Untitled Texas Attorney General Opinion ( 1945 )

555
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GROVER SELLERS
ATTORNEY GENERAl.
f'·
rIonorable H. ''Pat Edwards
Civil Distriot Attorney
Reoords Building, Dallas County ,,
Dallas 2, Texas
Dear Sir; Opinion No. 0-6929
Re: Clarifioation of du ies and
responsibilities ot oertain
offioials· 11 ~'i 'oun ty
when oer n shoar; s appear
in the aooo ot' - Tax
Ass r-Colleo
Your reoent request to
question reads' as ,follows:
e' :
, "
.. a) of Deoember 31.1944/ t,here
e t ' the 1:lank aooount oarried as 'Un-
a rt· ed Tax Fund Aocount NO.' 404',. a ,
caljlh ortege ·of $108.68;, whi,oh is reported ,
,-.,"
" Due to Banlj: from Ed oobb'", This< shortage,' '
, arises out Qf., the1'act that tlle'Ta:X:iAssesso~ ,
and Colleotor tailed-by, said amount, to col-
','lect as' .
'
much;:
. '. money 'as ,the tax 'receiptf;liasued
': '~ , , '. ~
.' ..
. . . . ..".. . '
NO eOMMuNic~TION 1& TO BE CO':'!STRUIltD A8 A DEPARTMENTAL OPINION' UNL!>SS APPROVED BY TH~ A!1'0RNEY GENERAL ~.fI FIRlIT A •• 18TAN.T
i:"
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',::
page 2 .
I,·
,.
by him totalleQ. The County Auditor advises that ,'".
as of November 7, 1945, this amount still has not
been paid to the bank or to the county TrEiasurer·
by the Tax Assessor and Collector. .
"(b) That on March 28, 1943, a deputy of the
Tax Assessor and Collector lost \il150.00of the . .
county tax money while on his way. from the bank. to .' :\' . I
the Tax Assessor's Oftice. said amount having been
obtained from the bank for .the purpose of making
change. The Auditor advisesthatss of the date of
November 7. 1945. neither the Tax Ass.essor nor the ,
deputy who lost said money had'repaid same to the ,"
County. "
··1
Ii
"(c) That during the yearl94-3 the Tax. Assessor 'i
(,sed ad valorem tax money to oash. 'N.S.F.checks', . . ;:
I"
I. O. U. 'forone of his deputies and .1 forged checks' .
I
totalling *713.85, .' the. totalot ..which· ohecks, etc •• ; ... '
the Tax Asse·ssor. and Collector'haf:j" tor· more. than two.:
· years neglec·ted to make good by ,paying the actual
· cash thereon into his accountso,t .cashon hand.
· ." ( d) '. That during the yea rs194-1,. 191;:2,. 1943 and .'
1944 oel'tainshortages in the COllection of state
license tees ··in ,the. Highway Department ocourre.d 'oy
.... reason.ot •. the deputies failing tQtUi'l1 in. as .. much
"casha£> 'they hSQissuedlicensereoeiptfl 'tor, and ,.
that while' the ''l'B.x Assessor .. andOollector. has .. ' .
settlea..hisaocounts. with thestata, he has~ith-'
held county funds for the purpose Of balanQin€$ his ....
. accounts against Such :shortages,. and .has to .date . .'.
tailed andp,egleoted to 'cover said alwrt$ges i u t h e , " \ ;
. sum ot $944.87 by·theplecingofaotual,aashtor " .
same in his' cashaooounts. '. . . '.,' . ".
"Upon the oonf:jidera tion ·ot . sa~dreport by tM Oom~' . ; '.'"
missioners' Court and a discussion 'of." 'the teiot.F.revealed
thereby,,.. the hereinafter setfor~Jiquestions .\'1ereraised .
and the Criminal Distriot>.Attbl'uey~asrequestad toad- .
vise the Oourtasto t4e law in
t.ha:p~emisesin_regard to" .
sam.e, it beingthEicontention: of, tha'AIlq,1tortha.t hehacl ...... " i,
discharged his responsibility undertM law when here .. >
'ported the fa.cte to the COJJllll.issioners ',Court, and that it il, I
is the duty of the COJJllll.issioners" Court to order th~ . . " • I
shortages,' 'I.O.U.s',· 'N.S.F •. and Forged cheoks' removed ',,"
I . "',.
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,·55'7
H. Pat Edwards, page:3
trom the Assessor's accounts by payment of actual cash
into the County Treasul'Y. The Oommissioners' Court on
the other hand, takes the position that inasmuch as it
does not appoint the Auditor, it has no power to direct
him as to the performance of his· duties, 'and particuJ.ar-
ly sinoe by the express provisions of the ~tatutes a .
positive duty is enjoined upon the County Auditor. (a)
to 'see to the strict enforoement of the law covering
oounty finances' (Article 1651 Revised Civil Statutes),
and (b) the County Audi.tor is expressly, authorized 'to
cause an aooounting and to take such steps at the ex-
pense of the County as is necessary in his judgment to
proteot the interest of the County' (Article 165613,
Revised Civil statutes) I the Oourt is not required to
take any official action in regard to the situation re-
vealed by this Auditor's Report. .
"TheAuditor and the Cominissioners' Court agrE;eth~t .
Oounty Tax money has been applied to the 'N.B.F. and
forged checks'. etc.,. and that the Tax Aase.ssor should'
" make good the shortage in the ad v<;llorern, tax aocount. ·A
disagreement seems to revolve::,around the . issue as to
whose responsibil1tyit is, to cause the s'ituatiOn revealed·
in the report to be. remedied at the earliest possible date.
inasmuch as ,all of the transactions revealed oocurrm more'
th.anthree years' past •. and the. application of the statutes
..• of lirn1tat:i.ons lsin the min4s 01' .. a11 parties. .. .
