       OFFICE   OF THE   A-ITORNEY    GENERAL       OF   TEXAS
                             AUSTIN




Honorable Tom F. Coleman, Jr.
County Attorney
Angelina County
Lufkln , '&~rar

Dear Sir:
                           opinion No. O-1739         i
                           Rer Does Senate Bili'H0.~~89.
                                Aote of the itNh.X,e&oliturr,
                                1939,.donate to th& oouaties
                                named therein State id vhlorem
                                  teix p.ps’p~to    reimburse    said
                               ,. ooyitiep    forall the back
                                < years that the Federal Govern-
                                 ~..,mentWas bald land In said
                                   'oountle+s,or does the eama
                                   dbgate said money to those
                              ‘,\ ooiiMell,to reimburro thorn
                          -\\,
                                   ror thq loss of taxable valuer
                                    hey srts$Alnedeaoh year after
                             \\    thp efieotive date of the Act?
                                 \    1\




            State all State taxes except suoh an amount
            ae would be suffloient to oover the taxes on
            the Federal land for the ourrent year.*
          You request an opinion of thle Department ae to whether
or not the Asseesor-oolleotor of Angelina County wa8 authorized
    rablo Tom F. Coleman, Jr., Page 2


to turn over to the County Treasurer or Angslina County State
ad valorem taxes to cover the Countv's tax loss Por the entire
f IYe- ear period that the Federal Gvernment has owned land in
said E ounty.
         The ansver to your question can only be determined
    proper construction of the language of Senate Bill No. 89
   ii.
              "Section 1. That Prom and aiter the
         eiieotive date of this Aot, the Assessor
         and Collector oP Taxes Por each OP the
         Counties of Jasper, Sabine, San Augustine,
         Shelby, Trinity, Houston, Tyler, Angelina,
         San Jacinto, and Xalker, in this State
         shall asoertain the number of acres of
         land purohased or leased by the Federal
         Government la their respective counties
         and shall make a report under oath to the
         Commissioners' Court of such county as to
         the number of acres of such lands purchased
         and/or leased by the Federal Government in
         such county.
              "Section 2. Upon the Piling of said
         report, as provided in Section 1 oP this
         Act, with the Commissioners' Court by the
         Assessor and Collector of Taxes, the Commis-
         sioners' Court of each County above named
         shall at their regular annual meeting as a
         Board of h'qualizatfonin iJayof each year
         ?ix a valuation upon such lands: the valua-
         tion Pixed upon such lands shell be the same
         as rixed by the Equalization Board upon other
         and similar adjoining lands. for taxation
         purposes the said Court mhai.1at the same
         time determine the amount of taxes that said
         County and precincts and districts has lost
         as a result of the Federal Government having
         purchased or leased anid land.
              "Lection 3. The Assessor rnd Collector
         of Taxes of the Counties hereinabove named
         shall make an itemized report under oath,
         showi.nRthe valuation rixed bv the Board of
         Equalization on such lands and the amount
         oP the county ad valorem taxes that would
         accrue thereon, as approved by CoLxmissionersl
Lonorable Tom F. Colsman, Jr., Page 3


         Court, were they not exempt by reason of
         purohase or lease by the Federal Govern-
         ment, based upon such valuations and fixed
         at the prevailing rate for the county ad
         valorem taxes on lands similarily situated.
         The Assessor and Colleotor of Taxes shall
         show in said report the total amount ok
         county ad valorem taxes whioh would have
         been assessed against all lands within
         said county owned or leased by the Federal
         CYmerxuaent, and shall forward-said report
         to the Comptroller of Public Aooounts at
         Austin.
              %eotion 4. The Comptroller of Public
         Accounts shall upon reoript of suoh report
         check the same as to the correctness thars-
         or, and if found correct, shall approve
         such report. The total amount of county
         ad valorem taxes whioh would have been assess-
         d aCain& the lands owned or leased by the
         Federal Government within such county, as
         shovn by the report of the County Tax Assessor
         and Collector, and approved by the Comptroller
         of Public Accounts, shall be the measure of
         the amount of the State ad valorem tax to be
         donated, and granted to such county, as here-
         inaiter provided.
              "section 5. There is hereby donated,
         and granted to each of the Counties   of Jasper,
         sabine, San Augustine.   Shelby, Trinity, Houe-
         ton, Tyler, Angelina, San Jacinto, tnd Xalker,
         all of the State ad valorem taxes necessary
         to reimburse said County for the loss sustained
         by said County or Counties and not to exceed
         this amount, levied and collected   In each re-
         spective County for general revenue purposes
         upon property and from persons in each respeo-
         tire county including the rolling stocks of
         railroads, or so much of such State ad valorem
         taxes collected as shall be equal to the amount
         to be determined in accordance with Seotion 4
         hereof. The taxes hereby donated shall be
         levied and coll.eotedas now provided by law
         except that the Assessor   and Collector of Taxes
Honorable Tom F. Colenan, Jr., Page 4


         in each reapeative County shall forward his
         report to the State Comptroller of Publio
         Acoounts as provided by law, and shall pay
         over to the Treasurer of eaoh respective
         County all moneys collected by him at the
         end of each month, except such amounts as
         are allowed by law for collecting and assess-
         ing the same; and shall forward a duplicate
         oopy of the receipts given him by the County
         Treasurer for said money to the Comptroller.
              “Section 8. The fact that the United
         States Government has purchased or leased a
         large acreage of cut over lands in the Coun-
         ties named in Section 1 hereof, thereby
         taking off of the tax rolls great valuations
         ?or taxable purposes in eaoh of such Counties;
         and the faot that the loss of suah taxable
         values in such Counties render them inaapable
         of carrying on county government and paying
         the expenses incident thereto; and the further
         fact that said Counties have not yet recovered
         from the disastrous results incident to the
         calamitous occurrences hereinabove enumerated
         create an emergency and an imperative public
         neaessity that the Constitutional Rule requir-
         ing bills to be read on three several days in
         eaoh House be suspended and said Rule is here-
         by suspended, and this Act shall take effect
         and be in force from and after its passage,
         and it is so enacted.”
          This Department is unable to find, from a careful anal-
ysis of the above Sections of Senate Bill No. 89, any authority
for your Tax Collector to retain State ad valorem tax money to
reimburse tigelina County for its tax losses during the past five
years because of Federal owned lands in said County. b careful
reading of the Act can only lead one to the conclusion that the
donation set out therein is to be determined on a yearly basis
beginning with the effective date of the Act.
          Of necessity, before any amount of State tax money may
be donated to the county, it is necessary that a valuation be
fixed upon the Federal owned lands in said county by the Board
of Dqualization. In Section 2, supra, the Legislature has provid-
ed that such valuation is to be determined by the Comissionersq
Honorable ToraF. Coleman, Jr., Page 5


Court of each oounty "at their regular  annual meeting as a
Board of Equalization in Kay of each year". The valuation of
the property for tax purposes is determined as of the tine of
said annual meeting. Certainly this does not contemplate that
the Commissioners' Court xi11 meet and determine the valuation
of the lands for years back. Rather, this language of the
Legislature contemplates the Board of Equalization acting on
this Federal owned land eaah year just as it would if said
land were privately owned. It is also to be noted that at the
same time the valuation is fixed upon such land the Court Is
to determine the amount or.taxes that the county, preainate
and districts are to lose as a result  of the Federal Government
having purchased or leased the land. This aloountof tax loss
is determined as of the year for whiah the Board of Equaliza-
tion is valuating the land for tax purposes. There is no method
by whiah the amount of taxes lost during past years may be de-
termined unless the Commissioners1 Court is given the authority
to valuate the property as of each of the prior years. Howhere
in this entire Act can such authority be found. On the other
hand, the Legislature has been specific in requiring the valua-
tion to be made eaoh year and the amount of taxes to be lost by
the oounty to be determined QS of that time.
           This Department ruled in Conference Opinion No. 3G83,
addressed to Honorable Geo. H. Sheppard, that for the year 1939,
the several Conunissioners'Courts could meet and fix a valuation
upon the land owned by the Federal Government in eaah of the
counties. This Opinion held further that the Commissioners
Courts could determine the value of'the Federal land and the
amount of tax being lost thereby in 1939. However, nowhere in
that Opinion, or in the Act itself, is there any indication that
the county is entitled to money for the back years that the Fed-
eral Government has owned land in said county, and nowhere can
there be found any authorization for the action taken by the
Assessor-collector of your County.
          dection 3, supra, authorizes the Assessor-collector
of Taxes to iuakean itemized report showing the valuation fixed
by the Board of Equalization and the amount of county ad valorem
taxes that would accrue thereon. In that same Section, it is
provided that said Assessor-collector shall show the total amount
of county ad valorep taxes which would have been assessed against
all land within said county owned or leased by the Federal Govern-
ment and shall forwnrd said report to the Comptroller of Public
Accounts at Austin. The use of the word "would" indicates that
the determination of amount of taxes is not the amount that has
Honorable Ton F. Coleman, Jr., Page 6


