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                                     0        Y    GENERAL
                                    OF      EXAS
                                   AUSTIN   1%TEXAS
    GROVER SELLERS
    WN
    AlTGRNEYGENEXSAL




          Honorable Max W. Boyer
          Cbunty ‘Attorney
          Ochiltree Coufity
          Perryton, Texas
          Dear Sir:                ;;inion No. O-6543
                                     : Whether tax collector of independent
                                        school district is entitled usder.
                                        Article 2791, V.A.T.C’;S.,to kiper-
                                        centage of penalties and Int’eretit
                                        collected on delinquent taxes’or
                                        whether his commission 1s.Iitiitkd
                                        tb a pSrcentage’~‘on
                                                           the amount of
                                        taxes assessed and collected.
                   Your request for opinion has been received and carefully
           considered. We quote from your request as follows:
                     “1”submit to you the following proposi.tionfor
                 official opinion.
                     “Con’struingArticle 2791, Vernon’s Antiotated’
                 Civil Statutes, with reference to compen6atLMi oft
                 ah’Independent ‘Schooldistrict assessor and bollec-
                 tor;what Is meant by ‘ctieprovision, ‘whole amount
                 of taxes’ in line 7 of said Article?
                     “An independent school dlstrict”has asked me
                 to advise them whether or not the tax co1liect.M
                 for thendFsti+ictIs entitled to a percentage of
                 the penalty and interest.‘colleCtedupon delinquent
                 taxes, ‘brIs his cbmpen#ktlon cohfined to the
                 actual amount of taxes assessed and levied?
                     “I, therefore, ‘desire ttiatyou give me your
                 bpinion upon this question at your very earliest
                 convenience.”
                 “Article 2791, Vernon’s Annotated Texas ClvIl Statutes,
           reads as follows :
                     “The district tax assessor aiidcollector
                 still have the same power and shalf perform ttie
                 same duties with reference to the assessment and
Hon. Max W. Boger, page 2         O-6543


    collection of taxes for free school purposes that
    are conferred by law upon the city marshal of ln-
    corporated towns or villages, and he shall receive
    such compensation for his services as the board
    of trustees may allow, except in cities and towns
    provided for, not~to exceed four per cent of the
    whole amount of taxes received by him. He shall
    give bond in double the estimated'amount of~taxes
    coming annually into his hands, payable to and to
    be approved by the president of~the board, con-
    ditioned for the faithful discharge of his duties
    and that he will pay over to the treasurer of the
    board all funds coming into his hands by virtue of
    his office as such assessor and collector;'~pro-
    vided that in the enforced collection of taxes the
    board of trustees'shall perform the duties which
    devolve In such cases upon the city council of an
    incorporated city or.town, the president of the
    Board of Trustees shall perform the duties which
    devolve in such cases upon the mayor of an ln-
    corporated city or town, and the county attorney
    of the county in whlchthe independent school
    district is located shall perform the duties w'hich
    in'such cases devolve upon the city attorney of an
    Incorporated city or town under the provisions of
    law applicable thereto. It shall be~'wlthinthe dis-
    cretion of the board'of trustees of an independent
    school district to~name an assessor of taxes who
    shall assess the taxable property within the limits
    of the independent school district within the time
    ahd in the manner provTded-by existing'laws',in so
    far as they are applicable; and whensaid assessment
    has been equalized by a board of equalSEatlon ap--
    pointed by-the board of trustees.for that purpose,
    shall prepare the tax rolls of said district and'.
    shall duly~'signand certify same to the county tax
              as provided for in the succeeding article.
    colletitor~
    The said assessor of taxes~shall receive a'~feeof
    two percent of the whole amount of taxes asFessed
    by him as shownbg the completed certified tax "
    rolls. Acts 1905, p. 26 ; Acts 1923, 2nd C.S. p.
    78."  (Underscoring ours7                          ..
        Article 7336, Vernon's Annotated Texas Clvll Statutes,
provides penalties for the non-payment of taxes when due. This
statute Is lengthy and ~111 not be quoted here.
        Also, the Legislature hasenactea many statutes with
referende to the remission of p~enaltlesand interest on delln-
quent taxes.
.   -




        Hon. Max W. Boyer, page 3         O-6543


                 The case of Morrison v. Lane, 157 S.W. '(2) 466, ln-
        volvedthe'constructlon of a contradt between a Commissioners'
        Court and an'attorneg'whereby said attorney agreed to collect
        delinquent taxes, penaltie'aand interest'; After the execution
        of""thecontract the Legislature enacted an Article (7336~) re-
        leasing penalties and Interest. It was contend'edthat said
        attorney could not be'paid his commissibn~from any ijortlon“df
        the taxes'collected but could only be paid from'pehaltles and
        inte~collected.      -The Court construed the contract','a-rid"-
        Articles 7264a, 7335, 7335a and 73361 and held that the-attorney
        was entitled to dollect his commissions from the taxes‘aswell
        as'from penalty and interest. The Court In this casecI&rIy
        recognlzed"the differences betweeiiand separability"of~taxes,
        penalties and interest. We call attention to the following
        language  In the court's opinion, towit:
               "It is our conclusion that the lower court'
           correctly construed the delinquent tax statutes
           under which the contract in Issue was made.
           Article 7335 authorized a contract 'for a'per
           cent of 'the taxes, pylty   and interestactually
           collected.' Since t e interest and penalty were
           'remitted,only the taxes remained from which
           appellee could be px      Again, Article 7335 ex-
           pressly provided that the payment to appellee
           should be contingent upon the collectionsof'such
           taxes, penalty and interest. 'Appellee has col-
           mi3    taxes in the amount stated above. His
           contracwhorized      paymentto be made to him'from
           the taxes "actually collected.' (Note--The above
           emphasis was made by the court in Its opinion.).
                Answering your inqulrx it Is our opinion that the pro-
        vision "whole amount of taxes in Article 2791, V.A.T.C.S., re-
        ferred to by you, only Includes taxes and does not include pen-
        alty and Interest.
                It, therefore, follows that a tax collector of an ln-
        dependent school district is not entitled to a percentage of
        penalties and Interest collected upon delinquent taxes. Such
        tax assessor-collector would be, of course, entitled to collect
        such percentage as was allowed him, not to exceed 4 per cent of
        the whole amount of taxes received by him. He Is also entitled
        to a fee of two per cent of the whole amount of taxes assessed
        by him as shown by the completed certified tax rolls.
Hon. Max W. Boger, page 4        0 -6543


                               Yours   very   truly

                            ATTORNEY GENERAL OF TEXAS
                               By: s/urn.J. Fanning
                                     Wm. J.'Fannlng
                                     Assistant
WJF:BT:wc

APPROVED MAY 3, 1945
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman
