Can Texas have the county or district attorney, or an outside lawyer, instead of the tax assessor-collector, handle lawsuits to collect delinquent property taxes?

Texas AG Opinion JM-1015: Can Someone Other Than the Tax Assessor-Collector Handle Delinquent Tax Lawsuits?

Plain-English summary

When property taxes go unpaid, someone eventually has to sue to collect them. Texas law puts that job on lawyers: section 6.30 of the Tax Code says the county attorney (or the district attorney, if the county has no county attorney) represents the county in enforcing collection of delinquent taxes, unless the commissioners court instead contracts with a private attorney to do it. Notice who is missing from that list: the county tax assessor-collector, the elected official whose job is assessing and collecting taxes. The Polk County District Attorney noticed too, and asked the Attorney General whether leaving the assessor-collector out violated article VIII, section 14 of the Texas Constitution, the provision that establishes that office and its duties.

The Attorney General said no, section 6.30 is constitutional. The reasoning is mostly history.

Back before 1932, Texas had two separate elected offices, a tax assessor and a tax collector. In 1932 the voters amended the Constitution to merge them into one office, the tax assessor-collector, and the same amendment added a clause saying that officer would perform all the duties of assessing property and collecting taxes "as may be prescribed by the Legislature." Someone could read that clause as locking every tax-collection function into the constitutional officer forever. The Attorney General rejected that reading. The ballot proposition voters actually saw, and the caption of the resolution, talked only about combining the two offices. The added clause was best understood to mean the new combined officer would do the duties the old two officers used to do, not to freeze the Legislature out of ever assigning any collection-related task elsewhere.

Two other threads sealed it. First, well before 1932 the courts had already said the tax collector did not have exclusive authority over delinquent tax collection, and that the legal work of actually suing to collect delinquent taxes was outside the collector's constitutionally required duties. The Constitution separately provides for county and district attorneys, whose job is to represent the state and county in those suits. Second, the practice section 6.30 authorizes (letting the commissioners court contract for attorneys to pursue delinquent taxes) is old. Its predecessor statutes date to the 1920s, and for decades afterward the Legislature and the courts treated these contracts as valid without anyone suggesting they collided with article VIII, section 14. A long, settled, unchallenged construction of a constitutional provision carries great weight. Put together, the history showed that legal representation in delinquent tax collection was never the assessor-collector's exclusive constitutional turf, so the Legislature could assign it to the county or district attorney or to a contract attorney.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 6.30 of the Tax Code (representation of a taxing unit in enforcing delinquent tax collection, including the option to contract with a private attorney) is still in the Tax Code, but its subsections and the surrounding delinquent-collection provisions have been amended since 1989, including caps and rules on contingent-fee contracts and added penalties. The constitutional framework (article VIII, section 14) remains, and the historical holding here (that legal representation in delinquent tax collection is not the tax assessor-collector's exclusive constitutional duty) is still the accepted view. Anyone dealing with a delinquent-tax-collection contract today should read the current Tax Code section 6.30 and related provisions rather than rely on the details as they stood in 1989.

Who this opinion affected (as of 1989)

County and district attorneys: The opinion confirmed their statutory role representing the county in delinquent tax suits under section 6.30 was constitutionally sound.

Commissioners courts: The opinion confirmed their authority to contract with a private attorney to enforce delinquent tax collection, a power drawn from statute rather than displaced by the assessor-collector's constitutional office.

County tax assessor-collectors: The opinion clarified that legal representation in collecting delinquent taxes was outside their constitutional functions, so the Legislature could assign it elsewhere.

Private attorneys who collect delinquent taxes by contract: The opinion confirmed the contracting procedure they work under did not run afoul of article VIII, section 14.

Common questions

Does section 6.30 of the Tax Code violate the Texas Constitution by leaving out the tax assessor-collector?
No. In this opinion the Attorney General concluded section 6.30 does not violate article VIII, section 14, because legal representation in collecting delinquent taxes is outside the tax assessor-collector's constitutional functions.

