Untitled Texas Attorney General Opinion ( 1978 )

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The Attorney General of Texas
January 24, 1978
JOHN L. HILL
Attorney General
Hdnorable Joe Wyatt, Jr. Opinion No. H- 1120
Chairman, Committee on Ways and
Means Re: Validity of article 72444
Texas House of Representatives V.T.C.S., the Texas ; Assessors
Austin, Texas Registration and Professional
Certification Act.
Dear Chairman Wyatt:
You have requested our opinion regarding the constitutionality of
article 7244b, V.T.C.S., enacted by the 65th Legislature, and several related
questions.
IJI enacting article 72444 the Legislature intended that
the assessing of property for taxation be practiced &d
regulated as a learned profession and that the practi-
tioners in this State be accountable to the public.
The purpke of the statute is
to assure the .people of Texas that the responsibility of
assessing property for taxation is entrusted only to
those persons duly registered and competent according
to the regulations provided by this Act.
V.T.C.S. art. 7244b, !i 1, Acts 1977, 65th Leg., ch. 391,106s.
In order to effect the intent of article 72444 the statute creates a
Board of Tax Assessor Examiners, which is empowered to promulgate rules
and standards of professional conduct for assessors and to insure compliance
therewith. .Certain classes of individuals, including “persons elected or
appointed to act aaassessors for a county,” are required to register vith the
.wd; and the Board is directed to classify every registered individual as a
,(1)registration: permit .+oldert (2) registered Texas ,a!+sessor, (3) registered
“‘Texas essessor and candidate-for certification,‘~or (4) registered profetiional
‘%ssessor.~” Sets; -ll, 12. Then Board is authorized to suspend or revoke the
registration of any person who violates a provision of the statute or any rule
or regulation of the Board.
p. 4575
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Honorable Joe Wyatt, Jr. - Page 2 (H-1120)
Certain county tax assessor-collectors may qualify for classification as a
registration permit holder, “which includes newly elected or newly appointed
assessors without previous experience as assessors.” Sec. 12(l). An applicant in this
category may be issued a permit so long as he is a resident of the state, of good
moral character, and supplies favorable recommendations from three persons, one
of whom must be a registered assessor. sec. 15. Most county tax assessor-
collectors, however, will probably be classified initially as “registered Texas
assessors.” The qualifications for this category of registration are much more
stringent, including those relating to age, education and work experience.
Registrants must pass a written examination and, within five years of their original
registration, demonstrate compliance with the requirements of section 17, which
prescribes additional qualifications for a ‘candidate for certification.” Sec. 16.
Within five more years, such persons must qualify as “registered professional
assessors” under section 18. Sec. 17(b).
Since the registration requirement is made applicable to county tax assessor-
collectors, and since registrants are required to qualify under the various
categories of the statute, it is clear that article 7244b imposes qualifications upon
the office of county tax assessor*olIector. You first ask whether the Legislature
is empowered to do so.
Article 8, section 14 of the Texas Constitution establishes the elective office
of Assessor and Collector of Taxes for each county. It requires the occupant of
that office to “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,” but it imposes upon him no qualifications necessary to hold the office.
It is well established that,
where the Constitution prescribes the qualifications for
office it is beyond the legislative power to change or add to
the qualifications, unless the Constitution gives that power.
Burroughs v. Lyles, 181S.W.2d 570, 574 (Tex. 1944); Dickson v. Strickland, 265 S.W.
1012, 1015 (Tex. 1924); Ex arte Lefors 347 S.W.2d 254 255 (Tex. Crim. 1961). No
erect Y a ressed, however, tie auestion of whether the
Texas court has ever +-I76
Legislature may impose quaiifications upon a constitutional office where the
Constitution itself has not done so.
,
The general rule in other jurisdictions is that, where the Constitution
prescribes no qualifications, the Legislature is authorized to do so. See Annot., 34
A.L.R. 2d 155. 174 (19541. This view has been uoheld as to a wisvarietv of
constitutional offices. See Opinion of the Justices, 285 So. 2d 87, 90 (Ala. 1973);
State ex rel. Askew v. Gas, 293 So. 2d 40, 43 (Fla. 19741; State ex rel. Lippincott
-3610 19401. See also State ex rel. Flynn v. Board of
i!i==2g
ections of Cuyahoga
-- County, 129 N.E.2dm (Ohio 1955).
p. 4576
Honorable Joe Wyatt, Jr. - Page 3 (h-1120)
The most instructive case for our purposes is a 1934 decision from Florida,
where the Court upheld the Legislature’s authority to prescribe qualifications for
the constitutional office of county surveyor. The Court fully subscribed to the
Texas view that, where the Constitution creates an office and lists its eligibility
requirements, the Legislature may not impose additional qualifications. But, the
Court held, it does not necessarily follow that, where the Constitution is silent as
to qualifications for a particular office, a statute fixing qualifications is
unconstitutional. State ex rel. Landis v; Ward, 158 So. 273, 274 (Fla. 1934). The
office of county surveyor IS one of a “techmcal character,” and it is reasonable to
expect the holder of it to be competent. The statute, by establishing professional
standards for surveyors, and making them applicable to persons holding the
constitutional office of county surveyor, cannot be said to conflict with any
constitutional provision. g at 275.
These decisions indicate that the Texas Supreme Court would probably uphold
the validity of the qualifications imposed upon tax assessor-collectors by article
7244b. See Phagan v. State, 510 S.W.2d 655 (Tex. Civ. App. - Fort Worth 1974, writ
ref’d n.rx.
Your next question is whether R county tax assessor-collector may be
prosecuted for failure to register with the Board. Section 24 of article 7244b
states that
[a) person who is required under Section 11 of this Act to
register with the board commits a Class A misdemeanor if
he fails to register.
Since a county tax assessor-collector is one of those persons required to register
under section 11, it seems clear that the occupant of that office may be prosecuted
for failure to register with the Board.
You also ask whether the registration of a county tax assessor-collector may
be revoked for a violation of Board rules. As noted previously, section 10
authorizes the Board to suspend or revoke the license of any registrant for violation
of the statute or of any Board rule or regulation. The Board is required to conduct
a hearing on any such violation with adequate notice to the registrant.
Your final question is whether revocation of his registration acts to remove a
county tax assessor-collector from office.. Article 7244b does not so provide, but
the court in Phagan, E, held that the disbarment of a district attorney served to
effect his immediate removal from office and that, after the effective date of the
judgment of disbarment, he became a usurper of the office, subject to ouster by
quo warrant0 proceedings. 510 S.W.2d at 662. We are not at liberty to disregard
this pronouncement, and must advise, therefore, on the basis of Phagan, that a
revocation of the registration of a county tax assessor-collector acts to remove
him from office. We note, however, that article 5970, V.T.C.S., provides that a
p. 4577
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Honorable Joe Wyatt, Jr. - Page 4 (H-1120)
county tax assessor%ollector is among those officers subject to removal “from
office by the judge of the district court for incompetency, official misconduct or
becoming intoxicated by drinking intoxicating liquor . . . .”
SUMMARY
Article 72444 V.T.C.S., will probably be upheld against the
contention that it unconstitutionally imposes qualifications
for the office of county tax &essor-coUector. A county
tax assessor+oHector may be prosecuted under article
7244b for failure to register with the Hoard of Tax Assessor
Examiners. The registration of a county tax assessor-
collector may be revoked for violation of Hoard rules.
Revocation of the registration of a county tax assessor-
collector acts to remove him from office.
Attorney General of Texas
APPROVED:
?z&h&lLd M. KENDALL, Pust Assistant
Opinion Committee
w
p. 4578