                 OFFICE   OF THE   ATTORNEY     GENERAL   OF TEXAS
                                       AUSTIN


~a,u.nc.MANN
 -.unur


           Bwlotabl4 Trn Pay
           countyhtorn4y
           Pottar County
           hamrillo, T4W

           war   a1rr
tax   liens.

               hrtlol4 732% reeds at3 followe:

               *Fees taxed aa aosts -- In 4aoh
                                             4844 suah
       r44s shull be tared a8 oosta against th4 land t4
       b4 6014 und4r jadgmunt r0r taras, and paid out
       of the pro44eds of 81~14 of 84mo attar th4 taxe8,
       penalty and interest due ther4on are paid and
       in no oase ahell tta State oi county be liable
       therefor.*

          Artlals 73318 aa     autwuhdia   1931, mad8   in part,
aa foll4wa:

            nOther thee - The Ccmnty ox Dlstriot A.ttow
       n4y &all mprssent   tbe Stat.4 and County In all
       suits age5m3t d4linau4nt tax-parerr,and F
       mm18 coilaotad shall be mid over       uiat4ly to
       tb4 County Colleator,
             *Before riiine auita ror th4 noore*n~gr
       delinquent   tax4e for any yecsar,notioe shall k
       alvan to tbs owabr or oumr8 o? mid ~propesty
       as is provibed~or     in Arti    lrrec of th4 %4-
       rbed    Cloil statat    4f T4xw, 1925, 66 am4nd44
       by c&lq&4r UT, page 194, Acts of t.b4 Fo*p
       saoolid zb&slatur4,    R4eul.w s4aslon. The fee@
       har4in prorid4d ror.sbm.l no b la4ru4 to nor shall
       the rarloua officer8 herrin aanrd'I# 4jztitled
       ther4to in Uiy Suit ti4BE it b4 plW4d       that
       noa;lee hair b44n &ran   to the owner ror.thb tise
       and In the m~naer protlU4d by law.

             *Tn all oases, the ooqmmtlon      or 6al.d
       Attorney &all be lw ($tLOO) Dollars iOr tti
       rlrst tract aad' one ($l.OO) Dollar ?or saob
       additional tract up to Four (4) but 4aia f44
       inn0 oasa to 4icsod Fbo ($3.06) Dolla,re. Aad
       providsd that In say nult brought a&ail2      64
       indlvldual or oorporak 4vm4r, all.past da4
       taxem ror all pmrloPs    years 011 saoh Oraat  0%
       tracta shall be inolad4d;   and provideQ, fartb4r
       thatwbmth4m       kr4 44v4xull8ta    intba sw
       addZt$on or subdlris~.on drliaqtint,   bolongfnd
       to the m     owner, all eaid delinqusnt lota
                                                               353


IMnorable Tolo Sea:, Fog8 S




     ahall be trade the subject of a elnf314 sait.*

            It la to be uotod that the tere nprooided ior
ill thlei law" uaa l4rt out  0r this mna4d OOtOn&     it n0u
protldw that the county and dl&rlot attorney shall r4p-
mwnt    the state and county in all salts against dolln-
quent terpeyese.     r*ragreiph 2 of the emnd4d Art1014 is
aonoernad with notloe in the ruing or auita Sor the m-
aovery 0r d4llnqusnt taxem. rangraph 3, hcnnmr, atone
oft with the tern.~:"in all aao48*, Them @an be no ques-
tloa that th# oo~+neatlon     rchedale 8th oat for oountq
or dfetricit attorneys in Artlol4 75ZZ as emndsd appllw
in all caaas, regardlessof whether orlglnally fll4d by
the oounty attorney Sor the state and county or 'lnter-
rened into by said county or distrlot attornby. ThL8
dot plaaeithe duty upon the oounty or dlstrlot lttonuy
to mpmaent     the stat8 and oounty in all auf&a agalnat
dellnqu8nt taxpapers anO sets up tr* reef3 the?, h4 ahall
moelva'ior such rsprerrenta$~on, Wu?rs a ooui&ty or dis-
triot attorney intervenea for the stat4 a!x,oounty h4
aertelnly is r4pr4aontlng    the state and bounty ln a suit
a&m&      a delinquent taxpay4r mgardlise 0r th4 faot that
h4 dld. not originally rib the SW.        There is no baeirr
for the conetmotlon     that Artlal4 7332 lppli48 only to
8ait.nwhloh were originally riled' by the oounty~or di4-
trlat ettorney,     It 1s to be rem&bered that Astlola.7SSS
allona the80 attorneya f4ea a8 8et up in hrtlol4'72iSS to
be abarged aa oourt 008t.4.