"Accordingly. the Court has propounded and requested
answers ,as to the law in the,l?remise~.tothetollowing
... questionSl"
.'. .
"(1) . 'Is the Tax Assessor e.ndOollector per- '
, . sonallyresponsible to the County tqr the shortages I,
,tN.S.li'. 'checks, 'I~O.U.sl of his deputies carried
in his cashaccount.s, .etc., same having occurred
in 1;hehandling of county tax ntoneys?
11(2) If such Official is personally responsible, . i
when should .settlement there1'tlr or payment thereof
be made to the Oounty by the payment 'of aotual oash
into the c;:ounty Treasurer to cover said transactions?
"(3) Is it legal tor the County 'l'axAssessor and
Collector· to oarry as cash items in'his accounts for
more than thirty days 'I.O.U.s','H.S.F. checks' of
his deputies, 'forged checks'- and, shortages charge-
able to his deputies?
)" ~ ---.
Eon" H. Pat Edwards, page 4
It (4) Whose duty is it to demand and ,enforce a
'settlement and payment L~ cash to the County of
such transactions where it appears County tax
money has been used to cover same? ,::
"Vie have concluded that the questions l?ropounded should
be answered as follows:
It(l) Under the proVisions of Artiole 7252 and
the law as set forth in 34 Texas Jurisl?rudencs
under 'Public Officials', Page 437. paragral?h 86,
and the opinion of the SUl?reme Court of Texas in
the case of Dunlal? vs Pool, 176 S. W. (2) page 310;
the Tax Assessor is personally liable for the
shortages, losses, forged and N.S.F. oheoks arising
out of transactions handled, by 'his deputies in the
aruainistration of public funds and he should forth-
with pay into the County Treasurer in cash the total
of said items.
"(2) Under'the provisions of Article 7261 Revised
Civil Statutes, the Tax Oolleotor is required at the
end of each month to pay over to the County Treasurer
'all taxesoollected for the county during said month',
and he should in all events finally adjust and settle
'his aocount with. the commissioners' Court for the'
oountytaxes collected,tonor before the, 1st day
of May of each year'. Inasmuch as it clearly appears
from this rel?ort that all of the shortages 'N.S.F.
and forged ohecks', 'Deputy's I.O.U.s' and other
items occurred prior to and during the 'year 1944. .'j
and May 1st, 1945 has long since passed, it is our .::
opinion that the Tax Assessor and Colleotor should;
il!llllediately olear suoh items from his accounts by
placing therein actual cash equal in amount to the
total of suoh items.
ltD) The Tax ASsessor and Oollector cannot
legally carry as oash items for the pUrpose of i '
balancing 'casb,accounts,', 'I.O.U.st, 'Shortages
'charged· to his deputies', 'N.S.F. and forged checks'
, longer than the end of'the oalendar month in which
said transaotions arose; and in all events by May 1st
of the year following the occurrenoe of such trans- '
actions the .TaXAssessor and Collector should :t'inally'settle
his accounts by making good such transaotions by the
payment ot aotual cash into the County Treasury.
.' ;".
:;
I '
''''''i' 7:% -- 7',,'
Hon. H. Pat Edwards, page 5
"(4) Under the express provisions of Artiole·
1651, whioh enjoins upon the Oounty Auditor the
positive duty to 'see to the strict enforoement
of the law governing oounty finanoes', and Ar-
tiole 1665a. Vernon's Annotated Civil .statutes,
which expressly oonfers authority upon .the Oounty
Auditor to 'take· such steps at tUE;lexpense or the
County as are necessary in his ilUdglllentto.protect
the interest of the County * *"', the 'primary, <
" . duty to enforce a cash settlement of' transactions
" shovinby this report to be due the County rests
. upon the COWl'!;y Auditor. In the event the County"
Auditor neglects or refrains toeniEorcesuch settle .. ,
ment. i,t is, our opinion that under' the prOVisions
of Al:ticles 7262 and 7292, Revised Civil statutes,
the Commissioners' Oourt is both duty-bound and
.'. authorized. t,o :direct the Tax.Assessor and Collector
to pay-the amount shown by this report to . be due
'the Oounty, and:uponf'ailure todo,so,t,o cause', a
suit to be instituted against theoffioial and
, his bondsmen by the' Criminal Dis'trict Attorney who, .
under the provisions of Article .335 of ,the ,Revised
Civil statutes,
.
is duty 'bound
0
to bring
0_ , '
such suit.' '
. "We' are, of' th~ opinion that the law' srequ1rement as ",
. ,to an aocounting 'and ,settlement of the aooountS ot the Tax
,. Assessorand,Colleotorcan,onlybemet by the payment of
actual oal:!h. that iI:!, 'legal, tender' ,into. the County .
Treasury, and ,tll.a.t although from an accounting standpoint,'
',an 'I.O.U.' ,and 'N.S.F. ,cheok'oharged against a ,deputy,,·
may be used by the Assessor for the purpose of balancing ,.;
, , the accountl:!,. only actual cash money can be used to settle··,
an account.' That if the law's requirement that ,all tax • ,
. money collected by the Tax AsseSBor and. Collector be de-
'pol:!i"!;ed into theC,ounty Depository al:! collected~ and paid
over to the County Treasurer at, the end of each ,oalendar
month, and that on the firatday of May'of ea,oh year a
final adjustment and .settlement of the acoount,s,of the Tax , •
.Assessor and. C()lleotor ,is made. no such 'I.O.U;S', 'shortages!,
'N,.a.F. and forged ohecks' and similar items 'oouldappelilr in
an ,official ~s,report. ' . .
