Untitled Texas Attorney General Opinion ( 1949 )

October 0, 1949
Hon. James H, Moore Opinion No. V-924.
County Attorney
Angelina County Re: The inclusion of a percentage
Lufkin, Texas of the taxes collected, in ad-
dition to penalties and inter-
est, in the compensation of a
delinquent tax collection attor -
ney.
Dear Mr. Moore:
You request the opinion of this office upon the question
presented in your letter of September 5, 1949, as follows:
“On the 9th day of August, 1948, the Commission-
ers’ Court of Angelina County entered into a delinquent
tax collection contract with E, G. Aycock, calling for
compensation in the amount of 15% of the amount of
taxes, penalty and interest collected, and executed on
the forms prescribed by the Comptroller’s Department
which was thereafter approved by that department and
by your department.
‘Now the question has arisen as to whether or not
the tax attorney is entitled to fifteen per cent of the a-
mount of taxes, penalty and interest collected under the
contract, or whether he is only entitled to the penalty
and interest collected. Stated in another way, our ques-
tion is this:
“Is the compensation of a delinquent tax attorney
with a contract calling for 15% of the taxes, penalty and
interest collected, limited in his compensation to the a-
mount of penalty and interest collected, or may the tax
attorney collect the full amount of 15% of all taxes, pen-
alty and interest collected? *
The answer to your question involves the construction
of the following statutory provisions:
Article 7335: “‘Whenever the commissioners
court of any county ~ . ~ shall deem it necessary or ex-
pedient, said court may contract with any competent
Hon. James H. Moore, Page 2 (V-924)
attorney to enforce . . ~ the collection of any delinquent
State and county taxer for a per cent on the taxes, pen-
alty and interest actually collected, . . . but all such
payment and expenses shall be contingent upon the col-
lection of such taxes, penalty and interest . . .Y‘
Article 7335a: “Sec. 1. No contract still be made
or entered into by the Commissioners’ Court in connec-
tion with the collection of delinquent taxes where the com-
pensation under such contract is more than fifteen per
cent of the amount collected, Said contract must be ap-
proved by both the Comptroller and the Attorney General
of the State of Texas, both as to substance and form. . ..*
Article 7264a: “Sec. 2. Cost of collecting delin-
quent taxes shall not exceed the amount bf the penalty
and interest. or an amount equal to such penal and
interest of all delinquent taxes collected , . . .ty
Were it not for the apparent conflict between Section 2
of Article 7264a, V.C.S., and Articles 7335 and 7335a. V.C.S., quoted
above, as to the maximum compensation for collection of delinquent
taxes, the answer to your question woufd be simple. Article 7335
authorizes the commissioners’ court to contract with a qualified at-
torney ‘for a per cant on the taxes, penalty and interest actually
collected.” Article 7335a is mxydtation upon the power of
the court in fixing the compensation of the attorney employed under
a contract authorized br Article 7335. This limitation was deemed
necessary by the Legislature to correct abuses that had grown up
under the unlimited authority of Article 7335. White v. McGill, 13 1
Tex. 231, 114 S.W.2d 860 (1938).
The court In Morrison v. Lane, 157 S.W.2d 466 (Tex.
Civ. App. 1941), considered this apparent conflict and held in effect
that Article 7264a was not a limitation upon the authority of the Com-
missioners’ Court to’make a delinquent tax contract under the ex-
press terms of Articles 7335 and 733Sa. The court said;
“Section 2 of Article 72b4a is nothing more than
a provision to the effect that the cost of collecting de-
linquent taxes shall not exceed the amount of penalty
and interest, or an amount equal to such penalty and
interest of all delinquent taxes collected, that is, Art.
7264a empowered the Commissioners’ Court to make
a contract on the conditions therein stipulated, and no
contention is made that when executed the contract was
in violation of law. There is nothing in these artkles
to the effect that the attorney employed to collect de&-
quent taxes shfi.i.e paid only from the interest and pen-
altv due on delinauent taxes: had this been the intent Of
,; (.
Hon. James H. Moore, Page 3 (V-924)
the Legislature, it would not have been provided by
Article 7335 that the attorney could be paid ‘a per
cent on the taxes.’ n
We think that any question as to the conflict between
Article 7264a and Articles 7335 and 7335a is dispelled by Section
4 of Article 7264a which provides:
“This Act is not intended to change any law now
in effect regarding the collection of delinquent taxes,
but to be an aid to the officials in the discharge of their
duties . . .*
Article 7264a was enacted subsequent to Articles 7335 and 7335a.
By the express language of the latter article, the Legislature made
it clear that it did not intend to change any law then in effect in re-
gard to the collection of delinquent taxes. It declared tbat the pur-
pose of the Act was merely an aid to the officials in the discharge
of their ‘duties in the collection of delinquent taxes. We therefore
conclude that there is no conflict between Article 7264s and Arti-
cles 7335 and 7335a.
The case of Morrison v. Lane, supra, constitutes suf-
ficient authority for the conclusion that a delinquent tax contract
made in accordance with the provisions of Articles 7335 and 7335a
may provide compensation for a percentage of the taxes, penalty,
and interest, all combined, provided said contract does not exceed
15% of such taxes, penalty, and interest, if it has the approval of
the Comptroller and the Attorney General.
The Commission of Appeals in Bell v. Mansfield Indc
School District, 123 Tex. 403, 129 S.W.2d 6m) supports this
conclusion by the following language:
‘By Artike 7335, R.S. 1925, the commissioners
court of any county ir authorized to contract With any
competent attorney to assist in the collection of state
and county taxes for a per cent of the taxe8, pena!ty
and interest actually collected, By an Act of the 41rt
Legislature, 1930, 4th Called Serrion, p, 9, ch. 8, this
right of contract was restricted and limited to not more
than fifteen per cent of the amount collected and the con-
tract was required to be apprwed by the Comptroller
and Attorney General. This last act appears in Vern-
on’s Civil Statutes as Article 7335a. It is thus neen that,
when the contract in ruit was executed a contract for
the payment of fifteen per cent of the amount collected
for the services of an attorney in collecting state and
county taxes was authorized.”
-.
.
Hon. James H. Moore, Page 4 (V-924)
It is apparent from the foregoing and we are of the opin-
ion that the commissioners’ court is authorized to make a delinquent
tax contract with an attorney and provide compensation not to exceed
15% of the amount of taxes, penalty, and interest and that Article
7264s does not operate to limit this compensation.
SUMMARY
The commissioners’ court is authorized under
Articles 7335 and 7335a, V.C.S., to contract with a
qualified attorney for the collection of delinquent taxes
for a compensation not to exceed 15% of the taxes, pen-
alty, and interest collected, and this compensation is
not limited by the provisions of Article 7264a to the
penalty and interest on delinquent taxes or an amount
equivalent to the penalty and interest.
Yours very truly
ATTORNEYGENERALOFTEXAS
BY
LPL/mwb
FIRST ASSISTANT
ATTORNEYGENERAL