OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable Elchard S. l:orria
county Attorney
ArmstI-Ong County
Claude, Texas
Dear Sir:
You request for
herein stated hae been r
November 19S6
the county be-
Inqaent taxes,
by the oourt,
uent taxpayers
lr tares rhioh the
At this tim no
de nar was any ox-
Short17 thereafter the
ed, on or about the 17th
aplotw at, $1845.98 in
xes &a aollsatod between the 17th
d the lSth af Deeember, 19S6, shlah
lp more than is ordfnarlly oolle~ot-
tuna period or the year on other
e ooQpDisslonere'
u&y attorney,
at that ti3tb3 drawing 41 orriaio ooapsnaation 0r
$SO.OO per month, due to the extra work, and bx-
ptmae or corresponding: and holding pereoml ma-
ierenas with a aonarlderable number or taxpayer8,
asaif&ing them in sorreotix@ and adjusting paat
error6 In regard to the&r taxes, invw3tigatfng
the ownership or property listed on the rolls a8
Honorable filchard 3. Lorrls, Lafo 2
unkuowu, ascertaining the addresses of dirrer-
ent delinquent non-resident taxpayers and prop-
erty ovuers, all of whloh was not Included In
his statutory duties as county attoruey, telt
that he was entitled to some co&pensatlon ror
such servvices, and requested the coz.uissIoners*
Court ror compensation commnsurats with the
benefit resulting to the county by reason of
hia eenloes in this respect. It was agreed
thct such corspensation should be paid and the
rollowing order was passed: *that be al-
lowed 105 on collection 0r delinquentxes ror
cymty and aonmon schools sxolusive 0r costs
and penalties, which motion duly oarrled.’
“L’onthly thereafter, from December 14, 1936,
to September 30, 1937, the county attorney, upon
presentation of his aocount, was paid an anount
equal to 105 or the delinquent county and cormon
school taxes pald the preceding month, exclu~ire
of penalty, interest and costs and state taxes,
aggregating the total of $3%.12. Such payl;ents
being mde by means or warrants :rawu on the
general rund of the county and, bein: approved
eaoh month by the comi~ssioners court in the
minutes or the aooounts allor:ed.
*The legality of such compensation and pap-
ment being questiohed:by’. the auditor of the
county, the above-quoted order was revoked by
the aokalssloners court at the request of the
county attornoy on October 11, 1937, and such
payments disoontinued by an order as follows:
‘that order previously passed al&OWiag
ten per cent on all delinquent taXda co-ed
be hereby revoked and that as oouuty
attorney be allowed i.60.00 per month attor
October lst, 1937, which Lotion duly carried.*
“Ths taxes collected were both real and
personal property taxes. There was no compen-
sation ror such services prior to the date of
the rlrst order on Decen;ber 14, 1936.
“1. ere the payrtents outlined above ll-
legal?
Honorable Xlchard .;. L’orrls, i,a:e 3
“2. It such pajmsnts illegal, upon whom
rests the liability for such ~ys.ants?
“3. ‘“hat 1s the llablllty or the county
attorney under such clrouustances?
“4. In the event such pay-seat is illegal,
could the county attorney be entitled to a
reasonable compsnsatlon from the county or a
quuntum nerultum basis?
“5. In the event such paycent was illegal,
what would be the proper lcethod ot adjusting
such er:or?”