"The .'I'ax As'sessor, and Collector. as we understand his
argumentl:!to'the CoIlllllissionerl:!' Court, contenda,that inasmuoh OJ
as he is under.-bond; . that he does not have to adju,stand ,
settle his accounts finally by the payment of actual oash
into the Treasury until he goel:! out of offioe. We therefore,
respectfully ask whether or not you concur with us in our
answers to the questions propounded and our, view of the law
in regard to the final settlement, of aocounts 01', the Tax·
Assessor and Colleotor with the Oounty as herein se'ttorth., ,. ~
oJ
L 560
Hon. H. Pat Edwards, page 6
"In cOnsideration of the questions it is to be
borne in mind that: (a) Dallas County has a popula-
tion in excess of 190,000 inhabitants; (b) Its Tax
Assessor and Collector is paid on an a=ual salary
basis; (c) It op'erates and so operated during the
years 1943. and 1944 under the County Deppsitory Act,
and has a duly selected, qualified and acting County
Depository; and (d) The Distriot Judges of Dallas
County urider tJ1e provisions of' the statutes, have
appOinted and:De.llas County now has and had during
.1943 and 1944,. a qualified and aoting County Auditor.
"A oOlJY of the Auditor's ,Report referred to herein
is enclosed fOr your turtherinformation, and your at-
tention is directed, to Pages 6, Sand9 wherein the
items referred to above are set fOrth. In regard to
the 'torged checks·, I peg to advise that these checks
were not accepted in payment of taxes, credit for whioh I'
could theref'ore be reversed. but were aoquired by the I'
" . !.:
Official by his' exchanging publio tax moneys tor said
void instruments."
, .
Article 7247. Vernont.s .Annotated Civil Statutes, provides' .
that eaoh Assessor /lnd Colleotorof Taxes shall give bond, pay..
able to the Governor and. his successors in ottice, in a sum
which shall be equal to ten per cent of the whole amount of
the state taxes of the county, as shown by the last preoeding
tax assessment, but not to exceed $50,000.OO,condItioned for
the faithful Performanoe of the duties of his office as
Assessor and Collector of Taxes for and during the fullterm
for wllich he was eleotedol' appOinted.
Al't. 7249 provides that the Assessor and Collector of
Taxes .shall give a similar bond to that required of him by the
state with like conditions to the County Judge of his county
and his. suocessors in office.; in a sum of .not less than ten
per cent of the whole amount ot the county taxes. but not to'
exceed $50;000.~ ,
Art •. 7254 provides as i'ollowst
"The. tax oolleotor shall be the receiver and 001-
lector of ell taxes assessed upon the tax list in his
county, whether. assessed for the state or county,
school, poor house or other purposes; and he shall pro-
ceed to oolleot the same aooording to law, and place
the same when colleoted to the proper fund, and pay the
sallle over to the proper authorities. as hereinafter
provided." ",
:",
..~. 5G:i
IT. Pa t Edwards. page 7
V
Art. 7252 provides in part as follows:
"Each Asse'ssor and Collector of Ta.xes may ap-
point one or more deputies to assist him in the
assessment and collection of taxes, and may reCJ.uire
such bond from the person so appointed, as he deems
necessary for his indemnity; and the Assessor and
Colleotor of Taxes shall in all cases be liable and
accountable for the prooeedings alld misconduot in
offioe of his deputies; and the deputies appointed
in acoordance with the provisions of this Axticle
shall do and perform all the.G.uties imposed and
reCJ.uired bylaw of Assessors and Collectors of
· Taxes; and all aots of such de'puties done in con-
formi ty with law shall be as binding and valid as
if done by the Assessor and Golleotorof Taxes in
'person. • • .tt
·:'<.:dill Cor •.Jur. ,Sec.• 1315. p. 1023. lays down .the follow ..
ing rulesl
. "In regard to money oolleoted by him and. in .
. his hands, a tax oolleotor is, in a. nUlIlber Of juris;';:;!·,. -'i
diotions, regarded, not as a bailee, but as an ',i''' "
,
insurer, and therefore responsible for the taxes ...
collected. although he is robbed of. the money or
it. is stolentrom him, .. o • tt . . . ,
.,J
34 Tex. Jur. •• ·Sec. 86, 'pp. 474-475. lsin part as follows, I
!
'. "Jill officer who is the oustodian of publio
money does not occupy the pOSition of a mere bailee
for hire, who is responsible only for such care of . ,
the money as a l?rudent man would take of his own;
: nor is he a t debtor' to. the county within the ordi-
nary meaning of the term, since. if he were, the
money would be his property and he could not be
· guilty. ot'm1saPl?lying it as the. otfense' is de1'ined
in the Penal Code. He 'is bound to a.ccountfor and
pay over the money to .the person ent1tled,::less his
· 'commissions. or his sureties must pay it for him; .
-: . . ' .and neither he nor his sureties .are':relieV:ea:troiD.::,lia-
.. bil1ty by thefaot that the money was' stolen without,
his fault or was 'lost by being deposited in a bank:
which failed without negligence on his part, except
'.. in some cases'where the bank has beendesig..1.ated as
a public depoei tory·.... ."
'.' ~ !
