Untitled Texas Attorney General Opinion ( 1989 )


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  •             THE      ATTORNEY        GENERAL
    OF   TEXAS
    June 9, 1989
    Honorable Mike Driscoll         opinion NO.    JM-1055
    Harris County Attorney
    1001 Preston, Suite 634         Re: Liability of a county tax
    Houston, Texas 77002            assessor-collector for the loss
    of public funds   (RQ-1608)
    Dear Mr. Driscoll:
    You ask whether a county tax assessor-collector may be
    relieved of personal liability for the loss of public  funds
    if the commissioners court determines after an investigation
    that the funds were lost without negligence.     You further
    ask whether the county tax assessor-collector may be reim-
    bursed for personal   funds used to replace lost funds upon
    such official establishing that the loss is due to a reason
    other than negligence.    We understand  you to refer to a
    shortage of funds already collected by the county tax
    assessor-collector, rather than to any failure on his, part
    to collect a fee or commission that he is required by law to
    collect.1
    Historically, Texas courts have enforced strictly the
    obligation of a public officer to account for and pay over
    1. Section 154.009, Local Government Code, permits     a
    commissioners court, after a hearing, to deduct the amount
    of a fee or commission from the salary of any district,
    county, or precinct    officer, if the commissioners    court
    finds that that officer failed, through neglect, to collect
    that fee or commission that the officer is required by law
    to collect. Because you ask about a situation involving     a
    loss of public   funds that have already been collected   and
    were in the custody of the county tax assessor-collector,
    rather than a situation    involving any alleged failure to
    collect a     fee or    commission   that the   county    tax
    assessor-collector   is required by law to collect,       any
    reliance upon section 154.009, Local Government    Code, is
    inapposite.
    p. 5491
    Honorable Mike Driscoll - Page 2   (JM-1055)
    to the proper custodian the public money that he receives.
    See. e.a., Bexar Countv v. Linden, 
    220 S.W. 761
    (Tex. 1920);
    Poole v. Burnet Countv, 
    76 S.W. 425
    (Tex. 1903); Attorney
    General Opinions JM-517 (1986); H-360 (1974). An official,
    or his surety, was not relieved of liability,    even in an
    instance in which the money was stolen by robbers through no
    fault of the official. See Coe v. Foree, 
    50 S.W. 616
       (Tex.
    Civ. App. 1899, writ ref'd). Section 6.275 of the Tax Code
    constitutes an exception to this long-held rule.
    Section 6.275 of the Tax Code provides:
    A county assessor-collector is not person-
    ally liable for the loss of public funds in
    the custody of the assessor-collector or the
    assessor-collector's    office if a district
    court enters a declaratorv iudoment that the
    loss is due to a reason other than the neali-
    oence or misconduct of the assessor-collect-
    9E.   (Emphasis added.)
    H.B. 95, Acts 1987, 70th Leg., 2d C.S., ch. 37, 5 1, at 125
    [hereinafter H.B. No. 951. Section 2 of H.B. No. 95 further
    provides:
    The addition by this Act of Section 6.275,
    Tax Code, relating to the release of a county
    assessor-collector   from liability   for the
    loss of funds, applies only to a loss of
    funds occurring   on or after the effective
    date of this. Act. Liabilitv for a loss of
    funds occurring before the effective date is
    governed bv the law in effect at the time    of
    the loss, and the former law is continued    in
    effect for this nuroose.   (Emphasis added.)
    The effective date of section 6.275, Tax Code, was
    October 20, 1987. You do not indicate in your request    for
    an opinion whether the loss of public funds occurred prior
    to the effective date of the section. If such were the
    case, of course, the county tax assessor-collector would not
    be relieved of personal   liability by section 6.275.    For
    purposes of this opinion, we assume that the loss of funds
    occurred after the effective date of section      6.275, Tax
    Code, and that section governs.
    As originally passed by the House, H.B. No. 95 provided
    that a determination that the county tax assessor-collector
    is not personally liable could be made by the commissioners
    court upon a finding that the loss was due to a reason other
    p. 5492
    Honorable Mike Driscoll - Page 3   (JM-1055)
    than the negligence or misconduct of the assessor-collector.
    However, the senate amended H.B. No. 95 to provide that such
    a finding must be made by a district court pursuant to a
    suit under the Uniform Declaratory Judgment Act, rather than
    by a commissioners  court. As amended by the senate, H.B.
    No. 95 was approved by the House and then passed by the
    senate.
    You ask whether  a suit under the Uniform   Declaratory
    Judgment Act must be filed in district court pursuant     to
    section 6.275 of the Tax Code, even in a situation in which
    the commissioners court agrees with the county tax assessor-
    collector that the loss was not due to the county tax
    assessor-collector's negligence. We conclude that, by the
    clear terms of the section, such a suit must be filed,
    regardless of whether the commissioners   court agrees that
    the county tax assessor-collectoris  not negligent.
