Untitled Texas Attorney General Opinion

Hon. Robert K. Ramsey Opinion No. S-38 County Attorney Kaufman County Re: Highway Department’s interest Kaufman, Texas in illegally collected, non-resi- dent, registration fees and its authority to collect same from Dear Sir: the county. Your request for an opinion of this office reads as fol- lows: “Reference is made to a letter addressed to you from the Honorable Chairman of the State Highway Com- mission dated March 27, 1953, requesting an~opinion re- lative to the collection of Automobile Registration Fees, In connection with this inquiry I would like to submit the following questions for an opinion: “1. Does the State Highway Commissionhave au- thority to collect from a County, Automobile Registration Fees paid the County by non-residents, after an admittedly correct apportionment of such,fees under the terms of Ar- ticle 6675a-10 has been made by the County Tax Collector? “2. Does the Texas Highway Department have the authority to witl:?old funds from a County’s Farm-to-Mar- ket Road Progrz..n fo’r the purpose of enforcing such County to pay the I-.igilway Commission Automobile Registration Fees collected from Registering Motor Vehicles owned by non-residents ‘of the County, after an admittedly correct apportionment of such fees under the terms of Article 6675a-10 has been made by the County Tax Collector? “3. After a County has received Registration Fees for motor vehicles from non-resident owners, and deposit- ed the county’s portion of such fees in the County Road and Bridge Fund, after an admittedly correct apportionment of such fees under the terms of Article 6675a-10 has been made by the County T~LX Collector, does said County have authority to take money out of the Road and Bridge Fund, or any other Fund, and pay same to the Texas Highway .- . Hon. Robert K. Ramsey, page 2 (S-38) Department to settle a claim of the Highway Department for Automobile Registration Fees collected on Motor Ve- hicles registered in the County by non-residents of, the county7 ” Section 2, Title 116, Chapter 1 of Vernon’s Civil Sta- tutes of 1925 is comprised of a number of statutes beginning with Ar- ticle 6675a-1 and terminating with Article 6686, regulating regiatra- tion of motor vehicles. Article 6675a-2, V.C.S., reads in part: “Every owner of a motor vehicle, trailer or semi- trailer used or to be uskd upon the public highways of this State shall apply each year to, the State Highway Department through the County Tax Collector of the county in which he resrdes for the registration of each such vehicle owned or wed by him for the ensuing or current calendar year or unexpired portion thereof.” )’ Subsequent statutes levy fees upon,tbe motor vehicle., and, Article 6675a-10, V.C.S. requires the County Tax Collector to collect the fees and apportion such moneys between the county’s Road and Bridge Fund and the State tiighway Department. (I) The collection by the County Tax Collector of Regis- tration fees from non-resident motor vehicle owners is an unlawful collection. Miller v. Foard County, 59 S.W.Zd 277 (Tex.Civ.App. 1933). There is a complete dearth of cases interpreting the authority of the State Highway Department to require the county to pay over such fees to the Department, This office in the past has consistently hcld.that the County Tax Collector is the agent of ~the State Highway Department when he acts by virtue of the registratfon laws., See Atty. Gen. Op. NOS. O-2050 (hkch i8, 1940) and V-234 (June 5, 1947). Tha County Tax Collector issues the Highway Department’s license receipts and license plates to motor vehicle owners upon their filing of applications, also supplied by the Highway Department, and the pnyment of a fee by such motor vehicle owner. The Collector holds him&elf out to the public as having acted in behalf of the Highway Department. The Registration fees ~;le~~s~re in the nature of e toll for the use of the highway,” Payn e y 145 Tex. 237, 196 S.W.2d 493,; (1946). and, the High- way Department is the age&y designated by the legislature to be vert- ed with the control of our Highway s at&. Robbim V. Limestone County, 114 Tex. 345, 268 S.W. 915 r 1925). Article 66758-9 provides that the Highway Department is to furnish the County Tax Collector a “complhte and detailed achc- dule of license fees to be collected” on the various types of vehicles, such fees to be determinad by the Highway Department. Article 6675a- 10s establishes in the Department the pdwsr to make careful audits of