Untitled Texas Attorney General Opinion ( 1944 )

Hon. Geo. H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Mr. Sheppard: Opinion No. O+KX?
Re: Can the :on of the county
attorney be employed to col-
lect delinquent ta~xes?
With your letter of March 7, 1944, you submit for
the opinion of this department the question raised in the
letter from Judge Eugene G. Connally, County Judge of Somer-
veil County, addressed to you, which letter is as follows:
"I am writing you with reference to our tel-
ephone conversation of this date.
"Sonervell County, the City of Glen Rose,
and the Glen Rose Ind . school district have de-
cided at a joint meeting of all three governing
bodies to employ an attorney and collect the del-
,inquent taxes due said taxing units.
-"The only attorney we have, thus far, been
able to find who will attempt to collect our del-
inquent taxes is Penn J. Jackson of Cleburne, Texas,
who i3 a son of our County Attorney B. Jay Jackson.
"However it is noted that at top of page two
of the contract forms furnished by your office there
is the statement that the contracting attorney is not
related to, among others, the County attorney.
"Unless this can be waived we will have to
look further for an attorney.
"We would like to know about this at the earli-
est possible moment, as we are anxious to get started
either with this man or Someone else."
It is observed that the question with which
the taxing authorities is concerned involve3 the
construction of Article 432 of Vernon's Penal Code
of Texas, 1925, which reads a3 follows:
Hon. Geo. H. Sheppard, page 2 O-5922
“No officer of this State or any officer
of any district, county, city, precinct, school
district, or other municipal subdivision of this
State, or any officer or member of any State, dis-
trict, county, city, school district or other
municipal board, or judge of any court, created by
or under authority of any general or special law
of this State. or anv member of the Legislature.
shall appoint: or vote for, or confirm-the ap- ’
polntment to any office, position, clerkship,
employment or duty, of any person-related within
the degree by affinity or within the third degree
by consanguinity to the person 30 appointing or
so voting, or to any other member of any such board,
the Legislature, or court of which such person 30
afE;;inting or voting may be a member, when the salary,
or compensation of such appointee Is to be
pald’for, directly or indirectly, out of or from
public funds or fees of office of any kind or
character whatsoever. ” (Emphasis added)
We think plainly that the county attorney Is em-
braced withln this statute, because he is an officer of the
county, and the statu.te clearly states, “No officer of this
State or any officer of any district, count+ city, precinct,
s,;;ool district or other municipal subdivision of this State,”
+ but when we come to that portion of the article, which
Is $ohlbitory as It applies to the question before us, it
says : “Shall appoint, or vote for, or confirm the appointment
to any office, positlon, clerkship, employment or duty, of
any person related within the second degree by affinity or
within ttie third degree by consanguinity to the person 30
appointed or so voting.” We fail to find that the county
attorney has any prohibited relationship under the conditions
stated in Judge Connally’s letter. In other words the county
attorney does not appoint, vote for, or confirm the appoint-
ment of the attorney employed by the commissioners court to
collect delinquent taxes under special contract provided for
by Article 7335, R. C. S., as limited by Article 7x358, R.C.S.,
and hence does not come within any of the conditions con-
demned as violations of Article 432 of Vernon’s Penal Code of
Texas, 1925, quoted above.
It i3 therefore our conclusion that this article is
not a barrier, precluding the commissioners Court from em-
ploying the son of the County Attorney to collect delinquent
taxes under a contract provided by Article 7335, R. C. S.,
and 7335a, R. C. S. It is true that Article 7335a provides
that such a contract must be approved by the Comptroller of
~-Public Accounts and the Attorney General, both as to substance
and form, but this does not mean that perforce Of thl3 pro-
Hon. Geo. H. Sheppard, page 3 0 -5922
vision of Article 7335a that the Comptroller or Attorney
General may enlarge or extend the scope of Article 432 of
Vernon's Penal Code, quoted above, by adding thereto a con-
dition or relationship not comprehended In said article as
a violation'thereof. To do so would be to override the pre-
rogatives of the Legislature. It must be borne in mind that
neither Article 7335 nor 7335a, supra, by reason of their
own terms, fix any limitation upon the Commissioners Court,
except that the attorney employed be competent, and that his
compensation shall not exceed 15% (fifteen per cent) of the
delinquent taxes. But we have no hesitancy in holding that
Article 432 of V. P. C., commonly known as the nepotism
statute, ,would apply to a contract made unrler Article 7335
and 7335a, if the relationship of any of the contracting
parties be such as is cond~emned by said article of the penal
code; but the County Attorney is not vested with any author-
ity to appoint, or vote for, or conform the appointment of
the Commissioners Court in employing an attorney to collect
delinquent taxes provided for under the terms of Article 7335
and 7335a. Hence we are unable to see how the employment of
the son of the County Attorney under such circumstances would
be in violation of said article of the penal code, assuming,
of course, that he is not related within the prohibited degree
to any member of the Commissioners Court.
