Untitled Texas Attorney General Opinion ( 1946 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN GROVER SELLERS Arr0RNE-f GcNLtl*L Hon. Farris a&3 County Auditor F5nnh County Bonham,Texas Dear Sir: Opinion No, O-7420 Re: Feee pertaining tax suits In Ind Districts. Your letter.requesting an opinion on the above subject matter is as follows: RI em writin you for to delinquent tax wits In lets, of sale issue fee that the am;xyJJ-3; OpMon Inthe c , provides in part the following: Attorney shall repre- County In all suits against de- and all.eums collected shall.be to the County Collector. tho recovery of dalin- quent taxes for any yew, notice sh‘allbe given to the owner or owners of safd propert as Is provided for in hrticle 7324 of the Revised f! iv5.1Statutes of Texas, 1925, as mended by Chaptor 117, p%e 196, 66 Hon. Farris Pirtle - Page 2 Acts of the Forty-secondLegislature,Regular Seseion. The feea herein provided for shall not accrue to nor shall the varioue officers herein naued be entitled thereto in any suit unless it be proved that notice has been given to the owner for the .tineand in the manner provided by law. =In Su 429888 the COmpeXisatiOn of 88id Attorney shall be Two ($2.06)Dollars for the first tract and One ( 1.001 Dollar for each additionaltract up to four 41, but said feeFin no ~(188to exceed Five ($5.00) Dollars. And provided, that in any suit brought against individual or corporate owner, all past due taxes for 2x pretiouo years on such tract or tracts shall be in- cluded; and provided further that where there are several lota in the same addltion.or eubdlviaion delinquent,be- longing to the same owner, a.U.said delinquent lots &all be made the Bubject of a single wit. "All fees provided for the officers herein shall be treated as fees of office and accounted for aa such, and said officers shall not receive nor retain said fees in 8XCeD8 Of the !W#XimW eompenraationallowed said officers under the laws of this State* and provided further that the County Attorney, Crlmimd District Attorney or Dist- rict Attorney shall not be entitled to the fees herein provided for in inetancee where such delinquent taxes are collected under contra&n between the Commissioners' Court and others for the collection of such taxes, and in such instance8 the fee8 herein provided for such of- fioere shall not be aoaeaaed nor collected. .I ecoive a fee of Two (‘2.00) "The County Clerk shall receive One ($1.001Dollar in full for his services in each case. -- rii--rrr ‘* I=’ 67 Hon. Farris Pirtle - Page 3 nProvld8d,that the fees herein provided for in connectionwith delinquent tax suits shall constitute the only fees,that shall be charged by sa.$dofficers for FeparilI& ffling, inetituting,and prosecuting suits on delinquent taxes and securing collection thereof and al.+, laws in conflict herersithare hereby repealeh. "In case the delinquent tax-payer shall.pay t,c the collector the amount of delinquent taxes for which he la liable together with accrued interest after the fil- lng of euit before judgment is taken against him in the case; then, only one-half of-the fess taxable in such~a case, as provided for herein, shall be charged against him. , i ." Article 7343, V.A.C.S., provides as followe: "In any.ineorporatedcity or town in which any tracts, lots, outlots or blocks of land, situated within the corporate limits of said city or to%n have been re- turned delinquent, or reportod oold to said city or town for the taxes ciuethereon the governing body may prepare or cause to be prepared l&s of delinquentsin the same manner as provided in this chapter, and such lists shall be certified to aa correct by the mayor of said city or town, if any, and if sdd city or town has no mayor, by the presidin& officer of the governing body. After said lists have been proper1 certified to, the governing body of the city may cause 1fsta of delinquentsto be published in a newspa r as provided for State and county delinquent taxes in thrs law. bhen twenty days from the date of last publication of said Ust or lists of delinquentshas elapsed, tho governing body of the city or town may direct the city attorney to file suits for collectionof said taxes, or said governin body may employ 8ome other attor- ne of the county to fif8 suits and the city attornoy or otKer attorney filing said suits shall be entitled to the same fees as allowed the county attorney or district attor- ney in &its for collectionof State and count taxes to be taxed as costs in the suit. IndependentschooP dfst&ts may collect their delinquent taxes aa above prtided for cities end townsi the school board prformiq the dutioe above described for the governin& body of cities -me tllc president of the school board erforminy: the dutlas ubove prescribed for the rayor or otter Residin& officer. The school board may, when the delinquent tax lists and records Hon. Farris Pirtle - Page 4 are properly prepared and ready for suits to be filed, inetruct the county attorney to file said suits. If the school board instructs the county attorne to file said suits and he fails or refuses to do so wfthin sixty days the school board may employ some other attor- ney of the county to file suit. The county attorney, or other attorney filing tax suits far independent school districts shah be entitled to the same fees as pro- vided by iaw In suits for State and county taxes. NQ other county officer shall receive any fees unless ser- vices are actually performed, and in that event he shall only receive such fees as are now allowed him by law for similar services in civil suita. The employment of an attorney to file suit for taxes for cities, towns or Independent school districts shall authorize said attor- ney to file said suits, swear to the petitions and perform such other acts as are necessary in the collection of said taxes.n (Underscoringours) In the case of Duclos v. Harris County, 298 S.U, 417, the Commission of Appeals held that under Article 7343 the District Clerk was entitled to the same fees in delinquent tax suits brought by IndependentSchool Districts as are authorized in suits for State and county taxes by Article 7332. We quote the following from our Opinion No, O-836: "In view of the plain languwe of all the statutes pertinent to the,subject and the established rules of law relating thereto, we conclude that the fees of the re- sgactive officers named in the question stated are fixed by Article 7332, as amended; that Article 7345b allows * no additional fees to be collected by.the District Clerk, Sheriff Constable or County Attorney, as compensationfor any addItiona services rendered and occassionedby said article. However, it appears that where the state or county is made a party defendant in a suit brought by some other ta;tingunit, or if not made a party and it is noc- essary for the state or county to intervene in the suit and the county attorney,doasfile a plea of intervention for the state or county, he is entitled to the attorney's fees allowed on the percentagebasis provided for in Section 6. In such an event, ha would not be entitled to the fees provided for in Article 7332, as emended. The fees there provided for him are for bringing the suit, While the percentage fees allowed to him in Section 6 are for ..\ 69 hon. Fsrris Pirtle - ?age 5 anowering for a defendant or for iatervening for hia client, a taxin? unit v&ich the Xaw mIcea it his duty to represent. gho actual serviaes rendered am aub- stantially the same, the purpose beiag.to obtain a udgmnt against the taxpayer x3.tha foreclosure of ilen on the property Involved yet it aems that the Lagislabxe has Seen fit to 'd&inguLsh betvzmn the services rendered and prescribed a-different fee for each service. As heretofore noted, the percentage fee is allowed M the &,Ileaded or Intervening tax unit, yet it is specLficaI. ff y au*thoriaadto bo collect& &8 'attorney'sfees,' and we belleva a reaso&3.e intarpre- tation of the statute ia tht t:iofoe xx iSended to be given, &mn coLlected to t?aoattorney sq-rl-eaenting the taxing unit 6n the au1t.S Under the facts a&t~.i~i';ted and in viax of the foregoiq authorities, it is the o@iiou of 'UhLsc1ep````::r;r.t *;!?:tt t!iedistrict clerk is entitled LO a lee of