Untitled Texas Attorney General Opinion

OFFICE OF THE AlTORNEY GENERAL OF TEXAS AUSTIN Bon. ilaokWleah county Attorney Csmexml county 8r~~~rille, Texas Bear 8lr: on the above stat.4 question hae b queetlon amben the taxing.agenoies e t5.M pa& prooeed- ire4 Civil Statutes o? forsoleea delinquent ow arrived at the point havin$ been u) foreolo1~4 upsn ortain .qwetions have arisen with e distrlbwtlon 09 oasb obtaIned ssdrrol'rruahsale. The two method8 ion eontended r0r cub set out in Q4 ftW Said pUmO6S and Wld08ed or better explanation ef the qn*stSons "In the partioular trample &dcrr oonsidsm- tion, thore are ten aore of tin4 whloh are taxed by six munioipalfties, to wit: Bbats, Oounty, Wainage MStsiot, Water BUtriOt Wayi- gatson bietriot, aad~Inbepsn4dbntLsohaalD&?&et. Hon. Jack Wleoh, Page 2 The taxes for the State of ?exas County, and the Drainage Distriot are oo ileoted by the County bressor aa Collator, and delinquent tax eult8 for aal4 aaenoiecl are proaeouted by the County Attorney of thirr county. The Watar f$atriotr Navigation MatriOt, an4 Indepsndont Sohool Distriot caoh ha6 It6 own as6elsOr an4 OOlleOtOrl however, them three aunialpalltle~ have employed the same attorney to br9.mg8uit8 for them to oollaot delinquent taxes. "Upon the ten aore Involved tars8 worn delinquent ror 4 period of year% the total tax, penalty, lnterert an4 line ooat ror all agenoies totaling $m, for whloh prinolpal amount ju4gmnt wag taken in Our Dlatriot Court under 8416 Art. 7WSb. The Cmrt in ea%d proceeding fixed an adjudged velue undsr 8ao. 8 of maid ktlole, upon ths aaid ten 4or84 at &OO. The property was rold under order cf sale an4 purchased by the Water Mn- trlot fortha use and bemilt of ttsslt aad all other taxing unite whfsh were parties to z;g suit by authority of Sea. 0 of said Arti- Subsequent thereto, the aaid Water M&lot sold the said property tq a private individual at the pribe ot $BOC, muue be- the edjudged value oi~$Re aald property in 84id roreslceure suit;;.*. an4 in add fbreoloaure suit in- oaats In thcarao~t of #lo &me prbvd-, au were ten per oant (1093)Of the tax, penalty, intereat, and line oost, on eamunte due the Water, WavigaCion, and Independent Bohool Mstriato, allowed a8 attorney's feea, whloh amounts were sritten into raid judemnt. Tt ia now the oontention of'the attorney repreaentbingSaid Water, Wtavlgatlonan4 Indo- pendent Bahool Metr;ri~tethat the prcioeedaflmw #aid sale should be dletributed 44 set out in Exhibit *Bw snoloeed herewith, $n whtoh the distriot oaurt oosta ooete of inveetl*tlon, and ten pearoent (14) of the princrtpal4taOUaa Hon. Jaok Kleoh, Page 5 oi tax, penalty) Interest 4ml line 006t, due ths 6614 Wetar titrlot, R6vleatlon Pistrict an4 Independent 86hool M6trlot, 46 attorney*6 fees, are deduoted fnm the amount obtained from the sale of eald pro- perty, and pal4 In oa8h, the remainder there- of to be prorated amongrt the varlou6 taxing 4g6nol66, pro rata an4 in proportion to the amounts of their respeotlve tax liens as e6- tablished In 66ld jud@mnt. " ........ *Kindly let u6 have the opinion of your otiloe 46 to the proper 4istrlbutlon of pro- oe646 in the 6616 of property under delinquent tu lien foreoloaure. (Art. IS&b). ".W%thrererenoe to our 6e66Ib que6tlon. Art. 9SSe, Revl66d Civil Statute6 of Texa6, 19E5, provl4ee for the tees of the County Attorney ln repreeentlng the &ate an4 County In 411 suits agrln6t delinquent tax payer6 and also 6ets out the oompensatlbn for 6enloe6 ree4red therein by oertaln other oounty offl- The 64iieAat, 46 finally 46mndea In 1931,*oertainly was eluotsd by the Leglrlature wlthout having before It Art. 