Hon. Robert K. Ramsey                       Opinion    No. S-38
County  Attorney
Kaufman    County                           Re:   Highway      Department’s     interest
Kaufman,    Texas                                 in illegally    collected,   non-resi-
                                                  dent, registration       fees and its
                                                  authority     to collect   same from
Dear     Sir:                                     the county.

                   Your   request   for   an opinion   of this office   reads   as fol-
lows:

                    “Reference    is made to a letter addressed      to you
            from the Honorable       Chairman   of the State Highway     Com-
            mission    dated March 27, 1953, requesting       an~opinion re-
            lative to the collection    of Automobile   Registration    Fees,
            In connection    with this inquiry I would like to submit the
            following   questions   for an opinion:

                    “1. Does the State Highway Commissionhave          au-
            thority   to collect from a County, Automobile   Registration
            Fees paid the County by non-residents,     after an admittedly
            correct    apportionment  of such,fees under the terms of Ar-
            ticle 6675a-10 has been made by the County Tax Collector?

                    “2. Does the Texas Highway          Department    have the
            authority   to witl:?old     funds from a County’s    Farm-to-Mar-
            ket Road Progrz..n       fo’r the purpose of enforcing    such County
            to pay the I-.igilway Commission         Automobile   Registration
            Fees collected      from Registering      Motor  Vehicles   owned by
            non-residents     ‘of the County, after an admittedly       correct
            apportionment      of such fees under the terms of Article
            6675a-10 has been made by the County Tax Collector?

                    “3. After   a County has received      Registration    Fees
            for motor vehicles     from non-resident     owners,      and deposit-
            ed the county’s portion     of such fees in the County Road and
            Bridge    Fund, after an admittedly    correct    apportionment      of
            such fees under the terms of Article        6675a-10 has been
            made by the County T~LX Collector,       does said County have
            authority   to take money out of the Road and Bridge Fund,
            or any other Fund, and pay same to the Texas Highway
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Hon. Robert   K. Ramsey,   page 2 (S-38)



        Department to settle a claim of the Highway Department
        for Automobile Registration Fees collected on Motor Ve-
        hicles registered in the County by non-residents of, the
        county7 ”

               Section 2, Title 116, Chapter 1 of Vernon’s Civil Sta-
tutes of 1925 is comprised of a number of statutes beginning with Ar-
ticle 6675a-1 and terminating with Article 6686, regulating regiatra-
tion of motor vehicles.   Article 6675a-2, V.C.S., reads in part:

               “Every owner of a motor vehicle, trailer or semi-
        trailer used or to be uskd upon the public highways of this
        State shall apply each year to, the State Highway Department
        through the County Tax Collector of the county in which he
        resrdes for the registration  of each such vehicle owned or
        wed         by him for the ensuing or current calendar year
        or unexpired portion thereof.”    )’

Subsequent statutes levy fees upon,tbe motor vehicle., and, Article
6675a-10, V.C.S. requires the County Tax Collector to collect the fees
and apportion such moneys between the county’s Road and Bridge Fund
and the State tiighway Department.

                (I) The collection by the County Tax Collector of Regis-
tration fees from non-resident motor vehicle owners is an unlawful
collection.  Miller v. Foard County, 59 S.W.Zd 277 (Tex.Civ.App.          1933).
There is a complete dearth of cases interpreting        the authority of the
State Highway Department to require the county to pay over such fees
to the Department,      This office in the past has consistently hcld.that
the County Tax Collector is the agent of ~the State Highway Department
when he acts by virtue of the registratfon     laws., See Atty. Gen. Op. NOS.
O-2050 (hkch       i8, 1940) and V-234 (June 5, 1947). Tha County Tax
Collector issues the Highway Department’s        license receipts and license
plates to motor vehicle owners upon their filing of applications, also
supplied by the Highway Department, and the pnyment of a fee by such
motor vehicle owner. The Collector holds him&elf out to the public as
having acted in behalf of the Highway Department.         The Registration
fees ~;le~~s~re       in the nature of e toll for the use of the highway,”
Payn      e        y 145 Tex. 237, 196 S.W.2d 493,; (1946). and, the High-
way Department is the age&y designated by the legislature to be vert-
ed with the control of our Highway s at&.         Robbim V. Limestone
County, 114 Tex. 345, 268 S.W. 915 r 1925).