Artlale 7332, Revised Civil Statutes, reads in
part as folIows:
v* * * In all cases, the colropsnsatlon ror
said Attorney shall be,nh’o ($2.00) Dollars ror
the rlrst treat and One ($1.00) Dollar ror each
addltlonal trsot up to four (4)‘ but said lee
la no ease to exoeed Five ($5.00) Dollars. And
provided, that in any shit brought against any
lndlvldual or oorporate omer, all past due
tares for all previous years on suoh traot or
tracts shall be lnoluded; and provided, further
that where there are several lots in the saaie
addltlon or subdivision delinquent, belonging
to the sane owner, all sald delinquent lots
shall be made the subject of a single suit * * *v
** * * ?rovlded, that the fess herein pro-
vided for in connection tith delinquent tax
suits shall constitute the only fees tbot shall
be charged by offlOorS ior preparing, filing,
lnstltutlng, and prosecuting suits on delln-
guer.t taxes and securing collection thereof, and
all, laws in conrllct here%lth are hereby repsal-
ed 1 I +”
Article 335, Eevlsed Clvll Statutes, reads as
followa:
Thenever a dlstrlct or county attorney
has collected mmey for the state or for the
oounty, he shall within thirty days after re-
ceiving the sass, pay It into the tresSurY
Honorable Richard S. t:orrIs, rage 4
OS the State or oi the county In which It be-
lones, after deductlna therefrom and retaining
the corrroIssIon allov:ed him thereon by law. such
district or oounty attorney shall be entitled
to ten per oent cot.z~~IssIon on the f:rst thou-
sand dollars colleoted by him in any one ease
for the State or county from anT Individual or
company, and live per cent on all sums over one
thousnnd dollars, to be retained out or the money
when collected, and he shall also be entitled to
retain the sake coomIssion on all collections
made for the State or for any county. This arti-
cle shall also apply to money realized for the
State under the escheat law.”
In opinion Ho. O-260 and nmerous other apInIons
which we do n:t deem necessary to alte here, this Depart-
Lent has constantly construed Article 335, supra, as allow-
ing the county or district attorney ten per cent ootisslon
on all money collected in the preparation, f iline and pro-
secution of delinquent tax suite againet personal property.
Suah fees, however, would not be taxed as costs against the
taxpayer.
It will be seen from the reading of the above pro-
visions of krticle 7332 that the rees .provlded tor therein
are applicable and pertain only to the colleotlon of taxes
upon real estate and such fees allowed for such services
exoluslre of all other fees and codastons. It is made the
duty of the county or distriot attorney to represent the
State in all suits against delinquent taxpayers and no pro-
vision being zade for fees and aosimisslona for such services
as delinquent tax collection on personal property.
In oplnisn X0. O-815, written by Honorable VY. Ir.
Xoore, First Assistant Attorney Cdneral, addressed to Honor-
able Xanley T-Ins, County Attomey,l.:arshall, Texas, this
Departzrient held thht the co~lssloners’ oourt does not hare
the authority to p&y an attorney on a quantuz neruit basis
for services rendered In the collection o? delfnquent taxes,
and that such se’rvices when and it rendered In pursuance to
a contract that has been legally entered into can only be
coslpensated for In the manner set forth in Article 7335a
and other related statutes whloh 6ere rererred to In thle
opinion.
Eonorable Riohard S. :.orrIs, Page 5
For your convenience we enclose herewith a oopy
of opinion No. O-815.
Article 7332, supra, provides the ouly fees charge-
able by the county attorney for ?reparIng, filing, Instltu-
tine and prosecuting delinquent tax suits on real estate and
securing a colleotlon thereof. And as above stated irtlcle
335, Bevised Civil Statutes, allows the county or district
attorney ten per cant coclmlsslon on all thti I;oney collected
and the preparation, Piling and prosecuting of delinquent
tax suits against personal property.
IE opinion No. O-988 this DepartGent hold that,the
codssIonersf court I6 not authorized to Contract with or
pay to a county attorndy a percentage of delinquent taxes
collected.
Under the pl\ovisions of krtlcle 7332, supra, OOP-
silssloners’ court has no authority to allow the county attor-
ney feza In addition to those authorized by th8 statutes.
fn the f ollowlng cases, CozziasIonersl Court of
t&Ison County et al V. Kallace ot al, 15 5. F. (26) 535;
Baldwin v. Travis County, 28 r;. ?;. MO, and nlll;erous other
oaees uhlch we do not dees nacessary to cite, It ?:a8 held
that the county co~~lssloners ( court has no power or author-
ity, exoept rjuoh as Is conferred upon them by the Constitu-
tion and statutes of the State.
