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The Attorney General of Texas
my 17, 1982
MARK WHITE
Attorney General
Mr. Dan M. Boulware opinion No. Mu-470
Supreme Coun Suilding Johnson County Attorney
P. 0. Box 12549
P. 0. Box 614 Re: Fees to be charged by
Austin. TX. 78711. 2549
5121475.2501
Cleburne. Texas 76031 sheriff for serving out-of-
Tdex QlO/S74-1397 county delinquent tax suit
Telecopier 51214750288 citations before and after
January 1, 1982
1807 kin St.. Suite 1400
Da,,,m, TX. 75201.4709
Dear Mr. Boulware:
2141742.8944
Your first question is whether the sheriff of your county is
authorized to charge and collect the fee set by your commissioners
4S24 Alberta Ave.. Suite 190
court under authority of article 3926a, V.T.C.S., for service of
El Paso. TX. 799052793
91563334S4
out-of-county citations in delinquent tax suits filed before
January 1, 1982.
1220 Dallas Ave., Suite 202
Your second question relates to the effect of sections 33.48 and
HOUSTON. TX. 770026986
33.49 of the Property Tax Code and article 2041b. V.T.C.S.. on the
713/6500666
collection of fees for service of process in delinquent tax suits.
805 Broadway. Suile 312 We will address these questions separately in their proper order
Lubbock, TX. 794013479 as follows.
80641476239
Article 3926a. V.T.C.S., in substance, authorizes the
4309 N. Tenth. Suita B commissioners court of each county to set reasonable fees to be
McAllen. TX. 7S501-1985 charged for services by the offices of sheriffs and constables. at a
5121682-4547 rate no higher than necessary to pay the expense of providing same.
The Sixty-seventh Legislature provided, in connection vith the
200 Maln Plaza. Suite 4CG foregoing provisions. that fees provided for sheriffs and constables
San Antonio, TX. 78205-2797 in other laws in conflict with such provisions were repealed to the
512/225-4191 extent of such conflict; that until a commissioners court provided
different fees, the fees of such officers are those provided by law in
An Equal OpportunityI
effect on August 31. 1981; and that fees for such services performed
Alfirmstive Action Empbyer before the effective date of this act are governed by the law in
effect at the time the services were performed. Acts 1981, 67th Leg.,
ch. 379, at 1001. This act became effective September 1, 1981. The
services involved here include those rendered by such officers in tax
cases.
Assuming the fees set by the Johnson County Commissioners Court
in this respect are reasonable and no higher than necessary to pay the
Mr. Dan M. Boulware - Page 2 (Mw-470)
expenses of providing such services, your sheriff is entitled to
charge and collect such fees as set by said court for services
rendered on September 1, 1981, and thereafter, regardless of prior
article 7332, V.T.C.S., providing a smaller fee for such services.
These express fee provisions of said article 7332 conflict with the
later local option fee provisions of article 3926a, when adopted for a
county, and were to that extent repealed on September 1, 1981. The
words of the 1981 act make it clear that the fees charged “are
governed by the law in effect at the time the services were
performed.” In 1979 the legislature expressly repealed article 7332,
effective January 1. 1982, with the exception that the $2.50 fees
provided for the services of sheriffs and constables in delinquent tax
suits would prevail in counties where the commissioners courts had not
prescribed different fees under article 3926a. Acts 1979, 66th Leg.,
ch. 841, 56, at 2329. The statute enacting article 3926a, V.T.C.S.,
provided in section 3(b) that until a commissioners court prescribed
different fees pursuant to article 3926a, the fees charged by a
sheriff would be those provided by the law in effect on August 31,
1981. Acts 1981, 67th Leg., ch. 379. at 1001.
Proceeding to your second question, section 33.48 of the Property
Tax Code authorizes the recovery of court costs and expenses in a suit
to collect a delinquent tax, and section 33.49 of the code provides
non-liability of a taxing unit for court costs and exemption from
posting security for costs in such ~suits. However, it requires the
payment from the taxing units general fund, costs of publishing
citations, notices of sale, or other notices as soon as practicable
after receipt of the publisher’s claim for payment. Clearly, these
publication expenses are recoverable under authority of said section
33.48.
Article 2041b, V.T.C.S.. became effective September 1. 1981, and
provides for the collection by the official serving any legal process
by mail. payment in advance for the actual cost of the postage, or the
assessment of such postage expense as costs of suit. This article
expressly includes delinquent tax suits within its terms.
Considering the general sense of all of the above legislative
provisions, it is the opinion of this office that in suits to collect
delinquent taxes, the taxing units cannot be required to pay costs in
advance or give security therefor. and such units are not liable for
costs in such suits except for publishing fees. The postage expense
of all process served by mail in such cases is assessable as costs and
not collectible from the taxing unit, in advance or otherwise. All of
the above-mentioned costs, fees and expenses are to be assessed and
collected as court costs.
p. 1643
Mr. Dan M. Boulware - Page 3 (MW-470)
SUMMARY
Fees for the service of out-of-county citations
on or after September 1. 1981, in delinquent tax
suits, are the fees set by the commissioners court
of the county in which service is performed by the
sheriff or constable thereof. In the event the
commissioners court has not prescribed such fees,
the fees are those provided by the law in effect
on August 31. 1981. The date the service Is
performed, not the date of filing suit, is the
criterion for determination of the law involved.
In suits to collect delinquent taxes. taxing units
cannot be required to pay court costs or suit
expenses in advance or give security therefor.
Such units are not liable for postage expense for
service of process, or any other cost or expense
of suit except the cost of fees for publishing
citations, notices of sale or other notices. All
of such costs, fees or expenses are assessable as
costs of court.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Robert L. Lattimore
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Robert L. Lattimore
Jim Moellinger
p. 1644