Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
March 14, 1984
JIM MAllOX
Attorney General
Supfeme
courlSuItding Honorable Margaret Moore Opinion No. JM-135
P. 0. Box 12549 Travis County Attorney
Austin. TX. 7871% 2549 P. 0. Box 1748 Re: Whether a taxing unit other
5121475.2591 Austin. Texas 78767 than a county may Impose the
Telex 9101874.1367 penalty authorized by section
Telec~pler 51214750288
Honorable Jorge A. Solis 33.07 of the Tax Code, where
Criminal District Attorney such taxing Unit i8 under
714 Jackson. Sulle 790 Taylor County Courthouse contract with the county to
Dsllas. TX. 752924505 Abilene. Texas 79602 enforce delinquent tax collec-
2141742.S944
tsons and whether such charge
may be imposed when such taxing
4824 Alberta Ave.. Suite 150 unit is under contract with a
El Paso, TX. 799052793 city
91-
Dear ffs. Moore and Mr. Solie:
1991 Texas. Suite 790
Hourton, TX. 770929111 You inquire about the circumstances, under which a penalty
7lY22Mw5 authorized by section 33.07 of the Tax Code may be imposed by a taxing
unit. Ms. Moore asks the following question:
995 Broadway. Suits 312
Lubbock. TX. 79491.3479 IS it permissible for a taxing Unit other than a
Sw747.5239 county to iStpO8e the penalty as provided in
section 33.07 of the Tax Code to defray costs of
collection. if. such taxing unit is under contract
4399 N. Tenth. Suite S
McAllrn. TX. 78501.1685
with the Travis County Attorney to enforce the
512m52-4547 collection of that unit’s delinquent taxes?
~Tlr. Bolls aiks :-
299 )rl*hl Plam Suits w
San AnIonlo. TX. 7S295.2797
512@25.4191
Under the following facts, may the city of Abilene
or the Abilene Independent School District charge
the fifteen percent penalty on delinquent taxes
An Equal Oppoftunltyr purau8.M to section 33.07 of the Tax Code? Taxes
Afflrmatlve Action Employer for the city and the school are collected by the
Taylor County tax aaseseor-collector. Tbe city
and the school use the office of the city attorney
of Abilene to enforce the collection of delinquent
taxes.
Neither of you ha8 included copies of the contract8 at Issue for
our inspection. Therefore, we cauoot comment on the specific terms
and validity of any such contracta. Your questions could logically
arise In three different contexts. The question could arise, first,
p. 570
Honorable Margaret More
kIonorable Jorge A. Solis
Pati3 2 (``-135)
in connection with a contract between the county or city ettorney in
his capacity aa private attorney, and another taxing unit. Rovsver ,
it is unnecessary to discuss this situation, because it is clear from
the context of your questions that you are concerned vith contracts in
which a county or city attorney act8 in his official CapaCity.
Second, the question could arise in connection with a contract between
the county attorney or city attorney in his official capacity and
another taxing Unit. Third, the question could arise in connection
with a contract between a county or city and another taxing unit 1
executed pursuant to the Interlocal Cooperation Act, article
4413(32c), V.T.C.S. We shall address the latter two issues in turn.
We conclude that it is not permissible for a taxing unit other
than a county to impose the penalty if that unit has contracted
directly vith the county or city attorney in his official capacity.
In such an Instance each attorney lack8 the contractual capacity
necessary to enter into such a contract. We further conclude that
such a penalty may not be imposed by virtue of a contract properly
executed pursuant to the Interlocal Cooperation Act, article
4413(32c), V.T.C.S.
Section 33.07 of the Tax Code provide8 8s follows:
(a) A taxing unit or appraisal district may
provide, ia the manner required by law for
official action by the body, that taxes that
remain delinquent on July 1 of the year in which
they become delinquent incur sn additional penalty
to defray costs of collection, if the unit or
district or another unit that collects taxes for
the unit has contracted with an attorney pursuant
to Section 6.30 of this code. The amount of the
penalty may not exceed 15 percent of the amount of
taxes, penalty, and interest due.
G A tax lien attache8 to- tne property on ~-
which the tax is imposed to secure payment of the
penalty.
(c) If a penalty is imposed pursuant to this
section, a taxing unit may not recover attorney’s
fees in a suit to collect delinquent taxes subject
to the penalty.
(d) If a taxing unit or appraisal district
provide8 for a penalty under this section, the
collector shall deliver a notice of delinquency
and of the penalty to the property owner at least
30 and not more than 60 days before July 1.
(Emphasis added).
$. 571
!