'IMlllb, whloh latter A& w66 not passe4 until the M&h Legla- lature in 1987., “In lnetanees where th6 State inetltutea the prooeedlng under Art. 734Sb, or whm 6m other taxing agenay lMtltISte6 66m6 6nd it 16 oarrled to judgment, there is no.lnoanvenlenoe or dlffloulty in apply- the said Art. 753iZ fo~lo~~t4xlng of tees due the varlow oounty Hover, ln ln6tanoes ln whloh a suit 16 &ought under Art. IS&b by 6am other taxing agenoy and the St6t6~4M Dounty are ia- pleaded 46 part166 deienflant, but before the filing of the tax alaim,for the Btats and County In said duit, the ault 18 4lrml6ee4 at plaln- tiff'6 ooet, It haigbeen th6 oontsntion oi the taxing 6genoles brln@ng 6aYd Suit that th6 fees Jaok Wleoh, PagO 4 due the County Attorney an4 provided for in Art. 7332, & not 4oorue 664 4x-4not payable. *Thsrefore, we llaoer6ly request your advloe as to whiiRoounty attorney** fees pro- vided for in Art. 9X31346orue in Suit6 ln- stltuted by tax unit6 UIklOr Art. 9S45b. "tftat6 an4 County are lmpl6a4- and In whloh the e4 a8 partlea defendant, or intervene th6rel.n.* WOquote fhdiOB6 5I;6, 0 ut4 th6 flmt pclragnph of Seotion 9 of Artlale 7MZlb, Vomon*a Clvll Annotated 6t4tutes 46 r0mtt: *aeo. 5. bon the trial of 6414 oauae the Court 6hhallhear OVld~OO upon the r~aon- able fair ralue of the prop6rty tad ah611 inoorporat6 In its ~u4gIWat a findlna of th6 ma6anabl6 fair value thereof, la bulk or ln pamel6, either or both, a6 the Court my deem proper, whloh reaoonable felr value 60 round by th4 &Ul't 16 hereafter 6~6timO6 Stylsd ‘adjudged whet, whloh ta4du4ge4 v41uet 6hdll be the value an of the date ~of the trial an4 shall not neoesearlly be the value at the tiau, the 466e66ment of th4 tax60 was naae; provfll- 64, that the burden of proof shall be on the owner or ownare of euoh propsrty In 44tablirh- ing the Yalr valuet or a4judged WSue 46 pro- vld64 in thfe 6e0tlon md, provided further that thi6 SeOtiOn Shall. Odly apply to tax66 whloh are delinquent for the year lQS5 6nd prior yearn. '8'30.5. dll OOUPt OOSt6, ~inOludiI@ OOStit of aenlng proos66,~In any suit hereafter brought by or inbehalf of any taxing unlta for 4ellnquent taxes in whloh suite all other tax- ing unite having a delfnquent tat alaim again6t suoh prttpertyof any pati thersof,'he??ebeen impleaded, toðer with all sxp6n666 of fore- oloaure 6616 an4 suoh re66onable 4ttOPAOy'S foes aa may be lnourred by the lnterpl6a&6a or interveni~ taxing wilts, n& 6xoee41 ten per oq (I@$? of the aemunt cued for, 6u0 "& attor- ney 6 fees to be aubjeat ta @o appreaf. of the oourt t0g6ther wlth 6uoh r6asoaabUt exp6n666 a6 the trring U&t6 may ln0ur in'progUti~@ data and lnrorm4tlon 46 to"&6 name, ldwiti~ty and hOatiOn of n600tJ64~ p4rtl46 and in ppoouring Hon. Jaok Wieoh, Page 5 neoesearp lo&al de6oriptions of the property, Shall be ohargeabls a6 00Urli006tS. "800. 0. 110JWQH'ty sold iOr tan6 under deoree in auoh suit shall be sold to the owner of said property, dlmotly or ln- dlreotly, or to 4nyono having 4n Interest th4reln, or to any party other than 4 taxlw unit vhrhichie a party to the suit, ior lees than the amount O? tb adjudged value afOre- said Of said property or the aggregate amount of the judgments a@nst the property In sail: suit, whlohever 16 l.cnrer,and the net proo4eda or any 44le or Suoh proJrrrtymad4 under de- ortttt Of OOUX% ln Sal6 4Ult t0 any p4rfy other than any auah taxing unit shall belong an4 be distributed to all taxing units whioh are parties to the suit whloh by the judgment ln said eult hava been found ta have tat liena againat 