In the cases of Keat Audit Company v. Yoakum
COUEtp, 35 3. :. (26) 404, and Sluder v. City of San Antonio,
2 s . Y . (26) S41, it.was held that the rule was apparently
settled In Texas that if the county received the benotlt of
a contract v.CIch It has the power to Eake but which was not
legally entered Into, It nay be ooqeiled to pay for what
It hao received, because In such cases the law inpJies a con-
tract, I-:owever , the county may not be h6ld liable upon an
Implied contract or a quantux merult unless the ootissioners’
court was authorized to Lake the contract sought to be, im-
PlISd; nor is the county estopped to set up as a defense the
lack of authority to niaks the contract. The other party
to the agreement Is not In the situation of one who has acted
innocently or nlthout knowledge ot the clrc~stances. one
who deals vzith the county is charged with the notice of the
regulation; and a ouston which ignores the law oannot be
gonorable Elchard S. I:orrls, Page 6
invoked for the purpose or validating a tranaactIon which
is otherwise. Invalid.
Ke quote fro& the case of Baldwin v. Travis County,
m s. vi. 4.80, as r0ii0ws:
“A county oannot be held liable in an ao-
tlon upon an Implied oontraot of quanta F.eruIt,
unless the comnIsClonors* court is authorized to
make tha contraot sought to be Inplied or on
which the quantum imruit Is based.”
The courts In this case citin.! a number of other
oases supporting this holding.
Section 2 of Artlole 7332, supra, provides that
*in suits by counties against any of the orricers herein
naned to reoover moneys or fees collected by any such or-
fleers, limitation of action shall not apply, and no such
suit shall be barred by the statute of limitation.*
“‘e quote froffi Tex. Jurls., vol. 34, p. 575, as
r0iiows :
“As a rule, sureties are only liable for
such sums or money as the offICeS may lawfully
have racelved by virtue of his offloe. They
ass not liable for legal fees or taxes colleot-
ed by the offloer under the color of office,
but which he hsd no authority to collect;~*~r
are they liable to.r money turned over to him
under the void order of the probate court, or
for money which has been paid to him under or-
ders of the co&sslonersV court, and which In
no cirouclstance could rightly be collected from
the county,” Also see the cases of Jeff Davis
County v. Davis, 192 cp. X. 291 (error refused);
killer v. Foara County, 59 S. W. (2d) 277; F?as-
kell v. Hobby, 296 S. ‘F. 396; and Mth v. Has-
kell 1 ;I. 1.‘. (2d) 1086.
You are respectfully advised that It Is the opln-
ion of this Depart&ant that your questions should be an-
swered as follows:
:,lutber 1. YSS
Bonorable Richard 8. Xorrl8, paw T
IWmberr t, S and 5. The oounty attorney who se-
eelred the above aentloned oompenratlon 18 liable to the
aounty for ruoh oompensatlon above the Seer or oompanr8-
tlon allowed for ruoh renloer under Art10108 Ss5 and IsSa
md the proper method 0s aajtwiing the 8W woola k r0r
ths oounty attorney to pay to the county the ditierenoo
between tkm oompensatlon aotually reoelved and the oompen-
ration rpeoifltikly allowed by laarSor ouoh senloer.
wumber 4. In answer to your fourth question you
8ro advised that the oounty attorney rr0tia not be entitled
to a rea8onable OOmpen8atlOn frOfiithe County on a quantum
merult bar18 but that the county attorney wonld be lntltloa
05ly to those tee8 or. oomponration a8 provided by Artlola
336 and Arflole 7532 for the senloer
.,: mentioned therein.
TSurti5g that the r0r:;:kc answer8 your laqulry,
we rwln
YOtoUrS VSSy t2dy
ATTOHXEYGENERAL O? TEXAS
WllllM
AW:L?t
RCLOSORE
APPROVEDAUG 11, 1939
b-d-m--
ATTOFUE'YGENERALOF TEXAS