Honorable James E. Barlow                Opinion No. M-328
Criminal District  Attorney
County of Bexar                          Re :   Who has the administra-
County Courthouse                               tlve responsibility  of
San Antonio, Texas     78204                    deciding the status of
                                                property for ad valorem
                                                tax exemption under the
                                                Constitution   and
Dear Hr. Barlow:                                Statutes of Texas?
         Your request for an opinion from this office   inquires
as to what official   or of'flclals on the county level has the
responsibility   of deciding which property shall be exempt from
taxation beoauae of the various provisions    of the Constitution
and Statutes,   when the tax exempt status ia disputed.
        In connection with this request,    It should be noted that
the final authority   to decide If property is exempt from taxa-
tion rests with a court of competent jurisdiction.        Your ques-
tion, therefore,   has been interpreted   to ask what admlnlstra-
tive authority   is vested with the authority   to initially   deter-
mine if property is exempt from ad valorem taxation by virtue of
the Constitution   and Statutes,   and does any other administrative
body have the authority    to review such a determination.
         The Constitution  and Statutes of Texas delegate the duties
of administering    the ad valorem tax laws of the state to three
authorities,   namely, the county tax assessor and collector,       the
county commissioners court, sitting      as a board of equalization,
and the county commissioners,     functioning  as a commissioners court.
An examination of these same laws, however, reveals that none of
these bodies is expressly    granted the authority   to Initially    de-
termine whether property falls within a class that is tax exempt.




                           -1605-
                                                                ,    .




Hon. James E. Barlow,     Page 2      (M-328   )

         Sections 14 of Article   VIII of the Texas Constitution
establishes    the office of assessor and collector  of taxes and
provides therein that he
              . .  . shall perform    all the duties with
            respect to assessing      orooertv for the nur-
            pose of taxation and      boliecting   taxes as
            may be prescribed    by   the Legislature.”
            (Emphasis Added.)
        Among the numerous duties of the tax aaaeasor as pra-
scribed by the Legislature   is that of obtaining a full,
complete, and correct asaeaament of all taxable property slt-
uated in his respective   county. See Art. 7189, et seq. Vernon’s
Civil Statutes.
         An assessment of property       for taxation has been defined
as the’listlng     of property to be     taxed~ ln aome form, and an
estimation     of the sums which are     to be a guide in the apportlon-
ment of the tax.      See Sullivan v,     Bitter,   51 Tex. 604, II3 S.1W.
193, (!fex.Clv.App.    1901B, no writ    history).    Article 7145,.
Vernon’s Civil Statutes,      provides           -.
            “All property,   real, personal or mixed,
            except such a% may be hereinafter   express-
            ly exempted, la subdect to taxation.     and
            the same shall be rendered and llstedx
            herein prescribed.   ” (Emphasis Adde d . )
          A summation of the above definition     and provlalona
Indicates    that only property subject to taxation Is to be listed,
and the duty of listing     such property is vested with the assessor
and collector     of taxes,  It follows,   therefore,  that before the
assesaor can perform his duties he must make an initial          decision
of whether or not property is exempt from taxation.           If it Is ex-
empt, the assessor has no authority to assess the property.             If it
1s not exempt, then it is made his duty under the statutes to
assess the same. It is the opinion of this office,          therefore,
that the tax assessor and collector      is granted the authority       to
lnltlally    decide if property is tax exempt under the Constitution
and Statutes of, Texas s
       The next question to answer is whether the county
commissioners court, sitting as a board of equallzatlon, has the



                              -1606
       .




Hon. James E. Barlow,       Page 3    (M-328)

authority   to uasa on auestions       relating   to the tax exempt status
of property.   -
           Section   18 of Article   VIII of the Constitution   of !Psxaa
provides     that:
               ?l?ha Legislature shall provide for equal-
               izing,  as near as may be, the valuation of
               all property subject to or rendered for



        The duties of the commissioners court, sitting    as a
board of equalization,   and Its authority as such board is defined
by Article   7206, Vernon's Civil Statutes.    The other statutes that
have been enacted regarding the board simply clarify     those duties
listed   In Article 7206, supra.  See Articles   7198, 7211, 7212,
7356,  et seq., Vernon's Civil Statutes.
         Article    7206 provides that the commissioners court shall
sit as a board of equalization       and Is to receive all the asseaa-
ment lists or books of the assessors        of their counties for
Inspection,     correction  or equalization   and approval,   Thereafter,
said Article,     supra, provides in part as follows:
               "1 . They shall cause the assessor      to
               bring before them . . . all assessment
               lists, books, etc.,   for inspection,    and
               see that every person has rendered his
               property at a fair market value, and
               shall have the power to send for persons,
               books, and papera, swear and qualify
               persons, to ascertain    the value of such
               property,  and to lower or raise the value
               on same.
               "2 . They shall have power to correct
               errors In assessments.
               “3 . +**
               "4. After they have Inspected and
               equalized as nearly as possible,      they
               shaI.1 approve said lists on books and
               return same to the assessors     for making




