            THE      ATTORNEY        GENERAL
                        OF   TEXAS


                        June 9, 1989




Honorable Mike Driscoll         opinion NO.    JM-1055
Harris County Attorney
1001 Preston, Suite 634         Re: Liability of a county tax
Houston, Texas 77002            assessor-collector for the loss
                                of public funds   (RQ-1608)

Dear Mr. Driscoll:

     You ask whether a county tax assessor-collector may be
relieved of personal liability for the loss of public  funds
if the commissioners court determines after an investigation
that the funds were lost without negligence.     You further
ask whether the county tax assessor-collector may be reim-
bursed for personal   funds used to replace lost funds upon
such official establishing that the loss is due to a reason
other than negligence.    We understand  you to refer to a
shortage of funds already collected by the county tax
assessor-collector, rather than to any failure on his, part
to collect a fee or commission that he is required by law to
collect.1

     Historically, Texas courts have enforced strictly the
obligation of a public officer to account for and pay over



     1. Section 154.009, Local Government Code, permits     a
commissioners court, after a hearing, to deduct the amount
of a fee or commission from the salary of any district,
county, or precinct    officer, if the commissioners    court
finds that that officer failed, through neglect, to collect
that fee or commission that the officer is required by law
to collect. Because you ask about a situation involving     a
loss of public   funds that have already been collected   and
were in the custody of the county tax assessor-collector,
rather than a situation    involving any alleged failure to
collect a     fee or    commission   that the   county    tax
assessor-collector   is required by law to collect,       any
reliance upon section 154.009, Local Government    Code, is
inapposite.




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Honorable Mike Driscoll - Page 2   (JM-1055)




to the proper custodian the public money that he receives.
See. e.a., Bexar Countv v. Linden, 220 S.W. 761 (Tex. 1920);
Poole v. Burnet Countv, 76 S.W. 425 (Tex. 1903); Attorney
General Opinions JM-517 (1986); H-360 (1974). An official,
or his surety, was not relieved of liability,    even in an
instance in which the money was stolen by robbers through no
fault of the official. See Coe v. Foree, 50 S.W. 616    (Tex.
Civ. App. 1899, writ ref'd). Section 6.275 of the Tax Code
constitutes an exception to this long-held rule.

     Section 6.275 of the Tax Code provides:

            A county assessor-collector is not person-
        ally liable for the loss of public funds in
        the custody of the assessor-collector or the
        assessor-collector's    office if a district
        court enters a declaratorv iudoment that the
        loss is due to a reason other than the neali-
        oence or misconduct of the assessor-collect-
        9E.   (Emphasis added.)

H.B. 95, Acts 1987, 70th Leg., 2d C.S., ch. 37, 5 1, at 125
[hereinafter H.B. No. 951. Section 2 of H.B. No. 95 further
provides:

           The addition by this Act of Section 6.275,
        Tax Code, relating to the release of a county
        assessor-collector   from liability   for the
        loss of funds, applies only to a loss of
        funds occurring   on or after the effective
        date of this. Act. Liabilitv for a loss of
        funds occurring before the effective date is
        governed bv the law in effect at the time    of
        the loss, and the former law is continued    in
        effect for this nuroose.   (Emphasis added.)

     The effective date of section 6.275, Tax Code, was
October 20, 1987. You do not indicate in your request    for
an opinion whether the loss of public funds occurred prior
to the effective date of the section. If such were the
case, of course, the county tax assessor-collector would not
be relieved of personal   liability by section 6.275.    For
purposes of this opinion, we assume that the loss of funds
occurred after the effective date of section      6.275, Tax
Code, and that section governs.

     As originally passed by the House, H.B. No. 95 provided
that a determination that the county tax assessor-collector
is not personally liable could be made by the commissioners
court upon a finding that the loss was due to a reason other




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Honorable Mike Driscoll - Page 3   (JM-1055)




than the negligence or misconduct of the assessor-collector.
However, the senate amended H.B. No. 95 to provide that such
a finding must be made by a district court pursuant to a
suit under the Uniform Declaratory Judgment Act, rather than
by a commissioners  court. As amended by the senate, H.B.
No. 95 was approved by the House and then passed by the
senate.

     You ask whether  a suit under the Uniform   Declaratory
Judgment Act must be filed in district court pursuant     to
section 6.275 of the Tax Code, even in a situation in which
the commissioners court agrees with the county tax assessor-
collector that the loss was not due to the county tax
assessor-collector's negligence. We conclude that, by the
clear terms of the section, such a suit must be filed,
regardless of whether the commissioners   court agrees that
the county tax assessor-collectoris  not negligent.

     You contend that, to construe section 6.275, Tax Code,
to require a hearing before a state district judge under the
Uniform Declaratory Judgment Act, would serve to circumvent
the evident intention of the legislature when it enacted the
section. You argue that the purpose of the Uniform    Declar-
atory Judgment Act is remedial and that it is inapplicable
in the event that there is no real dispute or controversy at
issue. See. e 4    F'     n's Ins. Co. v. Burch, 442 S.W.2d
331 (Tex. 1968i;'&al~~~%a    Products. Inc. v. Puretex Lemon
Juice, Inc., 334 S.W.2d 780    (Tex. 1960). You assert that,
in an     instance  in    which neither     the  county   tax
assessor-collector nor the commissioners court disagrees   as
to whether the county tax assessor-collector was negligent,
there is no dispute in controversy:

        If it is uncontroverted  that the county tax
        assessor-collector  was not negligent,     no
        purpose is served by seeking a declaratory
        judgment in district court.    An action for
        declaratory judgment would lie when a real
        controversy has arisen and an effective   and
        speedy remedy is sought to determine      the
        rights of parties; without a real contro-
        versy , review by the district court would
        serve no purpose.    In situations where the
        commissioners court has determined that the
        loss was not due to negligence, and is there-
        fore in agreement with the Tax Assessor-
        Collector, are the parties required to file a
        suit in the District Court and expend tax
        dollars to litigate an undisputed matter?
        Section 6.275 should be given a reasonable



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Honorable Mike Driscoll - Page 4   (JM-1055)




        construction and not one which would require
        the performance of a useless act and a waste
        of taxpayers' money.   In the event that the
        commissioners  court    determines that    the
        county tax assessor-collector was negligent,
        the tax assessor-collector     may choose to
        either accept the decision of the commission-
        ers court or bring a declaratory      judgment
        action pursuant to Section 6.275.   [Citations
        omitted.]

We disagree with your assertion for two reasons.

     Commissioners courts have no power or duties     except
those that are clearly s,et forth and defined by the Texas
Constitution and the state statutes. Canales v. Laughlin,
214 S.W.2d 451   (Tex. 1948); Anderson v. Wood, 152 S.W.2d
1084 (Tex. 1941). We have found no provision, either in the
Texas Constitution   or in the statutes, that purports    to
authorize a commissioners court to decide as a threshold
matter whether a loss of public funds in the custody of the
county tax assessor-collector  is due to the negligence   of
that official or whether it is due to some other cause.

     Section 113.006 of the Local Government    Code and its
predecessor   statutes relieve the county tax       assessor-
collector and his surety of responsibility for the safekeep-
ing of funds collected from taxes, but only after the funds
are deposited as required by law in the county treasury.   As
we noted earlier, section    154.009 of the Local Government
Code empowers a commissioners court to deduct from the sal-
ary of a district, county, or precinct officer the amount of
a fee or commission that the official was required by law to
collect if, after a hearing, the commissioners court finds
that such failure was due to neglect. With the exception of
section 6.275 of the Tax Code, we have neither found nor
have you directed us to any constitutional      or statutory
provision that sets forth any means whereby a commissioners
court may relieve a county tax assessor- collector of his
responsibility for the non:negligent loss of public funds in
his custody;

     Second, we are required to construe statutory    provi-
sions in such a way as to give effect to the evident  inten-
tion of the legislature.     Gov't Code 5 311.021.     Texas
courts have held that the deletion of a provision in a pend-
ing bill discloses a legislative  intent to reject the pro-
posal. Smith v. Baldwin, 611 S.W.2d 611 (Tex. 1980): Trans-
portation Ins. Co. v. Maksvn, 580 S.W.2d 334 (Tex. 1979) :
Grass0 v. Cannon Ball Motor Freight Lines, 81 S.W.Zd 482




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Honorable Mike Driscoll - Page 5   (JM-1055)




(Tex. 1935). As introduced in and passed by the House, H.B.
No. 95 conferred authority on a commissioners court to find
that a county tax assessor-collector's loss of public   funds
in his custody is not due to his negligence or misconduct,
thereby  relieving the county tax assessor-collector       of
personal liability   for the loss. The senate removed the
language conferring   such authority on the commissioners
courts and replaced it with language conferring such auth-
ority on a district court pursuant to an action for a
declaratory judgment. The House subsequently agreed to the
senate's amendment.   If we were to construe section 6.275 of
the Tax Code in the manner that you suggest, we effectively
would circumvent   the express language of the senate      in
amending H.B. No. 95 and of the House in agreeing with the
senate's amendment. This we~cannot do.2

     Absent the enactment of section 6.275, Tax Code, an
action under the Uniform Declaratory Judgment Act would not
lie in an instance in which there was no real dispute     of
fact between the commissioners   court and the county tax
assessor-collector;   However, the legislature    did enact
section 6.275, and by the clear terms of its provisions such
an action will lie even in an instance in which there is no
dispute as to facts.