been lost In past years but the amount that would accrue, or
the amount that would have been assessed against the land had
the sane not been owned by the Federal Government. This lan-
guage take6 out of the Act all possibility of the Legislative
intention having been that the Act should be retroaative.
          The amount of the actual  donation is determined by
Section 4. The Comptroller of Public ACcoUds is to check the
reports submitted to him, and is to determine the total amount
of county ad valorem taxes which would have been assessed a-
gainst the land owned or leased by the Pedernl Government with-
in the county and the same shall be the measure of the amount of
State ad valoren tax to be donated to the connty. The report is
to be approved by the Comptroller of Pub110 Accounts. Section
5 of the Uct makes the actual  donation in accordance with the
terms of Section 4. There la no procedure in either Section 4
or 5 to determine the amount that the'oounty has lost in prior
years, for the Comptroller of Public hocounts to be able to aert-
ify such a tax donation to the county.
          jection 8 is the emergency clause.    The emergency set
up in said Section is not that a great amount of money has been
lost to the counties for which they .nust ‘Se reimbursed, but
that great valuation for taxable purposes in each of said coun-
ties has been taken off of the county tax roll, and that the
loss of such taxable values render them inoapable of carrying
on county government and paying the expenses   incident thereto.
The term "render them incapableW looks to the future.    In other
words( the Legislature la hare setting up a method whereby each
year the amount of taxes lost by the counties because of the
loss of taxable valuation is being donated to said counties out
of the state ad valorem taxes so thst they may be capable of
carrying on county goveynsent and Gaying the expenses incident
thereto.
          It is the opinion of this Department, therefore, that
the Assessor-collector oP.hngelina County had no authority to
withhold out of the State ad valorem tax money a sum to re-pay
said County for losses accruing to it during years prior to
1939, by reason of the Federal Government owning property in
said County.
          In your Setter you also inquire whether or not the
Assessor-collectorof Angelina County is liable to the State ror
the taxes paid over to the County Treasurer if onid payment was
unlawful. You inquire further as to the method of reoovery of
said tax money from the County Treasurer.
Honorable Tomy.    Coleman, Jr., Page 9