                                     -1607s
Hon. James E. Barlow,   Page 4   (M-328)

           up the general rolls,      when said
           board shall meet again and approve
           thea same if found correct.
                 ***
           ::g- !l!he assessors    of taxes shall furnish
           said board . . . a certified        list of names
           of all persons who either refuse to swear
           or to qualify or to have signed the oath
           required by law, together with the assess-
           ment of said person's property made by him
           through other information;       and said board
           shall examine. eclualize and correct assess-
           ments so made by the assessor,         and when so
           revised,   equalized,,and   corrected,    the same
           shall be approved.
        In the case of Harris County v. Bassett,  139 S.W.2d 180,
(Tex.Clv.App.,  1940, writ of error refused)  the Court, dlscusa-
ing Art. 7206, suprag as well as other statutes,   said:
           II
                   the authorities are uniform In
           hildiig  that the Board of Equalization    is
           concerned only with the properties    on the
           rolls and with the correction   of valuations
           placed thereon by the Tax Assessor,    and
           that the board may not add to the rolls
           property not entered, nor eliminate there-
           from entries appearing thereon.




           consent,  e    (citing     authorities).-.    D
           (Emphasis Added,)




                                    -1608-
Ron. James E. Barlow,     Page 5   (M-328 )

        Furthermore, In the case of Roach v. First Savings &
Loan 203 S.Y.2d 1006, 1012 (Tex.Civ.App.       19471, the Court
esslng       the powers of the county commissioners acting ai the
board of equalization,    observed that the latter is given the power
of reconsideration    and revision  of the tax assessor-collector's
real property valuations.      The Court further said:
            "The jurladlotlon   of the Commlasioners Court
            sitting   as a board of equalization   la fixed
            bs Art. VIII. Sec. I8 of the Constitution.
            Vknon*a AxmISt.         It Is conceded by all
            authorities   that ihe Board of Equalization
            Is without power to add to or take from the
            assessment rolls property plaoed thereon or
            round thereon, but its power 1s limited to
            matters affecting   valuationa.”   (Emphasis Add,ed.)
          In the oaae of Bavls v. Burnett, 77 Wx.3,        13 S.W. 613
(1890). the Supreme Court naa conoerned with the queetlon of
rihethir the apiellee      would be entitled   to a writ cif Injunction
to prohibit     the oolltctlon   of an Illegal   tax.   The taxing
authorities     had assessed property that uas tax exempt.         The
appellant    (tax authority)    had urged the appellee    had a remedy
by applloatlon     to the board of equallution,       and that therefore
he was ZI& entitled       to a writ of In&notion.      That Court declared:




        The above articles  and the court Interpretations  placed
thereon clearly  define the scope of authority   of the county
commissioners court sitting   as a board of equalization  with respect
to what matters may be brought before them for their oonslderatlon.
It la the opinion of this office   that such scope of authority   does
not include  the power to decide whether property is exempt from
taxation by the Constitution   and Statutes.




                                     -1609-
                                                                     .       I




Hon. James E. Barlow,        Page 6   (M- 328)

          If the county commissioners court, sitting    as a board of
equalization,    does  not have
                             _ _this authority, do  the  county commlsslon-
ers functioning    as a commlssloners court have any control over
assessments or exemptions therefrom made by the tax a~ssessor and
collector?
         Art. V, Section 18 of the Texas Constitution      provides that
the County Commissioners Court shall exercise      such powers and
jurisdiction    over all county business,   as Is conferred by the
Constitution    and laws of the State.    Pursuant thereto,   the
legislature    enacted in the year 1905 Articles   7346 and 73479 Vernon’s
Civil Statutes,     giving the county commissioners court certain author-
ity to reconsider     and revise the tax rolls,   Article   7346 pre-
scribes,    in part, as follows:
             “Whenever any commissioners court shall
            discover through notice from the tax
            collector   or otherwise that any real
            property has been omitted from the tax
            rolls   for any years since 1884, OP




           enforce collection   of taxes on said
           properties,   they may-, at a meeting of
           the Court, order a list of SW+
           properties  to be made i ;, II )
           (Emphasis Added s )
       Art. 7347, provides, in part,            that when the list       referred
to in Art. 7346 has been compiled,
            II
                 .  the commissioners
                     *   0              court m2J at
           any meeting, order a caneellatio n of such
           properties   in said list that al:e known
           to have been previously     assessed, but which
           assessments   are found to be fnvalia
           have not been canoelled by any for ?i&r order
           of the commissioners court, or by decree of
           any district   court; and shall then refer such
           list of properties     to be assessed OP re-assessed




                                       -1610-
 .    .




