Untitled Texas Attorney General Opinion

Honorable San A. Rough, Jr. County Attorney Bocksprings, Texas Dear Sir: Opinion iSo.O-2861 Rer mhsther county tax assessor and collsctor, also acting as such for Vance Indopondent School District which has less than 150 scholastics, must require payment of the school district tax44 along with county and State taxes. In your latter of Decmber 14, 1940, you request our opinion in reap&se to the question 4s to mhothor the tax collectors of Edwards and Real Counties must require the payment of taxes due tha Van04 Indapend- snt School District 4s R condition to their paynent of county and State t4xas. You adviae us that tho following ar4 tha portincnt facts; ..TheDistrict was craota? by special act of the Lo&islaturs in 1921 (Spscial Laws, 37th Leg., Ch. 56, p. 157), is located on the line of Real and Edwards Cwnties, has less than 150 scholastics, and itstaxes 4ro assessad 4nd collaoted by the (1ss48sor4and colleotors of ths two counties. The colleotors do not make a s::Jaratacolon 011the county and Stats tax rolls, showing in separate figurbs to each individual tnxpayar the mount of 4ohool tax44 he pay4 to ouch school district, including the Vanes Dis- trict. Saotions 2 and 3 of the Act creating the district roads a4 follows: “Sec. 2. Ths managswsnt and control of tho public fro4 schools of the Vance Indapsndsht School District 04 created by this Act ir horsby vested in a board of five trustoos, to ba electod in acmrdanco with the laws of the Stat4 of Texas, in such ~a.144mada and provided; pro- vided that tho present Board of Trust444 of the Vanes Com- mon School District shall continua to s4rv4 as trustee of the distriot w-sated by this Act until the next regular truatca election in April 1921. ‘Sec. 3. The Vanes Independent School District a4 oreatsd by this Act shall hava and axervisa and is haraby vested with 411 the rir.hts,powers, privilege4 and duties of 4 town or village incorporated unt'.er the general law4 of the State of Texas for free school purposes only, and the Board of Trustaos of raid Vance Independent School ’ . Honorable Sam A. Hough, Jr. (o-2861) Pago 2. District shall have and exercise and are hereby vested -. .> : 1c and charged with all the riGhts, powers, privilegas and duties conferred and imposed by the General Laws of this Stats upon the trustees under the gsncral laws of Taxas for free school purposes only." .' .~.. ~ It seems evident from the above that thore is no,diffsrsnoe be- tnresnthis district and ona created under general laws, so far as the question you ask is concsmad. In 1913, Assistant Attorney General K. A. Keeling wrote that "j.f the county tax collector also collaots for tho district (indapendent), it would be his duty to demand full payment of tnxus, both distriot, county and state." (pO 649, Attornoy General's Reports, 1912-1914.) C. L. Stone, Assistant Attorney General, expressed the same view in 1926. (Vol. 279, Lsttor Opinions, pe 889). In 1929, Assistant Attorney Gsnor- el Khitehurst advised "that wheratharo is a separate tax roll for the indapendent school district kept by ths tax collector of a county, it is not necessary for tho colkctor to collectthe taxes for the independ- ent school district at tho same time that tho county and state taxer ax-4 collactcd, but that where ths taxes ax-oassessed and colloctad by the county tax assessor and the county tax collector, tho same.rule applies that is enunciated in tho opinion of the Attorney General in 191geR (Vel. 300, Lsttor Opinions, p0 456). I It was said by the Suprcmo Court in Richoy vss Eoor, 249 S.K. 172, that "the citi.?.sn always has tho right to pay the amount of any one tax listed against him," While the quoted language was dicta it is apparcnt- ly tl.3general rule in the absonca of legislation expressly or impliedly making a diffsrant one. Section 61, C.J. 966, and ceses cited in foot- nota 37; Cooley on Taxation, 4th Ed., Sec. 1253, pe 2492; Howsll vsO Lambsrson, 231 S.K 872, Arkansas Supreme Court. In the last cited cas4s9 the county collector refused to accept payment of state and county taxes without payment at the same time of drainage and road improvement taxes. Under the Arkansas statutes he MS requirad to collect the installments of road improvement district taxes at the time ho collected tho gcnaral taxer and a penalty ms pra- scribed for fniluro to do soa &on the opinion, holding that ho could not refuse to accept the county and state taxes eventhough not aocompa- aisd by payment of the other tax, 1~0quoter "In the absence of a statute to tho contrary, I taxnaysr always has the right to pay tho amount of any one tax listed against his land while refusing to pay other taxes listed separately against it. Coolsy on Taxation (3d Ed.) vol. 2, ppO 808 and 809; 37 Cyca p. 1164. Honorable Sam A. Hough, Jr. (O-2861) Page 3. n e Under ths terms of the statute, the colle&- or coul; iot refuse to acospt a voluntary payment of tha general taxes because the landowner wished to contsat the payment of his improvsment taxes and on that account re- fused to pay tha same0 The language of the statute is in no sense directed against the landowner, and his right to