    You contend that, to construe section 6.275, Tax Code,
    to require a hearing before a state district judge under the
    Uniform Declaratory Judgment Act, would serve to circumvent
    the evident intention of the legislature when it enacted the
    section. You argue that the purpose of the Uniform    Declar-
    atory Judgment Act is remedial and that it is inapplicable
    in the event that there is no real dispute or controversy at
    issue. See. e 4    F'     n's Ins. Co. v. Burch, 
    442 S.W.2d 331
    (Tex. 1968i;'&al``~%a    Products. Inc. v. Puretex Lemon
    Juice, Inc., 
    334 S.W.2d 780
       (Tex. 1960). You assert that,
    in an     instance  in    which neither     the  county   tax
    assessor-collector nor the commissioners court disagrees   as
    to whether the county tax assessor-collector was negligent,
    there is no dispute in controversy:
    If it is uncontroverted  that the county tax
    assessor-collector  was not negligent,     no
    purpose is served by seeking a declaratory
    judgment in district court.    An action for
    declaratory judgment would lie when a real
    controversy has arisen and an effective   and
    speedy remedy is sought to determine      the
    rights of parties; without a real contro-
    versy , review by the district court would
    serve no purpose.    In situations where the
    commissioners court has determined that the
    loss was not due to negligence, and is there-
    fore in agreement with the Tax Assessor-
    Collector, are the parties required to file a
    suit in the District Court and expend tax
    dollars to litigate an undisputed matter?
    Section 6.275 should be given a reasonable
    p. 5493
    Honorable Mike Driscoll - Page 4   (JM-1055)
    construction and not one which would require
    the performance of a useless act and a waste
    of taxpayers' money.   In the event that the
    commissioners  court    determines that    the
    county tax assessor-collector was negligent,
    the tax assessor-collector     may choose to
    either accept the decision of the commission-
    ers court or bring a declaratory      judgment
    action pursuant to Section 6.275.   [Citations
    omitted.]
    We disagree with your assertion for two reasons.
    Commissioners courts have no power or duties     except
    those that are clearly s,et forth and defined by the Texas
    Constitution and the state statutes. Canales v. Laughlin,
    
    214 S.W.2d 451
      (Tex. 1948); Anderson v. Wood, 
    152 S.W.2d 1084
    (Tex. 1941). We have found no provision, either in the
    Texas Constitution   or in the statutes, that purports    to
    authorize a commissioners court to decide as a threshold
    matter whether a loss of public funds in the custody of the
    county tax assessor-collector  is due to the negligence   of
    that official or whether it is due to some other cause.
    Section 113.006 of the Local Government    Code and its
    predecessor   statutes relieve the county tax       assessor-
    collector and his surety of responsibility for the safekeep-
    ing of funds collected from taxes, but only after the funds
    are deposited as required by law in the county treasury.   As
    we noted earlier, section    154.009 of the Local Government
    Code empowers a commissioners court to deduct from the sal-
    ary of a district, county, or precinct officer the amount of
    a fee or commission that the official was required by law to
    collect if, after a hearing, the commissioners court finds
    that such failure was due to neglect. With the exception of
    section 6.275 of the Tax Code, we have neither found nor
    have you directed us to any constitutional      or statutory
    provision that sets forth any means whereby a commissioners
    court may relieve a county tax assessor- collector of his
    responsibility for the non:negligent loss of public funds in
    his custody;
    Second, we are required to construe statutory    provi-
    sions in such a way as to give effect to the evident  inten-
    tion of the legislature.     Gov't Code 5 311.021.     Texas
    courts have held that the deletion of a provision in a pend-
    ing bill discloses a legislative  intent to reject the pro-
    posal. Smith v. Baldwin, 
    611 S.W.2d 611
    (Tex. 1980): Trans-
    portation Ins. Co. v. Maksvn, 
    580 S.W.2d 334
    (Tex. 1979) :
    Grass0 v. Cannon Ball Motor Freight Lines, 81 S.W.Zd 482
    p. 5494
    Honorable Mike Driscoll - Page 5   (JM-1055)
    (Tex. 1935). As introduced in and passed by the House, H.B.
