THEA~~RNEY GENERAL
OFTEXAS
Honorable J. A. Eames
County-Attorney
Bandera-County
Bandera, Texas
..,
Dear Sir: Opinion No. O-5361 ”
Re: Does ObinionNo. 0-4644 apply '-
to those counties whose officers
are compensated on a ~feebasis
in the same manner and to the
same extent as it applies.to
those counties whose ~officers
are compensated on an annual
salary basis?
Your letter of May 30, 1943, requesting the opinion of
this deDartment on the above stated matter, reeds in part as
follows-z
“Re: Opinion No, O-464,4;~
construing Art. 7336f
"Comptroller Sheppard's letter containing copy
of this opinion hasbeen forwarded to our Sheriff-
Assessor-Collector and he wants to comply with the
law but operatlng on the old fee basis, salaries
paid deputies being fixed end paid out of such fees
and commlssions by the sheriff has requested me to
write end ascertain opinion applies alike to offI-
cers serving for salaries fixed by the Commission-
ers ' court end those serving under the old fee sgs-
tern?"
Section 2 of Article 7336f, Vernon's Annotated Civil
Statutes, reads es follows:
"Any county having as many es two gears' taxes
delinquent which have not been included in the de-
linquent tax record, the Collector of taxes shell
within two years from the effective date of this Act,
cause to be compiled a delinquent tax record of
all delinquent taxes not barred by this Act; the
delinquent record shall be examined by the Commis-
sioners' Court and the Comptroller or governing
Honorable J. A. Eames, page 2 0 -5361
body, corrections nag be ordered made, and when
found correct end approved by them, payment for
the compilation thereof shall be-authorized by
actual cost to the Tax Collector, proportion-
ately from each-the State end County taxes, or
municipal taxes, first collected from such record,
such cost in no case to exceed the sum equal to
five (5#) cents per item or written line of the
original copy of such record and in no event shall
any compiling cost be charged to the taxpayer.
The delinquent tax record when approved, shell
be prima facie evidence of the delinquency shown
thereon, and when there shell be as many es two
years of delinquency accumulated which are not
shown on the record, a recompilation, or a two
year supplement thereto shall then be made as here-
in provided. The Tax Collectors shall cause to be
compiled like records of'taxes delinquent due any
district for which they collect from'tax rolls
other than the State and county rolls, and when
approved by the governing body of the particular
district, the cost of same shall be allowed in the
manner herein provided."
~~. In construing the foregoing sectionof'Article 7336f,
supra, it was stated in our opinion No. 0-4644 (applying to
counties whose county officials are compensated on en annual
salary basis) that:
"In connection with you~ inquiry you submit
the exhibit referred to in your letter wherein you
suggested-to the various Tax Assessors-Collectors
of the State what you considered to be a proper com-
pliance with the pertinent portions of Section 2 of
Article 7336f, Vernon's Texas~Civil Statutes, pro-
viding that 'payment forthe compilation thereof (the
delinquent tax record required and authorized by said
(Article) shall be authorized by actual cost to the
Tax Collector proportionately from each the state
and county taxes, or municipal taxes, first collect-
ed from such record, such cost in no case to exceed
a sum equal to 5q! per Item or written line of the
original copy of such record and in no event shall
any compiling cost be charged to the taxpayer.'