               Article 66758-9 provides that the Highway Department
is to furnish the County Tax Collector a “complhte and detailed achc-
dule of license fees to be collected” on the various types of vehicles,
such fees to be determinad by the Highway Department.      Article 6675a-
10s establishes in the Department the pdwsr to make careful audits of
Hon.   Robert   K. Ramsey,      page   3 (S-38)




the license    fees collected    pursuant to the laws of registering    motor ve-
hicles.   Article   6684 specifically    grants to the Department    the authori-
ty to determine     the classification   of vehicles  and the amount of fees to
be paid by such vehicle       owners.

                A fact further     substantiating    the view that the County Tax
Collector   acts as the agent ~of the Highway        Department,   rather than his
County, is the statutory    fee to which he is entitled,       compensatory  for re-
gistering   motor vehicles.     See Article     6675a- 11, V.C.S.   Such a provision
is in accord with the general       practice    of compensating   an officer of one
governmental     unit for collecting    taxes levied by and owing another unit.
51 Am     Sur. 844, Taxation,     Set: 964.

                   “Accounting   for Moneys Received         Officially    but
          without Authority.      A Collector     of taxes must pay over
          to the proper authorities       all funds which come into his
          hands officially,    regardless     of whether    the tax collect-
          ed by him was a constitutional         tax, or whether       it was
          illegal   or void, or improperly       collected.    Whatever      he
          actually    collects as taxes by virtue of his office he must
          pay over to the body politic for which he was acting;                . , .”
           873,
          51   Am. Jur.

               The County is not entitled to any funds not lawfully      collec-
ted by virtue of the Registration   statutes.   The Tax Collector    should pay
such moneys over to the body politic for which he was acting, in this in-
stance the State Highway    Department.     When unlawfully  collected   fees
are given to the custody of the County, the Department      has a lawful
claim against the wrong custodian.      4 Cooley on Taxation    (4th Ed.) 3212
Sec. 1006; 51 Am. Jur. 845, Tzxation,      Sec. 965.

               (2) Your second question assumes       that the Highway    De-
partment  withholds  the benefits  of the Farm-to-Market      Road Program
solely for the reason of enforcing    the collection of non-resident   fees
from the counties.

                  In matters     of judgment    touching upon the Highway       Com-
missioners’     functions,     theirs,   and not that of another,   is supreme.     Their
acts in the exercise       of an honest discretion,     untainted by fraud, accident
or mistake     occurring     in their performance,      or abuse of discretion      as
under the authorities       would avoid the same, must be respected.             Bobbitt
v. Gordon,     108 S.W.2d 234 (Tex.Civ.App.          1937). The Highway      Depart-
ment s fund from which it pays for the Farm-to-Market                  Road Program
receives    its moneys from various          sources, including    the federal   govern-
ment.    The moneys provided           by the motor vehicle    taxes and allocated     to
the Department       by Article     7083a (4-b) V.C.S. supplies      a good portion of
the money used in the program             as well as the legislature’s    mandate to
the Highway     Department       as to how the money should be spent.          This
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Hon. Robert   K. Ramsey,   page 4 (S-38)



statute states in part:

                “These funds shall be expanded on a system of
        roads selected by the State Highway Department after
        consultation with the county commiaaioners     courts of
        the counties of Texas relative to the most needed un-
        improved rural roads in the counties involved.     The
        selections shall be made in a manner to insure equit-
        able arid judicious distribution of funds and work among
        the several counties of the State,”

               A similar statutory mandate to the commissioners’
courts in their expenditures, Article 6740, V.C.S., was discussed
in Stovall v. Shivers, 103 S.W.2d 3.63 (Tex. Comm. App. 1937). In
the light of the discussion by the Court in this latter cited case, and
in view of the arsumption that no consideration was taken of the roads’
needs in withholding their Farm-to-Market     Road Program,     it is our
opinion that the Highway Department does not have authority to with-
hold the Program under the azsumed state of facts.

              (3) The Highway Department has a valid claim against
the County for the unlawfully collected non-resident  Registration fees
and the County is authorized to pay this claim, Article 2351-10, V.C.S.


                                 SJIM,MAR Y

               Non-resident registration fees, unlawfully collected’,
should be paid dver to the State Highway Department.     The State High-
way Department is not authorized to withhold the Farm-to-Market
Road Program from a county solely as a means to collect the non-
resident fees, from said county, The county is authorized to pay the
Highway Department any lawful claim exerted by the Department againat
the county.

                                   Yours   very   truly,

APPROVED:                       JOHN BEN SHEPPERD
                                  Attorney General
W. V. Geppert
Taxation Division
                                   ,$&&&q/
Willis E. Grerham
Reviewer                              William W. Guild
                                      Assistant
Robert S. Trotti
First Assistant

John Ben Shepperd
Attorney General