8uoh property, pro rata and in propor- tion to the amount8 of their respeoti?e tax 1lens a6 e6tabllehed in said judgment, but any ex8ea6 in the pmOttOd6 of sale over an4 above the amount neos6aary to defray the oost6 of Wit and sale and other expsn606 herein- above made ohargeabl4 against euoh prO46ed6 and to fully dlsoharge th4 judgment6 ag4ln6i 64ld property, 6ba11 be paid to the parties legally tntltlsd to such ex0466. YTeo. 9. If the property b6 tmld to any taxing unit whloh in 4 party to the juhgi, Psentunder tleoreeof oourt In said cult, the title to eeld property 8ha3.lbe.bld In and hold by the t4xi.w ,unl$$urohasing 6am6 for the US6 ': ;-e~*;t k&4 &.w+&, ?@$6 tildi tire’pdrtlefi to ~the’bti*t taxing uti and whioh have been atYjud%edIn salt suit to have tax 1lene against Such progsrty, prC rata and in proportion to the amaunt of the tax liens in favor of said resp4otivs taxing units a6 eatabllehed by ths judgment in said suit, ancl cost8 and 4xpen646 shall not be payable until 6414 by suoh taxing unit 40 purch46lng 64me an4 euoh property 4ha11 not be &sold by the taxIn& unit purohas$ng 6am8 far leas than the adjudged value thorsof or ths amount of $he juU&leentaag6lz.M the pro- perty in 64ld 'i&t, WhiOh4VOr is 1CW4r, with- lion. Tack Wieah, rage 6 out the written consent of al1 taxing units whioh In said jubgmnt have been found to hav4 tax 1141~ against such propsrty; and wh4n such property is so1a by the taxing unit pumharlng earn, ths proo~~edethemof 4haU bet r4t34iv4aby it r0r aacount of lt- self and all other oadd taxlug units ad- jtiged In said suit to have a tax ll4n a@nst suoh property, and after paylng all ooets and expenses, shall bs distributed among euahtaxiw units pro rata and in pro- portion to the amount of their tax lisns against suoh proparty as established In said ju&fn4nt. Consent in behalf of the Stat4 of T4xat1 under thls Ssotion of this Aot may ba given by the County Tax Collector of the oounty in whloh the propsrtp is loaat- 46." Art1014 mse, V4rnon's Civil Statutes, proease that th4 oountp dr dlstriot attorner shall mpremnt the Btate aad oount]r”ln all suits 4galnst dellnqusnt tax pay- 4rs and Ueflnlteiy provid4r asrtain t44a forth4 oountp or distriot attorney for th4 servioss named therein. W4 quote rrm this art1014 as follows~ 0....Provlded. that the rses herein pro- vided for ia oonneotlon with asUnq,uent tax suite shall ometltute th4 only fess that shall be oharged br said 4ffloer4 for prrpar- $3~3,fillrig,lnatltuting, aud proseoutlag suits on delinquent tax4s and seourlug ooll4etlon thereof, au4 all laws ia oonfllot herswlth ar4 hereby rep4al46. ay t~I~h~~~~e,,'~~~'~~~~~~~~~~~~~t taxes for &hioh he Is Uable, togsther with admu- 4d fut4rset after the rlllng of suit berore~judg- mont Is taksn ageinst him inth4 oaae, then, only one-half ot the $444 taxable in suoh a ease, as provided ror herein, shall be charged against hlm....." Art1014 7555, Varon*a Civil Gtatutae, xeads as r0lm4: *In eaoh ,easesuoh f4es shall be taxed as 409 Hon. Jaok Wiech, page 7 oorts against the land to be sold uuder Judg- mnt far tsxas, and paid out of~the proowds of sale or same after th4 taxe8, penalty anu lntersst duo th4raon ar4 paid, and in no oas4 shall the State or oounty b4 1labl.ether4ror." By Geotlon9 of Art1414 7ZWb, supra, the beis- lature ha8 ep4oifloally pmv%dsd that all oosts an4 4x- p4ns4s In the suit under this statute shall be paid prior to the agportlanment to th4 various taxing units of th4lr rwpeotlve shams and prw44d8 froa the tax sal4. It IS oalled to your attsntlon, however, that ths oosts and 4x1 