                                                                   454



     OFFICE OF THE ATTORNEY       GENERAL    OF TEXAS
                         AUSTIN




Honorable 1s.0. (2smey
County Auditor
Benz? county
Ban Antonio, Texas
Dear Slrr




                                           rob 18, 1940, impple-
                                           In whiah you enoloeed
                                       U &plnst the tax aemm-
                                         Both of thwr aotlom
wera 5anua8ie80;
              pro                       itissrm and reridants
oiBexar Qount                            ax essa8ao*t3olleetor
                                                 In both MIlta
                                            and the aoetm wore
                                            hlmtaneeathamdt




                    l&r ctatoment af the Saotr surrountllng
                     in your letter of Yaroh 18, 1940, from

                                            engageQ in
                  en of Bezar County who Ire!
                 on 0r private tax exadnlng ntadea ds-
     mad on the Assessor and Collaotor of Baxar County
     to enter that part of the offioe whlsh is oloseb
     off fros the pub110 and looated where all reserda
     are kept to have ime aooem to all the reoor&a
                                                                455


Bonorable E. G. Garvey, Page 2


     pertalnln~ to delinquenttaxes.
           "The Assessor and Colleator advised this citi-
     zen that he would gladly penlt hi;nand grant him
     this privilege to enter thie part of the offloe to
     8.~8 and lnspeot any particular Item in his offioe if
     he would state whet item he dealred to see but that
     if he did not do this, he would refuse to grant him
     this privilege. This oltlzen did not state what items
     he desired to see so the Assessor and Colleotor refuse%
     him thle privilege, stating that he felt that if the
     public was allowed to enter this part 0r the 0rri00,
     which 1s not olose% off from the Colleotlon Department,
     8110this being at a period when heavy tax oolleotlons
     were being made, that he might be endangering the
     countyfunds.
          The Assessor and Colleotor, however, stated that
     this was his aonatmotlon or the law on this matter.
     Be also #tats% that if the Criminal Distrlot Attorney
     of this Oountp as legal adviser, advised hitsthat this
     oonstruotlon was in error, he would be guided by and
     d0 a8 th8 Cri8dnal~DiStriOt Attorney rule%.
          *Before the Criminal Dlstriot Attorney had ruled
     on this question, this olflaen took t?$lsmatter before
     the County Commisslon~rat Court an% the Orlmfnal Dls-
     trlot Attorney adrim?% the Court that they had QO Jur-
     lsdlatlon ln the matter. Therefore, the Court took
     no aetlon an%jMs oitlzen 2118% suit against the As-
     seqor and Colleotor indlvldually and as Assessor and
     Collector of Taxes or Beatr County.
          *Tha oase was trlsd In the 45th Dlstrlot Court of
     Bexar Coqnty and the CrImlnal Dlstrlot Attorney repre-
     sents% the Assessoi an% Colleator ltithis cult an% Judg-
     ment was rendered in favor.of the plalntlff an% oosts
     assessed.agaibet the defendant.
          RArtlole 39l.Z-Bstates that no oounty shall pay to
     any orrloer ln any oounty oontalning a population or
     20,000 Inhabitants er more aooording to the last pre-
     oedlng Federal census, any SW or oommlesioafor any
     servloe by him performdl as suah officer. As stated
     above, this suit was brought against the Asseesor an%
    Collator indlvid~tiug ad     suI ~s~sor    anb
Ronorable E. 0. Garvey, page 9


    Collector of Tsxes of Bexar County and the Commls-
    sloners' Court was not made a party to this suit.
          "C,uestlon: Ie the Assessor and Colleotor liable
     for the oamnt   of these costs to the Dlstrlot Clerk
     or emu this ease be anally olasslffe a.8a suit aRalmt
     ;~~;un;n~cI~vto~~r;;;;;;       the As~sssor and Colleotor

         *Another suit regarding the redmptlon fee of $1.00
    allowed in Artlola 7391 was flled by this eann oltlzan
    against the kssessor and Colleotor lndlvldually and as
    Asssssor and Colleotor of Taxes of Bexar County, the
    Comnlssloners* Court not being made a party to this suit.
    The County was naturally very interested in the oase as
    it involved the revenues of the oounty.
           The Judment in this oase ws also rendered ln
     favor of the plalntlff and oosts assessed aga%nst the
     defendant. This Judgment 0s aourse means a loss in
     revenue  to.the aounty. The Crlmlnal Dlstriot Attorney
     also represented the Assessor and Colleotor of Taxes in
     this case.
         *The question here 1s the sass as above mentloonedt
    Is the Assessor and Colleotor liable for the oayment of
    theeseoosts to the Dlstriot alerk or tsn this oase be
    leizallyolassifled as a suit against the oountP whloh
    would relleve the Assessor and Colleator of the'oayment
                                                    . -
    0s thess eosts7-
          Artlale 2056 of the Revised Clvll Statutes,     1925,
reads es follows:
          "The sucoessful ?arty to a suit shall reeever of
     his adversary all oosts ooourred thereln, exoept where
     othemlse provided.n
          Article 1980 of the Revised 01~11 Statutes,     19885,
provides thst.:
          "Suita by or agalnet e oounty or Incorporated     olty,
     town or village shall be in it8 corporate name.w
Honorable E. 0. Ganey,    Page 4


           A ease slolllarto the one at hand was August A.
Busah % Go. v. Gaufrlsld (C.C.A. 1911). 13S S. W. llO8, in
*hIah a xuandamuspmoeedlng was Instituted by relators against
t,b County Judge and County Clerk Of MoKinney County, Texas,
ms ondents, Indlvldually and in thslr rapresentatIve oapa-
sItf es, to compel them to Issue to relators a oouuty warrant
In paymsnt of their olalms agalnrt the oounty. Costs were
taxed agaInat raspondannfsas IndIrlduals and an appeal was
takeu to the Court of Civil Appeals Innlstlng that the oourt
ghoul8 tax the oo8ta agalnrt them in tbair offloial aapaeltlss
au& not as Indlvlduals, so that  they night reawer oostm al-
ready paid by thktafrom the aouuty. This the oourt daalined
to do and In the aourae of lts opinion It aald:
           *It is not sbom by the motion that they have
     sny funds Iu their hands a8 rush offloers wlth whioh
     to pay suoh aosts, and wa preawm that there am no
     woh.fuals at their Bfapoaal. Themfore, to retax
     the mats, 80 that plalntiffr ecald rwover againat
     them only ln.thair offIoPa1 eapaolty,would,   ln the
     aboeuse of muoh showing, be equivalent to heldI
     that appellants wera not entftled to naov6r the T r
     awls, whloh would oontruveue the prorislo~ of
     artlole 1425, Saylea* Rev. Stat. 1897, wblch pra-
     rldas that the ~uooesrful party to a suit shall re-
     eover of hip adversary all the aosts expaudad or In-
     aarred thenln, exsept where it ls or may be other-
     wise provided  by law.  It Is saI% In 86 Qye. p. 311,
     i~peaklng with referennoeto soate Iu mandamus oases1
     *In oonstraing   etatutes,   ooarts have generally roi-
     lowed the geu6xU  rule in slYll aatlonm and awarded
     costs to ths prevallIug party.*
          *In desliuing to Issue the vrlt, it lr true, they
     aoted upon the seoond order of.the oasmIssiunors* aourt
     reaolndlng the first order, but in doing so the ware
     not proteetedby reason of said awond order, aInce
     the same transeendad the power of the msmIssloners*
     oourt. Doubtlass the amaaIssfoners' oourt, uuder the
     olrowsstaaoes,wIl1 refund -4 oosts so paid by then,
     but wa are not JustIfIad in axi.ng the createothemIao
     than we have already done; for whIoh reason the motion
     18 overruled."
Honorable It.G. Oarrep, Page %


          In Gouhenour r.'Anderwon (C.C.A.  1904), 35 C.A.
563, 81 S. #. 104, It was held that  notwlthatandlng osrtaln
Qolultyaoamlssloners, detendants ln a aendaaus prooeedlng
brought agalnst than, bad resigned rmm offios arter the ln-
stltatlon or the suit egaln8t than, they were nsrsrthe~sss
personally llsbls r0r croote. In the  oourae of its opinion
the   0ourt   saldr
            ‘Whether the sasosedlng amben, should bs
       oltsd, and thus made formal partles to the prosssd-
       in& or bs treat& as alNady bsfors the ooart, 18
       a qasstlon on whloh the luthorltlss do not sesm to
       be altogether satlstaoto~~ bat we sre of oplnloti
       that whsre ths body prooesdsd a&alnst, like the som-
       mfsslonws* 00tsrt ;r~gx&lS     not a oorporats body,
          h members ,dh




          Your request pzesents a situation whloh 1s also sim-
ilar to that lnrolred in the oase of Pearsall et al Y..Woslis,
(C.C.A. 1899), 50 S.~W. 9W.   Thor8 mandamus was lnntltuwu
against sahooltmatsss   ta axapel thsmte reao@lse a8 a tesohsr
6ns olalming the right to teaoh under a oontrsot with ths sohool
board. It held that  the trwtsss were properly joined both as
t'mstses and as indlvl~uals and that they were liable psrsonally
and lndlridnslly for the sosts Of the pmseedlng if ths plain-
tiir prevailed. We presume that the judgmnt la eaoh o,f the
s&t8 broq&t against the assessor and oolleotor or taus or
BSxsr County assessed the oosts agaInat the dsfendants,making
f10dlstlnetlon as to their lndlridual ar representativeeapaol-
ties. Yet ths defendants wsre personally and lndlvidaallr ar-
ieotsd bjrthe judgment, and as suoh were personally and fndlvld-
ually lleble ror the bOSti6. Poarsall et al v. Waolls, supra;
se6 also 2% Tax. hr. bag     11 mm. Yur. 853.
Ronorebla E. G. Garvay, Pugs 6


           As a rule it la trua that In a suit brought against
 ana in his represantstIvaoepeolfp, ha Is not lleble for the
 008ts a8 an imdaud.      11 Tex. Jur. 262.  It 1s also true
 that the manner in which costs are asssssed Is largely within
 the dlsoretlon of the trial court. Tha ssoeptlons to these
 rulea, however, are as well sstabllshed as the nilea tham-
 selves, and ens suoh sxaeptlon Is a mandamus prooasdlng brought
 against en officer to oompal him to perform a mlnlstarlel duty.
 r     oosts may bs assessed against the orfleer as au fndlvld-
       Paarsall v. Woolls (C.C.A. 1899) 50 3. W. 959; Gouhenonr
 t. indsrson, 35 C. A. 569, 81s. W. 104. Moreover, when the
 offlosr 1s joined both as an Individual and in hls raprasanta-
 tIva oapaclty, in the absenae of a showing of funds on hand
 sufrlolent to pay the aosts, the ooart will not assass them
 against the offloar in his ofHale   aepaalty. Busoh & Co. v.
 Cauftleld, 138 5. W. 1108.
             For another reason  we hold that costs assassaQ against
 aounI&~orricers in mandamus prooaadlngs broogat again& thaw
  to aompel thaw to parfcmn a mInlstarlal duty am      mperly assss-
  sad agelnat thsllras lnfflvldusls. It Is wall ssttPad that a pra-
  csedlngbrought by msndams to uompal 0. Orfloor to perform a
 ministerial duty imposed upon him by 1~~6~  Is not a sriltaga:ainst
' the State. Leidlew R-OS. v. MBrrs, 114 Tax. 561, 273 3. 91.709;
 JarnIgan Y. Finley, 90 Tex. 205, 38 6. W. 24; 38 Tax. Jar. 8%.
 We believe that it la eqtinlly   olaar that a prooaedlng brought
  by mandamus to oampal a County Tax hseassor-Collector to per-
  tons a mInlstaria1 duty Inposad upon him by law Is not a suit
                         As stated in the Jar&an   oasa,  supxw,
  a t doesthe
  eP*       not
              coonty*
                rollow that beoausa an ofrloar 1s aallad   a oounty
  OfrIOerr,the funotlons he exerolses ara axerelsed for the qua@%
  oorporstIon.* The Interests of the.aounty are not subserved by
  a aounty offloor being dareliat In t&e perrOrmsnO8of poiitlva
  duties enjoined upon him by law. Wm3ovar, Artlcls 1980 or the
  Ravlsad Civil Statutea, rsqulres that suits brought against a
  aounty ba brought against it in its corporate nam.      Under this
  ~rtlcle it has been held that li the purpose of the suit ls~to
  hold the oounty liable or ln anjrway to afract its Interests,
  tha County Is a mnaeassary party" and a oounty is not made a
  party defandant by jolnIng the county ofrloers alone. Alllson
  v. Ellis (C8.A.)   248 S. W. 814; Estes v. Conmlssloners* Court
  of Rood County (C.C.A.   1938), 116 S. W. (2d); Miller v. Snelson,
  (C.C.A.  1039) 1245.8.y, (ad) 904, as afrlrmed by the Comiaelon
  of Appeals, 129'S; u,.ted) 268; 11 Tax. Jur. 616.
                                                                  460

Honorable E. G. Gervey, Page 7


          Consequently, it is the opinion or this dspart-
nent and you are respeotfully adrleed that when Judgment 1s
had against a county ofrlosr and his deputy in mandsme pro-
ceedfngs brought against thm to oo!npeLthe parfomance of
Prinlsterlalduties, defendsnts being joInad In thslr lndlvld-
eal 0na orrloial oepecItIss,end judgumt I6 ror relator and
oosts are assessed a alnst the rsspondats, respondents ars
personally and Indlt !dually responsible for the sosts.
          It la the further opinion of thls department that
neither a mndamus  prooeedlng brooght against R oomty tax
asesssor-oolleotor to ooxpel him to perform the alnlstsrIal
duty of aoaa~tlng relator*@ tender of taxes and ths Issuauce-
or a reoeipt thersror, nor a mandamus proeesdiag to oompel the
assessor-oolleotor of taxes and his deputy to sllow relator to
aooess to the dellnqusnt tax and other pub110 roeorb  nndsr
their control, may be olassed es *suIts aginst the oountyg
(the oofmty not being JoInsd ln its oorporate name as a party
~;rs~;zM   so es to relieve dsraadantsor ths paymsnt or 008t~
       .

                                          Yours very   tlnly

                                    ATTOl?l?lZ GISBRN. OF TEXA8




                                                Walter 8. Kooh
                                                         Assistant


                                     BY
                                                  James Smullan


J8SrEBB

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