Untitled Texas Attorney General Opinion ( 1971 )

. .
ENERAL
Honorable Alex R. Tandy Opinion No. M-1001
County Attorney
Parker County Courthouse Re: Whether Parker County Hospital
Weatherford, Texas 76086 District was properly charged
for portion of attorneys’ fees in-
curred in defending tax injunction
Dear Mr. Tandy: suits against County and others.
You initially requested the Opinion of this office on two questions
which, through subsequent correspondence and telephone conversations,
were reduced, in substance, to the following:
Was Parker County Hospital District properly charged with a
portion of the attorneys’ fees charged in connection with defending two
suits to enjoin the collection of taxes for Parker County for itself and for
the political subdivisions carried on the tax rolls of Parker County? We
answer this question in the affirmative.
We have examined the facts submitted to us both by you and the
attorneys involved. These include: (1) a letter from the county judge to
the attorneys confirming their employment in defending the two injunction
suits, and (2) your most recent letter in which you assert that your inquiry
is motivated by the objection or complaint of the Parker County Hospital
District. From these it has become evident that the matter covered by your
question has been fully and finally resolved insofar as all parties involved
are concerned, except that the hospital dist.rict does not want to pay for its
proportionate part of the attorneys’ fees.
From all of the materials submitted, we will briefly summarize
the material facts.
Parker County had entered into a contract for the collection of de-
linquent ad valorem taxes in the usual form furnished by the Comptroller of
Public Accounts of the State of Texas and “approved as to substance and form
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Honorable Alex R. Tandy, page 2 (M-1001)
only ” by the Attorney General. The compensation stipulated in said con-
tract was in the amount of fifteen per cent (15%) of the taxes, penalties
and interest collected, and is authorized by Articles 7335 and 7335a, Ver-
non’s Civil Statutes. Thereafter, an original suit was filed in 1969 against
the Weatherford Independent School District and Parker County by Brazes
Electric Power Cooperative, Inc. , hereinafter referred to as “Cooperative, ”
seeking- to enjoin the collection of taxes on property owned by the Coopera-
tive. Subsequently, the Cooperative filed a second suit against Parker
County in 1970 to enjoin the collection of 1970 taxes. Both of these suits
were consolidated, and Parker County filed a compulsory counterclaim
for the collection of 1969 delinquent taxes and for 1970 taxes. The Parker
County Commissioners Court employed the firm of attorneys representing
the county in the delinquent ad valorem tax suits to represent the county and
the other taxing jurisdictions (including the hospital district), for which
Parker County assessed and collected ad valorem taxes, in the two separate
and independent tax injunction suits brought against the County. While the
hospital district was not made a formal named party to the two injunction
suits, it was constructively a party. It was included in the judgment as en-
titled to recover a portion of the taxes. The County Tax Assessor-Collector
was made a party, and he had a mandatory duty to assess and collect the
hospital district’s taxes, with authority to act in all respects according to
the laws of the State of Texas relating to state, county, and district taxes.
Section 16, Acts 59th Leg., R. S., 1965, Ch. 35, p. 93, S. B. 283. Further-
more, under that statute, Section 17 made it the duty of the County Attorney,
District Attorney, or Criminal District Attorney not only to represent the
county in civil matters but also “to represent the hospital district in all legal
matters. ” In addition, the hospital district is required to contribute sufficient
funds to the General Fund of the County to pay all additional salaries and ex-
penses incurred in order for these officers to perform their required duties
for the hospital district.
The attorneys employed by the County to assist the County Attorney
representing the county ,and the taxing jurisdictions represented by the county
were entitled to be comp,ensated a reasonable fee for their services, apart
from the fifteen per cent (15%) statutory fee to which they were entitled for
shy separate litigation in the collection of delinquent taxes. The amount of
th&?fee charged and paid was below that suggested for such services by the
minimum fee schedule, and it is not contended that it was excessive in this
respect.
