Untitled Texas Attorney General Opinion

Arrclx-IN 1,. X-IGKAH PRICE DANIEL ATTORNEYGENERA,. December 14, 1948

Hon. Sam Lee Opinion No. V-734 County Attorney Brasoria County Re: Legality of paying State and Coun- Angleton, Texas ty ad valorem taxes without at the same time paying drainage dis- Dear Mr. Lee: trict taxes on the same tax roll.

You request an opinion upon the following questions:

“Drainage District No. 4, located entirely within Braaoria County, Texas, was cr,eated under Section 52 of Art. 3 of the Constitution of the State of Texas and subsequently availed itself of the benefits of Art. 16, Section 59 of the Constitution without change of nnme .

“The Commissioners’ Court of Braxoria County determines the tax valuation of the drainage district aa a board of equaliaatioa and sets the fax levy as well as adopts the budget for the drainage district.

“Due notices of hearings were given and hear- ings were held on the questions of values and bud- get for the district. but no taxpayer appeared and entered a protest on the values, the budget or lev- ies. The Tax Collector and Asressor for Braxor- i& Cauoty, Texas has made up his tax rolls for the y8ar 1948 aad io now receivi.mg taxes for the gear 1948. The drainage dirtrict tax Is on the Mme tax roll ae the stat, and couMy taxec and is payable at the eame timt the state and county taxes are paya- Me. The Tax ColLcfor has asked me the following qllestionnr

“1, Cur a tarpafelr orniy property loeatad withIn the draiange district and taxable by such district. par hfe state aad couuty taxes on hi,s property located wffhf8 such drofnage district, without 4t the same time. pnpirr his drrfnage district taxes on this propwiy?

“2. Ia the event that such state and county tares 4rr payable without the drainage district

Hon. Sam Lee, Page 2 (V-734)

tax being paid, am I. as Tax Collector, autborieed to give the taxpayer a receipt showing his state and c,ounty taxes paid?

““3. In the event that a taxpayer tendered pay- ment of his State and county taxes prior to Novem- ber 2nd without the payment of his drainage district taxes and I refused the same, is such taxpayer en- titled to the percentage reduction provided by sPat- ute for the payment of taxes on or before November 2ad? -

We note briefly tbe status of drainage dis%ricts. Such districts are created by constitutional and statutory authority, and exist separate and apart from the counties wherein they are located. The following authorities support this view: American Surety Company of New York v. Hidalgo County, 283 S.W. 267 (writ refused); Harris County Flood Control District v. Mann, 135 Tex. 239, 140 S.W.(i?d) 1098. From the firs% case we quote: w 0 D . The drainage district is as much an en%ity as is the city@ and clothed with the authority to ‘sue and be sued in all courts of this state in the name of such drainage district, and all cour%s of this state shall take judicial notice of the establish- ment of all such districts.’ Hidalgo county in this suit has appeared for it as would %he next friend for a minor or a lunatic, but thaU has not des%roy- ed ite separahe existence as a drainage dis%ric%. Matagorda County Drainage DistricU v. Gaines g Corbett (Tex.Civ. App.) 140 S.W. 370.“’

Neither the State of Texas nor the County of Braaoria has any iatereet in the funds or taxes of the drafnage district. The fad that the Commissioners’ CourU, the Tax Aseessor- Collector, the County Auditor;;and the County Treasurer lnave certaim d&e@ conferred upon them by law in the admiwiis%ra- tion of the fiscal a%fairs of the d&strict does not change this. In the performance of these dutfes tb.ey are merely perform- ing additional duties, not iwconairhent with those ordinarily re- quired of them under the law. That such additioauel duties may be required of them by the Lagiala%ure has been approved by our cou~te, and for this they receive no addi%ional compensa- tion. Settegast v, Harris County, 159 S.W.(2d) 543 (Ct.Civ.Appd, writ of error denied). The State and County taxes cowstitute separate and distinct obligations of Qhe Uaxpayer, quite sepa- rate and diiitinct from the drainage district taxes.