Aonoreble Margaret Moore
Honorable Jorge A. Solis
Page 3 (.JM-135)
Before a section 33.07 penalty may be Imposed. a contract with an
attorney for delinquent tax collection services must first be executed
pursuant to section 6.30 of the code. The code permits such contracts
to be executed in two ways. First, section 6.30 provides that the
governing body of a taxing unit other than a county my determine who
represents the unit to enforce the collection of delinquent taxes and
nay contract with any competent attorney. Subsection (b) specifically
provide8 that, if a taxing unit collects taxes for another taxing I
urdt. the attorney representing the collecting unit nay also represent
the other unit with the consent of its governing body. Second,
section 6.24 providesthat an Interlocal Cooperation Act contract for
assessment and collection services nay additionally provide for the
collecting unit to contrsct with an attorney for the enforcement of
delinquent tsx collection, as provided by section 6.30 of the code.
We first shall discuss whether and under what circumstances a county
attorney or a city attorney nay enter directly into a section 6.30
contract. Then we shall turn to an examination of section 6.24 and
the Interlocal Cooperation Act.
We conclude that a county or city attorney may not in his
official capecity. enter into a section 6.30 contract. Section 6.30
of the Tax Code provide8 the following:
(a) The county attorney or, if there is no
county attorney, the district attorney shall
represent the state and county to enforce the
collection of delinquent taxes If the
commissioners court does not contract with a
private attorney as provided by Subsection (c) of
this section.
(c) The governing body of a taxing unit ma=
contract with any competent attorney to represent
the unit to enforce the collection of delinquent
taxes. ha attOZXIaV’8 ComDensation is 88t in the
contract, but the -total imount of compensation
provided may not exceed 20 percent of the amount
of delinquent tax, penalty, and interest
collected.
(d) To be effective, a contract with an
attorney for the collection of state taxes must be
p. 572
. honorable Wargarct Woore
gonorable Jorge A. Solis
Page 4 0X-135)
approved by the State Property Tax Board and the
attorney general.
(e) A contract with an attorney that does not
conform to the requiraments of this rection is
void. (Emphasis added).
As we noted in Attorney General Opinion JW-14 (1983). in order to
impose the additional penalty, 8 taxing unit must contract with an :’
attorney pursuant to section 6.30 of the code. That opinion,
concluded that Harris County could not impose the additional penalty
when the Harris County Attorney represented his county in collecting
delinquent taxes, because the county lacks authority to contract with
it8 0”” attorney. The county attorney has a statutory duty to enforce
collection of delinquent stete and county taxes, and he may not
contract to receive extra compensation from the county for performing
hi8 statutory duty. See V.T.C.S. art. 336; gill Farm, Inc. v. RI11
County. 425 S.W.2d 414(Tex. Civ. App. - Waco 1968). aff’d 436 S.W.2d
320 (Tex. 1969); Jones V. Veltmann. 171 S.W. 287 (Tex.x App. - San
Antonio 1914, writ ref’d); Attorney General Opinions O-3656 (1941);
O-2610 (1940); O-864 (1939); -cf. Attorney General Opinion m-483
(1982).
Article 336, V.T.C.S., prohibits. inter alia, the county attorney
from receiving compensation to prosecute any case which he is required
by law to prosecute. In Lattimore v. Tarrant County, 124 S.W. 205.
207 (Tex. Civ. App. - 1909, no writ), the court construed article 336.
V.T.C.S., and declared the following:
[Tlhe commissioners’ court may lawfully employ the
county attorney to represent the interest of their
[sic] county in any cause where such duty is not
enjoined upon him by law. Browning v. Tarrant
County, 111 S.W. 748. In other words, [article
336, V.T.C.S.], which makes it unlawful for a
county attorney to accept any fee. article of
value, compensation, reward or gift, for the
prosecution of any case. or for services in any
case, applies only to cases where he ‘is required
by law to prosecute.’
In this instance, neither the county attorney nor the city attorney is
required by statute to enforce delinquent tax collections on behalf of
other taxing units. However, the absence of a statutorily imposed
duty does not amount to a grant of authority permitting either a
county attorney or a city attorney to enter directly and in his
official capacity into a section 6.30 contract.
Section 6.30(c) of the code provides that “[tlhe governing body
of a taxing unit may contract with any competent attorney to represent
the unit to enforce the collection of delinquent taxes.” (.Emphasis
p. 573
Honomblo MeruaretMoore
Honorable Jorge A. Solia
p*ee 5 (311-135)
added) . In thin instance, neither a county attorney nor a city
attorney has been granted the contrrctual capacity to enter into euch
a contract while acting in an official capacity. Generally, a public
officer has no authoritv to nerforw an act not authorized or reauired
of him by law. Duncan v. Skate. 67 S.W. 903 (Tex. Cfv. App. - -1902.
no writ).
All public offices and officers are creatures of
law. The powers and duties of public officers are
defined and Malted by law. By being defined and
limited bye .law. we mean the act of a public
officer must be expressly authorized by law, or
implied therefrom . . . . It follows from the
above that public officem may make only such
contracts for the government they represent as
they are authorized by law to make. (Emphasis
added).
Fort Worth Cavalry Club v. Sheppard, 83 S.W.2d 660, 663 (Tex. 1935).
