Untitled Texas Attorney General Opinion ( 1969 )

. .
RNEY GENEWAL
EXAS
Honorable Robert S. Calvert Opinion No. M-492
Comptroller of Public Accounts
State Capitol Building Re: Liability of a Tax
Austin, Texas Collector with regard
to the issuance of a
tax certificate under
House Bill No. 322, Acts
61st Legislature, Regular
Session, 1969, codified
as Article 7258b, Vernon’s
Civil Statutes.
Dear Mr. Calvert:
Your recent opinion request poses the following two
questions with respect to the captioned House Bill No. 322,
to-wit:
“1 . Is the tax collector and/or his bond liable
for any tax due a taxing authority, in a case where an
innocent purchaser was issued a tax certificate showing
no taxes due?
“2. Define the word lNEGLIGRNT’as used in Section
#b and state, if in your opinion, a tax collector must be
considered negligent in every case where he may over-
look taxes due and issues a tax certificate indicating
no taxes due.”
Relevant to your questions are the first four sections
of said House Bill No. 322, which are quoted as follows:
“Section 1. The tax collector or his deputy of
any county in this state, or of any city or political
subdivision or tax assessing district within any such
county shall, upon request, issue a certificate showing
the amount of taxes, interest, penalty and costs due, if
any, on the property described in said certificate.
This certificate shall contain a certification by the
tax collector that he has checked each delinquent tax
report, supplemental delinquent tax record and recompiled
delinquent tax report from the last tax cancellation
date, or to the extent of his records, up to and
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Ron. Robert S. Calvert, page 2 (M-492)
including the records In present use. A charge
of not to exceed $2 may be made for each such
certificate Issued.
“Sec. 2. (a) When any such certificate so
issued shows all taxes, interest, penalty and
costs on the property therein described to be
paid in full to and including the year therein
stated, the said certificate shall be conclusive
evidence of the full payment of all taxes, interest,
penalty, and costs due on the property described
in said certificate for all years to and including
the year stated therein. Said certificate showing
all taxes paid shall be admissible in evidence
on the trial of any case involving taxes for any
year or years covered by such certificate, and the
introduction of the same shall be conclusive
proof of the payment in full of all taxes, interest,
penalty, and costs covered by the same.
“(b) The provisions of this Act shall be
applicable only in suits where the’ State of Texas
or any political subdivision thereof sues for
unpaid taxes. Such certificate shall not be
conclusive in suits in which the title for land
is involved in any manner in suits between private
citizens.
“Sec. 3. In the event a tax certlflcate Is
issued showing no taxes, interest, penalty, and
costs due, when in fact taxes, interest, or
penalties were due, and the owner of the land
is not that person under whom the taxes, interest,
penalty, and costs became delinquent, the tax
collector may issue, on request, a certificate
relieving the orooerty from liability and
stipulating that the delinquent taxes, interest,
penalty, and costs are thereafter the personal
liability of the person underwhom the taxes
became delinquent. This cancellation certificate
plus a copy of the tax certificate and an affidavit
stating that an error was made and that no fraud
or collusion existed shall be submitted to the
commissioners court. Thereafter, this cancellation
certificate shall be conclusive proof for all
purposes that neither the land nor the present
owner is liable for the delinquent taxes, interest,
penalty, and costs.
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Hon. Robert S. Calvert, Page 3 (M-492)
"Sec. 4. If either a tax certificate or a
cancellation certificate is issued or secured
through fraud or collusion, the same shall be
void and of no force and effect, and any such
tax collector or his deputy shall be liable on
his official bond for any loss resulting to any
such county or city or political subdivision or
tax assessing district or the State of Texas,
through the fraudulent or collusl$e or negligent
issuance of any such certificate.
The predecessor statute to House Bill No. 322 was
Article 7258a, Vernon's Civil Statutes, which was passed
by the Legislature in 1929 with regard to counties
containing cities of 210,000 population or more, and
which was made applicable to all T?x Collectors in
Texas by an amendment passed in 1953. Section 2 of
such former law read as follows:
"Sec. 2. If any such certificate Is issued
or secured through fraud or collusion, the same
shall be void and of no force and effect, and
any such Tax Collector or his deputy shall be
liable upon his official bond for any loss result-
ing to any such County or city or political
subdivision or tax assessing district or the
State of Texas, through the fraudulent or
collusive or negligent fssuance of any such
certificate. Acts 1929, &lst Leg.2nd C.S. p0
153, ch. 77.”
It is readily seen that the only difference in Section
2 of the old statute and Section 4 of the new is that
Section 4 is applicable not only to tax certificates but
to cancellation certificates which are authorized for
the first time by the new Act.
International Paper Company v. State, 380 S.W.2d
1.8 (Tex.Civ.App. 1964, error ref. n.r.e.) involved a
suit by the State against a Tax Collector and the sureties
on his bond for loss resulting from the negligent issuance
of a tax certificate. The State did not plead any fr?TM
or collusion. The Court reversed the trial court':. disn1ec?``
of the suit as to the Tax Collector and his bondsman ant
remanded the cause for trial on its merits, thereby expressly~
holding that a cause of action lies for loss to a taxing
unit resulting from the negligent issuance of a tax certificate.
