Does a Texas county tax assessor-collector have to register with the state board if the county contracts out its tax collection?

TX AG Opinion DM-0470: Must a county tax assessor-collector register with the state board after contracting out collection?

Plain-English summary

Brazos County Attorney James Kuboviak asked the Attorney General about a county whose taxes are assessed and collected for it by another entity under section 6.24(b) of the Tax Code. That subsection lets a commissioners court, with the approval of the county tax assessor-collector, contract under the Interlocal Cooperation Act with another taxing unit in the county or with the appraisal district's board of directors to perform the county's assessment and collection duties. The county attorney raised two questions about how that arrangement affects the elected tax assessor-collector.

The first question was whether an incoming tax assessor-collector must approve assessment-and-collection contracts that were already in effect when he or she took office. The Attorney General concluded no. Texas courts have long held that contracts a commissioners court (or a similar body) makes are not repudiated merely because the body's membership later changes; the opinion applied that rule to a contract assisting the assessment and collection of taxes that complies with the statutory authorization. Once the commissioners court entered the contract and the then-serving tax assessor-collector approved it, the approval bound that office for the contract's term, and a successor who assumes the office during the term need not approve it again.

The second question was whether the tax assessor-collector of a county that has contracted out collection under section 6.24(b) must register with the Board of Tax Professional Examiners under article 8885, V.T.C.S., and, if so, whether the county must pay for the certification coursework. Article 8885 requires persons engaged in tax appraisal, assessment, or collection to register and become certified, and its section 11 lists the assessor-collector among those who must register. But section 15 says an applicant must be a person "actively engaged in appraisal, assessment, or collection for a taxing unit," and the board reads that qualification as limiting who section 11 actually reaches. The board's position is that an assessor-collector who has handed assessment and collection to another political subdivision is not "actively engaged" in that work and so is neither required nor permitted to register. The Attorney General found that a reasonable construction of sections 11 and 15 and deferred to the board, concluding that such an assessor-collector is not required or permitted to register. Because the official may not be certified at all, the opinion did not reach the question about who pays for the coursework.

Currency note

This opinion was issued in 1998. 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.

The Board of Tax Professional Examiners was later abolished and its functions moved to the Texas Department of Licensing and Regulation, and article 8885, V.T.C.S., has been repealed and recodified. The Tax Code provisions on assessment-and-collection contracts have also been amended. Confirm the current licensing body and statutes before relying on any specific rule here.

Who this opinion affected (as of 1998)

County tax assessors-collectors: The opinion told an assessor-collector in a county that had contracted out assessment and collection that he or she did not have to register with the Board of Tax Professional Examiners, and told an incoming assessor-collector that he or she did not have to re-approve a collection contract already in force.

Commissioners courts and counties using section 6.24(b): The opinion confirmed that a contract the commissioners court made and the assessor-collector approved stayed in force despite a later change in who held the assessor-collector's office.

The Board of Tax Professional Examiners: The opinion adopted the board's own reading of who its registration requirement reached, deferring to the agency's construction of article 8885.

Common questions

If my county contracts out tax collection, does the tax assessor-collector still have to register with the state board?
Under this opinion, no. The Attorney General concluded that an assessor-collector whose county has contracted to have another entity assess and collect its taxes is not "actively engaged" in appraisal, assessment, or collection, so the person is neither required nor permitted to register with the Board of Tax Professional Examiners.

Does a new tax assessor-collector have to re-approve tax-collection contracts already in place when they take office?
No, according to the opinion. A contract the commissioners court entered and the prior assessor-collector approved is not subject to fresh approval by a successor who assumes the office during the contract's term.

Why isn't the assessor-collector treated as "actively engaged" in collecting taxes?
The opinion read "actively engaged" to mean doing the actual work of assessing and collecting taxes. When that work has been handed to another political subdivision by contract, the assessor-collector is not doing it, so the board's qualification for registration is not met.

