                              October   0, 1949


Hon. James H, Moore                     Opinion   No. V-924.
County Attorney
Angelina County                         Re:   The inclusion of a percentage
Lufkin, Texas                                 of the taxes collected,  in ad-
                                              dition to penalties  and inter-
                                              est, in the compensation    of a
                                              delinquent tax collection attor -
                                              ney.

Dear   Mr.   Moore:

               You request    the opinion of this office upon the question
presented    in your letter   of September   5, 1949, as follows:

              “On the 9th day of August,  1948, the Commission-
       ers’ Court of Angelina County entered into a delinquent
       tax collection contract with E, G. Aycock,   calling for
       compensation   in the amount of 15% of the amount of
       taxes, penalty and interest collected,  and executed on
       the forms prescribed   by the Comptroller’s   Department
       which was thereafter   approved by that department    and
       by your department.

              ‘Now the question has arisen as to whether or not
       the tax attorney is entitled to fifteen per cent of the a-
       mount of taxes, penalty and interest collected under the
       contract, or whether he is only entitled to the penalty
       and interest collected.   Stated in another way, our ques-
       tion is this:

               “Is the compensation of a delinquent tax attorney
       with a contract calling for 15% of the taxes, penalty and
       interest collected, limited in his compensation   to the a-
       mount of penalty and interest collected,    or may the tax
       attorney collect the full amount of 15% of all taxes, pen-
       alty and interest collected? *

              The answer to your question         involves   the construction
of the following  statutory provisions:

              Article 7335: “‘Whenever the commissioners
       court of any county ~ . ~ shall deem it necessary or ex-
       pedient, said court may contract with any competent
Hon. James   H. Moore,    Page   2 (V-924)




      attorney to enforce . . ~ the collection    of any delinquent
      State and county taxer for a per cent on the taxes, pen-
      alty and interest actually collected,    . . . but all such
      payment and expenses     shall be contingent upon the col-
      lection of such taxes, penalty and interest . . .Y‘

             Article 7335a: “Sec. 1. No contract still be made
      or entered into by the Commissioners’      Court in connec-
      tion with the collection of delinquent taxes where the com-
      pensation under such contract is more than fifteen per
      cent of the amount collected,    Said contract must be ap-
      proved by both the Comptroller     and the Attorney General
      of the State of Texas, both as to substance and form. . ..*

             Article  7264a: “Sec. 2. Cost of collecting delin-
      quent taxes shall not exceed the amount bf the penalty
      and interest.  or an amount equal to such penal      and
      interest of all delinquent taxes collected , . . .ty

              Were it not for the apparent conflict between Section 2
of Article  7264a, V.C.S., and Articles      7335 and 7335a. V.C.S., quoted
above, as to the maximum       compensation    for collection of delinquent
taxes, the answer to your question woufd be simple.          Article   7335
authorizes   the commissioners’     court to contract with a qualified      at-
torney ‘for a per cant on the taxes, penalty and interest         actually
collected.”   Article  7335a is mxydtation               upon the power of
the court in fixing the compensation      of the attorney employed under
a contract  authorized   br Article   7335. This limitation was deemed
necessary   by the Legislature    to correct   abuses that had grown up
under the unlimited authority of Article       7335. White v. McGill,      13 1
Tex. 231, 114 S.W.2d 860 (1938).

             The court In Morrison    v. Lane, 157 S.W.2d 466 (Tex.
Civ. App. 1941), considered  this apparent    conflict and held in effect
that Article  7264a was not a limitation upon the authority of the Com-
missioners’   Court to’make a delinquent tax contract under the ex-
press terms of Articles   7335 and 733Sa. The court said;

               “Section 2 of Article   72b4a is nothing more than
       a provision    to the effect that the cost of collecting   de-
       linquent taxes shall not exceed the amount of penalty
       and interest,    or an amount equal to such penalty and
       interest of all delinquent taxes collected,      that is, Art.
       7264a empowered       the Commissioners’      Court to make
       a contract on the conditions therein stipulated, and no
       contention is made that when executed the contract was
       in violation of law.     There is nothing in these artkles
       to the effect that the attorney employed to collect de&-
       quent taxes shfi.i.e     paid only from   the interest and pen-
       altv due on delinauent taxes: had this been the intent Of
                                              ,;   (.




Hon. James    H. Moore,   Page   3 (V-924)




      the Legislature,  it would not have been provided by
      Article  7335 that the attorney could be paid ‘a per
      cent on the taxes.’ n

              We think that any question as to the conflict between
Article   7264a and Articles  7335 and 7335a is dispelled by Section
4 of Article   7264a which provides:

              “This Act is not intended to change any law now
      in effect regarding  the collection of delinquent taxes,
      but to be an aid to the officials in the discharge of their
      duties . . .*

Article  7264a was enacted subsequent to Articles        7335 and 7335a.
By the express    language of the latter article,   the Legislature   made
it clear that it did not intend to change any law then in effect in re-
gard to the collection of delinquent taxes.     It declared   tbat the pur-
pose of the Act was merely an aid to the officials       in the discharge
of their ‘duties in the collection of delinquent taxes.     We therefore
conclude that there is no conflict between Article        7264s and Arti-
cles 7335 and 7335a.

              The case of Morrison     v. Lane, supra, constitutes suf-
ficient authority for the conclusion that a delinquent tax contract
made in accordance      with the provisions   of Articles   7335 and 7335a
may provide compensation       for a percentage    of the taxes, penalty,
and interest,   all combined, provided said contract does not exceed
15% of such taxes, penalty, and interest,      if it has the approval of
the Comptroller     and the Attorney General.

              The Commission   of Appeals in Bell       v. Mansfield Indc
School District,  123 Tex. 403, 129 S.W.2d 6m)               supports this
conclusion by the following language:

               ‘By Artike 7335, R.S. 1925, the commissioners
       court of any county ir authorized    to contract With any
       competent attorney    to assist in the collection   of state
       and county taxes for a per cent of the taxe8, pena!ty
       and interest actually collected,    By an Act of the 41rt
       Legislature,   1930, 4th Called Serrion,   p, 9, ch. 8, this
       right of contract was restricted    and limited to not more
       than fifteen per cent of the amount collected and the con-
       tract was required    to be apprwed    by the Comptroller
       and Attorney General.      This last act appears   in Vern-
       on’s Civil Statutes as Article    7335a. It is thus neen that,
       when the contract in ruit was executed a contract        for
       the payment of fifteen per cent of the amount collected
       for the services   of an attorney in collecting   state and
       county taxes was authorized.”
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                                                                           .



Hon. James   H. Moore,   Page   4 (V-924)




             It is apparent from the foregoing   and we are of the opin-
ion that the commissioners’    court is authorized to make a delinquent
tax contract with an attorney and provide compensation     not to exceed
 15% of the amount of taxes, penalty, and interest and that Article
7264s does not operate to limit this compensation.

                                 SUMMARY

              The commissioners’    court is authorized  under
      Articles   7335 and 7335a, V.C.S., to contract with a
      qualified attorney for the collection of delinquent taxes
      for a compensation not to exceed 15% of the taxes, pen-
      alty, and interest collected,  and this compensation    is
      not limited by the provisions   of Article  7264a to the
      penalty and interest on delinquent taxes or an amount
      equivalent to the penalty and interest.

                                              Yours   very   truly

                                    ATTORNEYGENERALOFTEXAS




                                     BY



LPL/mwb




                                     FIRST ASSISTANT
                                     ATTORNEYGENERAL
