   OFFICE   OF THE   ATTORNEY   GENERilL   STATE   OF TEXAS

   JOHN     CORNYN




                                                   August lo,1999



The Honorable James M. Kuboviak                           Opinion No. JC-0087
Brazos County Attorney
300 East 26th Street, Suite #325                          Re: Whether section 154.025, Local Government
Bryan, Texas 77803                                        Code, prohibits issuance of salary warrant to justice
                                                          of the peace against whom judgment has been
                                                          entered for delinquent property taxes (RQ-0012)

Dear Mr. Kuboviak:

         You ask us to determine whether a county must withhold the issuance of a salary warrant to
a justice of the peace against whom a judgment for delinquent property taxes has been entered.
Section 154.025 of the Local Government Code provides:

                     If notice of indebtedness has been tiled with the county auditor and
             county treasurer evidencing the indebtedness of a person to the state, the
             county, or a salary fund, a warrant may not be drawn on a county fund in
             favor of a person, or an agent or assignee of a person, until the person owing
             the debt is notified that the debt is outstanding and the debt is paid.

TEX. Lot. GOV'T CODE ANN. $ 154.025 (Vernon 1999) (applicable to county with population of
190,000 or less); see also id. 5 154.045 (identical provision applicable to county with population of
more than 190,000). The purpose of the statute is to ensure that a debt to the county is paid. Rains
Y. MercantileNat?   BankatDallas,     188 S.W.2d798,804 (Tex. Civ. App.-ElPaso 1945), affd, 191
S.W.2d 850 (Tex. 1946).

        You tell us that in January 1994, a Brazos County district court entered a judgment against
an individual and his wife for taxes due on real property owned by them. The individual was elected
to serve as a justice of the peace in Brazos County. In December 1998, the county auditor and the
county treasurer received notice of the tax judgment against the justice-elect. The justice of the
peace took office on January 1, 1999. You say that the justice of the peace was notified of the
judgment and that it remains unpaid. We assume that a valid personal judgment for delinquent
property taxes has been entered in favor ofthe county and that the procedural requirements of section
 154.025 have been satisfied. We must decide whether a judgment for delinquent taxes establishes
a “debt” to the county for purposes of section 154.025.
The Honorable James M. Kuboviak - Page 2             (X-0087)




         Our courts have said that the term “debt” must be construed in the context of the particular
statute in which it is used. See Reconstruction Fin. Corp. Y. Gossett, 111 S.W.2d 1066, 1073 (Tex.
1938); Wilburn v. State, 824 S.W.2d 755,759 (Tex. App.-Austin 1992, no writ). Section 154.025
has existed in substantially the same form since its predecessor was enacted in 1935. See Act of
Nov. 14, 1935,44th Leg., 2d C.S., ch. 465, 5 7, 1935 Tex. Gen. Laws 1762, 1765-66. A similar
statute, section 403.055 of the Government Code, also has long prohibited the State Comptroller
from issuing a warrant to a person indebted to the state. See TEX. GOV’T CODEANN. $ 403.055
(Vernon 1998). Texas Attorneys General have considered a number of times what constitutes a
“debt” for purposes of these statutes.

        Opinions of this office have said that a delinquent tax is not a debt for which a county or state
warrant may be withheld. See Tex. Att’y Gen. Op. Nos. JM-1193 (1990), O-5249 (1943), O-1089
(1939). These opinions have relied in main part upon cases holding that a tax is not a “debt” in the
ordinary sense ofthe word, although none of the cases cited in the opinions construed the term in the
context of a warrant withholding statute. See Tex. Att’y Gen. Op. Nos. JM-1193 (1990) at 2 (citing
Brooks v. Brooks, 515 S.W.2d 730,733 (Tex. Civ. App.-Eastland 1974, writ ref dn.r.e.)), O-5249
(1943) at 3-4 (citing Dallas Joint Stock Land Bank Y. Ellis County Levee Improvement Dist. No. 3,
55 S.W.2d 227,229 (Tex. Civ. App.-El Paso 1932, no writ )), O-1089 (1939) at 2-3 (same).

        Although this offrce has said that a delinquent tax is not a debt, opinions have also said that
once a judgment is entered for delinquent property taxes, a debt is established. Attorney General
Opinion No. O-1089 explained: “‘[Ulntil a tax claim is officially established by an adjudication in
a court of competent jurisdiction, it might be said to be doubtful and oft times on account of the
omission of some statutory requisite or procedure tax claims are defeated.“’ Tex. Att’y Gen. Op.
No. O-1089 (1939) at .2 (quoting Letter from Assistant Attorney General H. L. Williford to
Honorable A. E. Hickerson, Montgomery County Auditor (Oct. 29, 1938)). Noting the statutory
procedure by which a delinquent taxpayer is notified and the delinquency ascertained by a court, the
opinion distinguished a judgment for delinquent taxes from a mere delinquency. “In holding up
money which the county owes to an individual, who is a delinquent taxpayer, a county Auditor
would be, in effect, acting as a judge and jury over said taxpayers liability for the tax.” Id. at 3. The
opinion concluded that a delinquent tax was not a debt for which a salary warrant could be withheld,
but suggested that if a judgment were entered for the delinquent tax, a debt would have been created.

         The conclusion that a tax delinquencyjudgment establishes a debt is consistent with the line
of opinions requiring a judgment or other definite basis for the debt in order for the withholding
statutes to apply. In Attorney General Opinion No. WW-1504, it was undisputed that a deputy
sheriff had misappropriated county funds. The opinion held, however, that “absolute liability” must
be established and the obligation must be “definitely ascertained” in order for a debt to be
established for purposes of the withholding statute. “In the event that a court of competent
jurisdiction should enter a final judgment establishing such a definite sum as the liability of the
sheriff, then, and only in that event, would a debt arise from this set of circumstances.” Tex. Att’y
Gen. Op. No. WW-1504 (1962) at 2. In Attorney General Opinion No. MW-416, this office said
that to warrant withholding there must be %I established legal obligation, by which is meant such
The Honorable James M. Kuboviak - Page 3            (x-0087)




obligation as would form the basis of a judgment in a court of competent jurisdiction.” Tex. Att’y
Gen. Op. No. MW-416 (1981) at 3. And in Letter Advisory Opinion No. 57, it was concluded that
the Comptroller could not withhold a salary warrant for overpaidwages where the comptroller could
not show that wage payments violated a statute, and thus could not prove a debt to the state. “[I]n
the absence of the prior establishment of a debt by agreement with the employee, or by the State’s
proper allegation of a debt’s existence in accordance with [a statute], or by some other lawfully
effective means, the Comptroller cannot properly withhold the issuance of the warrant.” Tex. Att’y
Gen. LA-73-57, at 4; accord, Tex. Att’y Gen. Op. Nos. DM-217 (1993), N-255 (1984).

        We are persuaded that even if a delinquent tax is not a debt, once a valid judgment for
delinquent property taxes has been entered, a debt has been established for purposes of section
154.025 of the Local Government Code. Accordingly, we hold that section 154.025 of the Local
Government Code prohibits the drawing of a warrant on a county fund in favor of a justice of the
peace against whom a judgment has been entered for delinquent property taxes until the justice is
notified that the debt is outstanding and the debt is paid.

                                        SUMMARY

                       Section 154.025 of the Local Government Code prohibits the
               drawing of a warrant on a county fund in favor of a justice of the
               peace against whom a judgment has been entered for delinquent
               property taxes until the justice is notified that the debt is outstanding
               and the debt is paid.




                                               Jot-IN   CkNY~N
                                               Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee
