       OFFICE   OF   iME   ATTORNEY       GENERAL       OF TEi<AS
                               AUSTIN      , u          ‘-.




EonOrPble I’red Y. .Xereaith
County AttOMey
I;rufman county
adman,     Texae

Doa3 Sir:

                           Opinion Ro. o-66fO




                                                          the cromdsaiotiers
                                                          ten notice= to rile
                                                          iven before or
                                                          out   the   written
notfoss to aelinq                                             in Article 73247
   \
                                             rney have the option &
                                             filing suits tor colleation
                                             y attorney be subject              to a
                                            uits ior the colleotlon              of


                            y eaditi&i         oompensation or fee             be
                            ornep OR e salary          basis    for   filing
                            or   the   colleotion      of .delinquent
                                                           .               taxes.
                                              .,    provide8 in pert::
            “During the month. of July eeoh year, or as soon
     theroatter   eS practicable,   the aolleotor  of tares LIL
     each oounty of this State shall mail to the tax roll
     adaretm of eaoh owner of any lands or lots sitimtea        in
     the county a notice     showing the mount of taxes delin-
     quent or past due and unpaid against all such lands and
     lots as shown by the dellnqumt      tcx reoora of the county
     on file in the 0Sfi0e Of the tax aolleotor,      a dUplioste                      0i
        m.     Yred V. Meredith,                 page 2              -
                       e..--    -         _   __   ‘      _~     _
                                    -.


                                                         ..-..
                which shall also have been riled j..thei offloe        of the
    :        '~ Comptroller of the State and epprovea by such office,
                but SaIlUm to send or receive       such notice shall be
                Ao defense to e suit brought for taxes.        Such rtotioe
                shall also contain a brief aeeorlptlon       of the land8
                aad lot8 appearing delinquent     and,the various sums or
                amount? due against such land8 aAd lots for eaoh year
                as they appear to be dellAqUeAt, according to such
                reoorda,   aAd It ehall also reoitd    that unless the owner
                of such lots or land desorlbed therein shall pay.to the
                tax oolleotor    tho amount of taxes, Interest,     penalties
                and costs set forth iA 5uoh notioe Within thirty day8
                from the date of notloe,    that the oounty or dlstrlot
                attorney will lnetltute    suits for the oolleotlon 0s
                suoh moneys ana for the foreolosure      0s the ooAstitut;loAal
                lien egalnst suoh laAcLancl.lots...Zach      tax oollector,   as
                BOORafter lcelllng suoh notioe a8 practicable,        shall
                furnish to the County or District      Attorney duglioates
                of au such notices nailed to the tax_oaysrs in aooord-
                (~108 wlth.the provlsio~8   of this law, . . .*

                      Artlole            7326,     V.    A. 0. S.,~provIdes              IA part:          .,       I ..

                   :.Whkever     any &.x65 on real estate have beoone
              delinquent It shall be the duty of the oounty attorney
              upon the 8xpIretIoA of the thirty says Aotlci provldeh
              for in the two preoedlng articles      or as soon thereafter                                      "
              a5 preotloeble,    to file  suit in the name of the State
              oi Texee IA the alstrlot     court 0r the county where suoh
              real estate Is situated, ror.the      total   nmount.of taxes,
              Interest,   penalty end oosts that have remlnea unpaid
              for all years olnoe the thirty-first        day of Dacezber,                                      1
              1908, with Interest     oomputed thereon to the tine fixed
              for   the trial            thweof         at       the rate    of   eix   per   oent   per
              a+um,-end shall pray for judgnent for the payment 0r
              the several amounts 50 specified  therein aAd 8how~ to
              be due and unpaid by the delinquent   tax records of said
              county. ~. . ."

                      ArtIola            7332,     V.    8, C.. S.,.provides             ILL perti         .

                  *The County or Dl8trLct                                Attorney shall represent
-7&-3tate---hild"County-In-all-suit8                                          agelnst-dolinquont-tax-
           Dayers, and all 8~0s collected                                 shell be paid over Imm&dlately
           to the County Collector."
                                                    .
,   l                                                   -:



                         ,



        w.   Prea VT %fer~+th;             page 3                                   .        ..
                                                                        ‘.
                       .‘-      ,-a+                                                    .

                     ~irtlol~      7335,    Y. A. C. S.,     iii pert   provides:       ‘1        :

                      Whenmer the oommiesionera court 0r any county                                     .'
             after    thirty days written notice to the oounty attorney                               ..
              or dlatrlot    attornsy to file aollnquent tax suits and
              his failure    to do 50, shall deem it necessary or exped-
           . .Isnt, said court may coztreot         with any oompetent attorney
              to eAforO% or assist        In the enforoeaent     of the oolleotlon
              of any delIAqU%At State aa oounty taxes ror a per cent
              on ths texea,     p%Aalty and interest       eotually   oolleotea,
              9 . :r*                                                                                        .
                                        .
                     Ye are of the opinion that the written noticea
        mntloned in Articls       7324 do not have any relation         whatsoever
        to the timewhen the oomul5ziIoAers ’ court may notify              the coUnty
        4ttoraey to rile d%liAqU%At tax suits,            as provided in Artiole
        7335* The mailing of these notices by the tax collector                  to
        the a8iinqu8nt taxpayers,         a8 provided IA Article      7324, Is not
        a prerequisite     and has no connection with the filing           of suits
        for the oolg;;%z;      “,f such delinquent       taxes by the county
        attorney.                . State,    25 s. W. (2a) 1113, efflriiiea,
        & 8. W. (2d) 935;        Purthernore,     2rtlale    7335 does not mention
        that this request by the commissiona-a            oourt of the county
        attorney to rile suits is for delinquent taxes for any partlou-
        lar y%ae or with reference         to any particular     notice received
        by the county attorney.        As long es there are delIAqU%At taxes
        due the State and county, the oommissloners court can et any
        the   request the oountg attorney to rile suits for the oolleo-
        tlon 0: such delinquent       taxes.

                    As shoem by &?tIolss  7326 and 7332, It Is the au&
        of th% dounty attorney to file   suit for the oolleotlon of
        dsllnquent taxes.   This is further brought forth IA ~the case                                  -
        of SliiDp Y. Wse,’ 96 s. W. (28) 537, as rollowsr-
                   “It I5 the duty of the county att~orneg of kieoh
             aounty to file suits to enforce the payneAt of delinquent
             taxes, upon request of the com.l5sIon%r5*  oourt,   and he,
             along with all other offloers  whose duty It is to file
             end proaeoute suoh suits for the use and benefit    of the
             Oounty and state,  are subjeot to criminal prosecution
             if they fall  and refuse to perform that duty. . . .*




                                       .
                                             _                              -.-_
                                  :


aonorable    Fred V.-Pleredlth#       page 4                    -.


                                  .              :
          Up to lg.923 the oounty attorney or the district’             .
lttorney,    &I the case amy have been, was the only person
 lathorlzed to iii8 suit ror the oolleotlon           or dellnouent          :
 tUXeO* In 1923 the Legislature         enacted into lew what Is
 a01 codified   as Article    7335, which lo substanoe holds
 that if the oounty attorney refuses the request of the
es&selonera      court to rile suits for the oolleotlon          of                :

d~linqoent. taxes, the oourt if it deems it expedient and
aeeessary, my oontraot with a ooopetent attorney to en-
force or asslet in the enroroement of the oolleotlon             ,of
derlnquent taxes.      Tie ud.l attention     to the fnot that the
eomlssloners     oourtSls not required to hire another person
 to errect colleotlon     0r these taxes, but IJB ir it deene
the etame to be es&Fdlent and neoessery.          r;et is still  the
duty-of--thvoounty     attorney. to oslleot .suoh taxes end the
eomlsaloners     court oan insist     that the county attorney
perrorm this sot:      Slnoe.the   riling or suits for the ool-
lsotlon of delluquent      taxes are %lnlsterlal        sots” of the
oounty attorney,    a mandamus will lie to require hi+ to file
woh suits.                              .i . .           .'
        ;:You ham informed ua that your county is on.the
salary basis,      therefore   your conpensatlon    is that provided
in Article    3912e, V. A. U. S. As heretofore          stated,  thg
tiling or these suite is a duty laoumbsnt upon the office
or 0ount.p attorney.        It is not added work upon this orrioe.
In couuties on the fee basis, .the fees provided county
attorneys. for ,the oolleotlon      of delinquent     taxes are treated
as fees Df.‘bfffoe      and are aooounted for as suoh,        See Article              :
7332. In oouutles on a salary basis,           the fees provided county
attorneys ror~the oolleotlon        of delinquent     taxes go into the
Ofr’loers* 3szai-y Fund. Therefore,        a county attorney who does
dolleot della;uent       taxes 1s not en6ltled     to any additional
Oompensetlon    thereror.
          ._ ,
                --
           ‘.                            mm      y-a-: tfplr,
                                        ATTOISitY CZX+    OF !l’EXAZ
