                THE            ATTBRNJZY   GENERAL
                                  OF TEXAS




                                           June 26,   1974



The Honorable   Richard            E.   Bowers               Opinion   No.   H-   335
County Attorney
County of Brewster                                           Re: Basis upon which       the attorney’s
Alpine, Texas 79830                                          fees provided   by Art.     7332, V. T. C. S.
                                                             are to be calculated.

Dear   Mr.   Bowers:

          Your opihion request requires      us to determine             the basis upon which
the Tattorney’s    fees for collection of delinquent   taxes,           provided   by Art. 7332,
V.T.C.S.,       are to be calculated.   Art.   7332 provides,             in part:

                      The Countv or”District  Attornev     shall represent
                  the state and county in all suits against delinquent
                  taxpayers,  and all sums collected     shaKbe    paid over
                  immediately   to the County Collector.

                       .   .   .   .


                       In all cases,   the compensation   of said. attorney
                  shall be such reasonable      attorneys fees as may be
                  incurred    not exceeding   ten per cent (10%) of the
                  amount sued for.

Under Art.    733.3, V. T. C.S.,   the attorney’s   fees set under Art.    7332 are to
be recovered    from the delinquent     taxpayer  as court costs for the benefit of
the county.    The district  attorney    and county attorney    are not personally
entitled  to such fe’es because they are compensated         on a salary basis.    Banks
v. State,   362 S. W. 2d 155 (Tex.     Civ. App.,    Austin,  1962, error   ref’d n. r. e. ).




                                           po 1546
The   Honorable     Richard    E.   Bowers      page   2    (H-335)




Also see, Attorney        General    Opinions    G-6400     (1945); V-601    (1948) and
WW-675   (1959).

          Your question      arises   from the situation where an independent            school
district   represented     by a private attorney,     files suit for the collection        of
delinquent     school taxes,     and, subsequently,     the state and county enter the
suit in order to urge their claims for delinquent             taxes against the defendant.
Other taxing entities       such as a city or local water district          may also intervene
in the suit. There is usually a wide variation            in the amount sought by each
taxing entity.       You ask whether in this situation the county or district
attorney’s     fee provided     by Art. 7332 is to be assessed         on the basis of the
amount sued for by the independent           school district      which initiated    the action
or whether      instead it should be based only on the amount, oft the claims
entered by the state and county.          In other words,       if a school district    has
filed suit on a claim of. $l,OOD.in delinquent         s’choolltaxea;and      the, county     ‘, ‘:.
attorney    intervenes    with a claim of $100 in delinquent          county and state
taxes,    under Art.     7332 should the county attorney’s          maximum       ten per
cent fee by $100 or merely          $10.

          In resolving     this question it is important        to distinguish    between
delinquent      tax proceedings       brought on behalf of the state and county and
those initiated      by an independent       school district.      The latter are governed
by Art.    7343, V. T. C! S. ,whiCh ,permits an independent              school district    to
hire a private      attorney    to collect   delinquent   school taxes and to pay him as
much as fifteen per cent of the amount ultimately                 recovered.      Bell v.
Mansfield      Independent     School Dist. s 12~9 S. W. 2d 629 (Tex.          1939).    If a
private    attorney    is hired by a school district         his fees cannot be taxed as
court costs.       Arnold    v. Crockett     Independent    School Dist.,      389 S. W. 2d
608 (Tex. .Civ. App.,          Tyler,    1965), rev’d on other grounds,         404 S. W. 2d
27 (Tex.     1966).

          Art.    7332, on the other hand, directs the county or district       attorney
to represent      the state and county in all suits against delinquent     taxpayers    and
provi,des   that for such represemation      an attorney’s    fee not to exceed ten per
cent of the amount sued for is to be paid.         This fee is to be collected     from the
delinquent     taxpayer   as part of the court costs.    Art.   7333, V. T. C. S.




                                        p,   1547
The   Honorable   Richard   E., Bowers     page   3   (H-335)




         In construing    Art.  7332, this office has held that the attorney’s
fees provided    therein are intended as compensation         for services    rendered
and that when no services       are rendered    then no fee can be charged       or
allowed.    Attorney    General   Opinion O-1695 (1940).      This office has also
held that when a county or district      attorney   represents    both an independent
school district    as well as the state and county in a delinquent        tax proceeding
he is entitled to the fees prescribed      by Art. 7332 as to each taxing unit.
Attorney   General    Opinion V-742 (1948).

         These opinions       indicate   that the attorney’s  fee provided    for in Art.
7332 was originally       intended as compensation        and therefore   should be related
to the services     actually    rendered    by the county or district   attorney   on
behalf of his client.       This objective    is hdrdly served if the fee is based on an
amount sued for by another party to the suit not represented               by the county or
district  attorney.

          Thus in the situatEon you describe     it would~ be improper    under Art.
7332 to compute the county attorney’s       fee on the basis of the amount sought
by an independent    school district  not actually     represented  by the county
attorney,    When the county or district     attorney    represents  only the state
and county in a delinquent    tax proceedin,g,     his fee should be computed     on
the basis of the amount sought by those entities.           That amount is “the
amount sued for” as contemplated       in Art.    7332.

                                    SUMMARY

                       The attorney’s      fees provided     in Art.  7332 are
                  intended to reflect      services    rendered    and are to be
                  calculated     on the basis of the amount sued for by the
                  taxing entities     actually   represented    by the county or
                  district   attorney.




                                                      Attorney   General   of Texas




                                    p.   1548
The   Honorable   Richard   E.   Bowers   page 4   (H-335)




                                 o,q
DAVID M. KENDALL,           Chairman
Opinion Committee




                                     pq 1549
