A county attzrsty is not eati-
t.ledto CS1153~ coE2isslona un-
deI' Article ;?5, ??. C. $5. whsn
he oollects ;:linquent personal
property tax-z,x:thout fllinS
suit. .
Ootobor 21, 1940
Bonorable Jazes C. Gillll~=d
County Attorney
Deaf Smith County
Hereford, Texas
Dear Sir: Opinion Xo. O-2410
Your request fo: 0;lcion has been recsivzd and
carefully considered by t's departrent. Y:e quote from
your rsquest as follovzs:
"In case the Cozzissioncr*s Court, after
personal proport taxes have becone dollnquont,
instructs the County Z.ttarney, by Its order, to
'colleot' said taras, a.cd turns said tams over
to asid couay %ttorr.+y 9:it.hinstructlsns to I-&
to so collect said tzx$s. and thn County Attor-
ney, through his Bfi'oZtS; ~01la~t.sths taxes
without filln-, suit f:r ths oollectlol?thwoof,
then i3 the Coilllty A'lfor;.
ey cctltlad to the cos-
mlsslcns provided fcr lr. Art. 335,-1925 D.C.S.?"
ArtiClCi 7332 of ier?.onto AnnstnteA Tams Clvll
'Statitco raads, in part, as f311ow:
Vhc County 01'::atrict Attorney shall rsp-
rcfcnt the Stiltsand -,slmty ln a11 suits a:,sinst
dolinrcent tax-clgJrz, . . .*I ]UnZo~iinin< our?)
sonorable Jams C. Cilliland,., page 2
Thi court in the case of Slinp Y. rise County,
96 S. W. (2d) 537, stated as follows:
*It 13 the duty of tho county attorney of
each county to file suits to enforce tho pny-
sent of dellcc;uenttares, upoo request of the
‘corzissimer3* court, and he, alohS with all
other officers whose duty lt is to file antI
prosecute such suits for the use and bonefit
of tho county and state, are subject to criminal
Droaecutioh.lf ther fail and r5fuse to oarforo
,~(&at duty." -
. ,'
,Artlcle 7355, Vern.on*s Annotated Texas Civil Stst-
utea,.reads, in pmt., as follows:
%henever the comissionora court of any
county after thirty days viritton notice to tba
county attorney or district attorney to file
deliquent tax suits and his failure to do so,
shall deeclit necessary or ex;edlent, said
court say contract with any compstant attorney
to enforoe or assist in the enforcement of tho
collection of any delinquent State nhd county
taxes for a per cent on the tares, penalty and
inte+st actually collected, . . .n
Article 7297, Vcrnon*s Annotated Texas Civil Stat-
utes, reads, in part, as follows:
"The district or county attorney of the
respective counties of this State, by order of
the corziissloncrscourt, shall inotltute suit
in the nam of the State for recovery of all
money due th3 Strrteand county as texes due and
unpaid on unrenderad personal property. . ."
Article 335, Vernon's hnnota:ed Texas Civil Stat-
utes, rends as follov:s:
*~whoncvcra district or county attorney has
coll3cteA money for the State or for anjjcounty,
he shall within thirty days after receiving the
same,.pay it into the treasury of the Stats or
of the oointy in which it belon&s, after deduct-
ing therefrom anA retainin:;the conmissions al-
lowed hln thereon by law. Such district or county
attorney shall be cntitleclto ten per cent COG
misoions on the first thousand dollars collected
by htilin any one case for the State OS county
from;any lndivid;l~lor cs;i,-any,
and five per cent
on all 3~5;sover one thsusznd dollars, to be re- -
tainectout of the money when collected, and he
shr!llalso be c^.titledto retain th? w~:e coxz~o-
sions on all ColleCtilns :xCe for ths ntste or
for any courty. Thio article shnll also np;ly to
money rcolize6 for tne Strto under the enchant
law.=
We quote from 34 Texas Jurisprudence, pages 308,
509, and 511, as follows:
"Statutes proscribing fees for public offi-
.. cers are strictly constru-d; end hecce a rlsht to
fcas c.nynot rest ln inpllootion. ?hera this
right ie left to construction, the Isn2u~3e of the
la?!must be construed in revor of the Gzvsrzent.
u:hero a ststuto 1s o.lpnbleof t?:ooonctructiona,
on9 or :rhioh~01110 Olve en officer COZFenSstiOn
~!-for
his services in addition to his snlary and the
other not, the latter construction should be
adopted. , :
eXs herelnbefore stated, the oonpensatlon of
public officera is fixed by the Constitution or
statutes. An offloor may not claim or re?.ohany
money without a lnw authorizing him to do so, WA
~clenrly fixing the amount to v;hichhe 1s entitled."
