     OFFICE     OF THE ATTORNEY          GENERAL   OF TEXAS
                                AUSTIN




Honorable Elchard     S. l:orria
county Attorney
ArmstI-Ong County
Claude,     Texas
Dear Sir:




              You request for
herein    stated hae been r


                                            November 19S6
                                           the county be-
                                           Inqaent taxes,
                                            by the oourt,
                                           uent taxpayers
                                      lr tares rhioh the
                                         At this tim no
                                        de nar was any ox-
                                 Short17 thereafter      the
                               ed, on or about the 17th
                                aplotw at, $1845.98 in
                    xes &a aollsatod     between the 17th
                     d the lSth af Deeember, 19S6, shlah
                     lp more than is ordfnarlly      oolle~ot-
                     tuna period or the year on other
                                             e ooQpDisslonere'
                                             u&y attorney,
     at that ti3tb3 drawing 41 orriaio    ooapsnaation    0r
     $SO.OO per month, due to the extra work, and bx-
     ptmae or corresponding: and holding pereoml         ma-
     ierenas with a aonarlderable number or taxpayer8,
     asaif&ing them in sorreotix@      and adjusting    paat
     error6 In regard to the&r taxes, invw3tigatfng
     the ownership or property listed      on the rolls a8
Honorable      filchard   3. Lorrls,   Lafo 2


     unkuowu, ascertaining      the addresses of dirrer-
     ent delinquent    non-resident   taxpayers and prop-
     erty ovuers, all of whloh was not Included In
     his statutory    duties as county attoruey,    telt
     that he was entitled      to some co&pensatlon ror
     such servvices, and requested the coz.uissIoners*
     Court ror compensation commnsurats with the
     benefit resulting     to the county by reason of
     hia eenloes in this respect. It was agreed
     thct such corspensation should be paid and the
     rollowing   order was passed:      *that        be al-
     lowed 105 on collection      0r delinquentxes       ror
     cymty and aonmon schools       sxolusive  0r costs
     and penalties,    which motion duly oarrled.’
           “L’onthly thereafter,   from December 14, 1936,
     to September 30, 1937, the county attorney,       upon
     presentation    of his aocount, was paid an anount
     equal to 105 or the delinquent     county and cormon
     school taxes pald the preceding month, exclu~ire
     of penalty,    interest  and costs and state  taxes,
     aggregating    the total of $3%.12.     Such payl;ents
     being mde by means or warrants :rawu on the
     general rund of the county and, bein: approved
     eaoh month by the comi~ssioners     court in the
     minutes or the aooounts allor:ed.

           *The legality  of such compensation and pap-
     ment being questiohed:by’.   the auditor of the
     county, the above-quoted     order was revoked by
     the aokalssloners   court at the request of the
     county attornoy on October 11, 1937, and such
     payments disoontinued    by an order as follows:
     ‘that order previously     passed al&OWiag
     ten per cent on all delinquent     taXda   co-ed
     be hereby revoked and that               as oouuty
     attorney be allowed i.60.00 per month attor
     October lst,   1937, which Lotion duly carried.*
            “Ths taxes collected  were both real and
      personal property taxes.    There was no compen-
      sation ror such services   prior to the date of
      the rlrst  order on Decen;ber 14, 1936.

               “1.    ere the payrtents outlined   above   ll-
      legal?
Honorable      Xlchard   .;. L’orrls,   i,a:e   3



               “2. It such pajmsnts illegal,  upon whom
       rests    the liability for such ~ys.ants?

             “3.   ‘“hat 1s the llablllty  or the county
       attorney    under such clrouustances?

             “4. In the event such pay-seat is illegal,
       could the county attorney be entitled   to a
       reasonable  compsnsatlon from the county or a
       quuntum nerultum basis?