Who can sue to collect delinquent property taxes for a county?
Under section 6.30, the county attorney (or the district attorney if there is no county attorney), unless the commissioners court contracts with a competent private attorney to do it.

Didn't the 1932 constitutional amendment give the assessor-collector all collection duties?
No. The Attorney General read the 1932 amendment as combining the separate assessor and collector offices, not as freezing every collection-related function into the new office. The ballot proposition and caption addressed only merging the offices.

Why did the history matter so much?
Because the Legislature authorized these attorney contracts long before and after 1932, and courts treated them as valid without questioning their constitutionality. A long-settled construction of a constitutional provision is entitled to great weight.

Background and statutory framework

Section 6.30 of the Tax Code provides that the county attorney (or the district attorney, if there is no county attorney) represents the county to enforce collection of delinquent taxes if the commissioners court does not contract with a private attorney under subsection (c), that the governing body of a taxing unit may contract with any competent attorney to represent the unit in enforcing delinquent tax collection, and that a nonconforming contract is void. It provides no role for the county tax assessor-collector, which prompted the constitutionality question under article VIII, section 14.

Article VIII, section 14 provides for the election of an Assessor and Collector of Taxes in each county and directs that the officer perform all the duties with respect to assessing property for taxation and collecting taxes as may be prescribed by the Legislature. The separate offices of tax assessor and tax collector, formerly established respectively by sections 14 and 16 of article VIII, were consolidated into a single office by a 1932 amendment (H.J.R. No. 21, Acts 1931, 42d Leg.), which also added the quoted clause.

The Attorney General traced the history. The commissioners court had statutory authority to contract for attorneys to enforce delinquent tax collections even before the 1932 consolidation (the predecessor of section 6.30, formerly codified as article 7335, V.T.C.S. (Vernon 1960)). Judicial decisions on the relative powers of the commissioners court and the constitutional tax collector shed light on which functions could be allocated elsewhere. In Rusk County v. Maloney, 38 S.W.2d 868 (Tex. Civ. App.-Texarkana 1931, writ ref'd), the court held the tax collector's authority to receive and collect taxes did not give him exclusive authority over delinquent tax collection, and that the commissioners court could employ others to help enforce collection. In Cherokee County v. Odom, 15 S.W.2d 538 (Tex. 1929), the Supreme Court rejected the view that all delinquent-tax-collection duties were constitutionally vested in a constitutional officer, and the court of civil appeals in that case had excluded duties involved in judicial proceedings from the tax collector's area of responsibility while treating legal representation as the province of county and district attorneys (Cherokee County v. Odom, 297 S.W. 1055 (Tex. Civ. App.-Texarkana 1927)). Because section 6.30 concerns legal representation of the county by an attorney (tax-collection duties that may involve judicial proceedings), it lies outside the assessor-collector's constitutional functions (see Cameron v. Earnest, 34 S.W.2d 685 (Tex. Civ. App.-San Antonio 1930, writ dism'd), holding an attorney could be compensated for collecting delinquent taxes even without bringing suit).

The Attorney General also examined the 1932 amendment's ballot proposition and caption, both of which addressed only combining the two offices, not limiting the Legislature's power over collection duties. He read the added clause to mean the new assessor-collector would perform the duties formerly performed by the two separate officers, not to create new limits on the Legislature's power to change the "core functions" of the office (see Missouri, K. & T. Ry. Co. of Texas v. Shannon, 100 S.W. 138, 142 (Tex. 1907); Green v. Stewart, 516 S.W.2d 133 (Tex. 1974); Wilson v. Galveston County Central Appraisal Dist., 713 S.W.2d 98 (Tex. 1986)). The first legislative session after the amendment enacted an implementing provision treating references to "Assessor" or "Collector" as meaning the combined office (Acts 1933, 43d Leg., ch. 197, § 5, codified as V.T.C.S. art. 7181a (1925), later repealed), and such a contemporaneous legislative construction, long acquiesced in, is entitled to weight (Director of Department of Agriculture & Environment v. Printing Industries Ass'n, 600 S.W.2d 264 (Tex. 1980); Walker v. Baker, 196 S.W.2d 324 (Tex. 1946)). The Supreme Court, in White v. McGill, 114 S.W.2d 860, 863 (Tex. 1938), invalidated a 1937 delinquent-tax-collection contract for lack of required approvals and stated that the Legislature has the sole power to provide for collecting delinquent taxes and that commissioners courts derive their contracting power exclusively from statute (citing Easterwood v. Henderson County, 62 S.W.2d 65 (Tex. Comm'n App. 1933, judgm't adopted)), without any suggestion of a constitutional problem. And in Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961), the Supreme Court upheld a commissioners court appraisal contract, rejecting a usurpation-of-the-assessor-collector argument and matter-of-factly referring to delinquent tax collection under a contract authorized by a predecessor of section 6.30.