EtPat Edwards, page 8
The case of Boggs vs. The'state, 46 Tex. Rep, 10, in-
ved a claim against Anderson Boggs, and a number of other
as his sureties.' en a tax cellector's bend... The
fendants filed a special answer alleging tb.at Beggs, as
Collector, having cellected the taxes; ana. being about to.
.start to. Austin with the money', had $1,300.00 61' it stolen
him without. his fault. (stating the circumstances ef its
s) • The plaintiff tiled exceptions to. t.his answer. whicb.
sustained, and this was assigned as errer. In sustaining
:",,,,,,,,.u action 0.1' the trial ceurt, the Ceurt .efAppeals b.eld as
"It is centended by the ceunselfor the ap;" . '.
pellants that Boggs, being an effic.er, oQcupied
toward. the state the pesition of a bailee.fer
hire, in the business of cellecting, preserving,
and accounting fer the. taxes 0.1' Rusk County, and
that as he tookoareof the money in his hands,
as a prudent man would erdinarilyhavedone, in' '. \.
reference to his ewn property, neither he. nO.r his
sureties were responsible for its, loss.".: .
," '.
'. "We do not undE1rstand such to. betb,e 1~g~1l>OSi:"
tien and respensibility 0.1' the public efficer whose
duty it is tecelleot andaocount tel'. the'money 01' ,
the state as a tax cellecter, naris it inaooerdanoe
wi th the terms ot his bond, signed by. him and l:I.ia
,sureties, aspresQribed by'l.aw.;.
• ' ,- • • 1
, ' ; ..... .. , ',: •
',' .. '-
.·"He~s. bound to acceuntf{)X' sndpay ever the
ameuntot money whicilhe celleQts.les$ :his.oomiliis;..
siens, 0.1' his sureties mUstdo,it'for him. n
t'
..
"
See also. .thetel1owing additienalauthpritie1>~
, ,'.
Wilson v._ Wiohita COUll ty, 4 S ~_ W~ 67;
Cae et a1 vs.Foree. County J"Udge,·50 $. W. 616, writ retused.
'. Peele at a1. vs.' Burnet· ceunty.· 76 3i W•. 42?'bysup •. 'at;.
Lanham, GovernQr vs.Diesst al,98S •. ,W.897L, , . , .
American. I1),demnity ae~:et alv •.. state; 104 ,f?~ Vv.(2dJ 68,
writ dismissed~
United stat.esv;. J;>resoett, ilL. Zd«_ 734.
.; ,': .
; .....
'" ..
"; ,
·.-- 563
, Hon. H. Fa t Edwards, page 9
We think it is clear under the above rules of law that the
Tax Assessor and Colleotor is personally liable to the county for
,the shortages, "N.S.F." checks and "I.O,U.s" of his deputies and
'''forged ohecks"carried in his oash accounts. etc., which occurred k
in the handlin/fof county tax funds, as set forth in your request;
therefore, your question No.1 should be, and it is, answered in
the affirma ti ve. " , .
Chapter 2, Title 47. which'is Articles 2544-2558a. provides
for oounty depositories, ,and Article 2549 thereof, after setting
forth provisions relative to approval 01' a depository bond. con-
tains the following provision:
". • .It shall also be, the duty of the tax col..
lector of such county to deposit all taxes collected
byh1m, or under his authority, for the state and
such cOunty and its various districts and other'
munic1paJ, ~ubdivisions, in such depository or deposi-
tories,'assoon as collected, pending the preparation
of his report of such collection and settlement thereon.
,
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Art. 7249a is as follows!
"On Monday of each week each County Tax Collector
Shall pay over to the county Treasurer ,ninety per cent
(90%) of all taxes collected for the County during the
pr,eceding week, and pay over to the state Treasurer
ninety per cent (90%) of all taxes collected for the
state during the preceding week ..
"The Oommissioners' Court ofauy County, or the '
Comptroller of Public Accounts. may at any time in
their discretion call upon the Tax collector for a
sworn statement as to the amount of his collections
made during the current month, and tor til report as to
the amount of taxes in the Oounty Depository belong-
ing to the Oounty or state, and direot that ninety
per cent (90``) of those tunds be transferred to the
County or state Treasury. The COminis,sioners' Court
or the Comptroller mGlY at any time require a sworn
report trom the Depository as to the amount ot funds
in their hands under the control of the Tax Colleotor.
J;'ailure or refusal of a Tax Collector' to make the
remi ttances as provided in this Aot within three (3)
days from the date due, or to render the statements
required herein, within, three (3) days after reoeiving
notice to do so, shall oonstitute a misdemeanor and
shall be punished by a fine not to exceed ~vo Hundred
-<.Dollars' ~?200. 00') ."
L 564
.' E. Pat Edwards, page 10
~.
Art •. 7250 is as tollows:
''Except as to compensation due such tax col-
lector as shown by his approved reports, tax money
depOSited in oounty depositories shall be paid by
such depositories only to tressur~rs entitled to
receive the same, on checks d:!:'awn by suoh tax 001-.
lector inys:or of such tl·easurer •.~t
Ax·c" 7260 provH!.es in part ~s follows:
"1. At the' end of' each month the Tax Col-
lector shall, on forms to be furnished by the
Comptroller,make an itemized report under oath to
the Gomptroller,showing each and every item of ad
valorem, poll and oocupation taxes oollected by him
durj,ng said m.onth" aooom.panied by a summarized state-
ment showing full disposition of' all state taxes
collected, provided that said itemized reports f'or
the mqnths of Deoember and January of eaoh year·may
not be made for twenty-five (25) days a:r-ter the end
ot such months it same cannot bellompletad by the end
ot suoh respective months.
'.'"."