Pay his gsnsral taxas Nithout paying the improvement taxes cannot be takon away by any supposed intcndmant ontho part of the Legislature. Such a right is a valuable one to the landowner and could in no event be taken awas without di- rect and express languags to that sffoot on tha part of the legislature." You have called our attention to Article 2763, Revised Civil Stat- utes, providing that 'all incorporatsd distriots, having each fewer than 150 scholastics according to the latest census. shall be govsmed in the general administration of their schools by the laws which apply to corn- mon school distriots." Rowover, we do not balievo that this statute has anything to do with the levy of such a district's taxes, but that such levy must be made by the trustees of the distriot. Article 2784, Revised Civil Statutes, provides powor for the trustees of independent school dis- tricts generally "to levy and cause to be colloctod the annual taxes and to issue bonds" as thoroin authorized. Again, Article 2790, Revised Civil Statutes, provides for tho boards of trustees of indapendsnt school dis- tricts generally to annually levy and cau44 to bo assessed and colleotcd * maintenance tax. Thon Articla 2796, Revised Civil Statutes reads8 'The provisions of tho twelve preceding articles relative to tax and boud elections in common school districts shall also apply to Common county line school distriots. The provisions hereof relative to tax and bond elections in independent school diatriots shall ~-apply to any such district incorporated under general or special laws for school purposes only, and shall also apply to all such incorporated districts having sach fewer than one hundred and fifty scholastias locording to the latest censuson The tax of ths district is thus levied by a different body from the one levying the State and county taxes, it is colloctsd for the use of a different corporate body, and for different purposss. In our opin- ion the district tax is a different ono from that levied and collected for State and county purposes -- unaffected by the fact that a common assessor and collector is used. To hold that all such taxes collsoted by a singls~collector are in effect but on.4tax and that in tha absence of permissive legislation the collector must demand and receive payment of all of thornas a condition to tho payment of any one would bo to sncumbor the collection of State and county taxes withthe requirement that the taxes of many other political subdivisiolr be paid. For, Arti- cl4 1042b, Vernon's Civil Statutes, authorizes "any inoorporated city., - .: T. I Honorable Sam A. Rough, Jr. (O-2861) Pago 4. town, or village, independsnt school distriot, common school district, drainage district, water oontrol and improvsment district, water im- provement district, or navigation district"by resolution or order to require the county tax assessor and colleotor to also aot as such for any such body. There is no oxpress statute roquiring tho collector to reject the county and State tax without ho is also tondored theso othsr taxes, and in our opinion, before the citizen should be denied the privilcga of paying some of those taxes without paying all of them, them should be express legislation to that effact or the impli- cation should be vary plain. X4 have oonsidored Artiolo 73364, Vernon's Civil Statutes, which purports to authorize the payment of school district taxes in advance of the payment of other taxes v;harothe sasm a~4 "collectable from the 8~14 roll with any other tax." Doubtless the Legislature enacted this statute in light of the Whitehurst opinion, which in our view was orroneouso In other words, it is our thought that this statute logalisodncthing that nas not already legal. In effect it but partially deolared,almady oxist- ing rights. Vfehave also considoacd Artiola 7328-1, Vernon 8 Civil Statutes, by the Forty-sixth Legislature, simplifying the potition and aitation in delinquent tax suits, and note that the form of approved pe- tition oosvaenoos"The State of Texas 0 0 0 brings this suit in behalf of itself, County, and for tho use and benefit of all political sub- divisions whose taxes are collected by the Asclnsor and Collector of taxos for said County." This statute would fit invery well with a re- quiromant for tho collection of all -- or none -- of the different taxes at tha same time, But, it fits in just as easily with permission for separate colloctioq, And, the provisions of Attic145 7345a (pertaining to tho transfer of tax lions), 7335, 7335a (omploymont of attc~moys to collect taxes for county and State), 7343 (undor this statuts !.ndopondsnt districts may avail themsolveL of Artiolas 7335 and 73350. Bell vs.,Mans- field Independent School District, 129 S,W. (2d) 629), and Article 7345b (Requiring all taxing units to be impleaded), Vernon's Civil Statutos, simply vould not square with the requirement for sll.suoh taxes to b4 paid at one and the same time. In our opinion the proper answer to your question is a negatiw one* . Yours vary truly ATTOIWY GENERAL OF TEXAS By /s/Glenn R. Lewis GRL:LU:ogw Glenn R, Lewis Assistant APPROVED JAN 30, 1941 /*/ GKRALD.C. PlARN ATTOBHY GFNSAL OF TEXAS