The Attorney General concluded that the Legislature and the courts have long assumed the contractual procedure in section 6.30 and its predecessors to be consistent with the constitutional authority of the county tax collector and assessor-collector, that such constructions are entitled to great weight, and that legal representation in delinquent tax collection is outside the assessor-collector's constitutional functions. He noted the courts have not defined the full set of the assessor-collector's non-delegable duties (Green v. Stewart) and that he need not address that question. The history of the amendment and the courts' long acceptance of these contracts convinced him section 6.30 does not violate article VIII, section 14 (see also Tex. Const. art. V, § 18, on the commissioners court's authority to make contracts for the county).

Citations

Constitutional and statutory authority:

• Tax Code § 6.30 (representation of the county in enforcing delinquent tax collection; contracting with a private attorney)
• Tex. Const. art. VIII, § 14 (elected county assessor-collector and prescribed duties); art. VIII, § 16 (former separate tax collector office); art. VIII, § 18 (single appraisal and board of equalization); art. V, § 18 (commissioners court authority over county business and contracts)
• Tex. Rev. Civ. Stat. art. 7335 (Vernon 1960) (predecessor of Tax Code § 6.30); art. 7181a (1925) (1933 implementing provision, later repealed)

Cases:

• Rusk County v. Maloney, 38 S.W.2d 868 (Tex. Civ. App.-Texarkana 1931, writ ref'd)
• Cherokee County v. Odom, 15 S.W.2d 538 (Tex. 1929); Cherokee County v. Odom, 297 S.W. 1055 (Tex. Civ. App.-Texarkana 1927)
• Cameron v. Earnest, 34 S.W.2d 685 (Tex. Civ. App.-San Antonio 1930, writ dism'd)
• Missouri, K. & T. Ry. Co. of Texas v. Shannon, 100 S.W. 138 (Tex. 1907)
• Green v. Stewart, 516 S.W.2d 133 (Tex. 1974)
• Wilson v. Galveston County Central Appraisal Dist., 713 S.W.2d 98 (Tex. 1986)
• Director of Department of Agriculture & Environment v. Printing Industries Ass'n, 600 S.W.2d 264 (Tex. 1980)
• Walker v. Baker, 196 S.W.2d 324 (Tex. 1946)
• White v. McGill, 114 S.W.2d 860 (Tex. 1938)
• Easterwood v. Henderson County, 62 S.W.2d 65 (Tex. Comm'n App. 1933, judgm't adopted)
• Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961)

Related opinions:

• Attorney General Opinions JM-911 (1988), JM-833 (1987); Letter Advisory No. 117 (1976)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1015
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1015.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. Garbled case names have been restored to their verified forms; illegible internal quotations are rendered as best read.

THE ATTORNEY GENERAL OF TEXAS

February 10, 1989

Honorable Donald M. Keith
Criminal District Attorney
Polk County Courthouse
Livingston, Texas 77351

Opinion No. JM-1015

Re: Validity under article VIII, section 14, of the Texas Constitution, of section 6.30 of the Tax Code (RQ-1479)

Dear Mr. Keith:

You ask the following question:

Does section 6.30 of the Texas Property Tax Code violate article VIII, section 14, of the Texas Constitution insofar as it attempts to ascribe duties incident to tax collections to persons other than the County Tax Assessor-Collector?

