Untitled Texas Attorney General Opinion ( 1974 )

THE ATTBRNJZY GENERAL
OF TEXAS
June 26, 1974
The Honorable Richard E. Bowers Opinion No. H- 335
County Attorney
County of Brewster Re: Basis upon which the attorney’s
Alpine, Texas 79830 fees provided by Art. 7332, V. T. C. S.
are to be calculated.
Dear Mr. Bowers:
Your opihion request requires us to determine the basis upon which
the Tattorney’s fees for collection of delinquent taxes, provided by Art. 7332,
V.T.C.S., are to be calculated. Art. 7332 provides, in part:
The Countv or”District Attornev shall represent
the state and county in all suits against delinquent
taxpayers, and all sums collected shaKbe paid over
immediately to the County Collector.
. . . .
In all cases, the compensation of said. attorney
shall be such reasonable attorneys fees as may be
incurred not exceeding ten per cent (10%) of the
amount sued for.
Under Art. 733.3, V. T. C.S., the attorney’s fees set under Art. 7332 are to
be recovered from the delinquent taxpayer as court costs for the benefit of
the county. The district attorney and county attorney are not personally
entitled to such fe’es because they are compensated on a salary basis. Banks
v. State, 362 S.W.2d 155 (Tex. Civ. App., Austin, 1962, error ref’d n. r. e. ).
po 1546
The Honorable Richard E. Bowers page 2 (H-335)
Also see, Attorney General Opinions G-6400 (1945); V-601 (1948) and
WW-675 (1959).
Your question arises from the situation where an independent school
district represented by a private attorney, files suit for the collection of
delinquent school taxes, and, subsequently, the state and county enter the
suit in order to urge their claims for delinquent taxes against the defendant.
Other taxing entities such as a city or local water district may also intervene
in the suit. There is usually a wide variation in the amount sought by each
taxing entity. You ask whether in this situation the county or district
attorney’s fee provided by Art. 7332 is to be assessed on the basis of the
amount sued for by the independent school district which initiated the action
or whether instead it should be based only on the amount, oft the claims
entered by the state and county. In other words, if a school district has
filed suit on a claim of. $l,OOD.in delinquent s’choolltaxea;and the, county ‘, ‘:.
attorney intervenes with a claim of $100 in delinquent county and state
taxes, under Art. 7332 should the county attorney’s maximum ten per
cent fee by $100 or merely $10.
In resolving this question it is important to distinguish between
delinquent tax proceedings brought on behalf of the state and county and
those initiated by an independent school district. The latter are governed
by Art. 7343, V. T. C! S. ,whiCh ,permits an independent school district to
hire a private attorney to collect delinquent school taxes and to pay him as
much as fifteen per cent of the amount ultimately recovered. Bell v.
Mansfield Independent School Dist. s 12~9 S. W. 2d 629 (Tex. 1939). If a
private attorney is hired by a school district his fees cannot be taxed as
court costs. Arnold v. Crockett Independent School Dist., 389 S.W.2d
608 (Tex. .Civ. App., Tyler, 1965), rev’d on other grounds, 404 S.W.2d
27 (Tex. 1966).
Art. 7332, on the other hand, directs the county or district attorney
to represent the state and county in all suits against delinquent taxpayers and
provi,des that for such represemation an attorney’s fee not to exceed ten per
cent of the amount sued for is to be paid. This fee is to be collected from the
delinquent taxpayer as part of the court costs. Art. 7333, V. T. C. S.
p, 1547
The Honorable Richard E., Bowers page 3 (H-335)
In construing Art. 7332, this office has held that the attorney’s
fees provided therein are intended as compensation for services rendered
and that when no services are rendered then no fee can be charged or
allowed. Attorney General Opinion O-1695 (1940). This office has also
held that when a county or district attorney represents both an independent
school district as well as the state and county in a delinquent tax proceeding
he is entitled to the fees prescribed by Art. 7332 as to each taxing unit.
Attorney General Opinion V-742 (1948).
These opinions indicate that the attorney’s fee provided for in Art.
7332 was originally intended as compensation and therefore should be related
to the services actually rendered by the county or district attorney on
behalf of his client. This objective is hdrdly served if the fee is based on an
amount sued for by another party to the suit not represented by the county or
district attorney.
Thus in the situatEon you describe it would~ be improper under Art.
7332 to compute the county attorney’s fee on the basis of the amount sought
by an independent school district not actually represented by the county
attorney, When the county or district attorney represents only the state
and county in a delinquent tax proceedin,g, his fee should be computed on
the basis of the amount sought by those entities. That amount is “the
amount sued for” as contemplated in Art. 7332.
SUMMARY
The attorney’s fees provided in Art. 7332 are
intended to reflect services rendered and are to be
calculated on the basis of the amount sued for by the
taxing entities actually represented by the county or
district attorney.
Attorney General of Texas
p. 1548
The Honorable Richard E. Bowers page 4 (H-335)
o,q
DAVID M. KENDALL, Chairman
Opinion Committee
pq 1549