                                  AUS-ETN an. ?iXx~as



                                December   16. 1948


Hon. D. Richard Voges                      Opinion No. V-742
County Attorney
Wilson County                              Re: The legality of the County At-
Floresville, Texas                             torney’s  acting as delinquent
                                               tax attorney for a city or an
                                               independent school district
Dear    Mr.     Voges:                         within the county.

               Your   reque$t    for an opinion reads:

            “Will you please advise me whether or not a
       County Attorney who is filing delinquent tax suits
       on behalf of the State and County is authorized:

               “(1) To enter into a contract with an incorpo-
       rated     City within the County, and

              “(2) To enter into a contract with an Independ-
       ent School District within said County, which Inde-
       pendent School District has been assessing     its own
       taxes.

            “And to provide,in  such contract for a payment
       of a percentage  of the delinquent taxes collected.

               “The fact situation     is this:

             “I am filing tax suits for the collection  of de-
       linquent taxes for the State and County.      The Flores-
       ville Independent School District,   which district col-
       lects its own taxes, and the City of Floresville     has
       offered to make a contract with me as an outside
       Attorney to collect its delinquent taxes, paying me
       therefor 15% of the amount of delinquent taxes col-
       lected.

            “Under Article 2791, I am of the opinion that it
       would be my duty to represent   the School District
       without any compensation  therefor.”

          Your questions are answered in the case of Bell v. Mans-
field Independent School District, 133 Tex. 403, 129 S.W.(Zd) 629,
except the question of whether or not you may contract with the
                                                                               ‘--


Ho*. D. Richard      Voges,   Page 2 (V-742)



city of Floresville to represent it in the collection of delinquent
taxes for a percentage   of the delinquent taxes collected.

         Article 7343, V.C.S.,  is in part pertinent to the questions
you present.   The portions of that Article material here are as
follows:
            Y
             . . . When twenty days from the date of last pub-
     lication of said list or lists of delinquents has elapsed,
     the governing body of the city or town may direct the
     city attorney to file suits for collection    of said taxes,
     or said governing body may employ some other attor-
     ney of the county to file suits and the city attorney or
     other attorney filing said suits shall be entitled to the
     same fees as allowed the county attorney or district
     attorney in suits for collection of State and county
     taxes, to be taxed as costs in the suit. Independent
     school districts    may collect their delinquent taxes as
     above provided for cities and towns, the school board
     performing     the duties above described for the govern-
     ing body of cities, and the president of the school
     board performing      the duties above prescribed     for the
     mayor or other presiding officer.        The school board
     may, when,the delinquent tax lists and records are
     properly prepared and ready for suits to be filed, in-
     struct the county attorney to file said suits.      If the
     school board instructs the county attorney to file
     said suits and he fails or refuses to do so within
     sixty days the school board may employ some other
     attorney of the county to file suit.     The county attor-
     ney, or other attorney, filing tax suits for independ-
     ent school districts,    shall be entitled to the same fees
     as provided by law in suits for State and county taxes.
      . . .

           “All laws of this State for the purpose of collect-
     ing delinquent State and county taxes are by this law
     made available     for, and when invoked shall be applied
     to, the collection   of delinquent taxes of cities and towns
     and independent school districts     in so far as such laws
     are applicable.”

           It is quite    clear from the part of Article 7343 quoted above
and here repeated        for clarity, that you are expressly  authorized by
statute to represent        an independent school district in delinquent tax
suits, if the board      of trustees of such independent school district
requests you to do        so. This part of the statute is as follows:

             “The school    board may, when the delinquent tax
     lists    and records    are properly prepared and ready
Hon. D. Richard   Voges,   Page   3 (V-742)



    for suits to be filed, instruct   the county attorney   to
    file said suits.”   (Emphasis     ours)

           You are also authorized to perform this service for inde-
pendent school districts     located within your county, but not located
within an incorporated     city or town, under, the terms of Article
2791, V.C.S.     As to independent school districts     located within the
boundaries    of an incorporated    city or town, this duty seems to de-
volve upon the city attorney by the provisions       of Article 2791. But
we do not perceive that otherwise the duties of the county or dis-
trict attorney as prescribed      in Article  7343 have been changed by
this Article.

          Your duty in this regard arises under express      statutory
authority and not by virtue of a contract with the independent school
district.  If you, as county attorney, should fail or refuse to repre-
sent the independent school district,   the board of trustees   may, aft-
er sixty days, employ some other attorney of the county to represent
it; If, however, you should elect to follow the instructions     of the
board of trustees in the collections of such delinquent taxes for an
independent school district,   you are entitled to the same fees as in
suits for state and county taxes.    The fees are set out in Article
7332, V.C.S.,   with which you are familiar.