Section 6.30 of the Tax Code provides as follows:

(a) The county attorney or, if there is no county attorney, the district attorney shall represent the county to enforce the collection of delinquent taxes if the commissioners court does not contract with a private attorney as provided by Subsection (c) of this section.

(b) [applies to taxing unit other than a county]

(c) The governing body of a taxing unit may contract with any competent attorney to represent the unit to enforce the collection of delinquent taxes. . . .

(d) [repealed]

(e) A contract with an attorney that does not conform to the requirements of this section is void.

Section 6.30 pertains to representation of the county in enforcing delinquent tax collections. It provides no role for the county tax assessor-collector, and for this reason, you wish to know whether it violates article VIII, section 14, of the Texas Constitution. This constitutional provision reads as follows:

Except as provided in Section 16 of this Article, there shall be elected by the qualified voters of each county, an Assessor and Collector of Taxes, who shall hold his office for four years and until his successor is elected and qualified; and such Assessor and Collector of Taxes shall perform all the duties with respect to assessing property for the purpose of taxation and of collecting taxes, as may be prescribed by the Legislature. (Emphasis added.)

Tex. Const. art. VIII, § 14.

The offices of tax assessor and tax collector were formerly separate offices established respectively by sections 14 and 16 of article VIII. H.J.R. No. 21, Acts 1931, 42d Leg., at 942; Acts 1933, 43d Leg. at xix. In 1932 these constitutional provisions were amended to consolidate the two offices into a single office of tax assessor-collector. The same amendment added the underlined clause to article VIII, section 14.[1]

The commissioners court had statutory authority to contract for attorneys to enforce delinquent tax collections before the 1932 amendment consolidated the tax collector's and tax assessor's offices. See Acts 1923, 38th Leg., 3d C.S., ch. 13, at 31; Acts 1923, 38th Leg., 2d C.S., ch. 35, at 78 (enacting predecessor of section 6.30 of Tax Code, formerly codified as article 7335, V.T.C.S. (Vernon 1960)). Judicial discussions of the relative powers of the commissioners court and the constitutional tax collector in collecting delinquent taxes provide some insight into which tax collection functions the legislature could at that time allocate to other officers. See generally Attorney General Opinion JM-911 (1988) at 17 ("core functions" of county treasurer's office); Attorney General Opinion JM-833 (1987) (county tax assessor-collector).

In Rusk County v. Maloney, 38 S.W.2d 868 (Tex. Civ. App. - Texarkana 1931, writ ref'd), the court stated that the tax collector's statutory authority to receive and collect taxes meant that he was "to demand and enforce in the ordinary way" the payment of taxes on the assessment roll, but he did not have exclusive authority over collection of delinquent taxes. 38 S.W.2d at 871. The commissioners court had authority to employ other persons to assist in enforcing the collection of delinquent taxes.

In upholding a provision of former article 7335, V.T.C.S., which authorized the commissioners court to pay for an abstract of property assessed or unknown and unrendered from the taxes, interest and penalty collected on such lands, the Texas Supreme Court rejected the view of the Court of Civil Appeals that all duties regarding the collection of delinquent taxes were vested by the constitution in a constitutional officer. Cherokee County v. Odom, 15 S.W.2d 538 (Tex. 1929). The Supreme Court quoted the following statement made by the court below:

The Constitution provides for the election of a tax assessor in each county. . . . The Constitution has also provided for the election of a tax collector in each county, to whom is committed the duty of performing all the duties, other than those involved in judicial proceedings, which are necessary in the collection of taxes. It has likewise provided for the election of county and district attorneys, whose duty it is to represent the state and county in filing and prosecuting suits necessary for the collection of delinquent taxes. (Emphasis added.)

15 S.W.2d at 540 (quoting Cherokee County v. Odom, 297 S.W. 1055 (Tex. Civ. App. - Texarkana 1927), rev'd, 15 S.W.2d 538 (Tex. 1929)). The Supreme Court disagreed with the lower court, stating that the duty of "performing these arduous, laborious, and technical services for a county" is not placed by the constitution or the statutes upon the county tax assessor, the county tax collector, the county or district attorney, or any other officer of government. Id. at 541.

Of particular interest in addressing your question is the lower court's exclusion of duties involved in judicial proceedings from the tax collector's area of responsibility. Although that court believed that a broad range of tax collection functions may be performed only by the county tax collector, it did not include duties involving judicial proceedings among his constitutionally mandated duties. Section 6.30 of the Tax Code concerns the legal representation of the county by an attorney in enforcing the collection of delinquent taxes, i.e., tax collection duties which may involve judicial proceedings. See Cameron v. Earnest, 34 S.W.2d 685 (Tex. Civ. App. - San Antonio 1930, writ dism'd) (attorney could be compensated for collecting delinquent taxes even though he did not bring suit therefor).

The 1932 amendment to article VIII, section 14, of the Texas Constitution was submitted to the voters under the following ballot proposition:

'For amendment to the Constitution of the State of Texas, combining into one office of Assessor and Collector of Taxes, the offices of Assessor and Tax Collector'; and . . . 'Against the amendment to the Constitution of the State of Texas, combining into one office of assessor and collector of taxes, the offices of assessor and tax collector.'

H.J.R. No. 21, Acts 1931, 42d Leg., § 3, at 943. Thus, according to the ballot proposition and also the caption to the resolution proposing the amendment, the reason for adopting this provision was to consolidate the offices. Neither the caption nor the ballot proposition mentioned the clause stating that the tax assessor-collector "shall perform all the duties with respect to assessing property . . . and of [sic] collecting taxes as may be prescribed by the Legislature."

This clause may only have been intended to mean that the new tax assessor-collector would perform all the duties formerly performed by the two separate officers, even if the statutes placed such duties on the "tax assessor" or the "tax collector." Duties with respect to tax assessment and tax collection had in the past been prescribed by the legislature and would still be prescribed by the legislature. The added clause is not the basis of any limits on the legislature's power to change "core functions" of the tax assessor-collector; these limits already existed with respect to the separate offices and after 1932 applied to the combined office of tax assessor-collector. See Missouri, K. & T. Ry. Co. of Texas v. Shannon, 100 S.W. 138, 142 (Tex. 1907). The explicit statement that the tax assessor-collector "shall perform all the duties" with respect to tax assessment and collection in effect codifies the view that the constitution delegates a certain body of tax assessment and tax collection functions to the county tax assessor-collector so that the legislature may not delegate them by statute to other persons. Green v. Stewart, 516 S.W.2d 133 (Tex. 1974); Attorney General Opinion JM-833 (1987); Letter Advisory No. 117 (1976); Wilson v. Galveston County Central Appraisal Dist., 713 S.W.2d 98 (Tex. 1986) (discussing article VIII, section 18, of Texas Constitution, which mandates single appraisal and single board of equalization in each county).

Neither the legislature nor the courts treated the 1932 amendment as repealing existing law on contracts for delinquent tax collections or otherwise radically changing the legislature's power to define tax assessment and collection duties. The first legislative session to meet after the amendment was approved by the voters adopted the following provision to implement it:

Hereafter, whenever the words 'Assessor,' 'Assessor of Taxes,' 'Collector,' 'Collector of Taxes,' or 'Tax Collector' are used, either in Articles 7181 to 7359 . . . as well as the Revised Code of 1925 . . . same shall be applicable to and mean the one office or officer of Assessor and Collector of Taxes, and shall be so construed as to accomplish the object and intent and carry out the purpose of Sections 14 and 16 of Article 8, of the Texas Constitution, as the same was amended on November 8, 1932.

Acts 1933, 43d Leg., ch. 197, § 5, at 600 (codified as V.T.C.S. art. 7181a (1925), repealed by Acts 1979, 66th Leg., ch. 841, § 6(a)(1), at 2329). In determining the meaning of a constitutional provision, a court will give weight to a legislative construction, particularly to a contemporaneous construction which has been acquiesced in and adhered to for a long period of time. Director of Department of Agriculture & Environment v. Printing Industries Ass'n, 600 S.W.2d 264 (Tex. 1980); Walker v. Baker, 196 S.W.2d 324 (Tex. 1946).

In 1938, the Texas Supreme Court, in holding a 1937 county contract for collection of delinquent taxes invalid because it was not approved by the comptroller and the attorney general as required by statute, stated as follows:

The Legislature has the sole power to provide for the collection of delinquent taxes and to fix the compensation to be paid for such services. It is also true that the commissioners' courts derive their power to execute contracts with respect to the collection of delinquent taxes exclusively from the statutes. Easterwood v. Henderson County, 62 S.W.2d 65.

White v. McGill, 114 S.W.2d 860, 863 (Tex. 1938). Neither the parties nor the court raised any question as to the validity of the statute under article VIII, section 14. Nonetheless, the court's unqualified statement about the legislature's power and its citation of Easterwood v. Henderson County, 62 S.W.2d 65 (Tex. Comm'n App. 1933, judgm't adopted), a case involving a pre-1932 contract for delinquent tax collections, suggest that no such constitutional issue even vaguely troubled the court.

In Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961), the Supreme Court determined that the commissioners court had implied authority to contract for the appraisal of all properties in the county to assist it in carrying out its duties as a board of equalization for the county. In upholding the contract the court rejected the argument that it resulted in the commissioners court taking over the functions of the county tax assessor and collector. 350 S.W.2d at 336-338. The court also rejected the argument that the contract was invalid under the reasoning of White v. McGill, stating that:

[T]he contract between Galveston County and Pritchard & Abbott was not entered into in connection with the collection of delinquent taxes and so for that reason did not require the approval of the State Comptroller. Consequently the decisions in Marrs v. Harris . . . are not in point.

350 S.W.2d at 338. Thus, even in a case where the Supreme Court explicitly dealt with an issue of usurpation of the tax assessor-collector's authority, the court matter-of-factly referred to the collection of delinquent taxes pursuant to a contract authorized by the commissioners court under a predecessor of section 6.30 of the Tax Code.

The authorities discussed in this opinion show that the legislature and the courts have long assumed the contractual procedure authorized by section 6.30 and its predecessors to be consistent with the constitutional authority of the county tax collector and tax assessor-collector. Such constructions of constitutional provisions are entitled to great weight. See Director of Department of Agriculture & Environment v. Printing Industries Ass'n, supra. Moreover, section 6.30 of the Tax Code pertains to collection efforts by the district or county attorney or by a private attorney with whom the commissioners court has contracted. As the court of civil appeals in Cherokee County v. Odom suggested, legal representation in the collection of delinquent taxes is outside the scope of the tax assessor-collector's constitutional functions. 297 S.W. 1055 (Tex. Civ. App. - Texarkana 1927), rev'd on other grounds, 15 S.W.2d 538 (Tex. 1929). The courts have not decided what powers and duties comprise the county tax assessor-collector's non-delegable duties, see Green v. Stewart, supra, and we need not address that question. The courts' long acceptance of the contracts now authorized by section 6.30 and the history of the amendment to article VIII, section 14, of the Texas Constitution convince us that the procedures authorized by section 6.30 of the Tax Code do not violate that constitutional provision. See also Tex. Const. art. V, § 18; Pritchard & Abbott v. McKenna, supra; Cherokee County v. Odom, supra (authority of commissioners court to make contracts for the county).

SUMMARY

Section 6.30 of the Tax Code does not violate article VIII, section 14, of the Texas Constitution.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

Footnotes

[1] The second clause of article VIII, section 14 should be read as if it stated: "all duties with respect to assessing property . . . and to collecting taxes, as may be prescribed by the Legislature." G. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 638 (1977).