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Hon. Robert S. Calvert, page 4 (M- 492)
We have carefully studied House Bill No. 322 as a whole;
paying special attention to Section 3, which is entirely new,
and the new provisions of Section 1 , and we perceive nothing
to alter or modify the holding In International Paper Comoany
v. State,supra, or the clear and unambiguous language of
Section 4. It is noted in passing that under, Section 4 on177
fraud or collusion can render a tax certificate or can-
cellation certificate absolutely void, but a cause of action
is carefully provided for the negligent issuance of a
certificate.
Therefore, in answer to your first question, it Is the
opinion of this office that a Tax Collecttr and his bondsman
are liable, in the words of the statute, . . . for any loss
resulting to any such County or city or political subdivision
or tax assessing district or the State of Texas, through
the fraudulent or collusive or negligent issuance of any
such certificate."
Turning to the first part of your second question,
since the word "negligent" is not defined In House Bill
No. 322, we must look to the general law for a proper
definition. The following definition, supported by
numerous Texas decisions, is quoted from 40 Texas Jurispru-
dence 2d 722, Negligence, Section 175:
"Negligence may be defined as the failure to
use ordinary care. And it is observed that the test
of negligence is the exercise of ordinary care.
More specifically, negligence may be defined as'
a failure to do that which an ordinarily prudent
person would have done in the same or similar
circumstances, or as the doing of that which an
ordinarily prudent person would not have done in
the same or similar circumstances."
There can be no actionable negligence without the
existing of a duty and a breach of that duty. 40 Tex.,Jur.
2d 447, Negligence, B 5. With regard to checking the
records of his office preliminary to the issuance of a tax
certificate, Section 1 of House Bill No. 322 provides:
"This certificate shall contain a certification
by the Tax Collector that he has checked each delinquent
tax report, supplemental delinquent tax record and
recompiled delinquent tax report from the last tax
cancellation date, or to the extent of his records,
up to and Including the records in present use."
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.
Hon. Robert S. Calvert, Page 5 (M-492)
It thus appears that the Legislature has limited the
duty of the Tax Collector with respect to the type and
number of records that he should check preparatory to the
issuance of a tax certificate. The full duty of the Tax
Collector with respect to the act of issuing a tax certificate,
as indicated in House Bill No. 322, is to carefully check
the records mentioned and to carefully certify in writing
the information revealed by such records.
This brings us to a direct conslieration of the last
Part of your second question, i.e., . . . state, If In
your opinion, a tax collector must be considered negligent
in every case where he may over-look taxes,,due and issues
a tax certificate indicating no taxes due.
Ordinarily the existence of neligence under a particular
set of facts Is a question of fact, to be determined by
the jury or the court in the absence of a jury. Negligence
is established as a matter of law only when the evidence
is undisputed and reasonable minds can arrive at but one
conclusion, or where the act or omission appears so opposed
to the dictates of common prudence that it can be said,
without hesitation Or doubt, that no careful person would
have committed it. Gulf, C. & F. Ry. Company v. Gascamp,
69 Tex. 547, 7 S.W. 227 (1948,.1888); Lang v. Henderson, 147 Tex.
353, 215 S.W.2d 585
The Texas courts have also adhered to the rule that ” ~’ ,,.
where there is evidence showing some care, and the question
is one of the sufficiency of the care, a auestlon of fact
for the jury is presented. Wichita Valley Ry. Company v.
Fite, 78 S.W.2d 714 (Tex.Civ.App. 1934, no writ); Gulf,
C. & S.F. Ry. Company v. Qaddis, 208 S.W. 895 (Tex.Comm.
App, 1919); Henwood v. Gilliam, 207 S.W.2d 904 (Tex.Civ.
App. 1947, error ref.).
Under these well-established rules, we are not prepared
to say that a Tax Collector is invariably negligent as a
matter of law where he overlooks taxes due, as revealed by
the records which he has the duty to carefully review, and
issues a tax certificate indicating no taxes due. However,
it is our opinion that such circumstances would inescapably
raise the issue of negligence, at least for determination
as a question of fact, and under many, if not most, cir-
cumstances the Tax Collector would be standing in tremendous
jeopardy of being found guilty of actionable negligence as
a matter of law.
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Hon. Robert S. Calvert, Page 6, (M- 492)
SUMMARY
Under House Bill No. 322, Acts 61st Legislature,
Regular Session, 1969, Article 7258b, Vernon's Civil
Statutes, a Tax Collector or his deputy Is liable
on his official bond for any loss resulting to any
tax unit through the fraudulent or collusive or
negligent issuance of a tax certificate. The word
"negligent," as used in said House Bill No. 322
may be fairly and substantially defined as the
failure to do that which an ordinarily prudent
person would have done in the same or similar
circumstances or the doing of that which an ordinarily
prudent person would not have done in the same or
similar circumstances. When a Tax Collector "overlooks"
taxes due as reflected by the delinquent tax report
or the supplemental and recompiled delinquent tax
reports or records of his office, and issues a tax
certificate indicating no taxes due, a question of
negligence is inescapably raised. Whether actionable
negligence is actually present will be determined by
the tries of facts based upon the facts and circumstances
of the particular case.
Qeneral of Texas
AW:pj
Prepared by Alfred Walker
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Jack Goodman
Jack Sparks
Dyer Moore, Jr.
Jim Swearingen
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. I
Hon. Robert S. Calvert, page 7 (M-492)
MEADEF. GRIFFIN
Staff Legal Assistant
HAWTHORNE PHILLIPS
Executive Assistant
NOLA WHITE
First Asslstant
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