                      THEAXTORNEYGENERAL
                                 OF   TEXAS


  WVILL   WILSON
A-RNEY       GENERAL
                                 September 19, 1960


   Mr. Jack N. Fant                    Opinion No. NW-937
   County Attorney
   El Paso County                      Re:    Whether an independent
   El Paso, Texas                             school district may contract
                                              for collection of its delin-
                                              quent taxes without first
                                              instructing the County
                                              Attorney to file suit for
                                              such taxes, under authority
                                              of Acts 1955, 54th Leg.,
                                              ch. 310 (codified as Vernon's
   Dear Mr. Pant:                             Ann.Civ.St., Art. 2802-l).
               You ask the opinion of this office on two questions:

                (1)      If Canutillo Independent School District
                         of El Paso County, Texas, organized under
                         the General Laws, may contract with a
                         resident attorney of that county to file
                         suits for delinquent taxes due the
                         district, under authority of Acts 1955,
                         54th Leg., ch. 310, p. 843, H. B. 476
                         (codified as Vernon's Annotated Civil
                         Statutes, Article 2802-l), without
                         having theretofore instructed the
                         County Attorney of the county to file
                         such suits as provided in Article
                         7343, Revised Civil Statutes, 1925;

                (2)      The type of waiver which should be had from
                         the County Attorney upon nis i'e:IubuI;o
                         file such suits in the event the law
                         requires the school district first to
                         instruct him to file such suits and he
                         declines to do so.
             House Bill 476, Acts 1955, hereinabove mentioned,
   reads as follows:
                         "An Act allowing independent school
                         districts to enter into contracts with
                         any attorney of this State for the
                         collection of delinquent taxes; pro-
                         viding for his compensation; making
Mr. Jack N. Fant, Page 2              Opinion No. WW-937


                    this Act cumulative of all other laws;
                    and declaring an emerge=.
                    "Be it enacted by the Legislature of the
                    State of Texas:
                    "Section 1. Any independent school district
                    of this State may contract with an' compe-
                                                      e collection
                    tent attorney,of this State for EFF
                    of delinquent taxes of such independent
                    school district, and he shall receive for
                    his services not to exceed the same amount
                    as allowed attorneys collecting delinquent
                    taxes for the State and county.
                    "Sec. 2 This Act shall be cumulative of
                    other laws and shall be construed to
                    provide an additional method for employment
                    of attorne s by independent school districts
                    + or the collection of delinquent taxes.
                    “Sec. 3   The fact that the laws of this
                    State do not provide an adequate method
                    for collection of delinquent taxes by
                    independent school districts creates an
                    emergency and an imperative public
                    necessity that the Constitutional Rule
                    requiring bills to be read on three
                    several days in each House be suspended,
                    and this Rule is hereby suspended, and
                    that this Act take effect and be in force
                    from and after its passage, and it is so
                    enacted." (Underscoring added.)
          Article     7343, R.C.S., 1925, reads as follows:
                    "In my incorporated city or town in
                    which any tracts, lots, outlots or
                    blocks of land, situated within the
                    corporate limits of said city or town
                    have been returned delinquent, or re-
                    ported sold to said city or town for
                    the taxes due thereon, the governing
                    body may prepare or cause to be pre-
                    pared lists of delinquents in the
                    same manner as provided in this
                    chapter, and such lists shall be
                    certified to as correct by the mayor
                    of said city or town, if any, and
Mr. Jack N. Fant, Pa.ge3       Opinion No. WW-937


               if said city or town has no mayor,
               by the presiding officer of the
               governing body. After said lists
               have been properly certified to, the
               governing body~of the city may cause
               lists of delinquents to be published
               in a newspaper as provided for State
               and county delinquent taxes in this
               law. When twenty days from the date
               of last publication of said list or
               lists of delinquents has elapsed,
               the governing body of the city or
               town may d.irectthe city attorney to
               file suits for collection of said
               taxes, or said governing body may
               employ some other attorney 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
               governing 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, instruct 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 employssome
               other attorney of the county to file
               suit. The county attorney, or other
               attorney, filing tax suits for inde-
               pendent school districts, shall be
               entitled to the same fees as provided
               by law in suits for State and county
               taxes. No other county officer shall
               receive any fees unless services are
               actually performed, and in that event
Mr. Jack N. Fant, Page 4           Opinion No. WW-937


               he shall only receive such fees as are
               now allowed him by law for similar
               services in civil suits. The employ-
               ment of an attorney to file suit for
               taxes for cities, towns or independent
               school districts shall authorize said
               attorney to file said suits, swear to
               the petitions and perform such other
               acts as are necessary in the collection
               of said taxes.
                "All laws of this State for the purpose
                of collecting 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 our opinion that Canutillo Independent School
District may, under authority of Acts 1955, ch. 310, herein-
above set forth, contract with any competent attorney of this
State for the collection of its delinquent taxes without first
having instructed the County Attorney of El Paso County to
file such suits.
          We believe that the above Act of 1955 clearly evidences
the intent of the Legislature to provide an additional,
cumulative and complete method for employment of attorneys for
collection of these taxes and that the Act accomplishes that
purpose. The school district is free to choose whether it
shall proceed under Article 7343 or under Article 2802-i.
          "A cumulative remedy is a remedy created
          by statute in addition to one which still
          remains in force; and when a statute gives
          a new remedy, and contains no negative,
          express or implied, of the old remedy, the
          new one provided is cumulative, and the
          party may elect between the two." Eowles
          y-a:       :~l~'ita.S~~6~,~~5~;"".l~~
          and Phrases, Pertn.Ed.,"Cumulative Remedy",
          p. 662.
          Of course, prior contract rights, if any, of the regular
collector of the school district under Articles 2791 and 2792,
R.C.S., must be respected in any contract with an attorney, whether
the school district proceeds under Article 7343 or Article 2802-i.
Mr. Jack N. Fant, Page 5              Opinion No. WW-937

          Should the school district elect to contract under
Article 2802-i then under the clear provisions of that Article
it may contract with any competent attorney of its choice with-
out first calling upon the County Attorney to represent it. For
the same reason, and in this event, the County Attorney is re-
leased from his duty and right under Article 7343 to represent
the district in such collections and no waiver or release from
him is necessary.
          What we have said obviates the necessity of our
answering your second question.

                           SUMMARY
                  An independent school district may
            elect to proceed under either Art. 2802-1,
            V.C.S., or Art. 7343, R.C.S., for collection
            of its delinquent taxes.
                  Under Art. 2802-l there is no require-
            ment to first instruct the County Attorney to
            file suits nor to secure from him a waiver or
            release before contracting with any competent
            attorney of Texas of the school district's
            choice for collection of its taxes.
                                     Yours very truly,
                                     WILL WILSON
                                     Attorney General of Texas


                                      ld!i GieeR*/
                                     BY
                                      W. E. Allen
                                        Assistant

WEA:cm
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Bob Shannon
Tom Burrus
Tim Timmins
W. Ray Scruggs

REVIEWED FOR THE ATTORNEY GENERAL
By: Leonard Passmore
