Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

Geraid C. Mann ATTOONEY GENERAL

B6. 23.94

Educator code

Eganorable G. E. Rigby County Auditor, Uralde County o/o H. H. Carmichael, County Clerk Uralde, Texas

Dear Sir:

Cplnion No. 0-4563 Re: Under Artislo 2792, Yernon's Amnstated Civil Statutes, in it compulsory, for the County Tax Assessor-Collgator to gollest taxes for an independent sohool district whoh the district requests him to do so, and another question?

Your letter requesting the oplnion of this departmen on the questions gated therelreeds in part as follows:

"I would approsiate an answer to the following ques- tions, which have arisen in this County:

"1at: Under Art. 2792, Yernon's Amotated Taxes Statutes, in it compulsory for the County Tax Assessor- Collgator to gollest taxes for an Independent School District, when the District requests him to do so?

And, pbes, the Comnissioners' Court have any authority to require the County Tax Collector to gollest said taxes for said Independent School District, where it has been requested by the District?"

Artislo 2792, Yernon's Amotated Civil Statutes, provides:

"Then a majority of the board of trustom of an indepen- dent district prefer to have the taxes of their district assessed and collected by the county as gessor and collector, or collected only by the county tax collector, same bhall be

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Hon. G. E. Rigby, page 2

assessed and eollested by such ounty officers and turned over to the treasurer of the indeperdent sohool district furthd ab such taxes have been eollested. The property of such district having their taxes assessed and eollested by the ounty asseasor and collector may be assessed at a greater value than that assessed for ounty and State purposes, and in such cases the ounty tax asseasor, and collector shall assess the texes for said district/on separate assessment blanks furnished by said/distriot/ and shall prepare the roll for said distriet in accordance with the asseasent values which have been equalized by a board of equalization appointed by the board of trustees for that purpose. If said taxes are assessed by special asseasor of the independent district and are collected only by the ounty tax collector, the ounty tax collector in such cases shall accept the rolls prepared by the special asseasor and approved by the board of trustees as provided in the preceding article. When the ounty asseasor and collector is required to asseas and eollest the taxes of independent sohool districts he shall respectively receive one per cent ( $1\%$ ) for asseeaning, and one per cent ( $1\%$ ) for collecting the same."

He think that the answer to your first question depends upon the proper construction of the above mentioned statute. It will be noted that the statute provides that when a majority of the board of trustees of an independent district prefer to have the taxes of their district assessed and collected by the ounty asseasor and collector, or collected only by the ounty tax collector, same shall be assessed and collected by said ounty officers and turned over to the treasurer of the independent sohool district for which such taxes have been collected. To determine the proper construction to be placed upon the above statute, we must decide whether or not the provisions of such statute are mandatory or directory, or merely permissive.

It is stated in Texas Jurisprudence, Vol. 39, page 32: "A statute or statutory provision may be mandatory or directory, or merely permissive. A mandatory provision is one which, if not followed, renders the proceeding to which it relates illegal and rold, while a direstory provision is one, the observance of which is not necessary to

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Hon. 0. K. Rigby, page 3

the validity of the progeeding. A provisiou 18 directory when it contains mere matter of direction, not of the essence of the thing to be done, but desiggod merely to procure its proper, orderiy and prompt performance. On the other hand, a negative provisiou - one which commands that a certain thing shall act be done - is equally mandatory. "But there is no absolute test or infallible rule by which a mandatory statute or provisiou may be distinguished from one which is merely directory. In each case, the question is one of statutory construction, to be judiclally determined according to the intent of the legislatura from a consideration of the entire statute, its nature, object and subject-matter, and the consequences that will result from a particular ocnstruction. An act or provision that olearly discoloses an intent on the part of the Legisleture that it should be mandatory will be given that effect. On the other hend, one which reveals no such intent or purpose will be construed as directory."

It is further stated in Texas Jurisprudence, Vol. 39, page 36: "Doubtless a court will have regard to the language used in a statute or provisiou thereof in determining whether it is mandatory or merely dircatory. Words of permis sive or mandatory character will ordinarily be given their natural effect, but when there is room for construction permis sive words will be given a mandatory significanee or mandatory words will be held to be dircatory as appears to be necessary to offectuate the legislative intent. "The words 'may' and 'shall' are frequently used interohangeably, and the use of one or the other of these words in a statute is not conclusive of the question whether it should be construed as mandatory or discretionary. Ordinarily, 'shall' or 'must' is of mandatory effect; but a statute is acootiess held to be dircotory notwithstanding the use of the word 'shall.' Thus where ao right or benefit depends upon its imperative use, the word 'shall' is held to be merely dircotory and as having been ased in the sense of 'may.' On the other hand, 'may' ordinarily conioted diseration or permission; and it will not be treated as a word of oostand unless there is something in the context or subject-matter of the act to indicate that it was used in that sense."

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Eon. 0. 2. migby, pego 4

As above stated, when majority of the thes of trusses in an independent district prefer to have te taxes in their district asesered and collected by the ounty asgeator and collector, or solleeted only by the ounty tax collector, save shall be asgeased and collected by said county officers and turned over to the treasurer of the independent school district for which such taxes have been collected. We thin the word 'shall' as used in this provision of the etatute 10 of mandatory effect. Therefore, we answer your first question in the affirmative, we do not deon it necessary to pass upon your second question.

Trusting that the foregoing fully answers your inquiry, we are

Yours very truly

ATTOFILY O'BLFAL OF TEXAS

By

Ardell Williams Assistant

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