p4neea Inourmd In such a tax suit are not payable Wtll titer sa1.eof the property Is made by th4taxlng unit whl4nkpurohasad ths sam at the original sal4. In S4otlon 9, supra, the &$iirrhltUXWepsclfdoally provld4d “and oosts and sxpenses shall not be papble until sale by suoh tax- ing unit 40 pumhasfng sane, Hone of the oourt oosts or axpmaes naa be paid until after the property has beea sold by the taxing unit whloh pumhassd the mm4 In th4 flxst sa14 and artsr tad sale, mid oosts ar4 to b4 paid ilret out or the prooseds or auoh sale and th4 balanos or the proaeads or suah sals, after all oosts an& exp4ns44 hata been paid, mu& ba distributed to all taxing unite whleh am partiss to th4 suit whioh by the judgment In said suit have ba4n found to hava tax llemagalnst said property, pro rata, and in proportion to ths miauntsor their m- apeotlvetax liens 88 4stablished In said Judgamnt. Geotlond of &%I014 IMlib, supra, deals with what my be allowed as oourt oosts. 80 whirs in thls s40- tlon does It provide that ta*ing units shall pay an attor- n4y.s is8 of 106 Furthsrmors, no where in this seotlon Is it provided that lO$ puy be ohargtsdIn every ease as oourt ooets for attorney's t448. It 16 provldsd, hou4v4r, that such reasonable ieea as rpalr bs inaurma by tba inter- pleader or intarvsnillg tax143 units and not 4xeerdlng lO$ 0r th4 amount 4~44 ror, may b4 ohargcrd. In other WOF&B, If a taxing unit oontmmted with an attornsy to pap him a% for his 44rvl440, th4n only this 5!8would bs ahargeable as oourt oosts bsoaum that would be the tsaaonablm~attor- ney's reee that would bs lnourred by that partlaularlnter- pleader ar intervening taxing unit. Hrm4ver, It that 88184 taxing al~trlct oontraots with an attormy to pap hla,23% Eon. Jack Wleah, Page 8 es his attorney's f4.;e,Only 10s Of that em0ur.twould be chargeable as court coete. To bear this out ie tfiefact that the .:4tdoes not provide fcr lO$ attorney's feea In evary oaee but providea for the allowanoe of attorney's retie a8 inourrad not exceeding 10$, While Ysotlon 6 of Artiole 7345b, eupre, appliee to all taxing unite, it is evident that the part whioh refers to attornsy'e faae se court costs dcee not apply to the oountg or dietriot attorney. This is true beoauee thie aaction reeds, in pert, ae follows: '...Suoh reaeonable attorneyPa fees as incry be incurred by the interpleader or intsr- venlng taxing unite....w The partlouler language..above quoted shows tha leglelatlva Intention that the same shall not apply to the county attorney'e is4 or dietrlot attorney's reee b4oaue4 of the raat that the State and oounty er4 prohibited by Astlole 7333, eupra, from inourring any attorney’s fee. Tha fess of the oounty or district attorney are eet out by Article 733Z, eupra.,and in no oae4 may the State or county be liable for the earn4under Artlale 7333, supra, whloh article also requires that said fee be charged a8 court oosts. In anewer to your eeoond qusetion you are reepeatrully edvisad that it is the opinion of this Ds- partmsnt that the dietriot or oounty attorney is not 4n- title&to the fees provldsd by Arti 7352, eupre, in tax euite f+l$edunder Article 7345b, by a taxing unit other then the State end oounty where the dletriot or county attorney does not file an answ4r or olalm for the State and oountp. Fee8 are primarily allowed ior some epeoifio service preformed end where no service la rendered no r44 oen be oharged or allowed unless epeclfioally auth- oriaed by statute. Trusting that the foregoing fully anawere your inquirk; we remain Very truly yours ATTORWEY 0EWERA.L OF TEXAS AW:AW