THE ATTORNEY GENERAL
OF TEXAS
Honorable Randy M. Phillips Opinion No. JM-1193
Lipscomb County Attorney
BOX 348 Re: Authority of a county to
Booker, Texas 79005 pay its employees who are in
debted to the county for pro
perty taxes (RQ-1826)
Dear Mr. Phillips:
You advise that certain county employees are delinquent
in paying ad valorem taxes owed to the county, and that
these employees are making periodic payments on the taxes
owed. YOU ask whether section 154.025 of the Local
Government Code prohibits the payment of salaries of county
employees or elected officials who owe taxes to the county
if the employees or elected officials have made arrangements
with the county to make periodic payments to retire the
obligation.
Section 154.025 of the Local Government Code reads as
follows:
A warrant may not be drawn on a salary
fund in favor of a person, or an agent or
assignee of a person, who is indebted to the
state, the county, or the salary fund.
The attorney general responded to a similar question in
Attorney General Opinion O-5249 (1943).1 In Attorney
General Opinion o-5249 the question posed was whether
article 4350, V.T.C.S., prohibited the comptroller from
issuing a warrant to a person against whom the state had an
1. Debt as a bar to the issuance of government
warrants, and the determination of when such indebtedness
exists has been discussed in a number of attorney general
opinions over the years. See, e.a., Attorney General
Opinions JM-255 (1984); Mm-416 (1981); Letter Advisory No.
57 (1973); WW-1504 (1962); hW-671 (1959); v-1113 (1950);
O-4655 (1942).
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Honorable Randy M. Phillips - Page 2 (JM-1193)
outstanding judgment for delinquent tax payments. At the
time Attorney General Opinion O-5429 was issued article 4350
read as follows:
No warrant shall be issued to any person
indebted to the State, or to his agent or
assignee, until such debt is paid.
The attorney general held that the term "debt," as
ordinarily used, did not include a tax, and that
consequently, the comptroller was not authorized to withhold
a warrant on this basis. In so holding, the attorney
general was in line with the preponderance of precedent in
American courts. &B Words and Phrases, l'Debt,q* (West
1971). But cf. Price v. United States, 269 U.S. 492
(1926).2 Texas courts have also held that, ordinarily,
l@debt'qdoes not include taxes. Brooks v. Brooks 515
S.W.Zd 730, 733 (Tex. Civ. Anp. - Eastland 1974, writ'ref'd
n.r.e.). in &3 helle Citv‘ of Dal1 as, 264 Fi2d 166 (5th
Cir. 1955) car:. denizd, 361 U.S. 828 (1959), the court
stated:
[W]hile occasionally the words *'debtsl* and
Vaxes" are used interchangeably, ordinarily
this is not so. Indeed in most instances
they are used distinctively. This
established, it follows that to support a
construction of a statute that the word
"debt** include taxes, there must be some
reason shown to so read a statute other than
the fact that sometimes the word debt will
include taxes. This reason must be sought in
the purpose of the statute, that is the
mischief sought to be prevented and the
appropriate means to achieve that end.
2. In holding that '1debt'1included taxes owed the
United
_ . States for purposes of the priority of federal
claims, the court in w stated: "The meaning properly to
be attributed to that word depends upon the connection in
which it is used in the particular statute and the purpose
to be accomplished." 269 U.S. at 500. The statute construed
in Price, the former R.S. 3466, now appears as 31 U.S.C.
5 3713(a) and uses the word V'claim.'O
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Honorable Randy M. Phillips - Page 3 (JM-1193)
The purpose of section 154.025 of the Local Government
Code is to insure payment of obligations owing to the
county. Rains v. Mercantile Nat'1 Bank at Dallas, 188
S.W.2d 798, 804 (Tex. Civ. App. - El Paso 1945) (construing
section 7 of predecessor article 3912e) u, 191 S.W.2d
850, 854 (Tex. 1946). While such a purpose could as easily
apply to delinquent taxes as to any other obligation, we
have no basis for finding that the legislature meant the
word "indebted" in section 154.025 of the Local Government
Code to have a more inclusive meaning than it would
ordinarily have. To the contrary, we note the legislature
has, with regard to other legislation, affirmatively
indicated by the use of express language its intent to
include delinquent taxes as a bar to the issuance of
government warrants.
For example, article 4350, quoted above, was amended by
House Bill 2067 in 1977 to read:
No warrant shall be issued to any person
indebted or owina delincuent taxes to the
State, or to his agent or assignee, until
such debt or taxes are paid.
Acts 1977, 65th Leg., ch. '682, 5 1, at 1715 (emphasis added
to show 1977 changes).3 The bill analysis of House Bill
2067 states:
around :
The state treasurer under present law mav
withhold warrants from persons indebted t'o
the state.
purpose :
This bill enables the state treasurer to
withhold warrants from persons owing
delinquent taxes.
3. Article 4350 was subsequently amended in 1983 to
prohibit the issuance of a warrant to a person owing
delinquent taxes on any tax administered or collected by the
comptroller. Acts 1983, 68th Leg., ch. 100, at 499. In
1987, article 4350 was codified into the Government Code
where it now appears as section 403.055. Acts 1987, 70th
Leg., ch. 147, § 1, at 333.
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Honorable Randy M. Phillips - Page 4 (JM-1193)
The 1977 amendment to article 4350 indicates
recognition by the legislature that the term "indebted'@ in
the original version of the statute did not include
obligations for delinquent taxes. As the legislature has
not enacted an analogous amendment to section 154.025 of the
Local Government Code, we conclude that the term "indebted"
as used in that statute does not include outstanding tax
obligations.4
In conclusion, section 154.025 of the Local Government
Code does not prohibit a county from paying the salaries of
county employees or elected officials who are delinquent in
ad valorem tax obligations. As this resolves your question,
we need not consider under what circumstances, if any, an
agreement to make periodic payments could be considered a
discharge of indebtedness for purposes of Local Government
Code section 154.025.
SUMMARY
Section 154.025 of the Local Government
Code does not prohibit a county from paying
the salaries of county employees or elected
officials who are delinquent in ad valorem
tax obligations. .
-J I M MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
4. The source law for section 154.025, former section
7 of article 3912e, was slightly reworded when included in
the Local Government Code, but no substantive change was
made. Acts 1987, 70th Leg., ch. 149, 55 1, 51 at 936, 1308.
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Honorable Randy M. Phillips - Page 5 (JM-1193)
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by John Steiner
Assistant Attorney General
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