          Berore the Assessor-collector 18 authorized to turn
any money over to the County Treasurer, under the provision8
of Senate Bill No. 89, his report must be approved by the
Comptroller of Public Accounts at Austin, Texas. Se hare ex-
amined the reoords of the Comptroller of Public Aocount8 and
find that not only did the Assessor-oollaotor ot your County
fall to obtain such approval bef'orehe paid this money over to
the County Treasurer but that hie payment was nade despite the
tact that on Horember 6, 19SQ, the Comptroller of Public Ao-
oounts certff'ledto him that he was authorized to pay to said
County Treaeurer the amount ot tax donation authorized for the
year 1939, and that year alone.
          Artiole 7247 of the Revised Civil Ststutea require8
the A88essor-collector to post a bond for State taxes. Ar-
tiole 7260 of the RsVi88d Civil Statute8 provide8 for the method
of payment of State noneya by the Tax Collector ot the county to
the State Treaaurer,and for failure to do 80 Section 7 of eaid
Arttole provides as followa:
                  "The Comptroller ah6111notify th8
            Dlstrlot Attorney of the distriat or the
            Couhty Attorney  of the county in which the
            collector resides, and the suretlee on the
            bond of the collector, or any Sallure to
            OOmply uith allyprOViSiO~8 Or this artiole.
            Act8 1888, pa 90; G.L. YOl. 10, p. 520; nCt8
            1915, p. 190; Act8 1923, 3rd C.S., pp.157,
            i8f; Act8 1935, 44th. Leg. p. 673, oh. 285,
                ."
            Artiole 7294 of the Revised Civil Statutes provide8 as
rOllOW8 :
                 "All tax collectors and other officers
            or appointees authorized to reoeive publio
            moneys shall 8ocouut for all moneys in their
            hands belonging to the State, and pay the
            same over to the State Treasurer whenever
            and a8 often as they may be directed so to
            do by th8 Comptroller; provided that tax col-
            lectors shall have thirty days from the date
            or suoh direotion within whlah to comply with
            the same. Acts 1879, S.S., p. 5; G.L. vol. 9,
            p. 37."
Honorable Tom F. Coleman, Jr., Page 8


          There oan be no question but that the above quoted
Articles   authorize
                   a suit by the State.of Texas against the
Assessor-collector of Angellna County and his sureties in
this oase. The Supreme Court of Texas, In an opinion written
by Chier Justice Roberts, in the case of Boggs v. The State,
46 Tex. 10, discussed the liability of a Tax Collector and
the sureties on his bond, and stated as follows:
                 "It 18 contended by the oounsel for
            the appellants that Boggs, being an officer,
            occupied towards the State the position of
            a ballee for hire, in the business of ool-
            leoting, preserving, and accounting for the
            taxes of Rusk county, and that as he took
            care of the money in his hands, as a prudent
            man would ordinarily have done, in reference
            to his own property, neither he nor his
            sureties .wereresponsible for'its loss.
                 "'Zledo not understand such to be the
            legal position and responsibility of the
            public officer whose duty it is to colleot
            and account for the money of the State as
            a tax collector, nor is it in accordunce
            with the terms of his bond, signed by him
            and his sureties, as prescribed by law.
                 "He is bound to account for and pay
            over the amount of money which he collects
            less his contissions, or his sureties must
            do it for him. (3aschal's Dig., art. 7461;
            Boy-denv. United States, 13 Eall., 17.)"
          The obliga:Son of the sureties in this case would be
as stated by Judge Stayton in the case of Sttiteof Texas v.
liiddleton'ssoreties, 57 Tex. 185, 2s follows:
                 w* i * for the contract of the sureties
            was, in effect, 'that the collector would pay
            into the Jtate Treasury,~either directly or
            indirectly, *.' *-allfunds which he night
            collect, which under the law was so to be
            paid."
          The position of the state of Texas in such a matter
was best stated by the >marillo Court of Civil Appeals In the
case of Xiller v. state, 53 S. Vi. (Cd) 792, as follows:
norable Tom F. Coleman, Jr., Page 9


              "‘;.here
                     the suit is brought by the
         state based upon the official bond and the
         state proves the amount of money collected
         and the amount accounted for or remitteU,
         leaving a deficiency, 3s in this case, the
         state has made a prima facie aase and is
         entitled to recover without being required
         to go into the enemies' camp and show who
         h;s embezzled or misappropriated it.
         ;!ahonv. Kinney county (Pax. civ. Jipp.1
         2% s. ii'.
                  1024; State v. E;iddletonVsSure-
         ties,   supra.n

                therefore, advised that the State of Texas
         You are,
t look to the Assessor-collector of Angelina County for the
uni of State ad valorem taxes which he has wrongfully paid
the County Treasurer Instead of the State Treasurer. The
?cr procedure is for the Commissloners~ Court to authorizd
 County Treasurer to return this money to the Tax Collector
 should then forward the same to the State Treasurer.
         ::le
            would like to point out that this opinion 18 not
 be construed  as passing on the constitutionality of:Senate
 L No. 89.

                                       Yours   very   truly




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