           In 1937 the Lbgialatum  paseed M31014 7343b.
ABong other things thla ACt provide8 for the iaplsa6i43
or iaten4nlog   or other tax units in a suft originally
ri3.8d by one tar unit. seotloh 6 ot tua Artiale deal8
with court oosts and reads 4s Sollows:

           Ys4C.~ 6. All oourt ooBta, lnaluding oo4t8
     or 44rvlng prao444, in any 8ylt hercreftar browpit
     by Or in behalf Of IUIy %.ariOg unit8 iOr Q8iin-
     quent tares in whfeh suite al& other taxing ax&a
     having a delln@uent'tax cl&a agaInat auah pmp-
     erty OS ~4 peat th4mor, hare b48n ilapleed4d,
     together *th all exp4nseo oi iomoloaum       &4   ead
     %iiah reasonable attorney*a raes a8 may be incuEZd
     ‘by t&8 laterplead6la or &ntelvenlnbt tartIM oatt8,
                                                                   352



Sonorablo Tom80ayr Page 4


     not exceeding ten DtBrCent (10%) Of the aProUBt
     aucd for, such attorney’s fees to be aubjeot
     to the ~DD~OWL~
             ~--      or the ooart tonether with such
     reasonable exponaea as the tAxG6 units may In-
     cur In prOcuring data aad lnformatlon as to tbr
     name, Identity and locatIon of necessary partiaa
     an6 In procarIng naceaaary legal deacrIptIona
     of the propertq, shall be ahar&eable as oourt
     oOata.=

          Seotlon 1S of this aamq Article reada as tollowar

          “Se0. 15. The provIaIonaof this hot shall
     be oamulatlre or ‘an6 In ldd.ltIon to all other
     rights and remadlea to which any taxl,nS ualt
     may be entltlad, bat as to any proooediry broa&ht
     Mdar thIa Aot, If any part or portion of thS8
     Act be in BonflIct with any put or portion of
     any law of the State, the terms  an&~provIaIonr
     Or this Act shall gorom as to auoh &WoUadin&
     The pru~IaIonaof Chapfar 10, Title 122 of the
     BevIsed %IvIl Statutesor 1985 shall ‘morn
     suits brought under this Act except as harda
     go~ldg.    .Aata1957, 46th Leg., p. 1494-a.
       .     .*

          Seotlon 1s apecIrIoally provides that thr.pxwIaIona
0r Chapter 10 ahall oontrol In all oaesa exoept In earns8
                                                        whare
the provIsIonaor thla kot ari In coxUlIot therota. Xn thaw
caaea this Act shall eontml.   Furthar~re,   utiolo 934Sb Is
oamulatiro of all other laws on the aubjeot.

          The qwatldn p=a0ma     then is whether or act sea.
6 oi Article 7545b Is In cooaillct with Article 755Z as to
attorneys Sees whIoh may be oolleated by 8 Bounty or dlatrlot
attorney.

            Seotfon 6 oi Utiola      754Sb deals with what may k
allowed as cour8 coats. Rowhers In thle Seotlon doar lt~pro-
rids that taxInS units shall pay an attorney*8 tee of taa par
cant.    furthermn,     nowhare la this &otlon is IO prowIde
that ten per cent amy be charged In every ease as eocrt loat
Sor attornoy*a r00h It Is prorldsd, however, that,;;w$
reaaotibls   fees IIIB BUY be ,Ino~rrs4 by the iateroler
$ntanenlng     taxing anlta ah6 mot eroee6%ag ten per 0-t of the
amount auad ror* may be charSed. In other words, If a taxia
                                                                       353



Honorable   Tom Seay, Page 5



uuit contracted with an attorney to pay him fire per oeat
ror his services, then only this fire per cent wul& be
chargeable as court coots becauaa that wuld be the reaaon-
able attorney*8 fee8 that wuld be Incurred by that partloular
Interpleaded or IntanenIn8 taxing unit. Eowavar, it that
same taxing dlatrlot contraoted with an attommy to pay him
fifteen per cent as hla attorney’s foes only 10 per oant of
thst amount wuld be charmable .a8 oourt ooata. To beaz thIa
oti Is the fact that tha’act does not provide ror ten par oent
attorney’s fees In avery oaae but provides for the al3owanoeof
attorney’s tees aa Incurrod *not oroeading ten per oent.”