            “5. In the event such paycent was illegal,
       what would be the proper lcethod ot adjusting
       such er:or?”
             Artlale     7332,   Revised    Civil   Statutes,   reads   in
part   as folIows:
              v* * * In all cases, the colropsnsatlon ror
       said Attorney     shall be,nh’o ($2.00) Dollars    ror
       the rlrst   treat and One ($1.00) Dollar ror each
       addltlonal    trsot up to four (4)‘ but said lee
       la no ease to exoeed Five ($5.00) Dollars.         And
       provided,   that in any shit brought against any
       lndlvldual    or oorporate  omer, all past due
       tares for all previous years on suoh traot or
       tracts   shall be lnoluded;    and provided,   further
       that where there are several lots in the saaie
       addltlon   or subdivision   delinquent,   belonging
       to the sane owner, all sald delinquent        lots
       shall be made the subject of a single        suit * * *v
              ** * * ?rovlded, that the fess herein pro-
       vided for in connection     tith delinquent      tax
       suits shall constitute    the only fees tbot shall
       be charged by offlOorS    ior preparing,     filing,
       lnstltutlng,   and prosecuting      suits on delln-
       guer.t taxes and securing     collection   thereof,  and
       all, laws in conrllct   here%lth are hereby repsal-
       ed 1 I +”

               Article   335, Eevlsed      Clvll    Statutes,   reads   as
followa:
              Thenever   a dlstrlct or county attorney
       has collected   mmey for the state or for the
       oounty,   he shall within thirty days after re-
       ceiving   the sass, pay It into the tresSurY
Honorable   Richard   S. t:orrIs,   rage 4


     OS the State or oi the county In which It be-
     lones,   after deductlna therefrom and retaining
     the corrroIssIon allov:ed him thereon by law. such
     district    or oounty attorney    shall be entitled
     to ten per oent cot.z~~IssIon on the f:rst     thou-
     sand dollars    colleoted   by him in any one ease
     for the State or county from anT Individual         or
     company, and live per cent on all sums over one
     thousnnd dollars,      to be retained out or the money
     when collected,     and he shall also be entitled      to
     retain the sake coomIssion on all collections
     made for the State or for any county.        This arti-
     cle shall also apply to money realized       for the
     State under the escheat law.”

            In opinion Ho. O-260 and nmerous other apInIons
which we do n:t deem necessary      to alte here, this Depart-
Lent has constantly    construed Article    335, supra, as allow-
ing the county or district     attorney   ten per cent ootisslon
on all money collected     in the preparation,   f iline and pro-
secution   of delinquent   tax suite againet personal property.
Suah fees,   however, would not be taxed as costs against the
taxpayer.
              It will be seen from the reading of the above pro-
visions    of krticle   7332 that the rees .provlded tor therein
are applicable      and pertain only to the colleotlon      of taxes
upon real estate and such fees allowed for such services
exoluslre     of all other fees and codastons.         It is made the
duty of the county or distriot       attorney   to represent   the
State in all suits against delinquent         taxpayers and no pro-
vision    being zade for fees and aosimisslona for such services
as delinquent      tax collection  on personal property.

            In oplnisn X0. O-815, written by Honorable VY. Ir.
Xoore, First Assistant    Attorney Cdneral, addressed to Honor-
able Xanley T-Ins,       County Attomey,l.:arshall,    Texas, this
Departzrient held thht the co~lssloners’      oourt does not hare
the authority    to p&y an attorney on a quantuz neruit basis
for services   rendered In the collection     o? delfnquent   taxes,
and that such se’rvices when and it rendered In pursuance to
a contract   that has been legally   entered into can only be
coslpensated for In the manner set forth in Article        7335a
and other related statutes whloh 6ere rererred to In thle
opinion.
Eonorable    Riohard    S. :.orrIs,    Page 5


             For    your convenience    we enclose   herewith   a oopy
of opinion       No. O-815.
           Article   7332, supra, provides the ouly fees charge-
able by the county attorney        for ?reparIng,  filing,   Instltu-
tine and prosecuting     delinquent     tax suits on real estate and
securing a colleotlon     thereof.      And as above stated irtlcle
335, Bevised Civil    Statutes,     allows the county or district
attorney  ten per cant coclmlsslon on all thti I;oney collected
and the preparation,     Piling and prosecuting      of delinquent
tax suits against personal property.
             IE opinion No. O-988 this DepartGent hold that,the
codssIonersf      court I6 not authorized to Contract with or
pay to a county attorndy a percentage of delinquent    taxes
collected.
             Under the pl\ovisions of krtlcle  7332, supra, OOP-
silssloners’   court has no authority  to allow the county attor-
ney feza In addition    to those authorized   by th8 statutes.
           fn the f ollowlng  cases, CozziasIonersl    Court of
t&Ison   County et al V. Kallace ot al, 15 5. F. (26) 535;
Baldwin v. Travis County, 28 r;. ?;. MO, and nlll;erous other
oaees uhlch we do not dees nacessary to cite,       It ?:a8 held
that the county co~~lssloners    ( court has no power or author-
ity, exoept rjuoh as Is conferred    upon them by the Constitu-
tion and statutes   of the State.
              In the cases of Keat Audit Company v. Yoakum
COUEtp,     35 3. :.   (26) 404, and Sluder v. City of San Antonio,
2 s . Y . (26) S41, it.was      held that the rule was apparently
settled    In Texas that if the county received       the benotlt of
a contract     v.CIch It has the power to Eake but which was not
legally    entered Into, It nay be ooqeiled       to pay for what
It hao received,       because In such cases the law inpJies a con-
tract,     I-:owever , the county may not be h6ld liable    upon an
Implied contract       or a quantux merult unless the ootissioners’
court was authorized        to Lake the contract   sought to be, im-
PlISd; nor is the county estopped to set up as a defense the
lack of authority       to niaks the contract.   The other party
to the agreement Is not In the situation         of one who has acted
innocently     or nlthout knowledge ot the clrc~stances.         one
who deals vzith the county is charged with the notice of the
 regulation;     and a ouston which ignores the law oannot be
gonorable   Elchard   S. I:orrls,   Page 6


invoked for the purpose       or validating    a tranaactIon         which
is otherwise. Invalid.

          Ke quote fro& the case         of Baldwin v.      Travis     County,
m s. vi. 4.80, as r0ii0ws:
           “A county oannot be held liable  in an ao-
     tlon upon an Implied oontraot of quanta F.eruIt,
     unless the comnIsClonors*  court is authorized   to
     make tha contraot  sought to be Inplied or on
     which the quantum imruit Is based.”

          The courts In this case citin.!            a number of      other
oases supporting  this holding.
            Section 2 of Artlole   7332, supra, provides    that
*in suits by counties against any of the orricers       herein
naned to reoover moneys or fees collected      by any such or-
fleers,  limitation  of action   shall not apply, and no such
suit shall be barred by the statute of limitation.*

            “‘e quote froffi Tex.   Jurls.,   vol.    34,   p. 575,    as
r0iiows :
            “As a rule,    sureties   are only liable     for
     such sums or money as the offICeS may lawfully
     have racelved    by virtue     of his offloe.      They
     ass not liable     for legal fees or taxes colleot-
     ed by the offloer       under the color of office,
     but which he hsd no authority        to collect;~*~r
     are they liable      to.r money turned over to him
     under the void order of the probate court,             or
     for money which has been paid to him under or-
     ders of the co&sslonersV          court, and which In
     no cirouclstance     could rightly    be collected     from
     the county,”     Also see the cases of Jeff Davis
     County v. Davis, 192 cp. X. 291 (error refused);
     killer   v. Foara County, 59 S. W. (2d) 277; F?as-
     kell v. Hobby, 296 S. ‘F. 396; and Mth v. Has-
     kell 1 ;I. 1.‘. (2d) 1086.
           You are respectfully advised that It Is the opln-
ion of this Depart&ant that your questions should be an-
swered as follows:
            :,lutber 1.   YSS
Bonorable Richard 8. Xorrl8, paw   T

          IWmberr t, S and 5. The oounty attorney     who se-
eelred the above aentloned oompenratlon 18 liable to the
aounty for ruoh oompensatlon  above the Seer or oompanr8-
tlon allowed for ruoh renloer   under Art10108   Ss5 and IsSa
md the  proper method 0s aajtwiing the 8W      woola k r0r
ths oounty attorney to pay to the county the ditierenoo
between tkm oompensatlon aotually reoelved and the oompen-
ration rpeoifltikly allowed by laarSor ouoh senloer.

          wumber 4. In answer to your fourth question you
8ro advised that the oounty attorney rr0tia not be entitled
to a rea8onable OOmpen8atlOn frOfiithe County on a quantum
merult bar18 but that the county attorney wonld be lntltloa
05ly to those tee8 or. oomponration a8 provided by Artlola
336 and Arflole 7532 for the senloer
                                    .,: mentioned therein.
          TSurti5g that the r0r:;:kc answer8 your laqulry,
we rwln
                                        YOtoUrS   VSSy t2dy

                                   ATTOHXEYGENERAL O? TEXAS


                                                        WllllM

AW:L?t

RCLOSORE

 APPROVEDAUG 11, 1939

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 ATTOFUE'YGENERALOF TEXAS