Hon. Robert K. Ramsey, page 3 (S-38) the license fees collected pursuant to the laws of registering motor ve- hicles. Article 6684 specifically grants to the Department the authori- ty to determine the classification of vehicles and the amount of fees to be paid by such vehicle owners. A fact further substantiating the view that the County Tax Collector acts as the agent ~of the Highway Department, rather than his County, is the statutory fee to which he is entitled, compensatory for re- gistering motor vehicles. See Article 6675a- 11, V.C.S. Such a provision is in accord with the general practice of compensating an officer of one governmental unit for collecting taxes levied by and owing another unit. 51 Am Sur. 844, Taxation, Set: 964. “Accounting for Moneys Received Officially but without Authority. A Collector of taxes must pay over to the proper authorities all funds which come into his hands officially, regardless of whether the tax collect- ed by him was a constitutional tax, or whether it was illegal or void, or improperly collected. Whatever he actually collects as taxes by virtue of his office he must pay over to the body politic for which he was acting; . , .” 873, 51 Am. Jur. The County is not entitled to any funds not lawfully collec- ted by virtue of the Registration statutes. The Tax Collector should pay such moneys over to the body politic for which he was acting, in this in- stance the State Highway Department. When unlawfully collected fees are given to the custody of the County, the Department has a lawful claim against the wrong custodian. 4 Cooley on Taxation (4th Ed.) 3212 Sec. 1006; 51 Am. Jur. 845, Tzxation, Sec. 965. (2) Your second question assumes that the Highway De- partment withholds the benefits of the Farm-to-Market Road Program solely for the reason of enforcing the collection of non-resident fees from the counties. In matters of judgment touching upon the Highway Com- missioners’ functions, theirs, and not that of another, is supreme. Their acts in the exercise of an honest discretion, untainted by fraud, accident or mistake occurring in their performance, or abuse of discretion as under the authorities would avoid the same, must be respected. Bobbitt v. Gordon, 108 S.W.2d 234 (Tex.Civ.App. 1937). The Highway Depart- ment s fund from which it pays for the Farm-to-Market Road Program receives its moneys from various sources, including the federal govern- ment. The moneys provided by the motor vehicle taxes and allocated to the Department by Article 7083a (4-b) V.C.S. supplies a good portion of the money used in the program as well as the legislature’s mandate to the Highway Department as to how the money should be spent. This . . Hon. Robert K. Ramsey, page 4 (S-38) statute states in part: “These funds shall be expanded on a system of roads selected by the State Highway Department after consultation with the county commiaaioners courts of the counties of Texas relative to the most needed un- improved rural roads in the counties involved. The selections shall be made in a manner to insure equit- able arid judicious distribution of funds and work among the several counties of the State,” A similar statutory mandate to the commissioners’ courts in their expenditures, Article 6740, V.C.S., was discussed in Stovall v. Shivers, 103 S.W.2d 3.63 (Tex. Comm. App. 1937). In the light of the discussion by the Court in this latter cited case, and in view of the arsumption that no consideration was taken of the roads’ needs in withholding their Farm-to-Market Road Program, it is our opinion that the Highway Department does not have authority to with- hold the Program under the azsumed state of facts. (3) The Highway Department has a valid claim against the County for the unlawfully collected non-resident Registration fees and the County is authorized to pay this claim, Article 2351-10, V.C.S. SJIM,MAR Y Non-resident registration fees, unlawfully collected’, should be paid dver to the State Highway Department. The State High- way Department is not authorized to withhold the Farm-to-Market Road Program from a county solely as a means to collect the non- resident fees, from said county, The county is authorized to pay the Highway Department any lawful claim exerted by the Department againat the county. Yours very truly, APPROVED: JOHN BEN SHEPPERD Attorney General W. V. Geppert Taxation Division ,$&&&q/ Willis E. Grerham Reviewer William W. Guild Assistant Robert S. Trotti First Assistant John Ben Shepperd Attorney General