Honorable Robert S. Calvert Opinion No. 'M-808
Comptrollerof Pub1.icAccounts
State of Texas Re: Whether Waiver Qf
Austin, Texas notice and rights
to file tax suits
by county attorney
in connection with
tax contract let
to another.attorney,
operated as a waiver
of such rights as
to any such'contract
Dear Mr. Calvert: made in the future.
Your letter of date February 25, 1971, is quoted In full
as follows:
"On January 1, 1969 a contract for the
collection of delinquent ad valorem taxes
was awarded to an attorney by the Commissioners
Court of Hardin County. The duration of the
contract was for the t,woyear period beginning
January 1, 1969 and extending through December
31, 1970, and was approved by the Attorney
General and Comptrolleras required by Article
7335a, V.A.C.S. The contract contained a
waiver from the County Attorney with regard
to the x0-day notice required by Article 7335.
"At the termination of the above mentioned
contract, a new contract was awarded to a
different attorney and the same County Attorney
has refused to grant a waiver of his rights,
in this instance, holding himself out as
ready and willing to file and prosecute delinquent
tax suits to a conclusion. However, the
Hardin County Judge contends that a new waiver
is not necessary, inasmuch as the County
Attorney had signed a waiver some two years
earlier in connectionwith the prior contract.
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Honorable Robert S. Calvert, page 2 (M-808)
'Your official opinion is respectfully
requested whether the new contract should be
approved, as provided by Article 7335a, in
view of the County Attorney's refusal to
waive the necessity of the x0-day notice as
required by Article 7335.”
Article 7335, Vernon's Civil Statutes of Texas, in its
relevant portion, reads as follows:
"Wheneverthe Commissionerscourt of any
county after thirty days written notice to the
county attorney or district attorney to file
delinquent tax suits and his failure to do
so, shall deem it necessary or expedient,
said court may contract with any competent
attorney to enforce or assist in the enforcement
of the collection of any delinquent State and
county taxes for a per cent on the taxes,
penalty and interest actually collected, ..."
Article 7335a, Vernon's Civil Statutes of Texas, In its
relevant portion, reads as follows:
"Section 1. No contract shall be made or
entered into by the Commissioners'Court In
connection with the collection of delinquent
taxes where the compensationunder such contract
is more than fifteen per cent of the amount
collected. Said contract must be approved by
both the Comptrollerand the Attorney General
of the State of Texas, both as to substance
and form. ...
'Section 2. Any contract made in violation
of this Act shall be void." (Acts 1930, 4lst
Leg. 4th C.S. p. 9 ch. 8.).
It is readily apparent that the notice required in Article
7335 to be given to the county or district attorney is merely
one prerequisiteto the letting of a tax collectioncontract
Fanother attorney. Before the CommissionersCourt is
authorized to enter into such contract another statutory
prerequisitemust exist; namely, the famr refusal of
such county or district attorney to file such tax suits.
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, .
Honorable Robert S. Calvert, page 3 (M-808)
This failure or refusal may be manifested by words or acts.
His mere assent to the letting of a contract for such
services can operate as a waiver of this statutory thirty
dass notice to him, and of his riaht to file and orosecute
such delinquenttai suits during zhe term of such-contract.
96 S. W. 2d 537 (Tex.Civ.App.1936,
Earnest,34 S.W.2d 685 (Tex. Clv.
it should be oolnted out
that the waiver executed by the county atiorney of
Hardln County In respect to the notice prerequisite of the
January 1, 1969, contract, was a waiver of the required
written notice and, as well, an assent to the letting
of that contract for the enforcement of collection of
delinquent State and County taxes to another attorney.
The problem raised by the present refusal of such
county attorney to waive the thirty days written notice
and his right to file and prosecute tax suits in respect
to the period covered by the proposed new contract with an
attorney other than the one contracted with in the expired
contract, can be resolved only by the determinationof this
question: did the subordinationby the County Attorney of
his rights to file tax suits to another attorney during
the life of the first contract operate as a continuing
surrender of such rights under any other such contract
made during his tenure of such office?
It can hardly be disputed that Article 7335 requires
notice and failure or refusal of the county or district
attorney to act in response thereto, each time such a
contract Is entered into. FUrthermore,oxve his
rights the county or.distrlctattorney must be In oossession
of-knowledgeof all the material facts concerning khe right
or privilege that he is to relinquish. Maanolia Petroleum
Co. v. Butler,86 S.W.2d 258 (Tex.Clv.App.1935,error dism.).
nus, in regard to a certain contract proposed to be entered
into with a-certain attorney for a definite period of
time, it Is reasonable that his waiver was motivated only
by such facts then known by the county or district attorney
and not by unknown future contracts with other attorneys
and for different periods of time. In 60 Tex. Jur.2d 186,
Walver,Sec.5,It is said:
"To constitute a waiver, the right or privilege
alleged to have been waived must have been in
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Honorable Robert S. Calvert, page 4 (M-808)
It has been held that a waiver operates in praesenti
and when intended to operate in futuro, it is merely an
agreement to waive which re consideration. Roberts
v. Griffith,207 S.W.2d 443 Tex.Civ.App.1948,error ref.
n.r.e.) WIg find no indicationIn the wording of the
waiver.of the 1969 contract that any right accruing to the
county.attorneyof Hardin County after the expiration
of such contract was intended to be waived, neither do
we find any considerationfor any such future relinquishment
of rights by the county attorney.
Hence, in view of the foregoinn, it seems clear that
the waiver of the county attorney of Hardin County contained
in the tax contract of January 1, 1969, and the consequent
surrender thereby of his rights and privileges to file and
prosecute delinquent tax suits during the term of such
contract, Is not effective as to the new contract now
under considerationby you, which was not in existence
at the time of such waiver and the facts and circumstances
thereof being completelyunknown to such county attorney
when he executed the waiver on the first contract.
Therefore, it is the opinion of this office, based on
the facts herein discussed, that the contract now under
considerationshould not be approved for the reasons given
herein.
SUMMARY
The waiver of written notice to file and
prosecute delinquent tax suits, executed by a
county or district attorney in connection with
a contract letting such duties to another
attorney and containing such county or district
attorney's assent thereto, does not operate
as to any other such contract thereaftermade
with another attorney. Article 7335, V.C.S.,
requires notice and failure or refusal of a
county or district attorney to act in response
thereto each time a contract of this nature
is entered into.
The contract in question for the collection
of delinquent state and county taxes entered into
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Honorable Robert S. Calvert, page 5 (M-808)
by the CommissionersCourt with another attorney
without notice to the County Attorney, in the
absence of his failure or refusal to act, as
required by Article 7335,V.C.S., should not
be approved.
Yours very truly,
CRAWFORD C. MARTIN
Attorney General of Texas
BY:
First Assistant
Prepared by R. L. Lattlmore
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Michael Stork
Sally Phillips
Harriet Burke
Phil Warner
MEADE F. GRIFFIN
Staff Lena1 Assistant
ALFRED Walker
Executive Assistant
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