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Honorable Alex R. Tandy, page 3 (M-1001)
Following a judgment in favor of the Defendants and Cross-
Plaintiffs, and pending appeal, an agreement was reached under the
terms of which (1) all court costs were paid by the Cooperative and (2)
recovery was granted to the State of Texas, Parker County, and all
political subdivisions and districts whose taxes were collected by the
Assessor and Collector for Parker County, for their taxes, penalty and
interest due for the year 1969, and taxes and interest due for the year
1970. Parker County Hospital District is a political subdivision whose
taxes are assessed and collected by Parker County, as hereinabove ob-
served. Parker County Hospital District was created in 1965. Acts
59th Leg., R. S., Ch. 35, p. 93. Under the provisions of this Act, Dis-
trict taxes are assessed and collected on county tax values in the same
manner provided by law for county taxes. Section 16 provides in part:
‘1. . . The Tax Assessor-Collector of Parker
County shall be charged and required to accomplish
the assessment and collection of all taxes levied by
and on behalf of the District. ” (Emphasis added. )
Furthermore, that Tax Assessor-Collector, in assessing and collecting
the taxes levied by the District, is required to deduct from payment to the
District a one per cent (1%) fee for assessing and a one per cent (1%) fee
for collecting taxes. The balance of the taxes are then deposited in the
District’s depository.
“In all matters pertaining to the assessment,
collection, and enforcement of taxes for the District
the County Tax Assessor-Collector shall be authorized
to act in all respects according to the laws of the State
of Texas relating to state and county taxes. ” Supra,
SW. 16, pp. 98-99. (Emphasis added. )
The suits ultimately resulted in the recovery of the delinquent
taxes due all taxing jurisdictions, including those due the hospital district;
and in our opinion the hospital district was properly charged its pro rata share
of the fees attributable to the delinquent taxes recovered in its behalf. Parker
County Hospital District also was properly charged with its portion of the at-
torneys’ fees charged in connection with the defense of the two suits to enjoin
collection of taxes for Parker County, on its behalf and in behalf of the politi-
cal subdivisions carried on the tax rolls of Parker County, including the hos-
pital district.
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Honorable Alex R. Tandy, page 4 (M-1001)
Section 17 of Chapter 35 also fortifies this conclusion. It reads
as follows:
“It shall be the duty of the County Attorney, Dis-
trict Attorney or Criminal District Attorney, as the case
may be, charged with the duty of representing the county
in civil matters, to represent the hospital district in all
legal matters; provided, however, that the Board of Di-
rectors shall be authorized at its discretion to employ ad-
ditional legal counsel when the Board deems advisable. ”
(Emphasis added. )
In the instant case, the Board of Directors did not see fit to em-
ploy “additional legal counsel, ” and we must presume, therefore, that such
inaction on the part of the Board amounted to an authorization, not actually
needed, of the actions of the attorneys employed by the Commissioners
Court in their behalf. It was not necessary for the hospital district to enter
into a contract to pay the Delinquent Tax Collector any fee; nor was it nec-
essary for the hospital district to have been a formal party to the injunction
suits or to have been consulted during the proceedings in order for it to be
charged its pro-rata share of the court costs, or expenses of litigation. The
Court itself recognized this and necessarily proceeded on this premise in
rendering judgment specifically for Parker County and for the use and bene-
fit of all political subdivisions and districts whose taxes are collected by the
Assessor-Collector of Taxes for Parker County. It may not accept the bene-
fits of the services and the tax monies collected without also having to share
in the obligations or expenses incurred in that connection. It may not receive
the benefits of the contract without paying the reasonable value of the benefits
so received, same being its proportionate part of the attorneys’ fees in ques-
tion. See Angelina County v. O’Quinn, 429 S.W.2d 211 (Tex. Civ. App. 1968,
no writ); Hoffman v. Davis, 128 Tex. 503, 100 S.W.2d 94 (1937); Sluder v.
San Antonio, 2 S.W.2d 841 (Tex. Comm. App. 1928. )
SUMMARY
Parker County Hospital District is properly
chargeable with a portion of the attorneys’ fees charged
pursuant to a contract by Parker County for defense
of two tax injunction suits brought to restrain the col-
lection of taxes for Parker County for itself and the po-
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Honorable Alex R. Tandy, page 5 (M-1001)
litical subdivisions (which include the hospital
district), carried on the county tax rolls. Acts
59th Leg. , R. S. , 1965, Ch. 35, p. 93, S.B. 288.
Prepared by Kerns Taylor
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
W. E. Allen, Acting Chairman
Jim Broadhurst
Marietta Payne
Sig Aronson
J. C. Davis
SAM MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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