           THE       ,~TTORNEY            GENERAL
                         OPI'EXAS




Honorable Joe Resweber             Opinion No. M- 1126
County Attorney Harris County
Harris County Courthouse           Re:    Whether the County Tax
Houston, Texas 77002                      Assessor-Collector is
                                          immune from liability
                                          regarding the issuance
Dear Mr. Resweber:                        of a certificate of title

          Your recent letter requests our opinion on the
following question:

           "Is the County Tax Assessor-Collector immune
     from claims of third persons in instances where
     title to a motor vehicle is issued under Section
     39 of the Certificate of Title Act (Article 1436-1,
     V.P.C.)?"

          You state that many tax assessor-collectors have been
reluctant to grant titles without an indemnity bond of some
sort, feeling that there is always a possibility of a third
party having some claim unknown to the assessor-collector at
the time the title is granted. However, you have presented
no specific factual situation or a state of facts under which
we might render an opinion as to the liability or non-liability
of the public official concerned.

          It is the settled policy of this office not to write
on speculative or hypothetical questions, particularly where
no specific factual situation is presented. Accordingly, in
rendering this opinion, we are necessarily confined to giving
you a general statement of the law, without making any attempt
to cover all of the exceptions or to cover some specific
factual situation.  In this connection, we are not apprised
of whether the official, based upon the particular facts be-
fore him, is rendering a strictly ministerial decision or a


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Hon. Joe Resweber, page 2,       (~-1126)



quasi-judicial judgment involving an exercise of discretion
and judgment. Such consideration is significant on the
question of liability. See Torres v. Owens, 380 S.W.2d 30
(Tex.Civ.App. 1964, error ref., n.r.e.1.

          Section 39 of the Certificate of Title Act (Article
1436-l Texas Penal Code), referred to in your inquiry, reads
as follows:

          "Any person interested in a motor vehicle to
     which the Department has refused to issue a certifi-
     cate of title or has suspended or revoked the certif-
     icate of title, feeling aggrieved may apply to the
     designated agent of the county of such interested
     person's domicile for a hearing, whereupon such desig-
     nated agent shall, on the same day such application
     for hearing is received by him, notify the Department
     of the date of the hearing, which shall not be less
     than ten (109 days nor more than fifteen (15) days, and
     at such hearing such applicant and the Department
     may submit evidence and a ruling of the designated
     agent shall bind both parties as to whether or not
     the Department has acted-justly in the premises.

           (a) Such applicant feeling aggrieved with the
     ruling of the designated agent, may, within five (5)
     days and not thereafter, appeal to the County Court
     of the county of the applicant"s residence, who shall
     proceed to try the issues as in other civil cases,
     and all rights and immunities granted in the trial
     of civil cases shall be available to the interested
     parties.

           (b) If the action of the Department complained
     of fs sustained, a certificate of title for the par-
     ticular motor  vehicle involved shall only be issued
     upon such rules and regulations as the Department
     may prescribe.




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Hon. Joe Resweber, page 3,        (M-1126)



            (c) Should the final decision be against the
      ruling of the Department, the certificate of title
      shall issue forthwith."

           Section 26 of that Act provides as follows:

            "Sec. 26. The term 'Designated Agent' means
      each County Tax Collector in this State who may
      perform his duties under this Act through any reg-
      ular deputy."

           It is held that the Legislature has the authority to
add new and additional duties to those of the tax assessor-
collector.   State v. Glass, -167 S.W.2d 296 (Tex.Civ.App. 1942,
error ref., 170 S.W.2d 470).

          Section 30 o?f the statute, as amended, reads, in
part, as follows:

           '"Nodesignated agent of the department shall
      be liable for civil damages arising out of his
      failure to reflect liens or encumbrances on such
      motor vehicle unless such failure constitutes will-
      ful or wanton neqliqence."  (Emphasis added.) -

           In the absence of wanton or willful negligence,l




1.   Section 30, Article 1436-1, Texas Penal Code, 43 Am.Jur.
     91, Public Officers, Sec. 279, and cases cited.




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Hon. Joe Resweber, page 4,         (~-1126)




malice or intentional conduct to inflict injury, 2 or corrup-
tion,3 or arbitrariness or self-enhancement so as to constitute
an abuse of his legally entrusted powers,4 the County Tax
Assessor-Collector would not generally be liable civilly under
Article 1436-1, Texas Penal Code, when acting in good faith
and within the scope of his official authority and in the line
of his official duty in issuing a title to a motor vehicle
under the Certificate of Title Act, even though his decision
be in error.5

          In at least one appellate decision, it was held that
if the act were lawful, it was immaterial as to what motive
may have activated the officer to act,6 but a contrary rule




2.   Dallas County Flood Control Dist. v. Fowler, 280 S.W.2d
     336 (Tex.Civ.App. 1955, error ref., n.r.e.); Harwell v.
     Ward County, 314 S.W.2d 868 (Tex.Civ.App. 1958, error ref.,
     n.r.e.): 43 Am.Jur. 86, Public Officers, Sec. 274, foot-
     note 13 and cases cited: Sec. 275, p. 88, footnote 3 and
     cases cited: Sec. 278, p. 90, footnote 15 and cases cited.

3.   43 Am.Jur. 88, Public Officers, Sec. 275, footnote 3 and
     cases cited.

4.   Harwell v. Ward County, supra.

5.   47 Tex.Jur.2d 167, Public Officers, Sec. 130, and cases
     cited: Pridqen v. Giles, 267 S.W.2d 187 (Tex.Civ.App.
     1954, error ref., n.r.e.); Ross v. Gonzales, 29 S.W.2d
     437 (Tex.Civ.App. 1930, (error dism.); Dallas County Flood
     Control ~Dist. v. Fowler, supra; Harwell v. Ward County,
     supra; 43 Am.Jur. 85, Public Officers, Sec. 273 and cases
     cited. Set - 274, pp. 86 and 87, and cases cited; andlsee
     Am. Ry. Express v. Kentucky, 273 U.S. 269, 273 (1926).

6.   Pridqen v. Giles, supra.




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Hon. Joe Resweber, page 5,          (M-11~26)



was recognized in a later decision7 and is also recognized
in a number of other jurisdictions.8  We will not express an
opinion on the element of motive, since the Texas law is
unsettled and our opinion on that matter would then be specu-
lative. See Attorney General Opinion No. O-3106 (1941), p. 19.

                       SUMMARY
                       _------

          The County Tax Assessor-Collector is generally
     immune from liability on claims of third parties
     where title is issued in good faith and within the
     scope of his official authority and in line of offi-
     cial duty under Section 39 of the Certificate of
     Title Act, and even though done erroneously, there
     being no wanton or willful negligence, malice or
     intentional conduct to inflict injury, or corruption,
     or arbitrariness or self-enhancement so as to con-
     stitute an abuse of his legally entrusted powers.

                                 V&truly    yours,



                                       RD C. MARTIN
                                    orney General of Texas

Prepared by James S. Swearingen
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman


7.   Dallas County Flood Control Dist. v. Fowler,    SuPra.


8.   43 Am.Jur. 88, Public Officers, Sec. 276, and cases cited.



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Hon. Joe Resweber, page 6,     (M-1126)



Bill Campbell
Sig Aronson
James Quick
Bob Lemens

SAMLJEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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