              THEA~~CORXEY                  GENERAL



GROVER SEmS




  Honorable D. H. Utley   Opinion NO. 6208.       .     ,,
  County Auditor          Re: Who in Legel.l~:liabla  ,30x. the penabby and
  Clay county             Interest due on delinqueht:tama i4herr~thetaxpayer
  Henrietta, Texas        gave hir personal check to Te+ Collector,    who then
                          ianued and delivered t&x rece,j@;:buGafter     check wee
                          not paid by bank, and returqed to Tax Collector    on ac-
                          count of improper endereement~9nB Wax Collector    then
  Dear Sir:

            We are in receipt of your recent letter in which you request
  our opinion upon the above captioned matter. Your opinion request reads,
  in part, as follows:

            "There existed in Clay County; District Court a lawsuit
       styled Sims vs. Firestone, and an appeal'had been taken by
       the defendant, and this occurred in 1940; the suit was still
       on appeal, and the plaintiff secured the attached order from
       the District Judge of the 97th judicial District regarding.
       the payment of taxes, in 1941 the photostatic copies of the
       checks used are attached, these were honored by the bank and
       payment of taxes made, again in 1942, this same order was
       again given the plaintiff whereby the taxes were to be paid,
       and again the plaintiff gave checks on the same escrow ac-
       count, for taxes as the order directed, and the bank re-
       fused to give credit to the Tax Collector and returned the
       checks (attached photostatic copies) to the Tax Collector
       who in turn recovered the issued tax receipts. Qusstion?
       -- Who is legally liable for the penalty and interest now
       due on the delinquent taxes?"

            The court order referred to by you in your opinion request,
  a copy of which was attached, reads as follows:

            "Carmen Firestone Sims, et al, vs. Tom Firestone, No-
       6313 in the District Court of Clay County, Texas. On this
       the 14th day of October, 1942, it having been called to the
       attention of the Court that the taxes on the property in-
       valved in the above entitled and numbered suit for the year
       of 1942, are now due and unpaid; and the Court being of the
       opinion that it is to the advantage of the estate,that the
       same be paid before they become delinquent,

            It is therefore ordered, adjudged and decreed by the
       Court that the defendant, Tom Firestone, execute checks,,
Honorable D. H. Utley, page 2 (0-6208)



     drawn on impounded account, in the sum of $69.20, the cor-
     rect amount of the County, State and School taxes on said
     property, to the Clay County Tax Collector; and that he
     further issue a check in the sum of $25.20, the correct
     amount of City taxes, payable to the City of Henrietta.

          It IO further ordered that the above taxer be pald
     on or before January 31, 1942,  (Signed) Earl P. Bill,
     Judge."

          It will be noted from an examination of the photoetatic copies
of the checks that the following notation was placed thereon by the cashier
of the bank upon which they were drawn: "0. K. when presented properly
endorsed."

          It is the opinion of this Department that the facts as stated
by you constitute merely an attempt to pay the taxee, and that the same
person or persons are now liable for the taxes, penalty and interest as
would have been liable therefor had no attempt at all been made to pay
the taxes before delinquency. Our conclusion above expressed is based
upon the following authorities:

          The Court in the case of Graves vs. Bullen, 115 S. W. 1177,
held that although tax receipts have been made out and delivered to the
taxpayers, a county may still recover the taxes unless actually paid.

          The Court in the case of Ward, et al, vs. Marion County et al,
reported in 62 S. W. 557 spoke as follows:

          "Collectors are not authorized to receive anything
     but money in payment of taxes. Under the testimony and
     findings in this case, no money came into the Collector's
     hands by reason of these receipts. The taxes indicated
     in such receipts were never paid or collected, and the
     right of the County to recover for such taxes has always
     existed and!still exists."

          In 40 Tex. Jur. Sec. 127, it is stated: "In the absence of
statutory authority to accept payment otherwise, taxes are payable in
currency." Citing Bryan vs. Sundberg, 5 Tex. 418; Austin vs. Fox (Corn.
App) 1 S. W. 2nd 601, affirming (Civil Appeals) 297 S. W. 341.

          The rule is further stated in 40 Tex. Jur., Sec. 127 as follows:

          "The Collector may not accept checks or other paper;
     should he do so, he personally takes the risk of payment
     of the paper upon presentation, and the taxpayer takes
     the risk that the Collector will duly account for the
     proceeds, even if~an official receipt showing that the
1.      -




     Honorable D. H. Utley, page 3 (0-6208)



            tax had been paid was.delivered." Citing Scisson vs State,
            51 S. W. 2nd, 7030

               The Commission of Appeals in ihe case of Austin, State Bank-
     ing Commissioner vs. Fox, reported in 15. W. 2nd 601 in affirming the
     judeplentof the Court of Civil Appeals, used the following language:

                 "Some relevant formula+ee may be stated: (a) A tax
            collector has no authority to receive anything but cash in
            payment of taxes. Figures vs. State (Tex. Civ. App.) 99
            S. W. 412; Ward vs. Marion County, 26 Tex. Civ. App. 361,
            62 S. w. 557, 63 S. w. 155.

                 (b) ,Private ar&gements   for payment (differing from
            the statutory method) made between the collector and tax-
            payers, and performance thereof are at the risk of the
            parties thereto, snd not of the State or County. Ibid,;
            Orange Co., vs. T. & N. 0. R. Co., 35 Tex. Civ. App. 361,
            80 S. W. 670 (writ refused); T. & N. 0. R. Co., vs. State
            43 Tex. Civ. App. 580, 97 S. W. 142.

                 (c) The State or County may adopt or, through asser-
            tion of estoppel, get the benefits of such acts or arrange-   :
            ments (Ibid., Morris vs. State; 47 Tex. 592; Webb Co. vs.
            Gonzales, 69 Tex. 456, 6 S. W. 781; Mast vs. Nacogdoches
            Co., 71 Tex, 384, 9 S. W. 267), or, in case of loss, a
            breach of the bond can be rested thereupon (Ibid.; Wilson
            vs. Wichita Co., 67 Tex. 647, 4 S. ~.,67).  If results
            that liability of the property owner persist6 until such
            acts are done as amount to payment of taxes in the statu-
            tory way, or until the State or County, etc., does some
            act, etc., which amounts to ratification of what had pre-
            viously been done informally by the owner and collector
            with consequent release of the tax lien."

               It follows as a matter of course, as stated above, that the
     owners of the land would be liable for the delinquent taxes, penalty
     and interest because ~of non-payment and the County and State have the
     legal right to enforce its tax lien by reason of the non-payment of the
     taxes, before delinquency.

            Trusting that the above and foregoing fully answers your in-
 quiry we are
                                              Yours very truly
 mmovm     sEp 27 1944                   ATTORNEY GENERAL OFTEXAS
 /S/ Grover Sellers                      By /s/ W. V. Geppert
 ATTORNEYGENERALOFTEXAS                          W. V. Geppert
 WVG: iv:lm                                          Aseistant
 APPROVED OPINION COMMITPEE BY /s/ BWB, CHAIRMAN