          You may not receive any compensation    in excess of this
from an independent school district,  for as said by Judge Hickman
in the case of Bell v. Mansfield Independent School District,  supra:

          “Cities may lawfully contract to pay only the fees
    allowed county attorneys or district attorneys,    which
    tees, as above noted, are nominal, and are taxed as
    costs in the suit. Independent school districts    may
    lawfully contract to pay the fees provided by law in
    suits for state and county taxes.  The question thus
    narrowed down is, what fees are provided by law in
    suits for state and county taxes?   If such suits are
    brought only by county attorneys   or district attorneys,
    &en, ot course, the fees are the same as those which
    cities may lawfully contract to pay.”    (Emphasis   ours)

           If you represent   an independent school district in your
county in the collection    of its delinquent taxes, you are not requir-
ed to represent    it without compensation     as your request implies,
but would be entitled to receive the same fees from the district
as from the State and County.        In other words, you would be en-
titled to the fees prescribed     in Article  7332 from the State and
County and also from the independent school district if you rep-
resented all in the same suit. If this is not expressly       authorized
by Article 7343, it is clearly implied in the language:        u Shall be
entitled to the same fees as provided by law in suits for State and
county taxes.”
Hon. D. Richard      Voges,   Page 4 (V-742)



          Insofar as Opinion O-1692      heretofore  rendered by a for-
mer administration     is inconsistent   with this opinion, the same is
expressly   overruled.

          We take note of the fact that Wilson County has a population
of less than 20,000 according to the last preceding federal census;
and according~to the records of the Comptroller’s    office, the Com-
missioners’   Court of said county has elected to operate upon a fee
basis in compensating   its county officers instead of a salary basis,
and this opinion is written upon that premise.

           We next consider specifically  your authority to represent
the city of Floresville  under a contract for the collection  of delin-
quent taxes upon a percentage    basis of 15% of the delinquent taxes
collected.

          It has been decided by our Supreme Court in two cases
that a city incorporated  under the general law (as we assume is
the case for the city of Floresville, since its population is less
than 5,000) does not have the authority to make such contracts.
The first case is City of Houston v. Dabney, 132 Tex. 96, 120 S.W.            ’
(2d) 436, from which we quote:

              “The governing body of the City of South Houston
        had no authority to bind the city to allow Dabney, as
        compensation    for his services,  a percentage of the
        taxes, penalties or interest recovered,      In consequence
        of lack of authority in such governing body to bind the
        city in this respect,  no contraktual  relation arose be-
        tween Dabney and the city from the terms of the agree-
        ment. ”

          The second case is Bell v. Mansfield        Independent School
District, supra.  In this latter case the Court,      speaking of that pro-
vision of Article 7343, which is a6 follows:

              “All laws of this States for the purpose of collect-
        ing delinquent State and county taxes are by this law
        made available for, and when invoked shall be applied
        to, the collection  of delinquent taxes of cities and towns
        and independent school districts     in so far as such laws
        are applicable,”

held:

             “In the Dabney case we recognized     that, stand-
        ing alone, the sentence last above quoted is sufficiently
        broad in its language to embrace any authority provid-
        ed by any other statute for the employment      asid com-
        pensation of an attorney for the collection   of delinquent
                                                                     i
Hon. D. Richard   Voges,   Page   5 (V-742)




     state and county taxes.     But, construing   that language
    ‘in connection with, and in the light of, the specific pro-
     visions of the same article with reference       to the com-
     pensation for such services,      it was held that the spe-
     cific provisions   of the article limited the compensation
     to be paid for the collection    of delinquent taxes due a
     city to that allowed the county attorney or distritt      at-
     torney, which compensation       is fixed by Article  7332,
     Vernon’s   Ann.Civ.St.   art. 7332, and limited in amount
     not, in any case, to exceed $5.       We here reaffirm that
     holding . . .”

           It is, therefore, our opinion that the city of Floresville
is not authorized    to make a contract with you for the collection
of its delinquent taxes upon a percentage     basis of the ,amount of .
delinquent taxes collected.




           The county or district attorney is authorized by
    statute to represent     an independent school district
    located within the county, but he may receive as com-
    pensation only the fees provided by Art. 7332, V.C.S.,
    for county and district attorneys in delinquent tax suits.
    If such county or district attorney represents      such in-
    dependent school district in a suit in which he also rep-
    resents the State and County, he is entitled to the fees
    prescribed     by Art. 7332 as to each taxing unit. A city
    incorporated     under the ~general law may not contract
    with the county or district attorney or any other attor-
    ney to collect its delinquent taxes upon a percentage,
    basis.    Bell v. Mansfield   Ind. School District, 133 Tex.
    403.. 129 S.W.(2d)    629; City of Houston v. Dabney, 132
    Tex. 96, 120 S.W.(Zd) 436; Art. 2791, ,V.C.S.; Art. 7332,
    V.C.S.;   Art. 7343, V.C.S.

                                              Yours   very truly

APPROVED:                          ATTORNEYGENERALOFTEXAS




                                    By         Qz1*
                                                Assistant
LPL/JCP