We quote rrom sn opinion of thl5 departcent, writ-
ten by Honornble R. V. Dsvidson, Attorney General of Texas,
dnted Gotobor 18, 1905, psges 24.0-241,1906-02-10, Reports
0r the bttorncy Oonoral 0r Texss, as r0110w3:
"If the cormlssioners~ court directs the
county attorney to enforce the ooll8ction of tax-
.es delinquent upon an assessment 0r perdonal prop-
erty only, then 1 think that under Article 297
(now Art. 335) bf the Ravised Civil Statutes, the
county attorney would be entitled. es oozpensation
for the collection of suOh taxes & ho msy OOlleCt
bv suit. whether or not th5 suit z~ :00b; to fins1
3-t. to ten per cent uRon th;!first one thou-
e
-end doliars collected in any one case, and five
per Cent on all sums over one thousand dollars.
"The county attorneyts oonpensatl-n for the
colleotion of taxss, 1s thsrefore, an follows:
“. . L
"3. For collection by suit of tsxes delin-
quent upon nn asse55ment -onal property
only, the county attorney is entitled to ten per
,cent of the first one thousand dollars oolleoted
ln any one oc1.30natirive per cent on all 8~1s in
excess thereof, whsthor the taxes sre collooted
,durin:;pondonoy ut
of'the suit end bei'ore.i t?-
7,
rent, or after judp;.ent. 3ut hs is not entitled
to anjrco:;cmsation for the collection of these
taxes ic collected without su i." (2reorsts and
underscoring oura
Also see Cor.forenceor,lnlonof this department,
doted 1:s~ 31, 1913, written b::Horrorablo::'.
A. i[eeling,,
As-
sistant httorney General (later Attorney Generrl) Dr.5
&rlntcd In 1912-14, Reports of th:,httorney CcnerHl of Tex-
as, w'~ed 223-4, vinich holds that .scounty sttorncy is not
entitled to com;;cnzstlonin dolinoucnt tnx euits until Suit
is brou$rt.
Ronoreble Jams C. Gllliland, Rage 4
vie quote from an opinion of this dopertmnt,
dated Rnroh lst, 1916, witteu by Ronorsble JOIXI C. !:‘e.ll,
Assistant Attorney General, printed in 1914-16, Reports
of the Attomey General of Texas, paG.es643-652, inclusive,
*S r0iiov;s:
“A very 3ood resson for not making provl-
slon for r83s to county ettornzys in delinpucnt
tar xatters until suits hsve been filed is, t!-ot
the distrlot or county attorney doss not perform
-Iny ServiOos in connection with the collection
of dclinwent tuxrcsuntil cults em filed. In
This dcpsrtment held in o conference opinion dstod
February 12, 1921, written by Ronoroblo L. C. Sutton, Asslst-
ant Attorney G-nersl, that a oowty attorney vms entitled to
a oo~is3ion, under Article 363 of the Revised Civil Sztutes
of 1911 (now Art. 335) r0r collections 0r delinquent taxe3 on
psrsonsl property collected by virtue of authorlty veotad
in him by drtlole 7661 of the Rsvlsod Civil Stetutes of 1911
‘(no+ Art. 7297) and that the ooiiponsltionof tha county at-
torney, under Articles 766% and 76’91of tho Rwised Civil
Ststutes of 1911, did not apply to such collections of taxes
upon psrsonsl Rroporty, said articles rclatinz only to dc-
linpuent taxes upon lends and lots.
This department held in a conference opinion nrit-
ten by Honorublo L. C. Sutton, Assistant Attornoy Goneral,
dated April 6, 1921, that the county attorney was not entl-
tlod to oo:;r;lsslons under Article 363, of the Revised Civil
Statutes of 1911, (now Art. 335) on money oollocted for the
county in a suit which it %as not the duty of the county at-
torney to bring in bahalf of the oounty. We quote from said
opinion as r0ii0w :
“. . . There 1s no constitutional or stat-
utory provision makin it your duty t.obrin;
such a suit. That belnf,true, you, as county
attorney, are not entitled to any oomlsslons
under Article 363, ‘(now Art. 335). The Commls-
slons therein provided for are for services
rendered in the oolleotlon of honey by the
county attorney in the psrforfianceof duty re-
ouir-d or him by law. The couhty attorney is
not entitled to tn3 ooxJssions provided by
Article 363 (now Art. 335) ucon moneys xhlch
the law Coeo‘not %require him-t.0 OolleOt. A
county officer olaining co::ponaationor foe3
must ba able to show not'onlg that the 3erViO33
wore rsrfor:>edfor the duty as such, but.nlso
a statute or cacotitutlonnl provicinn suthoriz-
in6 co:.:~ons~~tlmfor t::ojarticulcr service3 in.
qu,e3tlo3. . . citing the folio-rin;euthoritie3:
“15th Corpus Juris, 496
?,RlllsCounty ve. Thanpeon, 95 Tex, 22
‘. “64 S:; $27, 6G 51; 49
Uonorable JaraeoC. Gllllland,,?aCe 5
Wharton County VS. Ahldo3, 84 Tax. 12,
19 S.“!.291
“State vs. Xoore, 57”iexa3 307”
ITomterlul chan~ea have beon made in the stat-
utes since any of.tha ebove nontlonod opinions wore wltten
that would afl'ector chsnc1.0
the conclualons theroln nnnounccd.
