Hon. Bryan F. Russ                             Opinion   No. S-71
County Attorney
Robertson   County                             Re:   Obligation    of    taxing units to
Franklin,  Texas                                     pay sheriff’s       fees for service
                                                     of citation in       suits against
                                                     non-resident        delinquent   tan-
Dear   Sir:                                          payers.

                 You   request   the opinion     of this office   on three      questions
as follows:

                 *(l) Is the State of Texas,    or any taxing unit, re-
          quired, in bringing    tax suits against non-resident     delin-
          quent taxpayers,    to pay fees for the service    of citations
          on such non-resident      defendants?

                 “(2) Could such out of county sheriffs      require    or
          demand of the State of Texas,    or any taxing unit, bring-
          ing such tax suits, payment,   in advance, for their fees in
          the service  of citations on defendants   residing    in their
          counties before   making their official  returns    thereon to
          the court trying such cases?

                “(3)  If you should answer the foregoing   questions
         to the effect that such fees are required   to be paid in ad-
         vance to such out of county sheriffs,   then please advise
         what provision    is made, or out of what fund, should such
         payment be made, and by what authority?      *

                 In this connection    you submit        the following      statement:

                 “The Commissioners        Court of Robertson      County,
          Texas, joined by the State of Texas,       acting by and through
          the State Comptroller     and Attorney    General,    entered into
          contract with a local attorney     for the purpose of collect-
          ing taxes due on the delinquent      rolls of said county, and
          if necessary,  to institute and prosecute       suits against de-
          linquent taxpayers    to enforce   payment thereof.       The at-
          torney has instituted    suits for that purpose,     and in con-
          nection with his duty therein it became necessary           for him
          to have the district   clerk to issue and mail citations       to
Hon.   Bryan    F.   RUSS,   page   2 (S-71)




         out of county sheriffs    to be served on non-resident         de-
         fendants in such suits.     Several   of such sheriffs    have
         demanded payment of fees in advance for service             of
         such process   before    mailing their returns     into court.
         Under the law, and rules promulgated          by the Supreme
         Court, such citations,    with returns    thereon,   must be on
         file in such courts certain number of days before a de-
         fendant is required    to appear and answer thereto,        or de-
         fault judgment   may be taken.      The refusal of such officers
         to make their returns on such citations        without being paid
         their fees in advance has thwarted the efforts         of the State
         of Texas and other taxing units in obtaining judgments             in
         such tax suits.”

                 The collection     of delinquent  ad valorem    taxes is exclu-
sively  statutory    except as governed      by the Rules of Civil Procedure.
The answer to your first and second questions            is found in the explicit
terms of the statute and the Rules of Civil Procedure.             There are cer-
tain statutory    provisions    which must be observed.       For example,    Ar-
ticle 2072, V.C.S.,     provides   in part as follows:

                “No security  for costs shall be required  of the
         State or of any incorporated   city or town in any action,
         suit or proceeding,   . . .*

                  Article     7333, V.C.S.,   dealing   specifically   with   costs   in
delinquent     tax suits,    provides  as follows:

                “In each case such fees shall be taxed as costs
         against the lands to be sold under judgment for taxes,
         and paid out of the proceeds      of sale of same after the
         taxes, penalty and interest    due therein are paid, and in
         no case shall the State or county be liable therefor        ex-
         cept that where the State or other taxing unit is the suc-
         cessful bidder at the tax sale, all charges       due newspa-
         pers for the publishing    of citations   and notices of sher-
         iff’s sale shall be paid by the county and State and other
         taxing units in proportion    to taxes adjudicated    to each.”

                This provision     of the statute comprehends       all the fees set
out in Article   7332, including the $2.50 fee allowed        to sheriffs   and con-
stables for service     of process   in counties other than the one in which
suit is pending.    It is observed    that it specifically  provides    that all fees
shall be taxed as costs against the land to be sold under judgment for
taxes and is to be paid out of the proceeds         of the sale after the taxes,
oenaltv and interest     due are paid. The Supreme Court in the case of
State v. Moak, 146 Tex. 322,207         S.W.Zd 894 (1948) said:
.       .




    Hon.    Bryan   F. Russ,   page   3 (S-71)




                     “The judgment   of the district court improperly
              taxed the costs of court against the State in violation
              of Art. 7333, R.S., . . .
                      11
                       . . .

                    “The attempt,     in disregard  of this statute, to fix
              upon the State a liability   for these costs was a nullity
              and may be disregarded.”

                     It would be within the province       of the Legislature,     if it so
    desired,   to require   the sheriff   or constable   to serve process      in delin-
    quent tax suits without the payment of any fee and certainly             it is within
    the province    of the Legislature     to fix the time and manner of paying
    such fees taxed as costs to the sheriff        or other officers    in delinquent
    tax suits.   The sheriff would have no authority         to refuse to serve pro-
    cess contrary     to the explicit   demands of the Legislature       such as is
    embodied    in Articles   2072 and 7333, V.C.S.,      supra.

                   We direct      your attention    to Section 1 of Rule 117a of the
    Rules of Civil Procedure        pertaining   to citations  in delinquent tax suits.
    This rule is as follows:

                      “Where any defendant in a tax suit is a resident
              of the State of Texas and is not subject to citation by
              publication    under subdivision    3 below, the process     shall
               conform    substantially  to the form hereinafter      set out
              for personal     service  and shall contain the essential      ele-
              ments and be served and returned          and otherwise    regu-
              lated by the provisions     of Rules 99 to 107, inclusive.”

                   It is observed     that Rules 99 to 107. inclusive, are express-
    ly made applicable     to delinquent    tax suits. Rule 105 is comprehended
    within this provision.     It is as follows:

                     “The officer  to whom process  is delivered shall
              indorse thereon the day and hour on which he received
              it, and shall execute and return the same without delay.”
              (Emphasis    added.)

                    You are therefore    respectfully   advised that the       sheriff  is
    required  to execute and make return of all necessary         process       in delin-
    quent tax suits without the payment of fees in advance and is             relegated
    to the requirements    of the statute as to the time and manner           in which
    his fees may be collected.     Therefore,    questions   one and two       submitted
    by you are answered     in the negative.    Number three requires          no answer.
                                                                         .   .




Hon.   Bryan   F. Russ,   page 4 (S-71)



                                     SUMMARY


                A sheriff   or constable   may not require    the pay-
         ment of fees in advance for executing        and returning
         process   in delinquent   tax suits. Article    7333, V.C.S.,
         requires    such fees to be taxed as costs against the
         land and paid out of the proceeds     of the sale.    Under
         Rule 105 of the Rules of Civil Procedure,        the sheriff
         is required    to make return without delay.

                                            Yours    very   truly,

                                          JOHN BEN     SHEPPERD
                                            Attorney    General


APPROVED:

W, V. Geppert
Taxation Division                                   Assistant

Willis  E. Gresham
Reviewer

Burnell   Waldrep
Executive   Assistant

John Ben Shepperd
Attorney General


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