Hon. Geo. H. Sheppard
Comptroller    of Public         Accounts
Austin,   Texas

Dear    Mr. Sheppard:                       Opinion No. O+KX?
                                            Re:   Can the :on of the county
                                                  attorney  be employed to col-
                                                  lect delinquent  ta~xes?

             With your letter   of March 7, 1944,                 you submit for
the opinion    of this department   the question                raised  in the
letter   from Judge Eugene G. Connally,     County                Judge of Somer-
veil   County, addressed    to you, which letter                is as follows:

                 "I am writing     you with reference          to    our   tel-
       ephone     conversation     of this date.

               "Sonervell County,   the City of Glen Rose,
       and the Glen Rose Ind . school    district   have de-
        cided at a joint  meeting of all three governing
        bodies  to employ an attorney   and collect   the del-
       ,inquent taxes due said taxing units.

             -"The only attorney    we have, thus far,  been
       able to find who will    attempt to collect   our del-
       inquent   taxes is Penn J. Jackson of Cleburne,    Texas,
       who i3 a son of our County Attorney     B. Jay Jackson.

                 "However it is noted that at top of page                   two
       of the     contract  forms furnished    by your office               there
       is the     statement   that the contracting    attorney              is not
       related     to, among others,    the County attorney.

                  "Unless this can be waived         we will        have   to
       look     further   for an attorney.

              "We would like to know about this at the earli-
       est possible  moment, as we are anxious to get started
       either  with this man or Someone else."

               It is observed     that the question    with which
       the taxing authorities        is concerned   involve3  the
       construction    of Article      432 of Vernon's   Penal Code
       of Texas,    1925, which reads a3 follows:
Hon. Geo.    H. Sheppard,      page    2             O-5922



               “No officer      of this State or any officer
     of any district,         county,     city,     precinct,     school
     district,      or other municipal           subdivision     of this
     State,     or any officer       or member of any State,             dis-
     trict,     county,    city,    school     district     or other
     municipal      board,    or judge of any court,            created     by
     or under authority          of any general         or special     law
     of this State.        or anv member of the Legislature.
     shall appoint:        or vote for,         or confirm-the      ap- ’
     polntment      to any office,        position,      clerkship,
     employment or duty, of any person-related                     within
     the degree by affinity            or within       the third degree
     by consanguinity         to the person 30 appointing              or
     so voting,       or  to  any   other    member     of  any   such   board,
     the Legislature,         or court of which such person 30
     afE;;inting      or voting     may be a member, when the salary,
               or compensation        of such appointee         Is to be
     pald’for,      directly      or indirectly,        out of or from
     public     funds or fees of office             of any kind or
     character      whatsoever.     ” (Emphasis added)

               We think plainly       that the county attorney             Is em-
braced withln        this statute,     because     he is an officer         of the
county,     and the statu.te clearly          states,     “No officer     of this
State or any officer           of any district,        count+     city,   precinct,
s,;;ool    district     or other municipal        subdivision      of this State,”
        + but when we come to that portion              of the article,       which
Is $ohlbitory         as It applies      to the question        before    us, it
says :     “Shall appoint,       or vote for,       or confirm      the appointment
to any office,        positlon,    clerkship,       employment or duty,          of
any person related          within   the second degree by affinity               or
within     ttie third degree by consanguinity              to the person 30
appointed       or so voting.”       We fail     to find that the county
attorney      has any prohibited       relationship        under the conditions
stated     in Judge Connally’s        letter.       In other words the county
attorney      does not appoint,       vote for,       or confirm the appoint-
ment of the attorney           employed by the commissioners             court to
collect      delinquent     taxes under special         contract     provided     for
by Article       7335, R. C. S., as limited            by Article      7x358, R.C.S.,
and hence does not come within any of the conditions                        con-
demned as violations           of Article     432 of Vernon’s        Penal Code of
Texas, 1925, quoted above.
             It i3 therefore     our conclusion    that this article       is
 not a barrier,   precluding     the commissioners     Court from em-
 ploying  the son of the County Attorney         to collect    delinquent
 taxes under a contract      provided   by Article   7335, R. C. S.,
 and 7335a, R. C. S.      It is true that Article        7335a provides
 that such a contract     must be approved by the Comptroller           of
~-Public Accounts  and the Attorney      General,   both as to substance
 and form, but this does not mean that perforce             Of thl3 pro-
Hon.   Geo.   H. Sheppard,     page   3            0 -5922


vision    of Article      7335a that the Comptroller           or Attorney
General    may enlarge       or extend the scope of Article           432 of
Vernon's      Penal Code, quoted above,           by adding thereto      a con-
dition    or relationship        not comprehended        In said article     as
a violation'thereof.           To do so would be to override           the pre-
rogatives      of the Legislature.          It must be borne in mind that
neither    Article      7335 nor 7335a, supra, by reason of their
own terms,      fix any limitation        upon the Commissioners         Court,
except that the attorney            employed be competent,        and that his
compensation        shall not exceed 15% (fifteen           per cent)    of the
delinquent      taxes.     But we have no hesitancy           in holding    that
Article     432 of V. P. C., commonly known as the nepotism
statute,     ,would apply to a contract           made unrler Article     7335
and 7335a, if the relationship              of any of the contracting
parties     be such as is cond~emned by said article             of the penal
code;   but the County Attorney           is not vested with any author-
ity to appoint,         or vote for,     or conform the appointment          of
the Commissioners         Court in employing an attorney            to collect
delinquent       taxes provided      for under the terms of Article            7335
and 7335a.        Hence   we  are  unable     to  see   how  the employment     of
the son of the County Attorney             under such circumstances          would
be in violation         of said article       of the penal code,      assuming,
of course,       that he is not related          within   the prohibited     degree
to any member of the Commissioners                Court.

            In thus holding     we are not to be understood as ap-
proving  as a settled    policy   the appointment under such cir-
cumstances,    but merely hold that the law does not prohibit
it in this    instance.

             The county officials       of Somervell        County may be
under the' impression     that Article      7335 and 7335a apply to
contracts    for the collection      of delinquent        taxes in behalf
of cities    and independent     school   districts       and other taxing
units,    and if so, such is not the case.             These two articles
apply only to contracts       for the collection          of State and
county taxes,     and have no relevancy         to contracts     made by
cities    and independent    school   districts       insofar   as requiring
the approval     of such contracts      by the Comptroller        and the
Attorney    General.    Bell v. Mansfield         Independent    School Dis-
trict,    129 S. W. (2d) 629, (Commission           of Appeals)

            The Comptroller     and the Attorney   General would,
therefore,    not be authori.zed   in any event   to approve or
disapprove    a contract  made by the city     of Glen Rose or the
Glen Rose Independent     School District    for the collection
of delinquent    taxes.

            We believe,    however,   that under the holding   of Bell
v. Mansfield   Independent     School District,    supra, that cities
and independent     school  districts   are limited   to the maximum
Hon. Geo.   H ,. Sheppard,     page    4              0 -,5g22



percentage    of fifteen    per cent fixed by Article     7335a as
compensation    t.o be paid to or received     by the special
attorney    employed by a city     or independent  school   district,
but    this arises    by virtue  of Article   7343, R. C. S., read-
ing in part-as     follows:

             “All laws of this State for the purpose of
    collecting     delinquent   State and county taxes are
    by this law made available        for,    and when invoked
    shall    be applied    to, the collection     of.delinquent
    taxes of cities       and towns and independent        school
    distrlc,Ls    in so far as such ‘laws are applicable.”

            The application    and the dlstinction                is made clear
by the fo,llowing   language quoted from Bell v.                  Mansfield
In,dependent Schoo,l District,    su,pra:
             I,   ~ ” As above pointed      out, the specific
    language of Article         7343 go’verns ttie character   of
    conrrac~t which t:he parties        could make.    That language
    limits     the compensation     to that provided    by law in
    suits    for state and county tares,         That amount Is
    limit,ed    to fift~een per cent of the amount collected
    and there ~1s no authority        in law for the payment of
    a greater      percent,age.    The contraci   under review
    provides     for t,he payment of twenty pe’r cent,        It is,
    for that reason,        void.   Art v 7335a, 0 2.

            “We t:hink it proper here to observe                   that
    the requirement.       of Article       7335a, that contracts
    made by commissioners            courts   shall be approved by
    the Comp,troller       and Attorney       General,      should not
    be held t,o be applicable             to con,tracts     made by in-
    dependents school        d.istricts.      Bye the concluding
    sent erce of Article          7343, above quote;all             la~ws
    of this state       for ,the purpose of collecting               del-
    Lnquent, st.ate and county taxes shall be applied
    to tne collection          of delinquent        taxes of inde-
    pendent school       districts        In so far as such laws
    ar’e applicable,         The st&t~e has a direct           interest
    in the co1 lectlon         of state and count,y taxes,             but
    hss r,o such direct,         interest    In the co’liection          of
    delinquent      t~axes of independent.          school    districts.
    The reason for the provisions                ,for the approval        by
    ,the Compt.ro1le.r and Attorney           General of contracts
    made by commissioners            courts    is obvious ,, But no
    similar    reason exists         for requirfng        such approval
    of con~?racts made by independent                 school districts.
    We a,re, therefore,         of t,he opinion        that such re-
    quirement     of approval        is not applicable          to these
    latter   contracts      ;”     (Emphasis ours)
Hon. Geo~ H. Sheppard,        page 5              O-5922



              You are, therefore,        respectfully      advised   that it
is our view that Article          432 of Vernon's        Penal Code, 1925,
is'not    violated    by the employment of the County Attorney's
son by the Commiss toners Court to collect                State and county
taresunder'a       contract    authorized     by Articles      7335 and 7335a
if he Is not related        to any member of the Commlssloners
Court for the reasons         heretofore     stated,     namely, the County
Attorney,     the father    of the Attorney        thus employed by the
Commissloners      Court, does not appoint,           vote for,    or confirm
the appointment,       and hence does nothing          In violation     of said
Article     432 of the Penal Code.

             And you are further   advised  that+tt.e Attorney
General and the Comptroller      have no statutory    duties  to
perform in connection     with the contract   made by the City of
Glen Rose and the Glen Rose Independent       School District    for
the collection    of delinquent   taxes.

                                         Yours   very   truly

                                       ATTORNEYGENERALOF TEXAS



                                         By s/L. P. Lollar
                                               L. P. Lo7lar
                                                  Assistant

LPL:AMMrwc


APPROL'EDMARCH31, 1944
s/Gee- P. Blackburn
ATTORNEYGENERALOF TEXAS (acting)

Approved    Opinion   Commii~tee By s/BWB Chairman