Your request reveals that you have dowe a commend-Hon. Sam Lee, Page 3 (V-734)

able amount of work and research upon the questions presented, but after careful consideration WC have reached opposite con- clusions from those expressed by you. We have concluded that all three questions should be answered in the affirmative, In the case of Richey, Tax Collector v. Moor, 112 Tax. 493, 249 S.W. 172, Chief Justice Cureton, speaking for the Supreme Court, said:

“In considering the rule requiring the full pay- ment of the taxes, we think it an appropriate deduc,- tion from the authorities to say that, where it is nec- essary for any one, in order to preserve unimpaired his property rights, to pay the taxes due on any sep- arate tract or parcel of land which has been separate- ly assessed, he has the right to do so; and, where the statutes can be construed to accomplish this end, they should be so construed. Under the constitutional pro- vision before us, the right of the citincn to have any tract of his land free of any lien, except that to secure the taxes levied against it, is an important, substan- tial, and real property right, not limited by the Con- stitution by any obligation to pay all other taxes due by him. If we were to say that the taxpayer cannot pey% taxes on one tract of his land without paying on all, or paying all of his taxes, in its final effect on him, as previously stated, vu would be awarding a lien not provided by the Constitution, or imposing a quasi-distraint not warranted by that instrument. The general rule that all taxes due must be paid at one time is not to be so blindly followed as to sub- vert the plain meaning of the organic law. We arc of the opinion that the tax against such separate tract or parcel of land, insofar as the right of pay- ment is concerned. is to be reuarded as a rewrate tract, and may be paid without>t the same tilt pay- ing other taxes.” (Emphasis supplied)

It is true that the identical question before the court in thin eato is not the same as here, but we think the principle is the same. fudge Cureton was speaking specifically of taxes up- on separate tracts of land separately assessed, but from the laogutgt used it seems it would apply with equal force to sepa- rate taxes upon~the same property. Note some of the laagnagt used by Judge Cureton in this opinion. FOP example he says: *The taxpagtr ia not required to pay all other taxes due by him; . . . or paying all of his taxes* without at the same time paying other taxes. The drainage tax is a part of the taxpayer’s other taxes. and is a part of all other taxes due by him.

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Moreover, as observed by Judge Cureton, if we were to hold that tat taxpayer must pay his drainage district taxes at the same tima he pays hit State and Couuty taxes, we would in effect bt tndteroriop to enforce a lien for the payment of one tax to require the payment of another separate and distinct tar, and to place upon the taxpayer a distraint as to the pay- ment of tie Stat8 and Cou@ty taxte not provided for in the Con- sbktutioo or sbetutes.

In the absence of some statitory authority requiring the taxpayer to pay his drainage tax, which is a separate tax and aecnr- td by a separate lien, at the same time he pays his State and County taxes, such a requirement is unauthorieed, notwithstand- ing his drainage tax is upon the same tax roll as the State and County taxes. The facts that the Commissioners’ Court acts as a board of equalization as to the drainage taxes and that the County Tax Collector collects the tax, are not sufficient within 1 themselves to require the taxpayer to pay the drainage tax at the same time he pays his State and County taxes, if he chooses not to do 80. The Legislature has made ample provision for the collection of drainage district taxes, both current and delinquent (Arts. 8135 to 8144, V.C.S.); but placing a distraint upon the tax- payer at to the plrymcnt of bke State aad County taxes unless his draimg# bq~~t we petd at bbt same time is not one cd tho mtth- tds prevl+Td by tkt LeStrltture.

It is, theraforc, our conclusion that a tatpayer may pay hia State and County taxes at any time thsy are due and payable, natwithstandiq he may chosse not to py at the same time his dauinqt district futs eerearrtd on the State and County ~011s.

SUMMARY

State and C?usty tart8 may be paid without re- quiriag the taxpayer to pay drainage diatricb baxtc upa the same property, notwithrbandia~ the drain- age district taxes are assessed upon the same tax rolls. American Surety Co. of New York et al v. Htdalgo County et al, 283 S.W. 267 (writ refused); Harris County Flood Control District v. Mann, 135 Ttx. 239, 140 S.W,(td) 1098; Richey, Tax Collector V. Mow, 112 Tex. 493, 249 SAW. 172; Arts. 8135 to 0144, V.CSs.

Yours very truly

ATTORNEY GENERAL OF TEXAS