Oplnfon 110.O-9% of this depnrtznt, rcnlerod
June 29, 1939,~addrcssed to you, holds that the rISht of
-t,ho oounty attorney to co:~~iorlona undor Article 355, B.
C. Sd 1925. ln delincuont tax suits coverlnr, acrsonal U~OP-
;;ty, only.attachos i;m t!lo fillri;i of suit: ‘This opinion
--also holds that the oor.nlssionors~court iZ.nst cuthorized
t0'CO~ItrSOtWith Or.!>tiS
t0 a COUntY attorney- 8 -
DerCDntaGJ
of delinquent taxes coileoted. -
Th8 tax collector 1s prlnarily chirped u:ith the
oollection of taxes, real and psrsonal, both ourr.snt and
delincuant, and he does all necassary vmrk in the preparInS
of the lists, sending out notices and other prulinlnary
=orX preparatory to t.hefiling of a suit by the county at-
torney for whlcil services tho law provides certain fees to
be allowed the tax collector.
vie knov:of no statute or article of the Constltu-
tlon which mskes it the legal duty of the csurty attorney
to wlta lotters to delinquent taxpayers ruqUsstlnS payment
of delinquent tares or nttx)-.tin any way, -rlor to bring-
lng suit, to Collect such t-xes at the iTstance of the CM-
niasionersf court.. i’ihen th; tax oollsc~r l~:s exhausted
his rc;edIes and the corzissloners~ court &?uerti action
ProIathe ooUnty attorney tho only logal dUty isvoivod upon
the County attorney 1s the legal dutp~to file suit and prose-
CUtE Eab8. Simo his 1eCcl duty only b+glns ?:Ith the filing
Of ths Suit, it folloim that his rIC,ht to co;;-er.satlonunder
Article 335 vcouldnot attach until suit v:as fiiGd and ool-
loction nade.
YOU ar8 therefore reoFeCtfully adrl~cd that it 1s
the o&Ion of thla doprti;cnt that your C”estion should be
ansvmed in the negative, and it 1s S~O anmere?.
We have al30 reached the conclusion that our hold-
ins in Opinion ho. O-EWln annwer to queatitn ::o. 3 pro-
pounded therein, to the affect that a county attornoycould
be ontitlod to oo.xAssions under hrtlcle 325, X.C.~., for ool-
IsctlnC fioney iroa a defaulting county treasirsr without suit
is erroneous.
Ylo quoto frail 15,Tsxns Juriogrudence, ;nSos 402-1-4,
V:hlchxzontolns an aaalysls of Article ZX, ?. :.,T., as follow:
“Vhen it shall coze to the %co~ileZ~e of
any district or county attorney th-It ~7 :El-
cer in his Clstrlct or county e2tru:tel ~5th
or abuolng the-trust csnfldod in hi.:; :r :.=-any
way fnilln; to dioch.?.rf:e
his dut,Ie; xcez :Ze
.law, to shall Institute such procecdizgs cs are
necesmry to co;,pslt!o porf0r::snco 0: s":i du-
tie.3by such officer and to preserve and ,zo-
teot tho public Intorosts.f (Art. 33.9, E.I..S.)
~icncrableJaaes C. Gilliland, RnSe 6
not or,ly~onfars a po”or,
“‘This 8t.atut.e
but 1mpcse;la duty upon the district or county
attorney ts perfcrcthc acts thsroin specified.
Re hss,nc ps-xartc bind the state by cocprcnis-
lnc the suit. The prooeedinS nay be brcu.Thtby
the county attorney in the n?me of the couhty
or, if a recovery of state funds is sought, in
the'nsae of the state, aincc the ccnstitutisn
authorizes hirlto repressnt the state, and the
statute abovo set fcrth covars 'any public funds.*
"To authorize a suit under the statute, it
must aRpcar that the action 1s brought~qainst
%e 'cutrusted with the collcctisn~ cf public
funds, or %ritR the snfekeapiq, of any'public
funds.1 This aufficicntly apRsars wher,; the ao-'
ticn is u;cn the bond of a acunty treasurer or
-collector to c~npel an accounting for money in
his hands bclonS;ingto th.astate or county, Cn
the other hand, the statute has been held nat
to apply to a suit to recovar back mncy outhcr-
hod by the cor~isalonera~ court to be paid out
of county funds to an attorney retained by them
to represent the ccuhty, or to enjoin further
payr*entson such retaimr, or ai;ninsta county
judge or other officers for llioney
ap~rcpriated
as salary frcr~county funds in the custody of the
treasurer, or against a ccmissionera* court and
ocunty clerk to restrain thez fron RemittinS
county ofl'icloloto pay for pcstnljestnsps cut
of county funds.
