.



                                          NE         GEMERAL
                                           EXAS
                                 AUSTIN    ax. T-s
    PRICEDANIEL
    ATTTORNEYGENERAL
                                          April 8, 1948

                Hon. Stuart B. Lumpkins              Opinion No. V-536
                County Attorney
                Ellis County                         Re: Authority of tax col-
                Waxahachie, Texas                        lectors to receive the
                                                         $1.00 fee for prepar-
                                                         ing an annual delin-
                                                         quent tax list as pro-
                                                         vided POP in Article
                                                         7331, V.C.S., prior
                                                         to the amendment in
                                                         1923.
                Dear Mr. Lumpkins:
                          Your request for an opinion of this Depart-
                ment is substantially as follows:
                            "A question has arisen in this County
                       concerning the accounting of the Tax Col-
                       lector to the County on which we feel we
                       would like to have your opinion.
                            "Where a tax collector in 1947 receives
                       the $1 delinquent fee due for the preparation
                       of delinquent tax lists in 1919-1923, may the
                       County demand the entire amount received by
                       him without showing whether the tax Collector
                       for the prior years received the maximum fees
                       allowed him under the maximum fee law.
                            "Ellis County is under the Cfficer*s
                       Salary Law. During the years 1919-1923
                       Ellis County was under the Maximum Fee Law.
                       This question as to the burden of proof is
                       important because of the extreme difficulty
                       in getting up the older records for the
                       years 1919-1923 as to what amount was re-
                       tained by the Tax CollEctor during those
                       years as compensation.
                         Article 7691, R. C. 9. of Texas 1911, which
               was in effect during the years mentioned in your inquiry
               and applicable to this opinion was as follows:
                                                           1.   .




Hon. Stuart B. Lumpkins, page 2   (V-536)


          "The collector of taxes, for preparing
     the delinquent list and separating the pro-
     perty previously sold to the State from that
     reported to be sold as delinquent for the
     preceding year, and certifying the same to
     the Commissioners" Court shall be entitled
     to a fee of $1.00 for each correct assess-
     ment of the land to be sold, said fee to be
     taxed as costs against the delinquent; o 0 o
     provided, that in no case shall the State
     or county be liable for such fees, but in
     each case they shall be taxed as costs against
     the land to be sold under judgment for taxes
     ana paid out of the proceeds of the sale of
     same after the taxes, penalty, and,,interest
     due thereon to the State are paid.
          By the Acts of the Third Called Session of the
38th Legislature, Chapter 21, approved June 21, 1923,
now Article 7331, V. C. S., the above Article 7691 of
the 1911 codification was amended so that part of same
reads as follows:
          "For preparing the annual delinquent
     list of assessments charged to the tax col-
     lector upon the tax roll, o 0 0 the tax col-
     lector shall be entitled to a fee of $1.00
     for each correct assessment of land to be
     sold, said fee to be taxed as cost against
     the delinquent. Provided, that in no case
     shall the State OP county be liable for
     said fee which shall be additional and cu-
     mulative of all other fees now allowed by
     law and shall not be accounted for under
     the fee bill as fees of office."
          Under the law as it existed during the years
of 1919 to 1923, the tax collector had to account for
such fees under the "Maximum Fee Bill". Bitter v.
Bexar County,(Corn.App.) 11 S.W.(2d) 163.
          In the case of Cameron County v. Fox (Corn.
App,) 61 S.W.(2d) 483, the court stated as follows:
          "The fee was earned when the ser-
     vices prescribed in article 7691. bR,S.
     1911) were performed. The fee became
     due at that time, and was chargeable
     against the delinquent, although the en-
.   -




        Ron. Stuart B. Lumpkins, page 3 (V-536)


            forcement of collection depended up-
            on contingencies incident to the en-
            forced collection of the delinquent
            taxes involved. The new statute of
            1923 (article 7331, R. 9. 1925) did
            not purport to modify any provision
            of the Maximum Fee Law with respect
            to such fee where same had already
            accrued, OF to surrender any right
            which had accrued to the county re-
            specting same. In this respect, the
            new statute did not have retroactive
            effect. Turner v. Barnes, supra.n
                 Article 3892, V. C. S., reads as follows:
                 "Any officer mentioned in this
            Chapter who does not collect the max-
            imum amount of his fees for any fis-
            cal year and who reports delinquent
            fees for that year, shall be entit-
            led to retain, when collected, such
            part of such delinquent fees as is
            sufficient to complete the maximum
            compensation authorized by Articles
            3883, 3883-A, and 3886 for the year
            in which delinquent fees were charg-
            ed, and also retain the amount of ex-
            cess fees authorized by law, and the
            remainder of the delinquent fees for
            that fiscal year shall be paid as here-
            in provided for when collected; provid-
            ed, the provisions of this Article
            shall not apply to any officer after
            one year from the date he ceases to
            hold the office to which any delin-
            quent fee is due, and in the event
            the officer earning the fees that are
            delinquent has not collected the same
            within twelve months after he ceases
            to hold the office, the amount of fees
            collected a%11 be paid into the coun-
            ty treasury.
                  In Opinion Ro. 2931, Report of Attorney Cen-
        eral's Opinions, 1932-1934, page 341, this Department
        stated as follows:
                  "The one dollar fee for the pre-
Hon. Stuart B. Lumpkins, page 4   (V-536)


     paration of a delinquent list has al-
     ways been considered by the courts as
     being a fee earned upon the perform-
     ance of the service and yet one which
     the tax collector is without power to
     collect until the delinquent taxes
     have been paid or until the tax lien
     has been foreclosed in court and the
     property sold to satisfy the judgment.
     Hoke vs. Simondon (Writ of error de-
     nieb) 46 S.W.(2d) 1013; Barnes VS,
     Turner, 27 S,W.(2d) 532."
          It will be seen that the one dollar fee from
1919 to 1923 was accountable as a fee of office and that
from June 13, 1923 to January 1, 1931 the fee was not
accountable. Prior to 1931 the fee was earned when the
services for which it was aid (that is, the calculation
of the delinquent tax listP had been completed and un-
less it was collected within the current year in which
the services were performed it became a delinquent fee.
However, since January 1, 1931 this fee has not been
earned until the taxes were actually collected and,
therefore, can only be considered as a current fee. It
has been repeatedly held by this Department that the
officer whose term of office has terminated has no right
OP authority to collect delinquent fees, that such fees
shall be collected by the officer to whose office the
fees accrued, ana shall be disposed of by said officer
;;ea;;;dance with the provisions of the laws governing
        0 (Attorney General's Opinion ho.O-1679).
          In answer to your question, it is the opinion
of this Department that the tax collector for the years
1919-1923, who is no longer in office, would not be auth-
orized to collect delinquent fees earned by him while
in office, but that the present tax Assessor-Collector
should collect said fees and pay them to the tax col-
lector of 1919-1923, provided such officer has not earn-
ed and collected his maximum fees. The former tax col-
lector in 1919-1923 is only entitled to such delinquent
fees as are sufficient to cornlete the maximum compensa-
tion authorized by Articles 3E83, 3883-A, and 3886, V,
c. s., for those years and any balance should be paid to
the County Treasurer for said county.
          Further, it will be observed that if your
county initiates a claim for such fees, as indicated in
your opinion request, it must be predicated on the basis
.   -




        Hon. Stuart B. Lumpkins, page 5   (V-536)


        that the tax collector of 1919-1923 has earned and col-
        lected his maximum fees for said years. The fees either
        belong to the tax collector of 1919-1923 or to the coun-
        ty and if your aounty asserts a claim the burden of proof
        is upon the county to establish a priority to such fees,
        as the general rule is that the burden of proof in any
        cause rests upon the party who asserts the afffrmative
        of an issue. 20 Am. Jur. p. 138; 17 Tex, Jur. p0 315.
        Therefore, it is the opinion of this Department that to
        be entitled to such fees the county must establish as .a
        matter of fact that the tax collector of 1919-1923 has
        earned and collected his maximum fees for those years.
        All fees in excess of the maximum belong to the county.
        Barnes v. Turner, 19 S.W,(2d) 325, 27 S.W.(2d) 532; CUP-
        tin v. Harris County, 203 S.W. 453, 242 S.W. 445.
                  It should be noted that the 'one year limita-
        tion feature' contained in Article 3892, V. C. S., was
        not enacted until the year 1930 and became effective
        January 1, 1931, and consequently, has no application
        to the question under consideration. However, this
        opinion does not pass upon the question of whether the
        general Statutes of Limitation could OP should be plead-
        ed OP claimed by the Commissioners1 Court, if a suit
        were brought to collect the unpaid portion of the fees
        due the tax collector of 1919-1923.
                              SUMMARY

                  A tax assessor-collector of a county
             operating under the Officer's Salary Law,
             who, in 1947, collects a $1 fee for the
             preparation of a delinquent tax list which
             was earned by a tax collector of 1919-1923
             when the county was operating under the
             Maximum Fee Law, should pay the same to
             the tax collector of 1919-1923, provided
             such officer has not earned and collected
             his maximum fees for said years. The fee
             was earned when the work was performed and
             being subject to the &ximum Fee Law a
             claim by a county for such fee must be
             predicated upon the basis that the tax
             collector of 1919-1923 has earned and
             collected his maximum fees for said years,
             (Art. 1761, R.S. of 1911; Art. 7331, V.
                                                            -   .



Hon.    Stuart B. Lumpkins, page 6   (V-536)


        c. 9.; Cameron v. Fox, 61 S.W.(2d) 483;
        and Turner v. Barnes, 27 S.W.(2d) 532.

                                     Yours   very truly,
                                Al'TORNEYGENERAL OF TEXAS



BW:mw                                Burnell Waldrep
                                     Assistant


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