            THEA~~RNEY                 GENERAL
                         OFTEXAS




Honorable J. A. Eames
County-Attorney
Bandera-County
Bandera, Texas
                                          ..,
Dear Sir:                   Opinion No. O-5361         ”
                            Re:  Does ObinionNo. 0-4644 apply    '-
                                 to those counties whose officers
                                 are compensated on a ~feebasis
                                 in the same manner and to the
                                 same extent as it applies.to
                                 those counties whose ~officers
                                 are compensated on an annual
                                 salary basis?
       Your letter of May 30, 1943, requesting the opinion of
this deDartment on the above stated matter, reeds in part as
follows-z
                           “Re:    Opinion No, O-464,4;~
                                   construing Art. 7336f
       "Comptroller Sheppard's letter containing copy
   of this opinion hasbeen forwarded to our Sheriff-
   Assessor-Collector and he wants to comply with the
   law but operatlng on the old fee basis, salaries
   paid deputies being fixed end paid out of such fees
   and commlssions by the sheriff has requested me to
   write end ascertain opinion applies alike to offI-
   cers serving for salaries fixed by the Commission-
   ers ' court end those serving under the old fee sgs-
   tern?"
       Section 2 of Article 7336f, Vernon's Annotated Civil
Statutes, reads es follows:
      "Any county having as many es two gears' taxes
   delinquent which have not been included in the de-
   linquent tax record, the Collector of taxes shell
   within two years from the effective date of this Act,
   cause to be compiled a delinquent tax record of
   all delinquent taxes not barred by this Act; the
   delinquent record shall be examined by the Commis-
   sioners' Court and the Comptroller or governing
Honorable J. A. Eames, page 2         0 -5361


   body, corrections nag be ordered made, and when
   found correct end approved by them, payment for
   the compilation thereof shall be-authorized by
   actual cost to the Tax Collector, proportion-
   ately from each-the State end County taxes, or
   municipal taxes, first collected from such record,
   such cost in no case to exceed the sum equal to
   five (5#) cents per item or written line of the
   original copy of such record and in no event shall
   any compiling cost be charged to the taxpayer.
   The delinquent tax record when approved, shell
   be prima facie evidence of the delinquency shown
   thereon, and when there shell be as many es two
   years of delinquency accumulated which are not
   shown on the record, a recompilation, or a two
   year supplement thereto shall then be made as here-
   in provided. The Tax Collectors shall cause to be
   compiled like records of'taxes delinquent due any
   district for which they collect from'tax rolls
   other than the State and county rolls, and when
   approved by the governing body of the particular
   district, the cost of same shall be allowed in the
   manner herein provided."
    ~~. In construing the foregoing sectionof'Article 7336f,
supra, it was stated in our opinion No. 0-4644 (applying to
counties whose county officials are compensated on en annual
salary basis) that:
      "In connection with you~ inquiry you submit
   the exhibit referred to in your letter wherein you
   suggested-to the various Tax Assessors-Collectors
   of the State what you considered to be a proper com-
   pliance with the pertinent portions of Section 2 of
   Article 7336f, Vernon's Texas~Civil Statutes, pro-
   viding that 'payment forthe compilation thereof (the
   delinquent tax record required and authorized by said
   (Article) shall be authorized by actual cost to the
   Tax Collector proportionately from each the state
    and county taxes, or municipal taxes, first collect-
   ed from such record, such cost in no case to exceed
   a sum equal to 5q! per Item or written line of the
   original copy of such record and in no event shall
   any compiling cost be charged to the taxpayer.'
   (Parenthesis ours)
      "The payment provided by the above is in the
   nature either of the payment of actual expenses
   necessarily incurred by the Tax Assessor-Collec-
   tor in the discharge of a statutory duty or a fee,
Honorable J. A. Eames, page 3        o-5361


    commission or compensation for official services
    performed by him. We construe the procedme out-
    lined by you in the attached memorandum or exhibit
    to be grounded upon the theory or conception of
    such allowed cost as a fee, commission 0~ compensa-
    tion coming to the tax official by reason of ser-
    vices performed in his official capacity and hence
    under the governing statutes and the recent deci-
    sion of Hueces County vs. Cureton (not yet repopted),
    by the Supreme Court of Texas, to be accounted for
    as e fee of office or paid into the officers'
    salary fund in counties governed thereby. Upon this
    premise, you proceed to compute the 'actual cost'
    of compiling such delinquent tax records by relat-
    ing the time consumed by the regular appointed and
    acting deputy, to the monthly salary allowed and
    authorized by due order of the Commissioners'
    Court, and having arrived at such cost, you then
    'pay' such 'actual-cost' by taking proportionately
    From state, county, municipal or district taxes
    collected, and causing same to be, by the said Tax
    Collector, accounted for as e fee of office or paid
    over into the salary fund, under pertinent statutes,

      "We find no error or fault in the method of
   computation arrived at by you OP the ultimate dis-
   position of the 'actual cost' to be borne ratably
   by the various tax funds involved, but we cannot
   find ourselves in agreement with the fun,demental
   proposition upon which such procedure rests, that is
   to say, that the cost allowed end contemplated by
   this statute can be considered as or converted into
   e fee, commission or compensation received by the
   Assessor-Collector in the discharge of his official
   duties, to be accounted for as a fee of office. On
   the contrary, It appears that the only purpose and
   Intent of the Legislature, in the enactment of that
   portion of Section 2 of Article 7336f, hereinabove
   referred to, was to enable the Tek Assessor-CoPlect-
   or to reimburse himself for such actual costs as
   would be necessarily expended by him in the com-
   pilation of the delinquent tax record contemplet-
   ed by this Act; and to provide for such reimburse-
   ment not only out of county taxes collected, es
   had theretofore been the statutory rule, but like-
   wise out of state tax collections or the tax col-
   lections of municipalities or taxing districts, so
   that each of said tax collections should equitably'
   end ratably bear the cost of compiling the records
Honorable J. A. Eames, Page ,4       o-5361


    of delinquent taxes of such various taxing units,
    This statute does not, either expressly or by nec-
    essary implication, provide for or contemplate the
    collection from the taxpayer OP from any other out-
    side interest or person, of the.actuel cost of com-
    piling these delinquent records, but, on the con-
    trary, it is otherwise expressly provided. The
     actual cost of compiling these delinquent records,
    either in a fixed amount or in en amount to be com-
    puted after the work is done, Is notpaid in or s-
    lected by the Assessor-Collector so as to be consid-
    ered e fee, compensation or commission received by
    him end to be accounted for as a fee of office or paid
    into the salary fund. On the contrary, the amount
    of such actual cost, if any is found to exist, is
    taken out of moneys collected as taxes, whether
    state, county, munlcipel or taxing district, and Is
    paid over to the Assessor-Collector ratably or pro-
    portlonately from these varlous tax funds, on the
    theory purely of reimbursing such official for
    reasonable and necessary expenses which he is out-
    of pocket, not exceeding the statutory maximum.
       "Hence, if the Tax Assessor-Collector of e
    county, himself, in his official capacity, finds
    the time and the means of compiling the delinquent
    tax records required by said Article, in Addition to
    and along with his other official duties, no actual
    cost has been incurred because the entire time of
    this official has been pmchased already for the per-
    formance of these duties by the payment of his of-
    ficial salary. Likewise, if his regular deputy force,
    in addition to the other duties with which they are
     charged, are able to compile these delinquent tax
    records, no lactnal cost,' within the intendment
    of this statute, has been Incurred because the
    salary authorized by the commissioners' court for
     the payment of such deputies will take care of
    such costs. It is only whenactuaL costs alaeex-
    pended or disbursed by the Assessor-Collector in
    the hiring of additional personnel or the provid-
    ing of additional equipment, actually and reeson-
    ably necessary to the proper complletion of these
    delinquent tax records, that 'actual costs' have
    been Incurred, which may be reimbursed in the mode
    outlined by the statute."
       After carefully considering your request In connection
with out Opinion No. 0-4644 as said oplnion applies to those
counties whose officers are compensated on en annual salary
.    -




    Honorable J. A. Eames, page 5         o-5361


    basis, It is our opinion what was said therein is equally ap-
    plicable to those counties whose officials are compensated on
    a fee basis. Therefore, it,is our opinion that the same con-
    struction given Article 7336f, Vernon's Annotated Statutes, is
    applicable to the same extent and in the same manner to
    counties whose officials are compensated on e fee basis as
    it is to those counties whose officials are compensated on an
    annual salary basis.
                                     Yours very truly
                                    ATTORNEY GENERAL OF TEXAS

                                      By s/Ardell Williiims
                                           Ardell.Williams
                                           Assistant

    AW:db:wc

    APPROVED JUN ~~19,1943
    s/Gerald C, Mann
    ATTORNEY GENERAL OF TEXAS
    Approved Opinion Committee By s/BWB Chairman
