Untitled Texas Attorney General Opinion

L . THEAYTORNEY GENERAL Honorable P. L. Marquess CoiintyAuditor Wharton.Countg Wharton, Texas Dear Sir: Opinion No. O-2364 Re: 15th. ,. We are In receipt of your letter of May 15, 1940, in which you request the opinion of this department on the fol- lowing question contained therein: "Would it be possible for the Commissioners' Courts of the several counties to levy the cdunty taxes in the year 1940 at the regular term in August If all members were present and there had been held a public hearing on the county budget subs~equentto August 15th, yet wlthln theregular term, and the Commissioners' Court had 'calculated the rate and adjusted the taxes levied in their respective counties for general purposes to the taxable values shown by the assessment rolls.'?" The following Articles of the Revised Civil Statutes direct the manner of levy of the county tax: "Art. 7045: "The commissioners courts of the several counties, all the members thereof being present, at either a regular or special session, may at any time after the tax assessors of their respective counties have forwarded to the Comptroller the said certificate and prior to the tlniewhen the tax collector of such county shall have begun to make out his receipts, calculate the rate and aa- just the taxes levied In their respective counties for general purposes to the taxable values shown by the assessment rolls." Honorable P. L. Marquess, page 2 O-2364 "Art. 2354. "No county tax shall be levied except at a regular term of the court, and when all members of said court are present." The date when such regular term of the Commissioners' Court may meet for the purpose of levying the county tax aside from the above requirements is affected by Article 68ga-11 of Vernon's Annotated Civil Statutes, which provides 1n part as follows: "The Commissioners' Court In each county shall each year provide for a public hearing on the county budget--which hearing shall take place on some date to be named by the Commissioners' Court subsequent to August 15th and prior to the levy of taxes by such Commissioners' Court. * * *" (Underscoring ours) You are advIsed therefore that it 1s necessary that the public hearing on the county budget be held on some date subsequent to August 15th and that the Commissioners' Court may not levy the tax unt11 after such time. There Is no re- qulrement however that the Commissioners' Court must wait un- til September to levy the county tax. It is the opinion of this department that If, as you outline In your letter, the Commissioners' Courtis in session at a regular term of said court In August on a date subsequent to the date on which the public hearing on the county budget was held that the Commissioners' Court may on such date levy the county tax. You call our attention to an opinion written by 9.rs.t AssistantAttorney General Scott GaWes to Honorable Charle's K;~Leslie, Jr., County Auditor, Hidalgo County, dated July 31, 1936. In that opinion Mr. GaMes was answering the following questTon: "IF the tax levy were set prior to the public hearing, but at a regular term of the Commlssloners' Court, would said tax levy be in- valid? In other words, can we set the tax levy during the regular term of the~court, during the week of August lOth, whereas the public hearing cannot be held until after that week." In answer to such question Mr- Gaines stated as fol- lows: Honorable P. L. Marquess, page 3 O-2364 "The terms of Article 68ga-11 preclude the Commissioners Court from holding the hear- ing on the budget prior to August 15th. It Is equally clear that the tax levy be made after such a hearing and adoption of a budget for the succeeding year. "It is true that the commissioners' court may not legally levy the tax until the September Term l **?4 * ’ Mr. Gaines' answer must be construed in connection with the question asked him. Und,erthe facts submitted to him the budget hearing could not be held until after the reg- ular August term of Commissioners' Court had been held and had passed. Under those facts it was clear that the Commls- sioners' Court could not legally levy the tax until the Sept- ember Term. However, as stated by Mr. Gaines, the only re- qulrement Is that the tax levy be made at a regular meeting of the Commissioners' Court subsequent to the hearing on the budget. Under the facts you submit, the tax levy would be made subsequent to such public hearing on the budget and at a regular term of the Commissioners' Court. It Is our opinion, therefore, that Mr. Gaines' opinion would not be in conflict with our opinion expressed herein to t~heeffect that the tax levy could be made at such regular meeting in August subsequent to the public hearing on the budget. We call your attention to another opinion written by Assistant Attorney General Scott Gaines to Hon. H. L. Washburn, County Auditor, Harris County, dated August 4, 1932. In that oplnlon the question was asked whether or not the Commissioners' Court had the authority to watt until September Term of court to levy the county tax. Mr. Gaines quoted from the three articles of the civil statutes previously quoted in this opi.nion and then concluded as follows: "The levy of taxes by commissioners' courts should be made at such regular term of the court with a full membership present, after the taxable valuations of property have been finally fixed by the commissioners' court sitting as a board of equalization, as will allow the county tax assessor sufficient time in which to prepare and have ap- proved his tax rolls for the current year, in order for this official to have the tax rolls in the hands of the county tax collector so as not to delay the commencement of the collection of Honorable P. L. Marquess, page 4 O-2364 taxes on October 1st df each year; and it seems that the August regular term of ,- the commissioners' .. court has been uniformly adopr;eaas r;nemosr;ap- propriate time for this purpose. However, in the opinion of the writer, a valid levy for current takes kay be made by the commissioners' court, all members theredf being presentfiat the regular September term of said court. It Is the opLnion Of this department that th&conclu- sion stated by Mr. Ga~lnesis correct and that the CommLsslon- ers' Court may levy the county tax at a regular term 6f said court and at a time subsequent to the holding of the public hearing on the county budget on a date after August 15th. This would be t??.ze whether such regular term of the Commis- sioners' Court at which the county tax was levied was either In August or in September. Very truly yours ATTORNEY GENERAL OF TEXAS By s/Billy Goldberg Billy Goldberg Assistant BG:EP:wc APPROVED JlJN12, 1940 s/Gerald C. Mann ATTORNEYGENERAL OF TEXAS Approved Opinion Committee By s/BWB Chairman