          While Section 6 ot Article 7345b applIea to all tax-
ing unit8 It is evident that the part which retara to attorney’s
seas as oourt costs does not apply to the ooanty or dlatrlot
attorney. This Is true beoauaa this Section reads, In psrt, as
rollowa :

          *Suoh reasonable attornay*a fee8 as ma
     Incurred by the Interploadod or Interve
                                           4 ng        ax-
     inga      . . .w

          The partloular language quoted shows the legIalatIra
Intention that the same shall not apply to county attorney*8
seas beCause of the fact that the State end ootmtIsa are pro-
hiblted by Artlola 7333, auwa, from lnowr5.n~   any atternoy*a
fee.      fee of the county or dfatrlot attorney Is set by
      !l!he
Article 7S3S and In no oaae may the 8tato or county be liable
for ths same undar Art1018 ,7333 rhIoh ~rtlole also reqaIrQ8
that said Sea he oharged as court coats. It Is tha opIn.Ia of
this Department, then, that tlw county or district atwaey
should raoelve the Sea set out In Article 732% In aery tax
suit where Judgnent Is obtaIned and the same Is alwaya ahaWe-
able 6s court aoeta.

          It Is to.be rambered,   howaver, that thQ rSSt of
Section 6 of Article 734Sb, aside from the portion oonoarn@
attorney’s fees, does apply to the State end county ao as to
&low them to aet up aa coats the Itema set out In said See&.

          Iu your letter you Inquire further If the oounty
attorney ahould collect these fees allowed him by statute where
he Is compensated trom the officer8 salary fund.

            hrthle   7338 before   It was amended p~orI,dad,in part,
aa r0iiorrr:
Honorable   Tom Geay, Fage 6



          -All fees pr0dd.84for the otlloers herein
     riieatfonedshall be Ia addition to fees allowed
     by law to auah OfrICers, and shall not be ac-
     counted ror by aaid otrlcera as 'fees of otrIO8'".

            Article 7332 as amended In 1931 proridaa   in part:

          "All fees protIded~ for the offICer8 herein
     shall be treated as tees Of Office a ndlOOOunte4
     for aa such and said officers shall not noelte
     nor retalh said teas In lxcaca of the mxImum
     coq+maatIon allowed said ofricers under the lawa
     of thfa atate.m

            Artioie SQlZe, sect&an 5, provides   la part:

          "It shall be the duty ot lll'0rrioera to
     charge and collect in the manner authorlml  by
     law all fees and commIssIona which are peraitted
     by law to be assessed and colleoted for all of-
     ficial sexvIce perrome   by them. As and whin
     such fees are 00iie0ted they shell ba aeporit84
     In the OfiIaer*a salary Fund, or runda prodded
     In this Aot.”

           You are correct In your oonolusIon that where a
county attorney, who la oompenaated fmm ma ofrleer~a
salary r-d,   Intenenaa In e tar 8uIt tor tha state end
oounty he should collect said attorney’s feea as oourt,
coats and ten deposit them In the ofrIcer~a salary toad
and the sane should not be retained by him In addltIon to
hi8 regular co=mnaatlon.

          If the attorney's rwa actually 00ii00tsd In
your oaae are In em688 0s the amount the county Is en-
titled to charge the taxpayar as coats, the correot dla-
poaltlon of such axoeaa funds wuld be as yoa Suggested
In your latter to hare the 41atrIot clerk make a refuad
ot auoh fees to the taxingunits or whatever party say be
entitled to the aeuae.

          Anything In Opinion Eo. O-B36 which may be In
oonillat with this opinlbn la hereby expreasly Overruled.
Honofable IXU seay, Iage 7


                                 Yours very truly
                             ATTORhTY GEXJEAL OF   TEXASn




                                      .




    .