nPrccesClnes for the,recovery frcz a sheriff
of fcsney collected on a forfeited recogizanoe
have been held to be within the authority of the
district sttcrney and part of his duty. For this
purpose, he my take a notion in the nme of the
state for juC=ent for the benefit of a ccuhty en-
titled to tha money. The county attorney has been
'held to have no authority to intervene for the
county or state in a suit against a city to enjoin
lt from enfcrcin.:an ordinance."
The case of State vs. E'rattcn,192 8.13.S14, holds
that the county attcrsey has authority to institute prccoed-
in@, to-clt, to file a suit, for the collection of ncney
o&oat a dofaultiny tax collector and is entitled to the
statutory comnissicn for cclloctlng same by suit.
The term *proceedings* has -been defined by the
courts in many imtancea. 3s quote the follo:?inS:~
*A ~procaodinS' i:,a *,suit*or *judicial
nct~ian* invslvins right.-,
of ::orxns or of pap-
crty , and inolui.asthe c,our'lic
of stc?s or meas-
ures token in the prcsocutic> of sctisx at lev;."
Jackson vs. Jac;cscn,14 P!? 2n5 270, 270, L-79,
295 Ill. ARp. 508.
"The word *~rccecdin~* is pmerally ap;li-
cablo to any ste;,tnkon by a suitsr to obtain
the intcrpc;itlo::~crncticn of a court." In Re
Eongland's z'stzts,258 x 551, 120 h'cb.219.
"The term *prcceoQlnSo' ccans 011 the steps
or m~~tcure::
adcited in the prccucutlm or defense
Rcnomble Jazes C. Giliiland, pace 7
:
of an action.m Stetter vs. U.S., C.C.A. Alaska,
66 F. 2nd 819.
i
e*FrocoedinS* in enfcrce:,entof a civil rich+.
is a preccribed node cf.acticn for carryin into
effect a lcjal r1zht.e In re Schcrerla Estate, S77
B.Y.~. 677, 154 Kiss. 198.
"In its general scceptetisn, ~prccsodlng~
means the fcrc in which actions are to b.:brcucht
and defendad, th3 z.annar of intarvonirg in suits,
of conducting thez, of cppcsinS judy.ents, and of
executinc.e U.S. vs. French Sardine.Cc., C.C.A.
Rash., 80 F. 2nd 325, 326.
.
It is our opinion that the lanSuaS,ein Article 339,
R.C.S., &ho shall institute such prcceedlnSs as are necessary
to coPgel the yerfcrxmce of such duties by such officer and
to preserve and protect the public interest" mean that the
county attorney shall institu^e such legal proceeding as nay
be necesary, such as fiiinS suit to recover tmmy cue the
county, the lnstitutisn of remvsl proceedings in court to
r‘cmva errant cfficera~frc:~office, to aeke rsoticno in court
in the h%e of'the state agsinst sheriffs for the recovery
of ncney oollected by the sheriff on a forfeited recoSnizadce,
to institute agprcpriato criminal proceed&s, and prhaps
in scffie
instances to Mintain apprcpriato LEhda;lUS'andin-
junction suits. He think the tcm "institute prcoeedin;;s"
Leans that the Ocuhty attorney should institute all ap>ro9rl-
ate legal aoticns, suits and t;otlcns and does not ccntfxzplate
any lesser thin5 than "leeal action" and certainly does hot
ccnte;,ilatcneGctiaticno, settlement and efforts to cciipro-
eiss prior to i"llinSsuit or instituting loSal procosdihGs.
In the case of collecting rio':eyfrca 0.defaulting tressurer,
we think the inatitutim c? proceedinGa required by the county
attorney ccntcrplates the filing of a suit to collect sane.
It is the duty of the county attorney tc,file suit
to cclleot ecney due ths county from a default& county
trea:uror. The law dccs net require the county attorney to
collect or attmpt to collect the r;cney prior tc filing suit.
It is cur opinion'that the county attorney is not
entitled to cc~~lssicns,under Articles 335 and 339, R. C. S.,
for~ccllectinS ncney fro2 a defaultirS county treasurer, un-
less and until suit is filed by the octmty attorney. Gpinlm
Rc. O-665 of this deF:nrtmnt insCfar as it CCnfliCtS heroin
la heroby expressly overruled,
Verjj truly yours
.
This opinion haa boon
proved, and ordered recorded.
GZRALD C. !.:ARR
ATrORX!!YGXXhF4L OF TZCAS