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                                             RNEY           GENEWAL
                                                  EXAS




    Honorable   Robert S. Calvert                     Opinion     No. M-492
    Comptroller   of Public Accounts
    State Capitol   Building                          Re:    Liability     of a Tax
    Austin,   Texas                                          Collector     with regard
                                                             to the issuance      of a
                                                             tax certificate      under
                                                             House Bill No. 322, Acts
                                                             61st Legislature,      Regular
                                                             Session,     1969, codified
                                                             as Article     7258b, Vernon’s
                                                             Civil    Statutes.
    Dear Mr. Calvert:

            Your recent  opinion   request  poses               the following   two
    questions    with respect    to the captioned                House Bill   No. 322,
    to-wit:

                    “1 .  Is the tax collector and/or his bond liable
              for any tax due a taxing authority,    in a case where an
              innocent   purchaser was issued a tax certificate  showing
              no taxes due?

                     “2. Define the word lNEGLIGRNT’as used in Section
              #b and state,    if in your opinion,  a tax collector     must be
              considered   negligent  in every case where he may over-
              look taxes due and issues    a tax certificate    indicating
              no taxes due.”

            Relevant to your questions  are the first                   four sections
    of   said House Bill  No. 322, which are quoted                    as follows:

                      “Section    1.   The tax collector            or his deputy of
              any county in this state,             or of any city or political
              subdivision      or tax assessing          district     within any such
              county shall,      upon request,         issue a certificate           showing
              the amount of taxes,          interest,       penalty    and costs      due, if
              any,    on  the  property     described       in   said  certificate.
              This certificate        shall     contain     a certification         by the
              tax collector       that he has checked each delinquent                  tax
              report,     supplemental      delinquent        tax record and recompiled
              delinquent      tax report      from the last tax cancellation
              date, or to the extent of his records,                   up to and

                                        - 2345-
Ron.   Robert    S. Calvert,          page 2 (M-492)


       including   the records In present use. A charge
       of not to exceed $2 may be made for each such
       certificate   Issued.

               “Sec. 2. (a) When any such certificate               so
       issued    shows all taxes,       interest,     penalty    and
       costs    on the property      therein     described    to be
       paid in full     to and including         the year therein
       stated,     the said certificate        shall be conclusive
       evidence     of the full    payment of all taxes,          interest,
       penalty,     and costs   due on the property          described
       in said certificate       for all years to and including
       the year stated      therein.       Said certificate       showing
       all taxes paid shall        be admissible        in evidence
       on the trial     of any case involving           taxes for any
       year or years covered         by such certificate,         and the
       introduction     of the same shall be conclusive
       proof of the payment in full            of all taxes,      interest,
       penalty,     and costs   covered     by the same.

              “(b) The provisions     of this Act shall be
       applicable   only in suits where the’ State of Texas
       or any political    subdivision    thereof    sues for
       unpaid taxes.     Such certificate     shall not be
       conclusive   in suits   in which the title      for land
       is involved    in any manner in suits      between private
       citizens.

               “Sec. 3. In the event a tax certlflcate                   Is
       issued showing no taxes,            interest,      penalty,      and
       costs     due, when in fact taxes,           interest,      or
       penalties      were due, and the owner of the land
       is not that person under whom the taxes,                    interest,
       penalty,      and costs     became delinquent,         the tax
       collector      may issue,      on request,      a certificate
       relieving      the orooerty      from liability        and
       stipulating       that the delinquent          taxes,   interest,
       penalty,      and costs are thereafter            the personal
       liability      of the person underwhom             the taxes
       became delinquent.           This cancellation         certificate
       plus a copy of the tax certificate                 and an affidavit
       stating     that an error was made and that no fraud
       or collusion       existed     shall be submitted         to the
       commissioners        court.     Thereafter,       this cancellation
       certificate       shall be conclusive          proof for all
       purposes      that neither      the land nor the present
       owner is liable         for the delinquent         taxes,     interest,
       penalty,      and costs.


                                  -   2346-
Hon. Robert    S.     Calvert,    Page 3 (M-492)


             "Sec. 4. If either       a tax certificate       or a
      cancellation     certificate     is issued    or secured
      through fraud or collusion,           the same shall     be
      void and of no force         and effect,    and any such
      tax collector     or his deputy shall be liable           on
      his official     bond for any loss resulting           to any
      such county or city or political            subdivision     or
      tax assessing     district     or the State of Texas,
      through the fraudulent         or collusl$e    or negligent
      issuance     of any such certificate.

