Case Information
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THIRD AIITUDIENHOR GIRONDRLAL.
QD: TIDDALS
GESFRE Sallars
AIITUN II. TEXAS
Hcacable T. M. Tribla
First Assistant state Superintendent Department of Education Austin 11, Texas Dear Sir:
Opinion No. 0-6941
He: Whether Independent fechool Dlatrist created after January 1, 1945, can make assesmenta for taxas for that year.
Your request for opinion on the oaptioned aubjest onelosed a latter from J. F. Kinnear, Tax Asseesor and Collector of the South Park Independent Gehool Diatriet, which reads as follons: "The question has been discuased in this area regarding the assecment date of property for tars. Under the general law, January lat is the date on which asseasmento must be based. A number of the Independent School Diatriatare being created after January lat and are maling assesements for the year 1945. The advios I would like to have is - can the assesements be made any other date than January lat, which is fixed by the statutes."
The question of the power of a sehool district created after January 1 to levy taxas for that year was first considered by the courts in Cadana v. State, 185 i..1. 367, writ refused. In that case the tax for the year 1915 was sought to be enjoined on the ground that the Banavides Independent Gehool Diatriet was not in existeroe on January 1, 1915. It had been created by Looal and Speelel aata, 34th Legislature, Chapter 54, which was approved by the Governor on March 22, 1915, and beoane effective on June 19. The levy was a ade by the board in September, 1915. In holding the levy valid, the court said: "It was evidently intended by the Legialature that the people of the district should obtain the benefits of its arention imediately; for it is realted in the law that the deplorable condition of the public free sehools in the territory therein desoribed, not being adequate sohool ascomodations, and not having necessary funds to provide the aera, oreated an emergency and an imperative public necessity for the act to take effect at once. It was olearly intended tirt the necessary fands for the building and
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Hon. T. M. Trimble, page 2 maintenance of schoolhouses should be provided as soon as the law went into effect. It could not have been contemplated that, instead of the law becoming effective immediately or in 90 days after adjournment at the farthest, it should not go into effect until the following year, and yet that would be the logical result if the judgment of the lower court should be sustained. ... "
This decision was followed by the Commission of Appeals in Hewitt v. Megargel County line Independent School District, 285 S.W. 271 (opinion adopted by the Supreme Court). This case concerned the taxability by a district of property located in territory annexed to the district during the year. In holding such property taxable by the district the Commission, Judge Harvey writing, said: "The decision in the case of Cedens v. Otete" (Tax. Div. App.) 185 S.W. 367, is authority for the proposition that, when an independent school district is created after the 1st of January of a given year, all property within such newly created district, which was owned by the taxpayer on January 1st of that year, "is subject to any tax authorized by law, whether such taxes have been authorized therefore or any be authorized during the year, and can be levied by the body given the power to levy at any time during the year." The Supreme Court denied a writ of error. "We consider the proposition sound. A fair consideration of the statutes making provision for the creation of independent school districts leaves no reasonable ground to conclude that the Legislature intended that no liability for taxes for school purposes in a school district should arise until the year following the creation of the district; nor did the Legislature intend that the rules of law governing taxation for school purposes, of property in newly annexed territory, should be different from those which govern the taxation of property in a newly created district.
".......
"A consideration of the ... statutory provisions ... leads to the conclusion that all taxable property situated on January 1st, of any given year, in a territory which is subsequently, during such year, annexed to an independent school district ... becomes, by such annexation, subject to the taxing power apportaining to such district, and chargeable with such taxes for that year an are levied under proper authority."
*3 Hon. T. M. Trimble, page 3
See also Yorktown Independent School District v. Afflerbech (Com. App.), 12 S.W. (2d) 130.
Therefore, it is the opinion of this department that an independent school district which has been created in the manner provided for in the general laws of the State after January 1, 1945, can make a valid assessment and levy for the year 1945.
The courts have held uniformly that the laws stating the time for the assessment and levy of taxes are merely directory. Cedens v. State, supra; Pyote Independent School District v. Dyer, 34 S.W. (2d) 578. Under Article 2791, Revised Statutes, 1925 (amended Acts 1945, 49th Legislature, page 232, Chapter 176) where the independent school district has its own assessor and collector (as is the case in the district you refer to), the dates for assessment and levy are set by order of the board of trustees, and may be at any time during the year. In the case of Blewett v. Richardson Independent School District, 240 S.W. 529, the assessment was made in September and October of 1919, and the roll for 1919 taxes was made out in December after the changes in value made by the board of equalisation and approved by that board on December 31, but it was not verified by the district assessor and collector until January 24, 1920. The court held that the fundamental requirements of a valid assessment were substantially complied with. The district is bound to use the county's date for assessment, i.e., January 1, only where the county assessor and collector performs these functions for the district.
Very truly yours
ATTORNEY GENERAL OF TECAS
By /s/ Arthur L. Moller Arthur L. Moller Assistant
Alizıdbıjrb
APPROVED NOV. 27, 1945 /s/ Carlos G. Ashley TIRET ASSISTANT ATTORNEY GENERAL
APPROVED OPINION COMMITTEE BY BMB, Chairman