(Parenthesis ours)
"The payment provided by the above is in the
nature either of the payment of actual expenses
necessarily incurred by the Tax Assessor-Collec-
tor in the discharge of a statutory duty or a fee,
Honorable J. A. Eames, page 3 o-5361
commission or compensation for official services
performed by him. We construe the procedme out-
lined by you in the attached memorandum or exhibit
to be grounded upon the theory or conception of
such allowed cost as a fee, commission 0~ compensa-
tion coming to the tax official by reason of ser-
vices performed in his official capacity and hence
under the governing statutes and the recent deci-
sion of Hueces County vs. Cureton (not yet repopted),
by the Supreme Court of Texas, to be accounted for
as e fee of office or paid into the officers'
salary fund in counties governed thereby. Upon this
premise, you proceed to compute the 'actual cost'
of compiling such delinquent tax records by relat-
ing the time consumed by the regular appointed and
acting deputy, to the monthly salary allowed and
authorized by due order of the Commissioners'
Court, and having arrived at such cost, you then
'pay' such 'actual-cost' by taking proportionately
From state, county, municipal or district taxes
collected, and causing same to be, by the said Tax
Collector, accounted for as e fee of office or paid
over into the salary fund, under pertinent statutes,
"We find no error or fault in the method of
computation arrived at by you OP the ultimate dis-
position of the 'actual cost' to be borne ratably
by the various tax funds involved, but we cannot
find ourselves in agreement with the fun,demental
proposition upon which such procedure rests, that is
to say, that the cost allowed end contemplated by
this statute can be considered as or converted into
e fee, commission or compensation received by the
Assessor-Collector in the discharge of his official
duties, to be accounted for as a fee of office. On
the contrary, It appears that the only purpose and
Intent of the Legislature, in the enactment of that
portion of Section 2 of Article 7336f, hereinabove
referred to, was to enable the Tek Assessor-CoPlect-
or to reimburse himself for such actual costs as
would be necessarily expended by him in the com-
pilation of the delinquent tax record contemplet-
ed by this Act; and to provide for such reimburse-
ment not only out of county taxes collected, es
had theretofore been the statutory rule, but like-
wise out of state tax collections or the tax col-
lections of municipalities or taxing districts, so
that each of said tax collections should equitably'
end ratably bear the cost of compiling the records
Honorable J. A. Eames, Page ,4 o-5361
of delinquent taxes of such various taxing units,
This statute does not, either expressly or by nec-
essary implication, provide for or contemplate the
collection from the taxpayer OP from any other out-
side interest or person, of the.actuel cost of com-
piling these delinquent records, but, on the con-
trary, it is otherwise expressly provided. The
actual cost of compiling these delinquent records,
either in a fixed amount or in en amount to be com-
puted after the work is done, Is notpaid in or s-
lected by the Assessor-Collector so as to be consid-
ered e fee, compensation or commission received by
him end to be accounted for as a fee of office or paid
into the salary fund. On the contrary, the amount
of such actual cost, if any is found to exist, is
taken out of moneys collected as taxes, whether
state, county, munlcipel or taxing district, and Is
paid over to the Assessor-Collector ratably or pro-
portlonately from these varlous tax funds, on the
theory purely of reimbursing such official for
reasonable and necessary expenses which he is out-
of pocket, not exceeding the statutory maximum.
"Hence, if the Tax Assessor-Collector of e
county, himself, in his official capacity, finds
the time and the means of compiling the delinquent
tax records required by said Article, in Addition to
and along with his other official duties, no actual
cost has been incurred because the entire time of
this official has been pmchased already for the per-
formance of these duties by the payment of his of-
ficial salary. Likewise, if his regular deputy force,
in addition to the other duties with which they are
charged, are able to compile these delinquent tax
records, no lactnal cost,' within the intendment
of this statute, has been Incurred because the
salary authorized by the commissioners' court for
the payment of such deputies will take care of
such costs. It is only whenactuaL costs alaeex-
pended or disbursed by the Assessor-Collector in
the hiring of additional personnel or the provid-
ing of additional equipment, actually and reeson-
ably necessary to the proper complletion of these
delinquent tax records, that 'actual costs' have
been Incurred, which may be reimbursed in the mode
outlined by the statute."
After carefully considering your request In connection
with out Opinion No. 0-4644 as said oplnion applies to those
counties whose officers are compensated on en annual salary
. -
Honorable J. A. Eames, page 5 o-5361
basis, It is our opinion what was said therein is equally ap-
plicable to those counties whose officials are compensated on
a fee basis. Therefore, it,is our opinion that the same con-
struction given Article 7336f, Vernon's Annotated Statutes, is
applicable to the same extent and in the same manner to
counties whose officials are compensated on e fee basis as
it is to those counties whose officials are compensated on an
annual salary basis.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Ardell Williiims
Ardell.Williams
Assistant
AW:db:wc
APPROVED JUN ~~19,1943
s/Gerald C, Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman