             A county attzrsty is not eati-
             t.ledto CS1153~ coE2isslona un-
             deI' Article   ;?5, ??. C. $5. whsn
             he oollects ;:linquent personal
             property tax-z,x:thout fllinS
             suit.        .




                                            Ootobor 21, 1940

Bonorable Jazes C. Gillll~=d
County Attorney
Deaf Smith County
Hereford, Texas

Dear Sir:                                 Opinion Xo. O-2410

          Your request fo: 0;lcion has been recsivzd and
carefully considered by t's departrent.    Y:e quote from
your rsquest as follovzs:
          "In case the Cozzissioncr*s Court, after
     personal proport taxes have becone dollnquont,
     instructs the County Z.ttarney, by Its order, to
     'colleot' said taras, a.cd turns said tams over
     to asid couay   %ttorr.+y 9:it.hinstructlsns to I-&
     to so collect said tzx$s. and thn County Attor-
     ney, through his Bfi'oZtS; ~01la~t.sths taxes
     without filln-, suit f:r ths oollectlol?thwoof,
     then i3 the Coilllty A'lfor;.
                                ey cctltlad to the cos-
     mlsslcns provided fcr lr. Art. 335,-1925 D.C.S.?"
           ArtiClCi 7332 of ier?.onto AnnstnteA Tams   Clvll
'Statitco raads, in part, as f311ow:
          Vhc County 01'::atrict Attorney shall rsp-
     rcfcnt the Stiltsand -,slmty ln a11 suits a:,sinst
     dolinrcent tax-clgJrz, . . .*I ]UnZo~iinin< our?)
sonorable Jams   C. Cilliland,.,   page 2


          Thi court in the case of Slinp Y. rise County,
96 S. W. (2d) 537, stated as follows:
           *It 13 the duty of tho county attorney of
      each county to file suits to enforce tho pny-
     sent of dellcc;uenttares, upoo request of the
     ‘corzissimer3* court, and he, alohS with all
      other officers whose duty lt is to file antI
      prosecute such suits for the use and bonefit
      of tho county and state, are subject to criminal
      Droaecutioh.lf ther fail and r5fuse to oarforo
 ,~(&at    duty."       -
  . ,'
          ,Artlcle 7355, Vern.on*s Annotated Texas Civil Stst-
utea,.reads, in pmt., as follows:
          %henever the comissionora court of any
     county after thirty days viritton notice to tba
     county attorney or district attorney to file
     deliquent tax suits and his failure to do so,
     shall deeclit necessary or ex;edlent, said
     court say contract with any compstant attorney
     to enforoe or assist in the enforcement of tho
     collection of any delinquent State nhd county
     taxes for a per cent on the tares, penalty and
     inte+st actually collected, . . .n
          Article 7297, Vcrnon*s Annotated Texas Civil Stat-
utes, reads, in part, as follows:
          "The district or county attorney of the
     respective counties of this State, by order of
     the corziissloncrscourt, shall inotltute suit
     in the nam of the State for recovery of all
     money due th3 Strrteand county as texes due and
     unpaid on unrenderad personal property. . ."
          Article 335, Vernon's hnnota:ed Texas Civil Stat-
utes, rends as follov:s:
          *~whoncvcra district or county attorney has
     coll3cteA money for the State or for anjjcounty,
     he shall within thirty days after receiving the
     same,.pay it into the treasury of the Stats or
     of the oointy in which it belon&s, after deduct-
     ing therefrom anA retainin:;the conmissions al-
     lowed hln thereon by law. Such district or county
     attorney shall be cntitleclto ten per cent COG
     misoions on the first thousand dollars collected
     by htilin any one case for the State OS county
     from;any lndivid;l~lor cs;i,-any,
                                     and five per cent
     on all 3~5;sover one thsusznd dollars, to be re- -
     tainectout of the money when collected, and he
     shr!llalso be c^.titledto retain th? w~:e coxz~o-
     sions on all ColleCtilns :xCe for ths ntste or
     for any courty. Thio article shnll also np;ly to
     money rcolize6 for tne Strto under the enchant
     law.=
               We quote from 34 Texas Jurisprudence, pages 308,
     509, and 511, as follows:
                "Statutes proscribing fees for public offi-
..        cers are strictly constru-d; end hecce a rlsht to
          fcas c.nynot rest ln inpllootion. ?hera this
          right ie left to construction, the Isn2u~3e of the
          la?!must be construed in revor of the Gzvsrzent.
          u:hero a ststuto 1s o.lpnbleof t?:ooonctructiona,
          on9 or :rhioh~01110 Olve en officer COZFenSstiOn
         ~!-for
              his services in addition to his snlary and the
          other not, the latter construction should be
          adopted. , :
               eXs herelnbefore stated, the oonpensatlon of
         public officera is fixed by the Constitution or
         statutes. An offloor may not claim or re?.ohany
         money without a lnw authorizing him to do so, WA
         ~clenrly fixing the amount to v;hichhe 1s entitled."
               We quote rrom sn opinion of thl5 departcent, writ-
     ten by Honornble R. V. Dsvidson, Attorney General of Texas,
     dnted Gotobor 18, 1905, psges 24.0-241,1906-02-10, Reports
     0r the bttorncy Oonoral 0r Texss, as r0110w3:
               "If the cormlssioners~ court directs the
          county attorney to enforce the ooll8ction of tax-
         .es delinquent upon an assessment 0r perdonal prop-
          erty only, then 1 think that under Article 297
          (now Art. 335) bf the Ravised Civil Statutes, the
          county attorney would be entitled. es oozpensation
          for the collection of suOh taxes & ho msy OOlleCt
          bv suit. whether or not th5 suit z~ :00b; to fins1
          3-t.      to ten per cent uRon th;!first one thou-
          e
          -end doliars collected in any one case, and five
          per Cent on all sums over one thousand dollars.
               "The county attorneyts oonpensatl-n for the
          colleotion of taxss, 1s thsrefore, an follows:
               “.   . L

               "3. For collection by suit of tsxes delin-
          quent upon nn asse55ment -onal        property
          only, the county attorney is entitled to ten per
         ,cent of the first one thousand dollars oolleoted
          ln any one oc1.30natirive per cent on all 8~1s in
          excess thereof, whsthor the taxes sre collooted
          ,durin:;pondonoy                             ut
                               of'the suit end bei'ore.i  t?-
                                                         7,
          rent, or after judp;.ent. 3ut hs is not entitled
          to anjrco:;cmsation for the collection of these
          taxes ic collected without su i." (2reorsts and
          underscoring oura
               Also see Cor.forenceor,lnlonof this department,
     doted 1:s~ 31, 1913, written b::Horrorablo::'.
                                                  A. i[eeling,,
                                                              As-
     sistant httorney General (later Attorney Generrl) Dr.5
     &rlntcd In 1912-14, Reports of th:,httorney CcnerHl of Tex-
     as, w'~ed 223-4, vinich holds that .scounty sttorncy is not
     entitled to com;;cnzstlonin dolinoucnt tnx euits until Suit
     is brou$rt.
Ronoreble Jams   C. Gllliland, Rage 4


          vie quote from an opinion of this dopertmnt,
dated Rnroh lst, 1916, witteu by Ronorsble JOIXI C. !:‘e.ll,
Assistant Attorney General, printed in 1914-16, Reports
of the Attomey General of Texas, paG.es643-652, inclusive,
*S r0iiov;s:
          “A very 3ood resson for not making provl-
     slon for r83s to county ettornzys in delinpucnt
     tar xatters until suits hsve been filed is, t!-ot
     the distrlot or county attorney doss not perform
    -Iny ServiOos in connection with the collection
     of dclinwent tuxrcsuntil cults em filed. In




            This dcpsrtment held in o conference opinion dstod
 February 12, 1921, written by Ronoroblo L. C. Sutton, Asslst-
 ant Attorney G-nersl, that a oowty attorney vms entitled to
 a oo~is3ion,   under Article 363 of the Revised Civil Sztutes
 of 1911 (now Art. 335) r0r collections 0r delinquent taxe3 on
 psrsonsl property collected by virtue of authorlty veotad
 in him by drtlole 7661 of the Rsvlsod Civil Stetutes of 1911
‘(no+ Art. 7297) and that the ooiiponsltionof tha county at-
 torney, under Articles 766% and 76’91of tho Rwised Civil
 Ststutes of 1911, did not apply to such collections of taxes
 upon psrsonsl Rroporty, said articles rclatinz only to dc-
 linpuent taxes upon lends and lots.
             This department held in a conference opinion nrit-
 ten by Honorublo L. C. Sutton, Assistant Attornoy Goneral,
 dated April 6, 1921, that the county attorney was not entl-
 tlod to oo:;r;lsslons under Article 363, of the Revised Civil
 Statutes of 1911, (now Art. 335) on money oollocted for the
 county in a suit which   it %as not the duty of the county at-
 torney to bring in bahalf of the oounty. We quote from said
 opinion as r0ii0w :

           “. . . There 1s no constitutional or stat-
      utory provision makin it your duty t.obrin;
      such a suit. That belnf,true, you, as county
      attorney, are not entitled to any oomlsslons
      under Article 363, ‘(now Art. 335). The Commls-
      slons therein provided for are for services
      rendered in the oolleotlon of honey by the
      county attorney in the psrforfianceof duty re-
      ouir-d or him by law. The couhty attorney is
      not entitled to tn3 ooxJssions provided by
      Article 363 (now Art. 335) ucon moneys xhlch
      the law Coeo‘not %require him-t.0 OolleOt. A
      county officer olaining co::ponaationor foe3
      must ba able to show not'onlg   that the 3erViO33
      wore rsrfor:>edfor the duty as such, but.nlso
      a statute or cacotitutlonnl   provicinn suthoriz-
      in6 co:.:~ons~~tlmfor t::ojarticulcr service3 in.
      qu,e3tlo3. . . citing the folio-rin;euthoritie3:
             “15th Corpus Juris, 496
             ?,RlllsCounty ve. Thanpeon, 95 Tex, 22
          ‘. “64 S:; $27, 6G 51; 49
 Uonorable JaraeoC. Gllllland,,?aCe 5


           Wharton County VS. Ahldo3, 84 Tax. 12,
              19 S.“!.291
           “State vs. Xoore, 57”iexa3 307”

           ITomterlul chan~ea have beon made in the stat-
 utes since any of.tha ebove nontlonod opinions wore wltten
 that would afl'ector chsnc1.0
                             the conclualons theroln nnnounccd.
            Oplnfon 110.O-9% of this depnrtznt, rcnlerod
 June 29, 1939,~addrcssed to you, holds that the rISht of
-t,ho oounty attorney to co:~~iorlona undor Article 355, B.
  C. Sd 1925. ln delincuont tax suits coverlnr, acrsonal U~OP-
 ;;ty, only.attachos i;m t!lo fillri;i of suit: ‘This opinion
--also holds that the oor.nlssionors~court iZ.nst cuthorized
  t0'CO~ItrSOtWith Or.!>tiS
                          t0 a COUntY attorney- 8 -
                                                  DerCDntaGJ
  of delinquent taxes coileoted.    -
           Th8 tax collector 1s prlnarily chirped u:ith the
 oollection of taxes, real and psrsonal, both ourr.snt and
 delincuant, and he does all necassary vmrk in the preparInS
 of the lists, sending out notices and other prulinlnary
 =orX preparatory to t.hefiling of a suit by the county at-
 torney for whlcil services tho law provides certain fees to
 be allowed the tax collector.
           vie knov:of no statute or article of the Constltu-
 tlon which mskes it the legal duty of the csurty attorney
 to wlta lotters to delinquent taxpayers ruqUsstlnS payment
 of delinquent tares or nttx)-.tin any way, -rlor to bring-
 lng suit, to Collect such t-xes at the iTstance of the CM-
 niasionersf court.. i’ihen th; tax oollsc~r l~:s exhausted
 his rc;edIes and the corzissloners~ court &?uerti action
 ProIathe ooUnty attorney tho only logal dUty isvoivod upon
 the County attorney 1s the legal dutp~to file suit and prose-
 CUtE Eab8. Simo his 1eCcl duty only b+glns ?:Ith the filing
 Of ths Suit, it folloim that his rIC,ht to co;;-er.satlonunder
 Article 335 vcouldnot attach until suit v:as fiiGd and ool-
 loction nade.
           YOU ar8 therefore reoFeCtfully adrl~cd that it 1s
 the o&Ion   of thla doprti;cnt that your C”estion should be
 ansvmed in the negative, and it 1s S~O anmere?.
           We have al30 reached the conclusion that our hold-
 ins in Opinion ho. O-EWln    annwer to queatitn ::o. 3 pro-
 pounded therein, to the affect that a county attornoycould
 be ontitlod to oo.xAssions under hrtlcle 325, X.C.~., for ool-
 IsctlnC fioney iroa a defaulting county treasirsr without suit
 is erroneous.
           Ylo quoto frail 15,Tsxns Juriogrudence, ;nSos 402-1-4,
 V:hlchxzontolns an aaalysls of Article ZX, ?. :.,T., as follow:
           “Vhen it shall coze to the %co~ileZ~e of
      any district or county attorney th-It ~7 :El-
      cer in his Clstrlct or county e2tru:tel ~5th