A county attorney may exercise only that authority conferred upon him
by statute. See County of Wyd v. King, 454 SiW.2d 239 (Tex. Civ.
APP. - El Paso-70. writ dim d); Wexler v. State, 241 S.W. 231 (Tex.
P Civ. App. - Galveston 1922, no writ); Spencer v. Galveston County, 56
Tex . 384 (1882) ; Attorney General Opinions O-4301 (1942); O-1040
(1939). A city attorney possesses those powers conferred upon him by
statute or by city charter or ordinance. In this instance, there is
no statutory authority permitting either a county or city attorney
acting in his official capacity to enter into such a contract.
It has been suggested that the following sentence of section
6.30(b) of the code confers such authority: “If a taxing unit
collects taxes for another taxing unit, the attorney representing the
unit to enforce the collection of delinquent taxes may represent the
other unit with consent of its governing body.” We disagree. We
believe this language merely permits an attorney who represents .a
collecting taxing unit to also represent the unit for which taxes are
to be collected. It does not confer authority to also contract with
the unit for which taxes are to be collected. As we noted earlier, a
county attorney is authorized to represent his county in enforcing
delinquent tax collection, but he may not contract with hie own county
to perform such services. When a county contracts with .a taxing unit
to assess and collect taxes for it, the above-quoted sentence of
section 6.30(b) merely permite the county attorney to aleo represent
the taxing unit with the consent of that unit’s governing body.
We next address section 6.24, which permits any taxing unit
contracting under the Interlocal Cooperation Act for assessment snd
collection services to also contract for delinquent tax collection
services on the other unit’6 behalf. Section 6.24 of the Tax Code
provides the following:
p. 574
:- . .
Ronoreblc Margaret Hoore
ilonorable Jorge A. Solla
Page 6 (JM-135)
(a) The governing body of a taxing unit ocher
than a county may contract aa provided by the
Interlocal Cooperation Act with the governing body
of another unit or with the board of directors of
an appralaal district for the other unit or the
district to perform dutiee relating to the
assessment or collection of taxes.
(b) The commissioners court with the approval
of the county assessor-collector may contract as
provided by-the Interlocal Cooperation Act with
the governing body of another taxing unit in the
county or with the board of directors of the
appraisal dtstrict for the other unit or the
district to perform duties relating to the
assessment or collection of taxes for the county.
If a county contracts to have its ‘taxes assessed
and collected by another taxing unit or by the
appraisal district, the contract shall require the
other unit or the district to asses8 and collect
all taxes the county is required to assess and
collect.
(c) To be effective, a contract between a
county and another taxing unit or an appraisal
district for the assessment and collection of
state taxes must be approved by the State Property
Tax Board.
(d) A contract under this section may provlde
for the entity that collects taxes to contract
with an attorney, aa provided by Section 6.30 of
this code, for collection of delinquent taxes.
(Emphasis added).
The Interlocal Cooperation Act, article 4413(32c). V.T.C.S., is
merely intended to “improve the efficiency and effectiveness of local
governments by authorizing the fullest possible range of
intergovernmental contracting authority at the local level.” V.T.C.S.
art. 4413(32c). gl. As thla office declared In Attorney General
Opinion H-28 (1973) :
The Interlocal Cooperation Act only authorizes
local governments to contrect for another local
government to perform for it a service which all
the parties ‘are legally authorized to perform.’
V.T.C.S. art. 4413(32c), S4(b). See also Attorney. General Opinions
ldlf-347 (1981); R-1019, 1018 (1977); E-454, 392. 345, 279 (1974). The
very terms of section 6.24 permit an Interlocal Cooperation Act
contmct to proHde for the collecting entity to contract with an
p. 575
. . *.
Uonorable Harpret More
Honorable Jorge A. Solis
p*ge 7 (m-135)
attorney for the enforcement of delinquent tax collection. as provfded
by section 6.30 of the code. And as we have noted, section 6.30 does
not confer upon any public official the authority to enter into. in
* his official capacity. a contract for the enforcement of delinquent
tax collection. Accordingly, a taxing unit which contracts with a
City or county for the enforcement of delinquent tax collection may
not impose the additional penalty as authorized by section 33.07 of
the Tax Code when the county attorney or city attorney represents his .,
jurisdiction respectively in such matters.
SUMMARY
Neither a county attorney nor a city attorney
possesses the contractual capacity to enter into
contract for the enforcement of delinquent tax
collection, while acting in his official capacity.
No taxing unit which contracts with either a
county or a city for delinquent tax collection may
impose the additional penalty permitted by aectlon
33.07 of the Tax Code when the county attorney or
the city attorney represents the county or city,
respectively, in the enforcement of delinquent tax
collection.
, Very/z&
-
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jim Moelllnger
Assistant Attorney General
APPROVED:
OPINION COMMIlTEE
Rick Gilpln. Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
~Nancy Sutton
p. 576