Honorable Robert S. Calvert         Opinion No. 'M-808
Comptrollerof Pub1.icAccounts
State of Texas                      Re: Whether Waiver Qf
Austin, Texas                           notice and rights
                                        to file tax suits
                                        by county attorney
                                        in connection with
                                        tax contract let
                                        to another.attorney,
                                        operated as a waiver
                                        of such rights as
                                        to any such'contract
Dear Mr. Calvert:                       made in the future.
     Your letter of date February 25, 1971, is quoted In full
as follows:
              "On January 1, 1969 a contract for the
         collection of delinquent ad valorem taxes
         was awarded to an attorney by the Commissioners
         Court of Hardin County. The duration of the
         contract was for the t,woyear period beginning
         January 1, 1969 and extending through December
         31, 1970, and was approved by the Attorney
         General and Comptrolleras required by Article
         7335a, V.A.C.S. The contract contained a
         waiver from the County Attorney with regard
         to the x0-day notice required by Article 7335.
             "At the termination of the above mentioned
         contract, a new contract was awarded to a
         different attorney and the same County Attorney
         has refused to grant a waiver of his rights,
         in this instance, holding himself out as
         ready and willing to file and prosecute delinquent
         tax suits to a conclusion. However, the
         Hardin County Judge contends that a new waiver
         is not necessary, inasmuch as the County
         Attorney had signed a waiver some two years
         earlier in connectionwith the prior contract.



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Honorable Robert S. Calvert, page 2   (M-808)


             'Your official opinion is respectfully
         requested whether the new contract should be
         approved, as provided by Article 7335a, in
         view of the County Attorney's refusal to
         waive the necessity of the x0-day notice as
         required by Article 7335.”
     Article 7335, Vernon's Civil Statutes of Texas, in its
relevant portion, reads as follows:
              "Wheneverthe Commissionerscourt of any
         county 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 expedient,
         said court may contract with any competent
         attorney to enforce or assist in the enforcement
         of the collection of any delinquent State and
         county taxes for a per cent on the taxes,
         penalty and interest actually collected, ..."
     Article 7335a, Vernon's Civil Statutes of Texas, In its
relevant portion, reads as follows:
               "Section 1. No contract shall be made or
          entered into by the Commissioners'Court In
          connection with the collection of delinquent
          taxes where the compensationunder such contract
          is more than fifteen per cent of the amount
          collected. Said contract must be approved by
          both the Comptrollerand the Attorney General
          of the State of Texas, both as to substance
          and form. ...
              'Section 2. Any contract made in violation
          of this Act shall be void." (Acts 1930, 4lst
          Leg. 4th C.S. p. 9 ch. 8.).
     It is readily apparent that the notice required in Article
7335 to be given to the county or district attorney is merely
one prerequisiteto the letting of a tax collectioncontract
Fanother attorney. Before the CommissionersCourt is
authorized to enter into such contract another statutory
prerequisitemust exist; namely, the famr        refusal of
such county or district attorney to file such tax suits.




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    Honorable Robert S. Calvert, page 3   (M-808)


    This failure or refusal may be manifested by words or acts.
    His mere assent to the letting of a contract for such
    services can operate as a waiver of this statutory thirty
    dass notice to him, and of his riaht to file and orosecute
    such delinquenttai suits during zhe term of such-contract.
                          96 S. W. 2d 537 (Tex.Civ.App.1936,
                             Earnest,34 S.W.2d 685 (Tex. Clv.
                                     it should be oolnted out
         that the waiver executed by the county atiorney of
    Hardln County In respect to the notice prerequisite of the
    January 1, 1969, contract, was a waiver of the required
    written notice and, as well, an assent to the letting
    of that contract for the enforcement of collection of
    delinquent State and County taxes to another attorney.
         The problem raised by the present refusal of such
    county attorney to waive the thirty days written notice
    and his right to file and prosecute tax suits in respect
    to the period covered by the proposed new contract with an
    attorney other than the one contracted with in the expired
    contract, can be resolved only by the determinationof this
    question: did the subordinationby the County Attorney of
    his rights to file tax suits to another attorney during
    the life of the first contract operate as a continuing
    surrender of such rights under any other such contract
    made during his tenure of such office?
         It can hardly be disputed that Article 7335 requires
    notice and failure or refusal of the county or district
    attorney to act in response thereto, each time such a
    contract Is entered into. FUrthermore,oxve       his
    rights the county or.distrlctattorney must be In oossession
    of-knowledgeof all the material facts concerning khe right
    or privilege that he is to relinquish. Maanolia Petroleum
    Co. v. Butler,86 S.W.2d 258 (Tex.Clv.App.1935,error dism.).
    nus, in regard to a certain contract proposed to be entered
    into with a-certain attorney for a definite period of
    time, it Is reasonable that his waiver was motivated only
    by such facts then known by the county or district attorney
    and not by unknown future contracts with other attorneys
    and for different periods of time. In 60 Tex. Jur.2d 186,
    Walver,Sec.5,It is said:
             "To constitute a waiver, the right or privilege
             alleged to have been waived must have been in




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Honorable Robert S. Calvert, page 4   (M-808)


     It has been held that a waiver operates in praesenti
and when intended to operate in futuro, it is merely an
agreement to waive which re       consideration. Roberts
v. Griffith,207 S.W.2d 443 Tex.Civ.App.1948,error ref.
n.r.e.) WIg find no indicationIn the wording of the
waiver.of the 1969 contract that any right accruing to the
county.attorneyof Hardin County after the expiration
of such contract was intended to be waived, neither do
we find any considerationfor any such future relinquishment
of rights by the county attorney.
     Hence, in view of the foregoinn, it seems clear that
the waiver of the county attorney of Hardin County contained
in the tax contract of January 1, 1969, and the consequent
surrender thereby of his rights and privileges to file and
prosecute delinquent tax suits during the term of such
contract, Is not effective as to the new contract now
under considerationby you, which was not in existence
at the time of such waiver and the facts and circumstances
thereof being completelyunknown to such county attorney
when he executed the waiver on the first contract.
     Therefore, it is the opinion of this office, based on
the facts herein discussed, that the contract now under
considerationshould not be approved for the reasons given
herein.
                       SUMMARY
              The waiver of written notice to file and
         prosecute delinquent tax suits, executed by a
         county or district attorney in connection with
         a contract letting such duties to another
         attorney and containing such county or district
         attorney's assent thereto, does not operate
         as to any other such contract thereaftermade
         with another attorney. Article 7335, V.C.S.,
         requires notice and failure or refusal of a
         county or district attorney to act in response
         thereto each time a contract of this nature
         is entered into.
              The contract in question for the collection
         of delinquent state and county taxes entered into




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    Honorable Robert S. Calvert, page 5      (M-808)


              by the CommissionersCourt with another attorney
              without notice to the County Attorney, in the
              absence of his failure or refusal to act, as
              required by Article 7335,V.C.S., should not
              be approved.
                                           Yours very truly,
                                           CRAWFORD C. MARTIN
                                           Attorney General of Texas


                                           BY:
                                                 First Assistant
    Prepared by R. L. Lattlmore
    Assistant Attorney General
    APPROVED:
    OPINION COMMITTEE
    Kerns Taylor, Chairman
    W. E. Allen, Co-Chairman
    Michael Stork
    Sally Phillips
    Harriet Burke
    Phil Warner
    MEADE F. GRIFFIN
    Staff Lena1 Assistant
    ALFRED Walker
    Executive Assistant




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