              OFFICE       OF    THE   ATTORNEY      GENERAL   OF   TEXAS
                                            AUSTIN




lioaonbla          &orge    8.    Wpjxrd
aaptrollm     of mblla              lioooaat8
Aast~ia, T8nr
I)ru       8s.rr


       .      :
flonorablo   Ooorga    H. Sheppard,      pa&    2




             Artiole    Ii388 ia   ia   part   en foI.lovsr

            “The State Treasurer shall rece3.w dally
     prom the head of each Dapartment, each of whom.
     1s spcclflc4lly      charged vlth the duty of naklng
     wge dally,      a dotailed    list of all psraons re-
     mlttlng money the 6totua of vhich is undetermined
     or vhioh is avaitlng       t;ho tine when it con final.-
     ly be taken into the Treasury,        . . . ” (Ezqhasis
     oars)
                                                       -
           ‘Article   705’p,   supra, would not be applicable      to
the taxi collector    of Brewster Couaty for tvo reasons1        i a)
he is not the head of any department of the State Covera-
Dent, and (b) the tax In question 1s an ad valorcm tax and
does not fall vithin the namad classlfications           la the stat-
ate,
             Article    4388 vhlch describes      the duty of the State
 Treasury in handling suspense accounts,           vould not be appll-
 cable for the reason that the tax colleotor            of Brevster Coun-
.ty, belae, a county offloer,       la not the head of 4 dewrtment
 of the State    of Texas.     It 1s true that the couuty tax col-
 lector la a State officer       to the extent that the La&lsl.ature
 of th& State of Texas hao delegated pover and authority               to
 hln id his capacity as counts tax collector            to collect    taxes,
 liceaae feen, bto.,      due the State OS Texas from the taxpayer,
 and remit suah taxes, fees, etc.,        to the respective        heads of
 the departments after they have been collected.              Hence, 1~
 the absence of any legislative        authority,     and there ie none,
 tho tax collector      of L)revster County is vlthout authorlty
 to keep the taxes mentioned in your letter            la any suspense
 fUn6,  but on the contrary,       lt 1s his duty to remit such taxes
 rhea collected      by bin to tho proper authorities        under the
 Provlsloas   of Artlales     7260 and 7261, R.C.S.,       1925.

           By complying with the terms of Article    7260 and
 7261, supra, the tax collector   of Dravster County vould ln-
 Cur no personal llablllty   since this very issue vas decided
 by the Supreme Court of Tcxaa in the case of Continental Lend
 aad Cattle Company v, Board, Tax Collector,    et al., 80 Tex.
 489, 16 S.tJ. 312, vhereln Judge Staytoo bald in part as fol-
 lower
.   .




        Bonorable George 11. Sheppard,       page 3,


                    w. . . $he rule up& thLo subject is thus
             alearly     stated:     *In general,      any oSSicer whose
             duties are merely mlnlsterlal,             and to vhom pro-
             cesa is issued which 1s apparontlg               la due form    ,
             of lav, and which neither la lts recitals               nor
             lo lta omissions apprises him that it 1s issued
             vlthout legal right,         vi11 be protected       in serv-
             lng it, even though in fact it was issued vlth-
             out authority       of law.     This 1s a rule not only
             ossentlal      to the proteotlon       of su~offiaers,
             but absolutely       required also for the due dls-
             patch of pub110 buslness.            . . . Appellant could
             not have been compelled to pay the illegal                tax
             if he had used the means to prevent its collec-
             tion vhlch the law gave hiram,but, having paid
             It to 85 officer       holding process vhlah aommaud-
             ed him to colleat        it, he cannot nov look to
             that offloer      for reimbursement.         . ..I
                   The doctrine above enunciated has bceu afffmed
        la the cas8 of Texas Lend and Cattle Company v. Xemphlll
        County (01~. App.), 61 3.X. 333, the court held ia part as
        follow 8 t
                    w. . . This llmltatlon,   hovever, and vhlah
             1s here urged, seems to have been expressly         re-
             pudiated by the Board Case, as will be seen from
             tha criticism     therein ma&e of the ‘case of Uardus-
             ty v. Fleming, 57 Tex, 3991 to which might be
             added that, after the collection,       the collector
             1s required by the lav, under penalties,        to make
             oolleotion,    and promptly report and remit all
             taxes collected     by him to the state and county
             treasurers,    vlthout excepting   cases in which
             suits, hovever promptly filed,       ma% be lnstltut-
             ed for the recovery thereof.        ...

                  Bence the tax collector   of ,&evster  County may be
        raised that it 1s his duty to remit the taxes collected     by
        hln to the proper authorities   under Articles  7260 end 7261,
        *Wa, an& that .he ~111 not incur any personal liability     by
        ‘0 6Olng.
                 Slate the aature of the protest made by the tax-
        ~Ysr at the time of the payment of the taxes lo question
~~~~~~rablo George II.' Sheppard,   pagd 4



ia not ~lwon, this opinion does not paes upon the queotlon            .
a~ t3 whether 02 not such payw+   was vo)uatorg or invol,un-
tcT*
           ..    .                           Very truly   yours5
            .



                                         w
                                                   C. li; Rlchnrde
                                                          Aemlstant
