                                 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