        The predecessor    statute   to House Bill No. 322 was
Article    7258a, Vernon's     Civil  Statutes,  which was passed
by the Legislature       in 1929 with regard to counties
containing     cities   of 210,000 population    or more, and
which was made applicable         to all T?x Collectors   in
Texas by an amendment passed in 1953.           Section  2 of
such former law read as follows:

              "Sec. 2. If any such certificate        Is issued
      or secured     through fraud or collusion,        the same
      shall be void and of no force         and effect,    and
      any such Tax Collector       or his deputy shall be
      liable     upon his official    bond for any loss result-
      ing to any such County or city or political
      subdivision     or tax assessing     district   or the
      State of Texas, through the fraudulent            or
      collusive     or negligent   fssuance    of any such
      certificate.       Acts 1929, &lst Leg.2nd C.S. p0
      153, ch. 77.”
       It is readily    seen that the only difference        in Section
2 of the old statute        and Section   4 of the new is that
Section   4 is applicable       not only to tax certificates       but
to cancellation     certificates     which are authorized      for
the first    time by the new Act.

      International     Paper Company v. State,         380 S.W.2d
1.8 (Tex.Civ.App.     1964, error ref.      n.r.e.)   involved      a
suit by the State against       a Tax Collector       and the sureties
on his bond for loss resulting         from the negligent         issuance
of a tax certificate.        The State    did not plead any fr?TM
or collusion.     The Court reversed        the trial    court':.     disn1ec?~~
of the suit as to the Tax Collector            and his bondsman ant
remanded the cause for trial        on its merits,       thereby expressly~
holding    that a cause of action      lies    for loss to a taxing
unit resulting    from the negligent        issuance    of a tax certificate.



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Hon. Robert     S. Calvert,     page 4 (M- 492)


        We have carefully          studied   House Bill No. 322 as a whole;
paying special         attention      to Section    3, which is entirely     new,
and the new provisions             of Section    1 , and we perceive    nothing
to alter      or modify the holding          In International    Paper Comoany
v. State,supra,         or the clear       and unambiguous language of
Section      4. It is noted in passing that under, Section 4 on177
fraud or collusion          can render a tax certificate         or can-
cellation      certificate       absolutely     void,  but a cause of action
is carefully       provided      for the negligent      issuance   of a
certificate.

       Therefore,   in answer to your first        question,   it Is the
opinion   of this office       that a Tax Collecttr     and his bondsman
are liable,     in the words of the statute,          . . . for any loss
resulting    to any such County or city or political           subdivision
or tax assessing      district     or the State of Texas, through
the fraudulent     or collusive      or negligent   issuance   of any
such certificate."

       Turning to the first       part of your second question,
since    the word "negligent"       is not defined     In House Bill
No. 322, we must look to         the general     law for a proper
definition.     The following       definition,    supported  by
numerous Texas decisions,         is quoted from 40 Texas Jurispru-
dence 2d 722, Negligence,         Section     175:
             "Negligence     may be defined     as the failure    to
      use ordinary     care.    And it is observed      that the test
      of negligence      is the exercise     of ordinary    care.
      More specifically,       negligence   may be defined as'
      a failure    to do that which an ordinarily         prudent
      person would have done in the same or similar
      circumstances,       or as the doing of that which an
      ordinarily     prudent person would not have done in
      the same or similar       circumstances."

        There can be no actionable       negligence  without    the
existing      of a duty and a breach of that duty.         40 Tex.,Jur.
2d 447, Negligence,        B 5.   With regard to checking     the
records      of his office   preliminary   to the issuance    of a tax
certificate,       Section  1 of House Bill No. 322 provides:

             "This certificate     shall contain     a certification
      by the Tax Collector      that he has checked each delinquent
      tax report,   supplemental     delinquent     tax record and
      recompiled   delinquent     tax report    from the last tax
      cancellation    date, or to the extent of his records,
      up to and Including      the records    in present     use."


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    .




Hon. Robert    S.   Calvert,   Page 5 (M-492)


       It thus appears that the Legislature         has limited    the
duty of the Tax Collector        with respect   to the type and
number of records      that he should check preparatory        to the
issuance   of a tax certificate.       The full    duty of the Tax
Collector    with respect    to the act of issuing      a tax certificate,
as indicated     in House Bill No. 322, is to carefully         check
the records    mentioned and to carefully       certify   in writing
the information     revealed   by such records.

      This brings    us to a direct     conslieration     of the last
Part of your second question,       i.e.,        . . . state,   If In
your opinion,     a tax collector   must be considered        negligent
in every case where he may over-look           taxes,,due  and issues
a tax certificate     indicating   no taxes due.

      Ordinarily    the existence      of neligence   under a particular
set of facts     Is a question    of fact,    to be determined     by
the jury or the court in the absence of a jury.               Negligence
is established     as a matter of law only when the evidence
is undisputed     and reasonable     minds can arrive     at but one
conclusion,    or where the act or omission         appears so opposed
to the dictates     of common prudence that it can be said,
without hesitation     Or doubt,     that no careful     person would
have committed it.       Gulf, C. & F. Ry. Company v. Gascamp,
69 Tex. 547, 7 S.W. 227  (1948,.1888);   Lang v. Henderson,     147 Tex.
353, 215 S.W.2d 585
      The Texas courts    have also adhered to the rule that ” ~’            ,,.
where there is evidence     showing some care,  and the question
is one of the sufficiency     of the care,  a auestlon  of fact
for the jury is presented.      Wichita Valley  Ry. Company v.
Fite,  78 S.W.2d 714 (Tex.Civ.App.      1934, no writ);  Gulf,
C. & S.F. Ry. Company v. Qaddis,      208 S.W. 895 (Tex.Comm.
App, 1919);  Henwood v. Gilliam,     207 S.W.2d 904 (Tex.Civ.
App. 1947, error ref.).

       Under these well-established       rules,   we are not prepared
to say that a Tax Collector       is invariably     negligent    as a
matter of law where he overlooks         taxes due, as revealed       by
the records    which he has the duty to carefully          review,  and
issues   a tax certificate    indicating     no taxes due.      However,
it is our opinion      that such circumstances      would inescapably
raise   the issue of negligence,      at least   for determination
as a question    of fact,   and under many, if not most, cir-
cumstances    the Tax Collector     would be standing      in tremendous
jeopardy   of being found guilty      of actionable     negligence    as
a matter of law.



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Hon. Robert      S.    Calvert,   Page 6,      (M- 492)


                                      SUMMARY

        Under House Bill No. 322, Acts 61st Legislature,
        Regular Session,          1969, Article      7258b, Vernon's      Civil
        Statutes,      a Tax Collector       or his deputy Is liable
        on his official         bond for any loss resulting           to any
        tax unit through the fraudulent               or collusive     or
        negligent      issuance     of a tax certificate.           The word
        "negligent,"        as used in said House Bill No. 322
        may be fairly        and substantially        defined   as the
        failure     to do that which an ordinarily             prudent
        person would have done in the same or similar
        circumstances         or the doing of that which an ordinarily
        prudent person would not have done in the same or
        similar     circumstances.         When a Tax Collector         "overlooks"
        taxes due as reflected           by the delinquent        tax report
        or the supplemental           and recompiled      delinquent     tax
        reports     or records       of his office,      and issues    a tax
        certificate        indicating    no taxes due, a question           of
        negligence       is inescapably      raised.      Whether actionable
        negligence       is actually     present     will be determined        by
        the tries      of facts     based upon the facts        and circumstances
        of the particular          case.




                                                          Qeneral   of   Texas
AW:pj

Prepared     by Alfred      Walker
Assistant     Attorney      General

APPROVED:
OPINION COMMITTEE

Kerns Taylor,         Chairman
George Kelton,         Vice-Chairman

Jack Goodman
Jack Sparks
Dyer Moore, Jr.
Jim Swearingen




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    Hon. Robert   S. Calvert,      page 7 (M-492)


    MEADEF. GRIFFIN
    Staff Legal Assistant

    HAWTHORNE PHILLIPS
    Executive Assistant

    NOLA WHITE
    First Asslstant




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