     Therefore, we construe section 6.275 of the Tax Code to
require an action under the Uniform Declaratory     Judgment
Act, even in an instance in which a commissioners court and
the county tax assessor-collector   agree that the loss of



     2. You rely on El Paso Countv v. Citv of El Paso, 357
S.W.Zd 783 (Tex. Civ. App. - El Paso 1962, no writ), Citv of
Tvler v. Smith Countv 246 S.W.2d 601 (Tex. 1952), and
Ninasville Indeo. School Dist. v. Crenshaw,   164.S.W.2d   49
(Tex. Civ. App. - San Antonio 1942, writ ref'd w.o.m.)     in
support of your argument.     None of the three cases is
apposite.  Those. cases addressed 'the inapplicability     of
statutes governing eminent domain to situations   involving,
not an attempt by a political   subdivision to comdemn   real
property owned by an individual, but rather a dispute
between two political subdivisions regarding the disposition
of real property owned by one of them. The courts simply
declared that the eminent domain statutes, which by their
terms involve a dispute between a political subdivision   and
a private  individual, were not applicable   in a situation
involving the validity of a transfer of real property    from
one political subdivision to another.




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Honorable Mike Driscoll - Page 6   (JM-1055)




public funds in the custody of the county tax assessor-col-
lector is not through that officer's negligence or miscon-
duct.

     Your second question concerns the reimbursement of the
assessor-collector upon a determination that such official
is not personally liable for the loss of funds in the cust-
ody of his office. A review of your brief reflects that
this question presupposes the necessity of the assessor-
collector repaying the funds (reflected by the shortfall of
funds in the office) pending the determination of personal
liability.

     Our answer to this question is based on an approach you
suggest as an alternative in your brief, as follows:

        An alternative approach would be to conclude
        that the enactment of section 6.275 obviates
        the practice   of requiring tax     assessor-
        collectors to make up shortfalls in official
        accounts with personal funds. This step may
        be postponed until a determination is made by
        the commissioners court, and when necessary
        by the district court, that the tax assessor-
        collector is.liable for the lost funds.

     We construe section 6.275 to provide that the filing of
a suit to determine whether "the loss is due to a reason
other than the negligence   or misconduct   of the assessor-
collector" stays the necessity of the assessor-collector
paying the amount of the shortfall from his personal     funds
pending judgment of the court. As heretofore noted,       such
suit must be filed in the.district court pursuant to section
6.275,,rather than left to the determination of the commis-
sioners court.   If we construed section    6.275 to require
payment of  the  shortfall  prior to   the  determination   of
liability by the court, we would defeat the apparent    legis-
lative intent to relieve the assessor-collector of the pos-
sible heavy burden of prepaying large sums of money pending
judgment of the court. Personal liability results absent a
finding by the district court that the loss was not
occasioned by negligence   or misconduct   by the assessor-
collector.  We believe this construction is consistent    with
the stated purpose of H.B. No. 95, as set forth in the bill
analysis, to release the county tax assessor-collector    from
personal liability upon a determination that the loss is not
based on the negligence or misconduct of such official.




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.




4

    Honorable Mike Driscoll - Page 7     (JM-1055)




                           SUMMARY

                 Section 6.275 of the Tax Code provides
            the exclusive method for relieving the county
            tax assessor-collector   of personal respons-
            ibility for loss of funds in his custody or
            the custody of his office.      The assessor-
            collector  is not required to prepay any
            shortfall pending the determination    of the
            district  court    regarding   negligence  or
            misconduct of such official.




                                          JIM     MATTOX
                                          Attorney General of Texas

    MARY KELLER
    First Assistant Attorney General

    LOU MCCREARY
    Executive Assistant Attorney General

    JUDGE ZOLLIE STEAKLEY
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee

    Prepared by Tom G. Davis
    Assistant Attorney General




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