Did the opinion decide who pays for the certification coursework?
No. Because the Attorney General concluded the assessor-collector could not be certified by the board in the first place, the opinion expressly declined to address whether the county would have to pay for the coursework required for certification.

Background and statutory framework

The county tax assessor-collector is a constitutional office (Tex. Const. art. VIII, §§ 14, 16, 16a) charged with assessing and collecting taxes on property in the county. Section 6.24(b) of the Tax Code lets the commissioners court, with the approval of the county assessor-collector, contract under the Interlocal Cooperation Act with the governing body of another taxing unit in the county, or with the appraisal district's board of directors, to perform duties relating to the assessment or collection of the county's taxes. The opinion read that authority as a way to obtain assistance for the assessor-collector, not to supplant the office.

On the first question, the opinion applied the settled rule that contracts made by a commissioners court (or a comparable body) cannot be repudiated merely because the body's membership has changed. It cited cases applying that principle to school-board contracts to employ teachers, a commissioners court's contract for services, and a commissioners court's contract with a road-construction supervisor (Gulf Bitulithic Co. v. Nueces County, 11 S.W.2d 305 (Tex. Comm'n App. 1928, judgm't adopted); Miller v. Smiley, 65 S.W.2d 417 (Tex. Civ. App.-Galveston 1933, writ ref'd); J.N. McCammon, Inc. v. Stephens County, 89 S.W.2d 984 (Tex. 1936)), and noted prior opinion authority on a tax assessor-collector's role in assessment-and-collection arrangements (Green v. Stewart, 516 S.W.2d 133 (Tex. 1974); Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961)). Assuming the contract complied with the statutory authorization and other relevant law, the assessor-collector's approval bound that office for the contract's term.

On the second question, article 8885, V.T.C.S., created the Board of Tax Professional Examiners and required the registration and certification of persons engaged in tax appraisal, assessment, or collection functions; a person registered as an assessor or assessor-collector had to attain certification as a registered Texas assessor within five years. Section 11 lists who must register, including the tax assessor-collector or other person designated as the chief administrator of a taxing unit's assessment or collection functions. An earlier opinion (H-1120 (1978)) had read the predecessor statute, former article 7244b, V.T.C.S., to require the assessor-collector to register. But section 15, added after that opinion, requires an applicant to be a person "actively engaged in appraisal, assessment, or collection for a taxing unit." The opinion construed "actively engaged," a phrase article 8885 does not define, by its plain meaning with the aid of a dictionary and analogous uses in other statutes, and concluded it means doing the actual work of assessing and collecting taxes. Reading section 15 as a limit on section 11, and deferring to the board's reasonable construction of its own statute (Calvert v. Kadane, 427 S.W.2d 605 (Tex. 1968); see also Big H Auto Auction, Inc. v. Saenz Motors, 665 S.W.2d 756 (Tex. 1984); Board of Insurance Commissioners v. Duncan, 174 S.W.2d 326 (Tex. Civ. App.-Amarillo 1943, writ ref'd)), the opinion held the assessor-collector of a county that contracts out collection is not required or permitted to register. The opinion distinguished section 11A, a separate continuing-education provision tied to Tax Code section 6.235 that applies to assessors-collectors in counties of one million or more regardless of whether they are actively engaged.

Citations

Statutes and constitution:

• Tex. Tax Code §§ 6.24(b), 6.235; ch. 26; ch. 31; §§ 33.02, 33.03, 33.04
• Tex. Const. art. VIII, §§ 14, 16, 16a
• V.T.C.S. art. 8885, §§ 11, 11A, 15 (Board of Tax Professional Examiners)
• V.T.C.S. art. 7244b (predecessor statute)
• Interlocal Cooperation Act

Cases:

• Gulf Bitulithic Co. v. Nueces County, 11 S.W.2d 305 (Tex. Comm'n App. 1928, judgm't adopted)
• Miller v. Smiley, 65 S.W.2d 417 (Tex. Civ. App.-Galveston 1933, writ ref'd)
• J.N. McCammon, Inc. v. Stephens County, 89 S.W.2d 984 (Tex. 1936)
• Green v. Stewart, 516 S.W.2d 133 (Tex. 1974)
• Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961)
• Big H Auto Auction, Inc. v. Saenz Motors, 665 S.W.2d 756 (Tex. 1984)
• Board of Insurance Commissioners v. Duncan, 174 S.W.2d 326 (Tex. Civ. App.-Amarillo 1943, writ ref'd)
• Calvert v. Kadane, 427 S.W.2d 605 (Tex. 1968)

Related opinions:

• Tex. Att'y Gen. Op. H-1120 (1978)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0470
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1998/dm0470.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General, State of Texas

DAN MORALES, ATTORNEY GENERAL

March 13, 1998

The Honorable James M. Kuboviak
Brazos County Attorney
300 East 26th Street, Suite 325
Bryan, Texas 77803

Opinion No. DM-470

Re: Whether the tax collector of a county that contracts under section 6.24(b) of the Tax Code to have its taxes collected by another entity must register with the Board of Tax Professional Examiners (RQ-971)

Dear Mr. Kuboviak:

You inquire about the responsibilities of a county tax assessor-collector in a county that contracts pursuant to section 6.24(b) of the Tax Code to have its taxes assessed and collected by another entity. You first ask whether an incoming tax assessor-collector must approve contracts for assessing or collecting taxes already in effect at the time he or she takes office.

The assessor-collector for a county, determined as provided by article VIII, sections 14, 16, and 16a of the Texas Constitution, "shall assess and collect taxes on property in the county for the county." Section 6.24(b) of the Tax Code provides as follows:

The commissioners court with the approval of the county assessor-collector may contract as provided by the Interlocal Cooperation Act with the governing body of another taxing unit in the county or with the board of directors of the appraisal district for the other unit or the district to perform duties relating to the assessment or collection of taxes for the county. If a county contracts to have its taxes assessed and collected by another taxing unit or by the appraisal district, the contract shall require the other unit or the district to assess and collect all taxes the county is required to assess and collect.

This provision authorizes a contract to obtain assistance for the county tax assessor-collector with respect to the assessment or collection of taxes, and not to supplant his or her functions, defined by the statute requiring registration of persons who perform assessment and collection functions, namely those functions described in chapter 26, Tax Code, and performed by political subdivisions or by persons acting on behalf of political subdivisions, to determine an amount of ad valorem tax. "Collections," as defined by the same statute, means "those functions described in chapter 31 and Sections 33.02, 33.03, and 33.04, Tax Code."

Ordinarily, contracts made by a commissioners court, or a similar body, cannot be repudiated merely because the membership of the body has subsequently changed. Texas courts have reached this conclusion with respect to school board contracts to employ teachers, a commissioners court's contract with a corporation to provide services, and a commissioners court's contract with a supervisor of road construction for the time reasonably necessary to complete the work. Assuming that the contract to assist the assessment and collection of taxes complies with the statutory authorization and other relevant law, we believe that a tax assessor-collector's approval binds that office for the term of the contract. A contract already entered into by the commissioners court and approved by the county tax assessor-collector would not be subject to approval by an individual who assumes the office of tax assessor-collector during the term of the contract.

You also ask whether the tax assessor-collector of a county that contracts under section 6.24(b) of the Tax Code to have its taxes collected by another entity is required to register with the Board of Tax Professional Examiners under article 8885, V.T.C.S., and if so, whether the county would be required to pay for the coursework required for certification.

Article 8885, V.T.C.S., creates the Board of Tax Professional Examiners (the "board") and requires the registration and certification of persons engaged in tax appraisal, assessment, or collection functions. The board by rule shall adopt minimum requirements for the certification of registrants. A person registered as an assessor or assessor-collector must attain certification as a registered Texas assessor within five years after his or her initial registration. The board has adopted certification requirements for various classifications of persons required to register.