"2. He shall present suoh report, together with .
the tax reoeipt stubs. to the' County Olerk, who shall ",f
within two (2)d.ays compare said report with said .
stubs ,and' it same . agree in every partioular as· re-
gards nam:es, dates and amounts, he shall certify to
its correctness, • • • .. provided that in coUltties
having a County Auditor the work mentioned in this
paragraph shall be done.by the County Auditor rather
than the County Olerk. . .
":3 •. The'1!ax Colleotor shall then ;!.mmediately
forward his reports so oertified to the Oomptroller,
and shall ·pay-over to the state Treasurer all moneys
oolleoted by him tor the State during said month,
exoeptin~suoh amounts as ~e is allowed by law. to pay
in his county, reserving only his commissions on the . v
total amountoolleoted •••.• "
,- i
.,.'
H. Pat Edwilrds. page 11
"4. The Tax Collector shl"\11 pay over to the state
Treasurer all balances in his hands belonging to the
State, and finally adjust and settle his account with
the Comptroller on 01' before the first day of 11ay of
each year •. and to enable him to do so, tl;.le COlllillis-
.sioners Court shall convene on or before the third
Monday in April for the }?u:rpose of examining and
appl'OVin~.t inal .se ttlemen t papers. II
Art. 7261 provides in part as follows:
. "I, The Tax .Qollector shall I'd the end of each
month make like.teports to theColllilliss"ioners' Cou:rt
01' all the collel:Jtions made tor the COUll ty. 'conforming
as faI' as applicable and in like manner to the require-
ments as to the oOllection and report of taxes .col-
lected for the State ••.~
tt* **
"3. The Tax Collector shall im.'llediately pay over
to the County Treasurer all taxes collected for the
county during said month, atterreserv'inghis cOlllillis-
sions tor collecting the same, and take receipts there'"
to~. and tile with the County Clerk.
"4. At tb.e next regular meeting of the Commissioners"<
. Court, the Tax Oollector shall' apllear before said. Court . .
alidmake a sUlIliJlSrized statement. shovling the disposition
of all moneys. both of the state and county t collected .
by him during the previous three (3) months. said state-
ment must.show that all taxes due the state have been
promptly remitted to the state Treasury at 'the end ot .
. each month, and all taxes due the countS' have been paid .'
over promptly to the County Treasurer and. shall file
proper,Vouchers and receipts showing same.
"5. The COlllillissioners l Court shall examine such
statement and vouchers; together with an itemized. report
and tax 'receipt stubs filed each month. and shall compare
the same with the tax rolls and tax receipt.stub$. It· . I;~1
I'
found oorrect in every particular. and. it the Tax co1- ,'"
leotor has.properly accounted for all taxes collected;
as provided above; the Commissioners t Cour~ shall enter
an order approving said report. and the oruer approving
same shall be recorded/in the minutes. .
/
566
• H. Pat Edwards, page 12
"6. The 'l'ax Collector shall finally adjust and
se ttle his a ocount; with the COL'llllissione·rs f Court for
the oounty taxes oolleoted, at the same .time and in
the same manner as is provided.in the foregoing Ar-
ticle in his settlement with the State~"
Art. 7262 provides as follows:
"If any tax collector shall have failed at the end
of each month, or within three days thereof, to promptly
remit to the state Treasurer the amount due by him to
the state, or pay over to the county treasurer the amount
due by him to the county, the commissioners court, at the
next regular meet~ng. shall asoertain the facts; and if
the taxcolleotor fails or refuses to payor remit the
sal::!.e and file proper vouchers therefor, as provided in
the foregoing article, the commissioners court shall not
approve his reports and aocounts,b4t shall ascertain
the amounts due by him, both to the State and oounty,
and enter an order requiring him to pay the same to
the proper treasurers, as is provided in Artioles
7294 and 7295. and notify suoh colleotor. as is pro-
vided for in Article 7296 under penalty for failure to
do so. Whenever the tax oolleotor shall fail or refuse
to remit to the .State·Treasurer the amounts due the
State,when requested, thEl Oomptroller s.hall notify him. II
Art~ 72.95 is as follows:
"All tax·collectors and other officers or .appointees
authorized to receive public moneys shall aocount for
all moneys in ,their handS belonging to their respective
counties, cities Or towns, aud pay the same over to the
respecti va county tre!:)surers or oi ty treasurers whene.;v~r
and as often as they may . be directed to do ·so by the,
respeotive county judges, or county commissioners oOUrts
or mayor 61' board of aldermen; provided that tax 001-
lectors shall have ten days from the date of such di ..
rection within which to' oomply with the same."
H. Pat .::.iiwards, page 13
Under the above statutes, the Tax AsseSSOl' and Collector
has the following duties to perform: To deposit all taxes
collected by him, or under his authority, for the county, in
the County Depository, as soon as collected, pending the
preparation of his reports of such collections and settlement
thereon; on L;onday of each week to pay over to" the County
Treasurer ninety per cent (907~) of all taxes collected for the
county durine the preceding week; at the end of each month to
'make an itemized report under oath to' the Commissioners' Court,
showing each and.every item of ad valorem, poll and occupation
taxes collected by him during said montll for the County, ac-
companied by a sWll!llarized statement showing full disposition
of all County taxes collected, provided that said itemized
reports for the months of December and January of each year
may not be made for twenty-five (25) days after the end of
such months if same cannot be completed by the end of such
respective months; immediately after making said report, to
pay over· to the County Tl'easurerthe balance of all taxes
.' collected for the county during said month, after reserving
'. his cOillUlissions for collecting the same; to al)pear at the next
regular meeting of the Commissioners' Court and make a summa-
.rized statement, showing the disposition of all money of .the
. county collected by him during the previous three months, and
that illl taxes due the county have been paid over prom:ptly to
the COLmty treasurer; and finally adjust. and settle his account
wi th' the COmniissionars'Court for "the COLmty ta.xes colleoted on
or before the first day. of May ot each year.
If the 'rax Assessor and Cpllecitor tails "at the end of each
month, or within three days thereof, except for the taxes col-
lected in the months of December and January, to pay over to the
County Treasurer the amount due by him to. the county, the com-
missioners'court, at its next regular meeting. Shall ascertain
the facts; and ifh6 fails or refuses to pay same, as provided
for in Art. 7261:. the cOillUlissioners t court shall not approve
his reports and .accoun"t;s, but shall ascertain the amount due by
him to the county and enter an order requiring him to pay same
to the treasurer, and notify him thereof, and said Tax Assessor
and Collector shall have ten days from the dat.e of. such direo-
tion in which to comply therewith. .
! It is our opinion that your question No. 3 should be
J, answered in the negative as it is clear that,under the aU-
thorities and rules of law hereinabove referred to, the Tax
Assessor and Collector should make monthly reports of taxes
'-',"
_ - - - - - - - " - - - - - . .L _____ ~ __.___``
, - 568
Hon. H. Pat Edw!lrds, page 14
. collected by him, as well as make payments thereof to the
proper authorities. In no event should such reports or pay-
ments be delayed by reason of any of said publio funds having
been used in any way by the deputies of the Tax Assessor and
.collector, as the law does not authorize the use of any of
. said funds by the Tax Aflsessor and Collector, or any of his
.--deputies, None of said funds belong to the Tax Assessor and
Colleotor audall of same should be paid to the -pr'oper au-
thorities as set forth in the various statutes governing the
.• handling thereof, and no part of said funds should be used to·
take care of "I. O. U.s", "1>J. S. F." checks, or "forged ohecks".
--or shortage,~any kind.
Art. 1710 is as tollows:
"The county-treasurer shall keep a true account
of the receipts and expenditures of all moneys whioh
shall came into his hands by virtue of his Office,
and of the debts due to and from his oounty; and"
direct prosecutions aocording to law for the recovery
of all debts that may be due his county, and super-
i~tend tr~lection thereof."
Art._ 1714 is as fOllows; -
"He (the county treasurer) shall examine the
. accounts, dockets and reoords of the olerks, sherit;f
justices of the peace, constables and taxcolleotor -
of his county •• for the purpose of ascertaining whether
any moneys of right belonging to his county are in
. their hands which have not been accounted for and paid
over according to law, and -shall report the same to- .
the-commissioners' court at their next term, to the
end-that suit may be instituted for thereco:very
thereof." (parenthetical matter ours)
In the- case of Simmons vs. Ratliff lOt al, 182 s. W./(2d)
8-27. writ refused, the court had under consideration an action _
instituted by ap~el1ant in trespass to try title to land fOrmsr-
"ly belonging to~ains County and in which the contention was
made that the county treasurer "of Rains County. and not the
Commissioners'Court, was authorized to declare a default
under a deed of trust,·- this contention being based upon Ar-
ticle 1710 above setout. In overruling said contention the
court held· as follo'lvaf
569
Eon. ii. Pat Ec.wqrc.s, page-l.5
"under the quoted statute, the county treasurer
c.oes have authority over certl;tin funds of.the county
and authority to direct the prosecution of suits for
tile collection thereof, and such authority has been
upheld by the courts. Trustees of Lytle School Dis.,
trict v. nads~ County Judge, 24 Tex. Civ~ App. 433,
59 B. w. 830. The authority given to the_county
treasurer by the statute is not exclusive, however,
and it has always been the law in this State that the
tribunal which we now designate as the commissioners'
court is the executive head of the county and vested
with authority to determine when suits or other ac., .0_
tions Sl10uld be instituted to recover furids belong-
. ing to the county~ .or any othel' suit involving the. !
rights o~property of the county, Looscan v~ county
. of Harris. 58 Tex. 511; Ehlinger, county Judge, v.
Clark. 117 Tex. 547. S 3 .. '1{. 2d 666;nelta.County
v. Blaclcburn,lOO Tex,. 51, 93 s.w. 419. Without
attempting to speoi.fy the'nature of any.claims or
suits Over which the> county treasurer1llay· haye e;-::-.
clueive jurisc.iction, it· is sufficient to· say that,-
. unquestionably;, the corJJllissioners' court has at least
oonourrent jurisdiction OVer such matters as those
. il1volvedhere and its action in de.blaring the indebted~
ness due andlnstructing its trustee to foreclose the
deeder trust lien .involved in .thi.s case was fully
authorized by the law,"
In the case of Hoffman et a1 vs. Deviset al, 100 s. W.
(2d) 94, theColllfllission of Appeals was considering a si tuation
whel'a taxpaying citizens had brought suit against officers and
eX-Officers of the county and their bondsmen to recoVer for the
alleged unlawful expenditure by such officers of county funds,
and the court announced the following rule as to who is au- .
. thorized tohring suit for a (jounty under such -circumstanoes:
"Ordinarily, the cOllllllissioners' court alone
determines whether litigation shall be instituted
in behalf of the county, but iJi tIlis· instance the·
majority. oftllatcourt are the ones charged .with ..
dereliotionof duty, and it is therefore in no
. position to act for the county. In that situa-.
tion, undertha foregoinB statutes, the county
treasurer, to whom the bonds are payable, has
_---,L. "'- . . L
H. l'a t Edwards; page 16
the statutory authority to protect the county's
rights and direct the institution of suits in
.nis .name for .the use of the county upon these
bonds. The ouestionthel1 is: Where the au-
thoritr to institute litigation in behalf of a
county is vested by statute in a particular body
or officer; maya priVate citizen determine whether
such litigation shall be inst1tu·ted and himself
institute and pro,secute it?
"In the case of ]"ooscan v. County of Harris.
58 Tex. 511. there lI;I'lS presented for decision the
question of· the right of a district attorney. when
the colllilissioners t court refuses to act, to main- ,.
tain a suit in the name of the county against
certain officials tt) recover money illegally paid
out. This court, after determining that there was
no statute authorizing the district attorney to
institute the suit, announced the rule that, since
the right to do so was vested in the cOlllll1issioners i
court, thet right must be held. to be exolusive. We
quote from that opinion; I ThG cOlllll1issioners l .cour:!>
undoubtedly has the. right to cause suits to be in-
stituted in Ute name of and for the benefit of the
county, and except.Where a concurrent right to do
the samathing; ol'where an exclusive l'ight in a
specified case or cases is conferred upon some.
other. tribunel or some other officer of the·.
·government ,the . commissioners f· court must oe
deemed to be the Quasi executive head of the
county, vested with' exclusi'(6 power to determine
when a sui taMl! be instituted in the :name of and
.'1'.)1' the benefit .ofth6 county. t
"As above polntedout,· both the co=isaioners t
court and the county treasurer are vested by statute
with the right, to institute this litigation. Since
. the former is .inno ,Position to act, therignt of
the latter to dosoia exclusive, unless there is
conferred upon the county or district attorney by
8.rticle 339 the concurring right - a question which. I.
we need notdetel"lliine."
-.---------~---.~------
.. 571
lion. ci. Pa t Edwards. page 17
It is our opinion, therefore, tl':;a~ i!{i:thls instance,
since funds belonging to the county ars":.fnv'ol'lred. the com-
missioners' Court- has the right and duty'to determine
v,Ilethe:r or not it will ha vesui t fil,ed:"in ',behalf of the
COQ!lty. But this right is not exclu,'sive' in'the Commissioners',
Court, for tlle reason that, under the above cited authorities,
the COUEty treasurer also has authoi'ity to direct prosecution.
according to law for the recovery of said funds as debts due
his C01l.c'1ty. There are also statutes which make it the duty
0:1:' .the county or district attorney to see that suoh claiJl).1;l
. are .paid.~. i.-
Article,.339 provides. as follows;
"When it shaJ,.l cometo.the knowledge of any
district or county at"torneythat any officer in
his district or oounty entrusted with the co11ec-
tionor safe l~eeping of any public funds is in <=lny
manner whatsoever neglecting or abusing the trust
. confided in him, or in anywa.y failing to dischin.'ge
his duties' under the law, he shaLl. institute suoh
proceedings as are necessary to oompel the perform-
ance of suoh duties by such officor"and to preserve
and protect the publio interests."
Wo had occasion to oonstrue t.ti.isstatut~reoentlY in our
OpiniJ;J.No. 0-6376, a. copy of which is enclosed herewith,
wherei.t;l wewerEl passing upon whether or not itwas.the duty
. of a County Attorney to bring a sui t against an' ex-tax c o l - . ;
lector and the sureties on his bond to reoover fees colleoted
by him under. the Automobile Certificateo:t'T1tleAct., After
rarerring to various, authorities. we l1eld, as follows;
"We thinkitis olear, th~reiore.th~t it is the
official duty of the county attorney . to bring a civil
suit against· the ,Tax Collector ;r:eferred to and the
surety on his bond to re co.versald money •. We do not
believe that the faot that said Tax Collector has
gone out of,offioe makes any difference as to the duty
of the county attorney in this' respeot, aasaid. Tax
Collector was an officer at the time that the obliga-
tion arose and S.Sllle are not cancelled or discharged
by his gOing out of office.·
,r
t,~. 572
.Hon. :i. Pat lhdwards, page 18
HGI'dir:arily the Co.tr.5!lssiDners9' Court Blone deter-
nines wiether litigation shall be instituted in favor
of the covllty, and. in some instances tlle county treasurer
has the statutory au:r:cori ty to protect the county's rights
.'\Ed dir'ect. t.he i::l.stituUon of suit in· his name for the
use of the county. It might be :well, therefore, to have
tt~(~ :lpproval of these officials in this instance, though
it ia our opinion that the county attorney has the con-
curring rieht, as well as that i"l; is his duty to bring
tlle action. lloff.man et e1 v. Davis, 70 s.w. (2d) 637,
1 "0·'
v' ~. ,. (?"(.1.) 9'J+. n
li . . . . .
Your attention is also di!'ected. to the case of McAskill,
District Attorney, vs. TO'r'ell, Distl'ict JudGe. et aI, 259
SOlI ·'~1. 914, b.Y· the Saprelrre Court, 'Wllich involved the right of
the Distr.ict Attornoy" to Pl"08cCLlte and. control· a su.it in-
sti tuted by tlls COUD. ty of Ile:uu'. by or-di>l' of.' its· Gomnil.lsioners'
Court. ElgQinst the; Oounty AttorUey of .5e~ta;::, County to recover
certain 0'l:.10 01' m:mey alleged to belong to :3exo1' County. re-
ceived by said Cou.nty Attorney a.nd not r·epo::';.;ed or accounted
for by ~il'l. Un de l' u contract with the COlllillissioners' court,
ti1e County was represented by other attorrH.lya. It aIJpeared
f'l'om the statc,:1ent offects that in like r,ll:tmWr suit !:lad oeen
brought egainst the District Clerk, the County 01e1'1c, the· ',-: . .