In thus holding we are not to be understood as ap-
proving as a settled policy the appointment under such cir-
cumstances, but merely hold that the law does not prohibit
it in this instance.
The county officials of Somervell County may be
under the' impression that Article 7335 and 7335a apply to
contracts for the collection of delinquent taxes in behalf
of cities and independent school districts and other taxing
units, and if so, such is not the case. These two articles
apply only to contracts for the collection of State and
county taxes, and have no relevancy to contracts made by
cities and independent school districts insofar as requiring
the approval of such contracts by the Comptroller and the
Attorney General. Bell v. Mansfield Independent School Dis-
trict, 129 S. W. (2d) 629, (Commission of Appeals)
The Comptroller and the Attorney General would,
therefore, not be authori.zed in any event to approve or
disapprove a contract made by the city of Glen Rose or the
Glen Rose Independent School District for the collection
of delinquent taxes.
We believe, however, that under the holding of Bell
v. Mansfield Independent School District, supra, that cities
and independent school districts are limited to the maximum
Hon. Geo. H ,. Sheppard, page 4 0 -,5g22
percentage of fifteen per cent fixed by Article 7335a as
compensation t.o be paid to or received by the special
attorney employed by a city or independent school district,
but this arises by virtue of Article 7343, R. C. S., read-
ing in part-as follows:
“All laws of this State for the purpose of
collecting delinquent State and county taxes are
by this law made available for, and when invoked
shall be applied to, the collection of.delinquent
taxes of cities and towns and independent school
distrlc,Ls in so far as such ‘laws are applicable.”
The application and the dlstinction is made clear
by the fo,llowing language quoted from Bell v. Mansfield
In,dependent Schoo,l District, su,pra:
I, ~ ” As above pointed out, the specific
language of Article 7343 go’verns ttie character of
conrrac~t which t:he parties could make. That language
limits the compensation to that provided by law in
suits for state and county tares, That amount Is
limit,ed to fift~een per cent of the amount collected
and there ~1s no authority in law for the payment of
a greater percent,age. The contraci under review
provides for t,he payment of twenty pe’r cent, It is,
for that reason, void. Art v 7335a, 0 2.
“We t:hink it proper here to observe that
the requirement. of Article 7335a, that contracts
made by commissioners courts shall be approved by
the Comp,troller and Attorney General, should not
be held t,o be applicable to con,tracts made by in-
dependents school d.istricts. Bye the concluding
sent erce of Article 7343, above quote;all la~ws
of this state for ,the purpose of collecting del-
Lnquent, st.ate and county taxes shall be applied
to tne collection of delinquent taxes of inde-
pendent school districts In so far as such laws
ar’e applicable, The st&t~e has a direct interest
in the co1 lectlon of state and count,y taxes, but
hss r,o such direct, interest In the co’liection of
delinquent t~axes of independent. school districts.
The reason for the provisions ,for the approval by
,the Compt.ro1le.r and Attorney General of contracts
made by commissioners courts is obvious ,, But no
similar reason exists for requirfng such approval
of con~?racts made by independent school districts.
We a,re, therefore, of t,he opinion that such re-
quirement of approval is not applicable to these
latter contracts ;” (Emphasis ours)
Hon. Geo~ H. Sheppard, page 5 O-5922
You are, therefore, respectfully advised that it
is our view that Article 432 of Vernon's Penal Code, 1925,
is'not violated by the employment of the County Attorney's
son by the Commiss toners Court to collect State and county
taresunder'a contract authorized by Articles 7335 and 7335a
if he Is not related to any member of the Commlssloners
Court for the reasons heretofore stated, namely, the County
Attorney, the father of the Attorney thus employed by the
Commissloners Court, does not appoint, vote for, or confirm
the appointment, and hence does nothing In violation of said
Article 432 of the Penal Code.
And you are further advised that+tt.e Attorney
General and the Comptroller have no statutory duties to
perform in connection with the contract made by the City of
Glen Rose and the Glen Rose Independent School District for
the collection of delinquent taxes.
Yours very truly
ATTORNEYGENERALOF TEXAS
By s/L. P. Lollar
L. P. Lo7lar
Assistant
LPL:AMMrwc
APPROL'EDMARCH31, 1944
s/Gee- P. Blackburn
ATTORNEYGENERALOF TEXAS (acting)
Approved Opinion Commii~tee By s/BWB Chairman