OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
lioaonbla &orge 8. Wpjxrd
aaptrollm of mblla lioooaat8
Aast~ia, T8nr
I)ru 8s.rr
. :
flonorablo Ooorga H. Sheppard, pa& 2
Artiole Ii388 ia ia part en foI.lovsr
“The State Treasurer shall rece3.w dally
prom the head of each Dapartment, each of whom.
1s spcclflc4lly charged vlth the duty of naklng
wge dally, a dotailed list of all psraons re-
mlttlng money the 6totua of vhich is undetermined
or vhioh is avaitlng t;ho tine when it con final.-
ly be taken into the Treasury, . . . ” (Ezqhasis
oars)
-
‘Article 705’p, supra, would not be applicable to
the taxi collector of Brewster Couaty for tvo reasons1 i a)
he is not the head of any department of the State Covera-
Dent, and (b) the tax In question 1s an ad valorcm tax and
does not fall vithin the namad classlfications la the stat-
ate,
Article 4388 vhlch describes the duty of the State
Treasury in handling suspense accounts, vould not be appll-
cable for the reason that the tax colleotor of Brevster Coun-
.ty, belae, a county offloer, la not the head of 4 dewrtment
of the State of Texas. It 1s true that the couuty tax col-
lector la a State officer to the extent that the La&lsl.ature
of th& State of Texas hao delegated pover and authority to
hln id his capacity as counts tax collector to collect taxes,
liceaae feen, bto., due the State OS Texas from the taxpayer,
and remit suah taxes, fees, etc., to the respective heads of
the departments after they have been collected. Hence, 1~
the absence of any legislative authority, and there ie none,
tho tax collector of L)revster County is vlthout authorlty
to keep the taxes mentioned in your letter la any suspense
fUn6, but on the contrary, lt 1s his duty to remit such taxes
rhea collected by bin to tho proper authorities under the
Provlsloas of Artlales 7260 and 7261, R.C.S., 1925.
By complying with the terms of Article 7260 and
7261, supra, the tax collector of Dravster County vould ln-
Cur no personal llablllty since this very issue vas decided
by the Supreme Court of Tcxaa in the case of Continental Lend
aad Cattle Company v, Board, Tax Collector, et al., 80 Tex.
489, 16 S.tJ. 312, vhereln Judge Staytoo bald in part as fol-
lower
. .
Bonorable George 11. Sheppard, page 3,
w. . . $he rule up& thLo subject is thus
alearly stated: *In general, any oSSicer whose
duties are merely mlnlsterlal, and to vhom pro-
cesa is issued which 1s apparontlg la due form ,
of lav, and which neither la lts recitals nor
lo lta omissions apprises him that it 1s issued
vlthout legal right, vi11 be protected in serv-
lng it, even though in fact it was issued vlth-
out authority of law. This 1s a rule not only
ossentlal to the proteotlon of su~offiaers,
but absolutely required also for the due dls-
patch of pub110 buslness. . . . Appellant could
not have been compelled to pay the illegal tax
if he had used the means to prevent its collec-
tion vhlch the law gave hiram,but, having paid
It to 85 officer holding process vhlah aommaud-
ed him to colleat it, he cannot nov look to
that offloer for reimbursement. . ..I
The doctrine above enunciated has bceu afffmed
la the cas8 of Texas Lend and Cattle Company v. Xemphlll
County (01~. App.), 61 3.X. 333, the court held ia part as
follow 8 t
w. . . This llmltatlon, hovever, and vhlah
1s here urged, seems to have been expressly re-
pudiated by the Board Case, as will be seen from
tha criticism therein ma&e of the ‘case of Uardus-
ty v. Fleming, 57 Tex, 3991 to which might be
added that, after the collection, the collector
1s required by the lav, under penalties, to make
oolleotion, and promptly report and remit all
taxes collected by him to the state and county
treasurers, vlthout excepting cases in which
suits, hovever promptly filed, ma% be lnstltut-
ed for the recovery thereof. ...
Bence the tax collector of ,&evster County may be
raised that it 1s his duty to remit the taxes collected by
hln to the proper authorities under Articles 7260 end 7261,
*Wa, an& that .he ~111 not incur any personal liability by
‘0 6Olng.
Slate the aature of the protest made by the tax-
~Ysr at the time of the payment of the taxes lo question
~~~~~~rablo George II.' Sheppard, pagd 4
ia not ~lwon, this opinion does not paes upon the queotlon .
a~ t3 whether 02 not such payw+ was vo)uatorg or invol,un-
tcT*
.. . Very truly yours5
.
w
C. li; Rlchnrde
Aemlstant