independent
school district must reside within such district, or as stated in
similar terms:
"Whether a tax assessor and collector of an
independent school district is a public officer
within the terms of Article XVI, Section 14 of
the Texas Constitution."
You have pointed out in your letter that there ap ears
to be a conflict between Attorney General"s Opinion No. Odt863
(19421, and the case of Aldine Indeoendent School District v.
andlev, 1% Tex. %7? Z80W02d 5'78 (1955).
Section 14, Article XVI of the Constitution of Texas pro-
vides that:
"All civil officers shall reside within the
State; and all district or county officers within
their districts or counties, and shall keep their
offices at such places as may be required by law;
and failure to comply with this condition shall
vacate the office so held."
Attorney General's OpJ.nionNo, C-4663 (1942) held that:
II
. . . the tax assessor and collector of taxes
of an independent school district must reside wi,thin
the district and that a failure to comply with that
conditionsshall constitute a vacation of the office,"
This conclusion was based upon the foilowing reasoning set forth
in Attorney General's Opinion No. O&+6:63 (1942):
Hon. R. L. Lattimore, page 2 (WW-1412)
"From a consideration of the foregofng au-
thorities and in view of the duties imposed upon
the tax assessor and collector by the statutes
referred to above we think that-it is clear that
D accointeb to that office is such an of-
&c~~~~~ comes within the scope of Article XVI,
Section 14 of the Texas Constitution. 0 . D '
(Emphasis added)
However in the recent case of &dine Indeoendent School
District v. Standlee, suura, the Supreme Court of Texas had before
It the auestion of whether the tax assessor and collector of a
school district was a public offfcer within the contemplation of
Section 24 of Article V; of the Constitution of Texas and Section
30 of Article XVI of the Constitution of Texas, The bupreme Court
in its opinion stated that:
"We think it apparent from a reading of the
above statutes, that an assessor-collector of
taxes auoointed bv a school board is not only not
of equal power and prfvileges with the trustees;
be, -on the contrary, is onlv an asent or emulovee
of such SChool board,at its discretion, The board
alone has the cower to levv and cause to be col-
lected the annuai taxes and.to determine whether
such office exists. 0 a o
I,
. . .
"We hold that respondent is not a Pouhl.ic
officer' within the contemplation of Article V,
Section 24 or Article XVI, Section 30 of our
State Constitution. o 0 OtI (Emphasis added)
In Aldine Independent School District v. Standlev, mg
the Supreme Court quotes the following from the case of Dunbar v
Brazoria County, 224 S.W.2d 738 (Clv,App, 1949, erro,rref,
v
tlFromthe above authorities, it is apparent,
we think, that the determining factor which dis-
tinguishes a public officer from an employee is
whether any sovereign functfon of the government
is conferred upon the individual to be exercised
by him for the benefit of the public
deoendent of the control of others,tlkwidded)
In applying the rdyeein Dunbar v. Brazoria Coun&, Fucra, the Su-
preme Court in Al n Independent School District v. Standley, a-
=, states that:
Hon. R. L. Lattimore, page 3 (~+1&12)
"It is claimed by respondent that the assess-
ing and collecting of taxes is a part of the sov-
ereign power of the State. That is correct, but a
reading of the statutes relative to the assessment
and collection of taxes, as above set forth, shows
that this power is iodged by the Legislature and
Constitution in the school board, and not in the
office of the assessor-collector, He is but an
agent or emolovee of the Board to dEcharge 'the
clerical duties necessarv to carrv out the school
Board's nowers of taxation." (Emphasis added)
In view of the dee+-
.,Jcn of the Supreme Court of Texas in
the case of Aldine Indeuendent Schocl Di.strictv, Stan-, mq
we are of the opinion that as the tax assessor and collector of an
independent school district is mereiy an employee or agent of the
Board of Trustees of such schooi district he is therefore not a
"civil officer" within the contemplation of Section 14 of Arti,cle
XVI of the Constitution of Texac, and therefore would not have tc
reside within the territorial confines of silchschool district,
Attorney General's Opinion No. O-G?f;j (;%.;:
j 1s hereby overruled.
insofar as it conflicts with the decision reached herein.
The tax assessor and collector cf an indepand-
ent school district is not a %ivl,l.office:rts
wfthi.n
the contempiation of Section 14 of Arti.cS,e
XVI of the
Constitution of Texas and wol~ld.
not h.aveto reside
within the territorial co-
*sines of such school,d,:is,-
trict.
Yours ve?y ‘!;rul.y,
WILL WILSON
PB:mkh:wb Attorney General of Texas
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Bill Allen
Bob Shannon
Cecil Rotsch
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore