                 OFFICE   OF THE ATTORNEY     GENERAL        OF TEXAS




bpIL&lc. MANN
 -     sol-L



         Fianerabh  A. II. Eludkeraon
         csanty  Aodttor
         afontgomery Qouuty
         UoIlroe, Texas


          Dear sira




                     Your letter                        rt    an oplnlan  ar
          this a*partmnt   80                           lnqueat    twpayere
          a&n8t    yaur oount




                             *For lnitanoe,    if WC hire an 8%
                      tonmsy and      awe te pay b.h for hlr
                      euwrl(tO8, an3 ha owed li8llnqueut
                      taxer,   do I We      th* authority to
                      hold up hlr Olalmr"

                     We hate dil&@zitly sewehed    the oathorl$iw         lsa
          thlrr Stata anU can fbd   m 6aase or st&tute  that-rso;td       rp+
                                                                352



Honorable A. L. Elokeraon,Fq$e e


offioally conrer the authority to you to do whet you seek
to do in ral'ercnoeto holEing up olalms e&mt    the aounty
of person5 owing delinquenttaxes. It the County Auditor
is to be elven anoh a right, and auoh a power, lt mast be
oonrerred on him only by inpllaatlon.
          In answerinS:  your qmt3tlon, we vmuld liks to oall
your attention to a portion oi the opinion ol Aselmtant ht-
tornay Genarsl II.L. "llllford,
                     $4          dated October 29, 1.898,
uhloh you forwardeU to this ofiioe~alongwith your letter.
                *It Is the law of this 3tate that
          a tax~~yar is not personally llable$or
          taxes wbloh Il00l-MQ&net X%51 DlTODhT-
          ty before b4 par8haseU it or aoqUlr@l
          the tltls thereto.     It 1s also the law
          that s man la not personallyliable for
          taxem whlah aamae against real pmper-
          ty after he baa sold the sms arqn thou@
          he thereafter re-aoqalrem euoh roperty,
          but in any merit rOal pTOpeI%y !a liable
          for tbs taxes lrried and asseseed against
          it, lmapeotire of the personal llabfl-
          itp of the omer. You aan psroelve inns
          what I have stated that not every owner
          Of FWI p0pM.y 18 p~8OMilf         liable
          for all the taxem vdriehp.lghtbe due
          against it. Ee 1s only personally liable
          where he owns suah pmperty OR January
          1st of the tax year, and a valid levy
          ana asaeaamQllt  WaEma0 agalilsthim:Even
          in such a oaae* I doubt the wisdom of
          adopting the DOliOy Qf wlthholdlng pay-
          ments for right of way where e erson
          owns dellnquanttaxem, cause une11 a
          tar olalm is otticIally    establishedbg
          a~ ad wltoation fn 8 oourt of OOaSget~t
          $u-ls~l ati on, lt x&&at be said to be
          doubtf'uland oft times on as&Wnt ot the
          omiaslon of sorm statutory requlelte er
          prwedure tar claims are defeated."
          Hr. Wlllif'ordcal.leyiiur attentlotito the faaot
that a tax debt la dlfierent fms on ordinary debt. Be-
muse or thts dlertlnatlon, the ~otarts of thla State have
held that in (isalt for taxoa a 01&a a&nst the county
ala not be act off by a taxpamr. The aonrt Qfsaubras
th38 p~blem in the ease of Dallas Joint Stook Land Bank
Of Dalb2m vs. Zlli6 &Wity Zesty~DrOrePaent Diatri4t t&h
F,onoreble
         A. E. Hlokerson, Page s


3,   55 2. c.   (26)   229:

                 *The gemrel rule or lea ICIthat
            a alaIm lgalnnt the 8tet.eor munlol-
            p6lIty Oannot be eet oft agaltut a tax
            demand. Cooley on Tention (2d Ed.)
            19. A tax 1s not a debt In the usu61
            end ordlnery aexue of the word. Cit
            Or hr4~~rlORufJt. DWlQSOn, atfLa.A&.
            541, 31 Am. l?ep.228; OoaJey on Texa-
            tion (ea Ed.) 15."
          In holding up money which the county owes to an
lndlvldual,who 1s 8 delinquent taxpayer, a oounty Aadltor
would be, In effeot, eotlng as judge end jury over eald tar-
payer6 liability for the tax. Nowhere h6s the Legi8lature
6psalfioallygranted to a County Auditor this power, and we
are or the opinloa that suoh authority doee not re6t in him.
          The method of oolleotion of delinquenttaxeSi 18
8et out In Chapter 10 of Title 122, Revised clvll statotee.
The 8tetutes eontalned in thle Chapter presorlbe oertein
notloer to be @en to delinquent taxpayers,end oertain
methods o? prooedure in the aolleotlonof delinquent taxee.
These atatutea are leghthy and in detail, end, In the opin-
ion of thlr depar%ment,met be complied with In the eol-
leotlon OS delinquent texee. The suggested method a? sol-
leation oi the delinquenttex In your letter would not be
in line with the prooedun set out In BRld Ch6pter.
           In your letter you refer 6pecIffoallpto holding
up salaries of people employed by the oounty. AQ enalogoue
situationwas dinouesed In the oase of Denman vs. Coffee,
91 S. PI. 801.  In this ease Denman was Zharlif of Brown
county, and some or hi6 fee6 of otfloe were held up beoeuse
ot l debt whloh he owed to the County. The court held that
this oould not be done, and 8teted as follows:
                 wTh66e eeoount6 were for fees or or-
            rloe Cue Dsnaun a6 the shsriit or Brown
            County, end oould not be le$ally approprl-
            ated by the Oo6&16610nQr6cOourt to the
            payment ot an indebtednessof D6nman to
            the county, even ii the orders upon whiah
            that fndebtednsea~66 b66ed oould be au-
            eelled In e collateral proceeding. ,7angar
            Bras. v. City of ?&to, 15 Tex. Civ. App.
            424,   40 S. W. S4St Banlr V. Blnk~, B6 TAX.
            306,   24 8. F. 286, 40 ha. "t. liep. 885.'
Honorable A. B. Hiokerson, Page 4


          In the oase of Sanger Dros. vt3.City ot Waoo, 40
S.K. 849, whioh wae olted in the Dennan ease, *n attempt
was made to garnish zioneynhIoh the oounty owed one of Its
0fri00m. The oourt held that this ooald not be done, that
It was against pub110 polloy. The oourt strrtcdthat the
reasoning In that ease was analogous to tht.roasoningwed
by the Supreme Court In the oaaa at Bank VS. Fink, 86 Ter.
SO6, in whloh the court etatsd ea l’ollowe:
                **Dignity ot office,* In the meme
          that the term is wed in the English
          oases, doe6 not exist In this country;
          and yet there le a dignity, or at least
          should be, attending evorp offItterin
          that senee that 6 proper aad Independ-
          ent dlaoharge of Its duties Inspires re-
          epeot ror the oriiaer    and ror the offioe.
          In this nore important sense o? dignity,
          the mne reaaoa can be well.applied in
          thlt4aountry. The law provides eompen-
          aation for offio$al servloe In order to
          enable the officer to be rrse from the
          oarw or making provision ror hla own
          impport end that of his family during
          the term of o~loe, that he may devote
          h%a whole tlms to the disoherge of the
          duties of hln orrio.. Ir such offioer
          is penaitted to assign hIa salary or
          few   before earned, he may thus deprive
          hlmaelf and SamUp of this support, and,
          to secure It, he must look to come other
          source, thereby deprIvfnS the state of
          the oareful end thoughtfulattention
          that the poblio Interest demands. A
          hungry man ia weak in the paesenoe of '..
          tcroptatlon, no matter what .?lay be his
          ability to tithstand it fn B state of
          lndependenos. To deprive aucrhan otti-
          oer 0r the means of dally oup.prt for
          himself and redi       &Ile his time must
          be given to work l’  n whioh he can erpeet
          no rellsr, would be a stroug Induoaaent
          to resort to methods which if not dis-
          honest, would at least be inoonaiotent
          wlth the public good, and the dLgnIty
          of his ofiioe be destroyed by lOsing
          the respeat and eorniidenoe   of the pub-
           llo.*
Eonorable A. E. HIokar#5on,
                          Page 5


          From the above authority, it is unquestlonablr
the law that the County Auditor would not have the author-
ity to hold up aalarlta or tees owing to Ite county otli-
oera beoauae said ofY1cez-sowed delinquent taxea. BY WY
or analogy the reeaonlngused by the oourts In disousslne
that type of situation muid elao epply to all ealarles
paid by the oounty to any of it8 employeea. The public
polloy involved la that OS keeping the aervloe rendered
to a oounty by Ita employeeson a high level by not having
them put In feer of having their salary subjeot to garniah-
ment.
          In your letter you also Inquire apeoltioallgaa
to the holding up of noney due an attorney for serviosr
rendered In oonneotlonwith the oolleotlon of delinquent
tarea, bemuse aald attorney owes dtlinQUent   taxee h,Iwelf.
In the oaae of Fume va. Zuehl, 119 S.Vf.(2d) 805, the
oourt held thtt B oontraot with an attorney for tha ool-
;rg;go;gordelinquenttaxes waa a aontraot for personal
           You, therefore,are advised that the aame rea-
aonlng will apply to him aa to other employees or the
oounty.
          It la the opinion of thla de-pertmmt,thsrerore,
that   the              is unauthorized
             Oounty Auditor             to hold up money
uhieh the county owes because the party to ?&horn
                                                the oounty
ie indebted happens to owe delinquent taxes.

                                     Yours very truly