Sheriff and the Oonstable to l'ecover exoess 1'«08. not accounted
for to tb.e county.. lrte' trial 'court llelo_ t}1,:ftt· SUCll other offi ..
cials came witl1in tt.B tl:)rlts 01' Artl'cllq 366 ~;QOW .tl.rt. 3"39)", "but
that the County Attorliey WI.).S not included thOirein, as he was
'not "elJcrusted with the coll<;,ction or safekeeping of any pub-
lic fun.d s." 'J!b.e 8Up:::-cl:16. Court llelcl that this :::uliJlG was
erroneolls, and that the statute vests the District ,Attorney
with the 2'igl1t to i7l:'osecute and contl'ol such suit, and that
the duti0S imposed upon h::'lIl by the statute could. Jlot be
See also, Ser,g16r et 81 vs. AdaIfls et al, 2)8 5. ,f.
proper::";}' e:z:ercissd without authorJ.ty to control such suit.
S. W. 413, wll.el'''in the Oourt of: Civil Appeals (238 S. w. 708)
707, 250
after s.,tting out what is now Article 339, laid down .the fol-
lowing rule:
"W6 think the purpose ot this·statute was to
eX,ll'esslv preseril.)!:) the duties of' the district or
cOUntyattcI'ney in the circumstances therein 1'e-
oit(;d., <;lld that the Legislature did. not intend
tilereby to limit the commissioners' court, in their
general Llanagement of the county's busiIless affairs.
_----.'-. I.
- /.,4, Yl
. '.
:Hon. n. lOot bdwards,' page 19 .
to the u-cilization of ·the services of the one or
the other of those officers. The duties of the two
sets of officers are in no manner made·correlative,
and ;i. t is di1'fic\)~t to see in VJl.1at way this positive
requirement upon the district or county'"attorney as
to his independent duty could have any reference to
members of the commissioners' court •. It seems to us
that the matter of the duty thus laid u.;?on the at-
torney and that of the general authority of the
commissioners' court are quite apart. Since the
quoted statute not only i:a:posed the Quty. but also
ccnferred the corresponding privilege upon'the .
officer named of instituting suits of the character
specified in behalf of the county,it may well be .
that the commissioners' court would lack the power
to displace him from his rightful authority in that
regard, but j as our statement of the facts has shown,
nothing of that sort was contemplated or 'attempted .
in this case •. 'rhe pleadings and the affidavits
in evidence before the tri,,-l .b.ourthereshowea. that
the purpose of these. contracts was merely to have
the outside attorneys assist the county attorney
in the sultscontJ:acted for," '. . '.
Art. 52";24 of our Code of Criminal pr6cedurecreated the
office of ,"CriJuinal Districtl.ttorneyof Dallaseounty" and
provided t11a t such official' should have .,in addi,tlon. to others.
the fOllowlnepowerst .. ... .
"The'criruinal District Attorney or Dallas County
shall hi< *At the close of any fiscal year., or ac-
counting peribdn.ow or hereafter fixed. by law, the
County Auditor s11all audit, adjust, and .settle the
accounts of.such offioer. In the event the. County
Auditor sh81+ be unable to obtain proper reports or
an adequate accoimting from any Distriot Attorney,
District Cler1\., oounty or preoinct officers 'as herein
provided. either during or after his term of office,
the County Auditor shall have authority to enforce
an accounting thereof, and to take such steps at the
'expense of the county as are necessary in his judg-
ment to protect.,the interests of the county Or of
the persons, firms, Or corporations entitled to such
funds."
It is our opinion that this statute authorizes the county .,-,
Auditor of Dallas County, one of the counties towhioh said
. eta tute applie s. to take suOh legal action in the name of tb.e
'oounty ashe deems necessary to enforoe the oollection of any
money he finds any of the. officers named in the statute to be
due the county. and to that endb.e may call upon the criminal
District Attorney of Dallas County to file suit against the
delinquent Officer. Should the Criminal. District Attorney
fail or refuse to take such legal action, the .County AUditor
may. at the expense' of the county, employ some attorney to file .
. suoh suit •. However; the authority of the County Auditor to
. take such legal aotion· is not an exclusive authority. but is
concurrent with the authority of the Commissioners.' Court and:.'
County ':;reasurer, as well as tIle duty imposed by statute upon'
the Criminal District Attorney.
It is our opinion that the COL'411issioners' Oourt, una.er
its authority to control and manage the finances and l:1usiness
affairs of the county. has the power and authority to request
the Distriot Attorney to bring a suit to enforoe settlement
of such claims as those here under consideration •. It .also
has the 'power and authori,ty to employ attorneys to assist
him in the proseoution .t``reof •. Under the faots here
presented. it is .alsothe duty of the District Attorney to
, '" I I
_. 2 _5
Iloil.. H. Pat Edwards, page 21
file such suit and prosecute same independently of any request
so to do from the Camm.is sioners' Court, COUi'l.ty Audi tor or
County Treasurer.. "
We herewith return to you the County Auditor's rellort
enclosed wi til. your request."
,Yours very truly»
ATTORKEY GENERAL OF TEXAS
BY, ()~. 2r.``,
JWB: LJ , ~' Jas •. W. Bassett '
encl. " Assistant
l
1
~
'"
:'',',r,'\,:l
``i
'II