      or abuolng the-trust csnfldod in hi.:; :r :.=-any
      way fnilln; to dioch.?.rf:e
                               his dut,Ie; xcez  :Ze
     .law, to shall Institute such procecdizgs cs are
      necesmry to co;,pslt!o porf0r::snco 0: s":i du-
      tie.3by such officer and to preserve and ,zo-
      teot tho public Intorosts.f (Art. 33.9, E.I..S.)
~icncrableJaaes C. Gilliland, RnSe 6


                        not or,ly~onfars a po”or,
         “‘This 8t.atut.e
    but 1mpcse;la duty upon the district or county
    attorney ts perfcrcthc acts thsroin specified.
    Re hss,nc ps-xartc bind the state by cocprcnis-
    lnc the suit. The prooeedinS nay be brcu.Thtby
    the county attorney in the n?me of the couhty
    or, if a recovery of state funds is sought, in
    the'nsae of the state, aincc the ccnstitutisn
    authorizes hirlto repressnt the state, and the
    statute abovo set fcrth covars 'any public funds.*
          "To authorize a suit under the statute, it
     must aRpcar that the action 1s brought~qainst
   %e    'cutrusted with the collcctisn~ cf public
     funds, or %ritR the snfekeapiq, of any'public
     funds.1 This aufficicntly apRsars wher,; the ao-'
     ticn is u;cn the bond of a acunty treasurer or
    -collector to c~npel an accounting for money in
     his hands bclonS;ingto th.astate or county, Cn
     the other hand, the statute has been held nat
     to apply to a suit to recovar back mncy outhcr-
     hod by the cor~isalonera~ court to be paid out
     of county funds to an attorney retained by them
     to represent the ccuhty, or to enjoin further
     payr*entson such retaimr, or ai;ninsta county
     judge or other officers for llioney
                                       ap~rcpriated
     as salary frcr~county funds in the custody of the
     treasurer, or against a ccmissionera* court and
     ocunty clerk to restrain thez fron RemittinS
     county ofl'icloloto pay for pcstnljestnsps cut
     of county funds.
          nPrccesClnes for the,recovery frcz a sheriff
    of fcsney collected on a forfeited recogizanoe
    have been held to be within the authority of the
    district sttcrney and part of his duty. For this
    purpose, he my take a notion in the nme of the
    state for juC=ent for the benefit of a ccuhty en-
    titled to tha money. The county attorney has been
    'held to have no authority to intervene for the
    county or state in a suit against a city to enjoin
    lt from enfcrcin.:an ordinance."
          The case of State vs. E'rattcn,192 8.13.S14, holds
that the county attcrsey has authority to institute prccoed-
in@, to-clt, to file a suit, for the collection of ncney
o&oat   a dofaultiny tax collector and is entitled to the
statutory comnissicn for cclloctlng same by suit.
          The term *proceedings* has -been defined by the
courts in many imtancea.   3s quote the follo:?inS:~
           *A ~procaodinS' i:,a *,suit*or *judicial
     nct~ian* invslvins right.-,
                               of ::orxns or of pap-
     crty , and inolui.asthe c,our'lic
                                    of stc?s or meas-
     ures token in the prcsocutic> of sctisx at lev;."
     Jackson vs. Jac;cscn,14 P!? 2n5 270, 270, L-79,
     295 Ill. ARp. 508.
          "The word *~rccecdin~* is pmerally ap;li-
     cablo to any ste;,tnkon by a suitsr to obtain
     the intcrpc;itlo::~crncticn of a court." In Re
     Eongland's z'stzts,258 x 551, 120 h'cb.219.
          "The term *prcceoQlnSo' ccans 011 the steps
     or m~~tcure::
                 adcited in the prccucutlm or defense
Rcnomble   Jazes C. Giliiland, pace 7
                           :

      of an action.m   Stetter vs. U.S., C.C.A.   Alaska,
      66 F. 2nd 819.
  i
           e*FrocoedinS* in enfcrce:,entof a civil rich+.
      is a preccribed node cf.acticn for carryin into
      effect a lcjal r1zht.e In re Schcrerla Estate, S77
      B.Y.~. 677, 154 Kiss. 198.
          "In its general scceptetisn, ~prccsodlng~
     means the fcrc in which actions are to b.:brcucht
     and defendad, th3 z.annar of intarvonirg in suits,
     of conducting thez, of cppcsinS judy.ents, and of
     executinc.e U.S. vs. French Sardine.Cc., C.C.A.
     Rash., 80 F. 2nd 325, 326.
                 .
          It is our opinion that the lanSuaS,ein Article 339,
R.C.S., &ho shall institute such prcceedlnSs as are necessary
to coPgel the yerfcrxmce of such duties by such officer and
to preserve and protect the public interest" mean that the
county attorney shall institu^e such legal proceeding as nay
be necesary,  such as fiiinS suit to recover tmmy cue the
county, the lnstitutisn of remvsl proceedings in court to
r‘cmva errant cfficera~frc:~office, to aeke rsoticno in court
in the h%e of'the state agsinst sheriffs for the recovery
of ncney oollected by the sheriff on a forfeited recoSnizadce,
to institute agprcpriato criminal proceed&s,    and prhaps
in scffie
        instances to Mintain apprcpriato LEhda;lUS'andin-
junction suits. He think the tcm "institute prcoeedin;;s"
Leans that the Ocuhty attorney should institute all ap>ro9rl-
ate legal aoticns, suits and t;otlcns and does not ccntfxzplate
any lesser thin5 than "leeal action" and certainly does hot
ccnte;,ilatcneGctiaticno, settlement and efforts to cciipro-
eiss prior to i"llinSsuit or instituting loSal procosdihGs.
In the case of collecting rio':eyfrca 0.defaulting tressurer,
we think the inatitutim c? proceedinGa required by the county
attorney ccntcrplates the filing of a suit to collect sane.
          It is the duty of the county attorney tc,file suit
to cclleot ecney due ths county from a default&   county
trea:uror. The law dccs net require the county attorney to
collect or attmpt to collect the r;cney prior tc filing suit.
          It is cur opinion'that the county attorney is not
entitled to cc~~lssicns,under Articles 335 and 339, R. C. S.,
for~ccllectinS ncney fro2 a defaultirS county treasurer, un-
less and until suit is filed by the octmty attorney. Gpinlm
Rc. O-665 of this deF:nrtmnt insCfar as it CCnfliCtS heroin
la heroby expressly overruled,

                                        Verjj truly yours
                       .




          This opinion haa boon
proved, and ordered recorded.
                                     GZRALD C. !.:ARR
                                     ATrORX!!YGXXhF4L OF TZCAS
