Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
December 21. 1984
JIM MATTOX
: torney General
: >r.m, coun BulldIng Ronorable Houston Munson Opinion No.JM-264
: 0. BOX 12S49 District Attorney
lullin. TX. 78711- 2nR 25th Judicial District Rc: Whether a county tax
51214752501 P. 0. Box 99 assessor-collector may retain
1ex 910/974.1297
Gonzales, Texas 71’629 fees for clericals and work
’ Iecopier 512/4750299
performad in aiding an attorney
hired by the county to collect
: 1 Jackson. Suite 799 delinquent taxes, and related
lies. TX. 75202.4509 questions
2141742.99U
Dear Mr. Munson:
24 Alberta Ave.. bite I@3
El Paso. TX. 799052793 You ask us the following two questions:
9lY53334U
1. Is a county entitled to retain those
1001 Texas. Suit* 700
monetary benefits as a fee of office paid to the
“ourton.~lX. 77002.3111 county tax collector’s office staff for clerical
Y2255999 work performed by said offi.ce on county time in
aiding the attorney hired by the county to collect
delinquent taxes, or do said benefits belong to
@OR
Broadway.suite 312 the office staff?
,bbock. TX. 794013479
361747.5239
2. Is a county entitled to retain those sums
of money .SS a fee of office paid by automobile
309 N. Tenth. Suild S dealers I,C the county tax collector’s office for
IcAllm, TX. 79SO1.1685
512lS92-4547 copies o:i motor vehicle registration lists pre-
pared by e;aid office on county time and furnished
to said automobile dealers, or do said benefits
,00 Main Plaza. Suite ro0 belong to the office staff?
San Anlonio. TX. 792952797
51212254191
Your letter states that the office of the Guadalupe County tax
collector has assisted the attorney hired by the county to collect
delinquent taxes br preparing lists of names of delinquent taxpayers
and sending notices of delinquencies to these taxpayers. In return.
the attorney paid a sum of money to the tax collector’s office which
was divided among the tax collector and his deputies. This sum of
money was paid by t:he attorney to the tax collector’s office once a
year. The lists were prepared by county employees during regular
working hours.
Additionally, employees of the tax collector’s office prepared
lists of all motor vehicles sold and registered in Guadalupe County.
These lists were photocopied and distributed to area automobile
Monorable Houston Munrou - Page 2 (JM-264)
dealers on a regular basis. The automobile dealers paid a monthly sum
of money that again vas divided among the employeas of the tax office.
Likawise, these lists were p,reparcd by county employees during regular
working hours.
Both of your questions ask about the proper disposition of
certain monies received anti retained by the office of county tax
assessor-collector. Both questions appear to presuppose the propriety
of the county’s retaining such monies in the first place; your only
concern appears to be to vhom such funds should be distributed, the
county or the clerical stai’f actually performing the work. We must
first answer, however, the threshold question, the answer to which you
presuppose, aa to whethw the county tax assessor-collector is
entitled to accept such monies in the first place. We conclude that
he is not authorized to do *ICI.
Generally , a public oUficer has no authority to perform an act
not authorized or requested of him by lav. Duncan v. State, 67 S.U.
903 (Tex. Civ. bpp. 1902, no writ).
All public offices and officers are creatures
of law. The powers and duties of public officers
are defined and Mnited by law. By being defjned
ar.d limited by law, we mean the act of a public
officer must be e,xpressly authorized by law, or
implied therefrom.
Fort Worth Cavalry Club v. Sheppard, 83 S.U.Zd 660. 663 (Tex. 1935).
Specifically, an officer nwy not charge a fee for the performance of a
particular duty unless a f@!e is provided by law and its amount thereby
fixed. Nueces County hrrington, 162 S.W.2d 687 (Tex. 1942);
McCalla v. City of Roc&?a, 246 S.W. 654 (Tex. 1922); Binford v.
Robinson, 244 S.W. 807 T&x. 1922). Nor may he receive extra
compensation for performinlg a duty otherwise imposed upon him by law.
Set Hill Farm, Inc. V. Hill County, 425 S.W.2d 414 (Tex. Civ. App. -
Waco 1968). aff’d, 436 S.W.Zd 320 (Tex. 1969); Jones v. Veltmann. 171
S.U. 287 (Te-v. App. - San Antonio 1914, vrit ref’d); Attorney
General Opinions JM-135 (1984); O-3656 (1941); O-2610 (1940); O-864
(1939); -cf. Attorney Gener;lL Opinion Mu-483 (1982).
