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                                           The Attorney                   General            of Texas
                                                                     my    17,   1982
MARK WHITE
Attorney General


                                         Mr. Dan M. Boulware                                     opinion    No. Mu-470
Supreme Coun Suilding                    Johnson County Attorney
P. 0. Box 12549
                                         P. 0. Box 614                                           Re:     Fees    to be charged           by
Austin. TX. 78711. 2549
5121475.2501
                                         Cleburne. Texas     76031                               sheriff     for     serving     out-of-
Tdex QlO/S74-1397                                                                                county     delinquent        tax    suit
Telecopier         51214750288                                                                   citations       before      and   after
                                                                                                 January 1, 1982
1807 kin    St.. Suite 1400
Da,,,m, TX. 75201.4709
                                         Dear Mr. Boulware:
2141742.8944
                                                Your first     question   is whether      the sheriff    of your county        is
                                         authorized     to charge     and collect     the fee set by your commissioners
4S24 Alberta Ave.. Suite 190
                                         court    under   authority     of article      3926a, V.T.C.S.,    for     service    of
El Paso. TX. 799052793
91563334S4
                                         out-of-county      citations      in    delinquent    tax    suits    filed      before
                                         January 1, 1982.

1220 Dallas            Ave., Suite 202
                                                Your second question    relates   to the effect    of sections    33.48 and
HOUSTON. TX. 770026986
                                         33.49    of the Property    Tax Code and article       2041b.  V.T.C.S..     on the
713/6500666
                                         collection    of fees for service     of process in delinquent     tax suits.

805 Broadway. Suile 312                        We will     address     these     questions    separately      in   their   proper    order
Lubbock, TX. 794013479                   as follows.
80641476239

                                                Article         3926a.        V.T.C.S.,        in    substance,       authorizes         the
4309 N. Tenth. Suita B                   commissioners          court     of    each    county     to set    reasonable      fees     to be
McAllen. TX. 7S501-1985                  charged      for services        by the offices         of sheriffs     and constables.        at a
5121682-4547                             rate no higher           than necessary         to pay the expense        of providing        same.
                                         The     Sixty-seventh          Legislature        provided,      in    connection      vith      the
 200 Maln Plaza. Suite 4CG               foregoing        provisions.       that fees provided         for sheriffs      and constables
 San Antonio, TX. 78205-2797             in other        laws in conflict          with such provisions          were repealed       to the
 512/225-4191                            extent     of such conflict;             that until       a commissioners       court    provided
                                         different        fees,    the fees of such officers          are those provided         by law in
 An Equal OpportunityI
                                         effect     on August        31. 1981; and that fees for such services                   performed
 Alfirmstive Action Empbyer              before      the effective           date of this        act are governed        by the law in
                                         effect     at the time the services              were performed.       Acts 1981, 67th Leg.,
                                         ch. 379, at 1001.              This act became effective            September     1, 1981.      The
                                          services      involved      here include       those rendered      by such officers        in tax
                                         cases.

                                                Assuming the fees set by the Johnson County Commissioners   Court
                                          in this respect  are reasonable and no higher than necessary to pay the
Mr.   Dan M. Boulware         - Page 2         (Mw-470)




expenses       of providing           such    services,        your    sheriff       is    entitled       to
charge     and collect            such    fees     as set by said              court      for    services
rendered      on September           1, 1981,       and thereafter,           regardless        of prior
article     7332, V.T.C.S.,             providing       a smaller       fee for        such services.
These express           fee provisions         of said article           7332 conflict          with the
later    local      option    fee provisions          of article      3926a, when adopted for a
county,     and were to that extent                  repealed      on September          1, 1981.       The
words of         the     1981 act       make it        clear     that    the fees         charged      “are
governed        by the        law     in    effect       at    the    time      the     services       were
performed.”           In 1979 the legislature               expressly     repealed       article     7332,
effective        January      1. 1982,       with the exception              that     the $2.50        fees
provided     for the services            of sheriffs         and constables        in delinquent         tax
suits would prevail             in counties        where the commissioners              courts     had not
prescribed         different      fees under article            3926a.     Acts 1979, 66th Leg.,
ch. 841, 56, at 2329.                 The statute         enacting     article      3926a,     V.T.C.S.,
provided       in section        3(b)    that until         a commissioners         court     prescribed
different         fees     pursuant      to article           3926a,    the fees         charged      by a
sheriff     would be those             provided       by the law in effect               on August 31,
 1981.     Acts 1981, 67th Leg.,              ch. 379. at 1001.

       Proceeding      to your second question,         section    33.48 of the Property
Tax Code authorizes          the recovery     of court costs and expenses          in a suit
to collect      a delinquent       tax,    and section     33.49 of the code provides
non-liability        of a taxing       unit    for court     costs    and exemption     from
posting     security     for costs      in such ~suits.       However,    it requires     the
payment      from the       taxing   units     general    fund,     costs   of publishing
citations,      notices     of sale,     or other notices        as soon as practicable
after    receipt     of the publisher’s          claim for payment.         Clearly,   these
publication      expenses      are recoverable       under authority      of said section
33.48.

       Article     2041b, V.T.C.S..   became effective     September 1. 1981, and
 provides    for the collection     by the official    serving   any legal process
 by mail. payment in advance for the actual          cost of the postage,   or the
 assessment      of such postage    expense   as costs    of suit.    This article
 expressly     includes  delinquent   tax suits within its terms.

        Considering      the general      sense of all     of the above     legislative
 provisions,      it is the opinion       of this office     that in suits    to collect
 delinquent     taxes,    the taxing     units cannot be required      to pay costs      in
 advance or give security           therefor.   and such units are not liable           for
 costs    in such suits      except    for publishing    fees.     The postage    expense
 of all process      served by mail in such cases is assessable            as costs and
 not collectible       from the taxing unit,       in advance or otherwise.        All of
 the above-mentioned         costs,    fees and expenses       are to be assessed       and
 collected    as court costs.




                                                   p.   1643
Mr. Dan M. Boulware       - Page 3          (MW-470)




                                       SUMMARY

                 Fees for the service          of out-of-county         citations
            on or after         September 1. 1981, in delinquent                tax
            suits,     are the fees set by the commissioners                  court
            of the county in which service              is performed         by the
            sheriff      or constable        thereof.      In the event          the
            commissioners         court has not prescribed            such fees,
            the fees are those provided               by the law in effect
            on August         31.    1981.     The date      the service          Is
            performed,        not the date of filing              suit,     is the
            criterion       for determination         of the law involved.
            In suits to collect           delinquent    taxes.     taxing units
            cannot      be required        to pay court         costs      or suit
            expenses       in advance        or give     security       therefor.
            Such units are not liable              for postage      expense for
            service      of process,       or any other      cost or expense
            of suit       except      the cost     of fees     for    publishing
            citations,       notices     of sale or other notices.               All
            of such costs,          fees or expenses       are assessable         as
            costs of court.




                                                        MARK        WHITE
                                                        Attorney   General of      Texas

JOHN W. FAINTER, JR.
First Assistant Attorney          General

RICHARD E. GRAY III
Executive Assistant       Attorney     General

Prepared    by Robert    L. Lattimore
Assistant    Attorney    General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison,  Chairman
Jon Bible
Rick Gilpin
Patricia   Hinojosa
Robert L. Lattimore
Jim Moellinger




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