Hon. James E. Barlow,   Page 7   (M-328 )

           to the tax assessor  who shall proceed at once to
           make an assessment of all said properties,    from
           the data given by said list   . . . and when com-
           pleted shall submit the same to the commlssion-
           ers court, who shall pass upon the valuations
           fixed by him; and, when approved as to the
           values, shall cause the taxes to be compc!ted
           and extended at the tax rate in effect    for
            each separate year   mentioned   in said   list;.   . .
            (Emphasis Added. )

         These statutes   speak of those situations  where the
commissioners court "shall discover"     or "shall find" that real
property    has been omitted from the tax rolls or a previous
assessment thereon is Invalid.      In such Instances,  it becomes the
duty of the commissioners court to make a list of said properties
and refer said list to the tax assessor to be properly assessed or
reassessed.
        In Couch v Earnest, 62 S.W.2d 988, 992 (Tex.Civ.App.       1933,
error dism.)   the San Antonio Court 01' civil   Appeals declalseu bnat
I,. . . The t:x roll of a county is not like the law of the Medes
and Persians,   irrevocable and unchangeable.    When property is
found to have been omitted from the rolls,     it is the right and the
bounden duty of the commissioners court to have a corrected       roll
prepared.  . . ." (Emphasis Adde d . )
         It is our view that Articles   7346 and 7347 expressly
authorize the commissioners court, in its discretion,       to inquire
Into real property     assessments and any and all exemptions there-
from made by the tax assessor and to declare the same to be invalid
for any reason (including     the matter of exemptions);   and should the
commissioners court decide an assessment is invalid,       they have the
authority    to strike said assessment from the tax rolls.     This
position   is supported by prior opinions from this office.      See
Attly.   Cen. Opinion Nos. O-7251 (lg46),   V-973 (19&q), and M-321
(1968).    If the real property Is not assessed because found to be
exempt by the assessor,     who omits the property from the tax rolls,
the commissioners court may, at any meeting of the court, determine
that the property is not exempt and order that such property be
listed on the tax rolls and asaeased.      If that real property is
assessed because found not to be exempt by the assessor,       who lists
the property on the tax rolls,     the commissioners court may, at any




                                 -1611-
Ron. James’E. Barlow,     Page 8     (M- 328)

meeting of the court, declare the assessment invalid and
order the same to be cancelled      from the tax rolls.      ThUS,
the county commissioners court functions         here as the
general governing body of the county, and exercising
administrative   and quasi-judicial     functions,   as contem-
plated and authorized by Article       V, Section 18,
Constitution   of Texas, and the cited statutes enacted
pursuant thereto.
         This opinion should not be interpreted       as saying
or implying that the county commissioners court is nec-
essarily    required to review all tax assessments or exemp-
tions therefrom,     or that action by that authority      is a
condition    precedent to the maintenance of an action in
Court concerning invalid assessments or tax exempt
properties.      The commissioners 1 court Is jurisdiction
and- duty Is Invoked only when it shall discover through
notice that real vrooertv has been omitted from the tax
rolls,   or shall find-any-previous     assessments to be
invalid,    or to have been declared invalid for any reason
by any district     court, as expressly    set out in Article
7346.
                            SUMMARY
            It Is the opinion of this office        that
            the administrative    responsibility      of
            deciding whether property Is exempt
            from taxation by the Constitution
            and Statutes of Texas is vested with
            the county tax assessor and collector,
            and the county commissioners,        functlon-
            ing as a county commissioners court, has
            the authority   to reconsider     and revise
            his decisions   with reference     to all real
            property;   the county commissioners court,
            sitting   as a board of equalization,        has
            no authority,   expressly    or impliedly,     to
            consider questions relating       to tax
            exemptions, but its authority        is limited
            to matters affecting     valuations.
                                            s very truly,


                                                ‘2. MARTIN
                                          orney Qeneral of Texas
   .    .




Hon. James E. Barlow,     Page 9   (M-328 )

Prepared by Edward H. Esqulvel
Assistant Attorney General
APPROVED:
OPINION COMMITTgE
Kerns !lkylor, Chairman
Bill Allen
John Reeves
James McCoy
Alfred Walker
Gabriel QutSmrez
HAWTRORNEPHILLIPS
EICECUTIVE
         ASSISTANT




                                              .,.,,   .,   .   ~(.   ..a..   ,..   I




                                   -,1613-




                                                                                       ..