Untitled Texas Attorney General Opinion

Honorable Stanley Timmins
County Attorney
Marshall, Texas
Dear Sir: OpitiionNo. O-209
Re: Validity of delinquent
Tax Contract
This offloe is~in receipt of your letters of
January 30th and February 4th, outlining certain facts and
&questing an opinion in response to certain questions
which will sufficiently appear below.
Article.7335, Revised Civil Statutes, reads as
follows:
"Whenever the commissioners courtsof any ccuntg
after.thirty days written notice to the county attorney
or district attorney'to file delinquent tax suits and.
his failure to do'so, shall deem it necessary or ex-
pedient, said court may contract.with any competent
attorney to enforee or assist in the enforcement of the
c~ollectionof any deiinquent State and county taxes for
a per cent on the taxes, penalty and interest actually
collected, and said court is further authorized to pay
for an abstract of property assessed or unknown and
unrendered from the taxes, interest and penalty to be
collected on such lands, but all such payment and
~expenses shall be contingent upon the collection of
such taxes, penalty and interest. It shall be the
duty of the county attorney, or of the district attorney,
where there is no county attorney, to actively'assist
any perscm with whom such contract is made, by filing
and pushing to a speedy conclusion all suits for col-
lection of delinquent taxes, under any contract made
as herein above specified; provided that where any
district or county attorney shall fail or refuse to file
and prosecute such suits in good faith, he shall not be
entitled to any fees therefrom, but such fees shall
nevershaless be collected'as a part of the costs of
suit and applied on the payment of the compensation
allowed the attorney prosecut$ng the suit, and the attor-
ney with whom such contract has been made is hereby fully
empowered and authorleed to,proceed in such suits without
Hon. Stanley TimmIns, February 10, 1939, Page 2, O-289
the joinder and assistance of said county or district
attorney."
Article 7335a, Revised Civil Statutes, provides:
"Sec. 1. NO contract shall be made or entered
into by the Commissioners1 Court in connection with
the collection of delinquent taxes where the compensa-
tion under such contract Is more than fifteen per cent
of the amount collected. Said contract must be
approved by both the Comptroller and the Attorney
General of the State of Texas, both as to substance
and form. Provided however the County or District
Attorney shall not receive any compensation for any
services he may render in connection with the per-
formance of the contract or the taxes collected
thereunder.
%ec. 2. Any contrac~tmade In violation of this
Act shall be void."
'_
The County Attorney of Harrison County waived the
notice to.which he was otherwise entitled under Article 7335.
However, that County Attorney was succeeded~by another man,
ldr;Stanley TImmins, on January 1,'1939, whopromptly advised
the Commissioners' Court that he would take care of all tsx
matters as.provIded by statute and stoutly maintains that it
is hIsrIght'to do so.
Since the date of the contract,the county has been
paying the contractor-co11ector``100.00 per month under the
contract, althoughneither the Comptroller nor the Attorney
General have approved the same as required by Article 7335a.
We are asked two~questlons, in effect, as follows:
(1) Is the contract betwe,enHarrison Comty and A. E. Shepher
valid? and, (2) are the monthly~payments to him authcrized
by law?
This Department has recently held that such contracts
can bevalidly made withattorneys only.
'In 14 Amerioan Jurisprudence, 210, the following IS
said:
II The members of a board of county commis-
sIoner~.``a~not,however, contract In reference to
mattera'which are personal to theirsuccessors. Thus,
a~contract by which a board of county commissioners
attempts to employ a legal adviser for a period of
three years, to commence three months in the future
and after the time ~for the election of a person to fill
Hon. Stanley Tlmmins, February 10, 1939, Page 3, O-289
the vacancy caused by the expirationof the term of
office of one member of~the board, the term of
employment extending over a period during which all
the members of the board as constituted at the time
of the contract will retire therefrom unless re-
elected, is against public policy . . :'I
.This.geems to be the law In Texas, which Is expressed
in 11 Tex..Jur., 631, as follows:
"Ordinarily, contracts made by a commissioners*
court may not be repudiated merely because the person-
nel of the body has subsequently changed. It is only
where the employment by a commissioners' court is
personal and confidential, as inthe 0888 of an attorney,
that It is held that one commissioners' court has no
power to bFnd its successors.s
This last quoted.statement is based,on the only Texas
case on the subject, the case of Gulf Bitulithic Co. v. Nueces
County, 11 S.W. (2d) 305,,which says:
"It Is only where the employment by'a commis-
sioners' court Is personal and confidential, as In
the case of an attorney, that It is held that one
commissionersr court cannot bind its successors.s
The court decisions in most of the other states that
we have found hold that one commissioners' court cannot bind
Its successors on personal contracts. Coffey County v. Smith,
50 Kan. 350, 32 P. 30 (employment of county printer);
Franklin County v. Ranck, 9 Ohio C.C. 301 (employment-of court-
house janitor); Milliken v. Edgar County, 142 111. 528, 32 N.E.
493 (employment of poorhouse superintendent); Board of
Commissioners v. Taylor, 123 Ind. 148, 23 N;E. 752 (employment
of attorney); and Willett v. Calhoun County, ZL7 Ala. 687,
117 So. 311 (employment of attorney).
A tax collector-attorney would need tact, patience
and diligence, and a commissioners' court would have every
Incentive to want a man with those qualities, In short,
each commissioners' court should be entitled to make its own
contracts touching on the matter.
Furthermore, the newly elected County Attorney has
rights which we do not believe can be overlooked.
Article 7332, Revised Statutes, provides for the
county attorney torepresent the State and county In suits for
delinquent taxes and provides fees for such services.
The county attorney was elected with the understanding
Hon. Stanley Timmins, February 10, 1939, Page 4, O-289
that the ~above would be a part of his duties and that he would
be paid for performing the same. We do not believe a closing
adm-bistration of a commissioners' court, based upon a waiver
signed by an outgoing county attorney, can deprive the Incomin:
county attorney of these valuable rights. Also, we do not
believe the County can be thus deprived of any change of having
the newly elected county attorney perform these services at
less cost than the attorney-contractor wI11 perform the same.
It has been held that until such contracts have been
approved by both the Comptroller and the Attorney General
they are void. Sylvan Sanders Co. vs. Scurry County, 77 S.W.
(2nd) 709; Essterwood vs. Henderson County, 62 S.W. (2nd) 65;
White vs. McGill, 109 S.W. (2nd) 1102, 114 S.W. (2nd) 860.
Hence, there has existed no contract between
Harrison County and Mr. Shepherd.
Both questions are answered in the negative.
The contract has not yet reached this office, but It
necessarily follows from the above that we would be forced to
withhold our approval.
Yours very truly
ATTORNEY GENERAL OF TEXAS
BY
Glenn R. Lewis
hssistant
GRL:N-cg
APPROVED
ATTORNEY GENERAL OF TEXAS