The tax assessor-collector is required by statute to make a list
of delinquent taxpayers anmi to ratify those persons whose names appear
on the list of their dellrlquent status. Tax Code 5533.03. 33.04. If
the notices about which you inquire are those required by the code to
he prepared and sent out. the tsx assessor-colIector clearly may not
charge for them. If, on the other hand, the noclces at issue were
prepared in addition to those which the code requires, the tax
assessor-collector may Ijk.ewise not impose a charge because he had no
statutory authority to prepare them in the first place. There is no
provision in the Tax Code which purports to confer authority on the
county tax assessor-collector to enter into an agreement vith s
p. 1177
Honorable Houston huneon - P;rge 3 (JM-264)
private delinquent tax attorney vhereby county employees perfona
certain clerical tasks la return for consideration.
It is true that while a public officer may not receive extra
compensstion for performing a statutory duty, he
mey earu a revurd, if he is under no obligation
because of his official character to do the
particular act for which the rcwsrd is promised.
The general princ:lple prohibiting public officers
from receiving rewards for the performance of
their official dutles does not prevent them from
entering into agr,zements with private individuals
to render unoffic:I.al services in consideration of
direct compensation being paid for such services.
22 R.C.L. Public Officers 1235 (1918), noted in Crosby County Cattle
Co. v. McDermett. 281 S.W. ;!93, 294 (Tex. Civ. App. - Amarillo 1926.
no writ); see also Morris ‘c. Kasling, 15 S.W. 226, 227 (Tex. 1890).
There is no indication, ho’atrver, that the work was performed by the
county employees scting in s private capacity. Even if such ware the
CSSC, the employees of the tax collector’s office would still be
Prohibited from retsinfng the money If the servlccs were performed
during working hours using “any equipment. supplies or anything of
value belonging to the county.” Attorney General Opinion O-6702
(1945); see also Attorney Ge:aeral Opioions V-14 (1947); O-6908 (1945).
Thus, in regard to your first question, it is our opinion that the tax
collector of Guadalupe Couuty. or his personnel, may not lawfully
retain the fees for preparing delinquent tax lists.
We now turn to your second question. concerning the collection of
fees for copies of lists of motor vehicles that were sold and had
titles registered in GuaiUupe County. The Texas County Records
Manual, prepared under the authority of article 5442c, V.T.C.S.. is an
nofflcial. legs1 guide to records retention requirements for Texas
county officials.” Texas County Records Manual, at ix (1978). The
Manual requires a county tax assessor-collector to retain (for varying
periods of time) lists of motor vehicles reP,jstered in the county and
reports on motor vehicle t,rsnsfers. Texas County Records Manual. at
B-223 (1978). The lists ws,uld be considered public information under
section 3(s) of the Open Records Act, article 6252-17s. V.T.C.S..
which states that
[a]11 icformstion collected, assembled. or msin-
tained by governmental bodies pursuant to law or
ordinance or in connection with the transaction of
official busines!; is public information and svsil-
able to the publ:Lc during norms1 business hours of
any governmental body. . . .
Honorable Houston Munson - Psge 4 (JR-2643
When a person applies for a lint of motor vehicles registered and sold
in Guadalupe County, the tax collector’s office is required to produce
the informstion promptly. V.T.C.S. srt. 62S2-17a. 64.
The employees are simply discharging their duty to provide public
informscion in accordance vith section 3 of article 6252-17a snd are
paid by,the county for discharg:ing such duties.
Becsuae the GusMupe County tax asseaaor-
collector is required by statute to prepare a list
of delinquent taxpsyers and to provide the public
vith information of all the motor vehicles
registered In the county, he has no authority to
collect fees therefore either in public or private
cspacity.
J h Very truly
JIM
k
you
MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney Geneml
DAVID R. RICRARDS
Executive Assistant Attorney General
RICR GILPIN
Chairman. Opinion Cosssittec
Prepared by Jim Hoelliager
Assistsnt Attorney General
APPROVED
:
OPINIONcomm-ree
Rick Gllpin. Chairman
Jon Bible
Colin Carl
Sussn Garrison
Tony Guillory
Jim Hoellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood
p. 1179