    No. 95 conferred authority on a commissioners court to find
    that a county tax assessor-collector's loss of public   funds
    in his custody is not due to his negligence or misconduct,
    thereby  relieving the county tax assessor-collector       of
    personal liability   for the loss. The senate removed the
    language conferring   such authority on the commissioners
    courts and replaced it with language conferring such auth-
    ority on a district court pursuant to an action for a
    declaratory judgment. The House subsequently agreed to the
    senate's amendment.   If we were to construe section 6.275 of
    the Tax Code in the manner that you suggest, we effectively
    would circumvent   the express language of the senate      in
    amending H.B. No. 95 and of the House in agreeing with the
    senate's amendment. This we~cannot do.2
    Absent the enactment of section 6.275, Tax Code, an
    action under the Uniform Declaratory Judgment Act would not
    lie in an instance in which there was no real dispute     of
    fact between the commissioners   court and the county tax
    assessor-collector;   However, the legislature    did enact
    section 6.275, and by the clear terms of its provisions such
    an action will lie even in an instance in which there is no
    dispute as to facts.
    Therefore, we construe section 6.275 of the Tax Code to
    require an action under the Uniform Declaratory     Judgment
    Act, even in an instance in which a commissioners court and
    the county tax assessor-collector   agree that the loss of
    2. You rely on El Paso Countv v. Citv of El Paso, 357
    S.W.Zd 783 (Tex. Civ. App. - El Paso 1962, no writ), Citv of
    Tvler v. Smith Countv 
    246 S.W.2d 601
    (Tex. 1952), and
    Ninasville Indeo. School Dist. v. Crenshaw,   164.S.W.2d   49
    (Tex. Civ. App. - San Antonio 1942, writ ref'd w.o.m.)     in
    support of your argument.     None of the three cases is
    apposite.  Those. cases addressed 'the inapplicability     of
    statutes governing eminent domain to situations   involving,
    not an attempt by a political   subdivision to comdemn   real
    property owned by an individual, but rather a dispute
    between two political subdivisions regarding the disposition
    of real property owned by one of them. The courts simply
    declared that the eminent domain statutes, which by their
    terms involve a dispute between a political subdivision   and
    a private  individual, were not applicable   in a situation
    involving the validity of a transfer of real property    from
    one political subdivision to another.
    P. 5495
    Honorable Mike Driscoll - Page 6   (JM-1055)
    public funds in the custody of the county tax assessor-col-
    lector is not through that officer's negligence or miscon-
    duct.
    Your second question concerns the reimbursement of the
    assessor-collector upon a determination that such official
    is not personally liable for the loss of funds in the cust-
    ody of his office. A review of your brief reflects that
    this question presupposes the necessity of the assessor-
    collector repaying the funds (reflected by the shortfall of
    funds in the office) pending the determination of personal
    liability.
    Our answer to this question is based on an approach you
    suggest as an alternative in your brief, as follows:
    An alternative approach would be to conclude
    that the enactment of section 6.275 obviates
    the practice   of requiring tax     assessor-
    collectors to make up shortfalls in official
    accounts with personal funds. This step may
    be postponed until a determination is made by
    the commissioners court, and when necessary
    by the district court, that the tax assessor-
    collector is.liable for the lost funds.
    We construe section 6.275 to provide that the filing of
    a suit to determine whether "the loss is due to a reason
    other than the negligence   or misconduct   of the assessor-
    collector" stays the necessity of the assessor-collector
    paying the amount of the shortfall from his personal     funds
    pending judgment of the court. As heretofore noted,       such
    suit must be filed in the.district court pursuant to section
    6.275,,rather than left to the determination of the commis-
    sioners court.   If we construed section    6.275 to require
    payment of  the  shortfall  prior to   the  determination   of
    liability by the court, we would defeat the apparent    legis-
    lative intent to relieve the assessor-collector of the pos-
    sible heavy burden of prepaying large sums of money pending
    judgment of the court. Personal liability results absent a
    finding by the district court that the loss was not
    occasioned by negligence   or misconduct   by the assessor-
    collector.  We believe this construction is consistent    with
    the stated purpose of H.B. No. 95, as set forth in the bill
    analysis, to release the county tax assessor-collector    from
    personal liability upon a determination that the loss is not
    based on the negligence or misconduct of such official.
    P- 5496
    .
    4
    Honorable Mike Driscoll - Page 7     (JM-1055)
    SUMMARY
    Section 6.275 of the Tax Code provides
    the exclusive method for relieving the county
    tax assessor-collector   of personal respons-
    ibility for loss of funds in his custody or
    the custody of his office.      The assessor-
    collector  is not required to prepay any
    shortfall pending the determination    of the
    district  court    regarding   negligence  or
    misconduct of such official.
    JIM     MATTOX
    Attorney General of Texas
    MARY KELLER
    First Assistant Attorney General
    LOU MCCREARY
    Executive Assistant Attorney General
    JUDGE ZOLLIE STEAKLEY
    Special Assistant Attorney General
    RICK GILPIN
    Chairman, Opinion Committee
    Prepared by Tom G. Davis
    Assistant Attorney General
    p. 5497