Section 11 of article 8885 provides that the following persons shall register with the board:

. . . (2) the tax assessor-collector, tax collector, or other person designated by the governing body of a taxing unit as the chief administrator of the unit's assessment functions, collection functions, or both; and other persons who perform assessment or collections functions for the unit whom the chief administrator of the unit's tax office requires to register . . . .

Attorney General Opinion H-1120 of this office concluded that the county tax assessor-collector was required to register with the board under former article 7244b, V.T.C.S., the predecessor statute to article 8885, V.T.C.S. Attorney General Opinion H-1120 (1978) at 3. Article 8885, V.T.C.S., does not expressly exempt from registration the constitutional county tax assessor-collector if he or she has approved an interlocal contract for another taxing unit to perform duties relating to the assessment or collection of taxes. However, section 15 of article 8885, V.T.C.S., adopted several years after the issuance of Attorney General Opinion H-1120, may in effect exempt such tax assessors-collectors. Section 15 provides as follows: "An applicant must be at least 18 years of age, a resident of the State of Texas, a person of good moral character, and actively engaged in appraisal, assessment, or collection for a taxing unit."

It is the board's opinion that a county tax assessor-collector who has approved a contract to transfer assessment and collections to another political subdivision is not "actively engaged in appraisal, assessment, or collection for a taxing unit" and therefore is neither required nor permitted to register with the board.

The phrase "actively engaged" appears in many Texas statutes. For example, four members of the Texas Board of Architectural Examiners must be persons who have been "actively engaged in the practice of architecture for five years preceding their appointment." The Insurance Code provides that no license shall be granted to any person unless that person "is, or intends to be, actively engaged in the soliciting or writing of insurance for the public generally." The rule allowing attorneys from other jurisdictions to be admitted to the State Bar of Texas without examination requires the applicant to have been "actively and substantially engaged" in the practice of law as his or her principal business or occupation for at least five of the last seven years.

The phrase "actively engaged" is not defined by article 8885, V.T.C.S., and we have not found another statute that defines it. Words in a statute are ordinarily given their plain meaning, and a dictionary may be consulted to determine the meaning of a word. A dictionary has defined "actively" as "in an active manner," and "active" as "characterized by action rather than by contemplation." "Engaged" has been defined as "occupied, employed." In a case involving admission to the Rhode Island State Bar by reciprocity, the Rhode Island Supreme Court determined that engagement in the active general practice of law means a showing that the legal activities of the applicant were performed on a full-time basis and constituted his regular business.

In the context of section 15 of article 8885, V.T.C.S., we believe that a person "actively engaged in appraisal, assessment, or collection for a taxing unit" must do the actual work of assessing and collecting taxes. The board reads section 15 as limiting section 11(2) of article 8885, which requires "the tax assessor-collector, tax collector" and various other persons to register.

We believe that this is a reasonable construction of sections 11 and 15 of article 8885, and accordingly we will defer to the board's judgment on this matter. We conclude that the tax assessor-collector of a county that contracts under section 6.24(b) of the Tax Code to have its taxes collected by another entity is not actively engaged in assessing or collecting taxes within the meaning of section 15 of article 8885, V.T.C.S., and therefore is not required or permitted to register with the Board of Tax Professional Examiners under article 8885, V.T.C.S.

In view of our decision that the county tax assessor-collector may not be certified by the board, we will not address your question about payment for the course work required for certification.

SUMMARY

When the commissioners court of a county contracts under section 6.24(b) of the Tax Code to have its taxes collected by another entity, a contract already entered into by the commissioners court and approved by the county tax assessor-collector would not be subject to approval by an individual who assumes the office of tax assessor-collector during the term of the contract. The tax assessor-collector of a county that contracts under section 6.24(b) of the Tax Code to have its taxes collected by another entity is not actively engaged in assessing or collecting taxes within the meaning of section 15 of article 8885, V.T.C.S., and therefore is not required or permitted to register with the Board of Tax Professional Examiners under article 8885, V.T.C.S.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General