Case Information
*1 The Attorney General of Texas March 14, 1984 JIM MAllOX
Attorney General Opinion No. JM-135 Honorable Margaret Moore
Supfeme courl SuItding Travis County Attorney P. 0. Box 12549 Austin. TX. 7871% 2549 Re: Whether a taxing unit other P. 0. Box 1748 5121475.2591 78767 than a county may Impose the Austin. Texas Telex 9101874.1367 penalty authorized by section Telec~pler 51214750288 33.07 of the Tax Code, where under Criminal District Attorney such taxing Unit i8 714 Jackson. Sulle 790 Taylor County Courthouse with the county contract Dsllas. TX. 752924505 Abilene. Texas 79602 enforce delinquent tax collec- 2141742.S944 tsons and whether such charge
may be imposed when such taxing unit is under contract with a 4824 Alberta Ave.. Suite 150 El Paso, TX. 799052793 city 91- ffs. Moore and Mr. Solie:
Dear 1991 Texas. Suite 790 the circumstances, under which a penalty
You inquire about Hourton, TX. 770929111 authorized by section 33.07 of the Tax Code may be imposed by a taxing 7lY22Mw5
unit. Ms. Moore asks the following question: 995 Broadway. Suits 312 IS it permissible for a taxing Unit other than a Lubbock. TX. 79491.3479 county to iStpO8e the penalty as provided Sw747.5239 section 33.07 of the Tax Code to defray costs of collection. if. such taxing unit is under contract 4399 N. Tenth. Suite S with the Travis County Attorney to enforce McAllrn. TX. 78501.1685 collection of that unit’s delinquent taxes? 512m52-4547 ~Tlr. Bolls aiks :- 299 )rl*hl Plam Suits w San AnIonlo. TX. 7S295.2797 facts, may the city of Abilene Under the following 512@25.4191 or the Abilene Independent School District charge
the fifteen percent penalty on delinquent An Equal Oppoftunltyr purau8.M to section 33.07 of the Tax Code? Taxes Afflrmatlve Action Employer for the city and the school are collected by the
Taylor County tax aaseseor-collector. Tbe city and the school use the office of the city attorney of Abilene to enforce the collection of delinquent Neither of you ha8 included copies of the contract8 at Issue for Therefore, we cauoot comment on the specific terms our inspection. and validity of any such contracta. Your questions could logically arise In three different contexts. The question could arise, first, *2 Honorable Margaret More
kIonorable Jorge A. Solis
Pati3 2 (~~-135)
in connection with a contract between the county or city ettorney in and another taxing unit. Rovsver , his capacity aa private attorney, it is unnecessary to discuss this situation, because it is clear from the context of your questions that you are concerned vith contracts act8 in his official CapaCity. which a county or city attorney Second, the question could arise in connection with a contract between the county attorney or city attorney in his official capacity and another taxing Unit. Third, the question could arise in connection with a contract between a county or city and another taxing unit 1 the Interlocal Cooperation Act, article executed pursuant to 4413(32c), V.T.C.S. We shall address the latter two issues in turn.
We conclude that it is not permissible for a taxing unit other than a county to impose the penalty if that unit has contracted directly vith the county or city attorney
In such an Instance each attorney lack8 the contractual necessary to enter into such a contract. We further conclude that such a penalty may not be imposed by virtue of a contract properly Interlocal Cooperation Act, article executed pursuant 4413(32c), V.T.C.S. 33.07 of the Tax Code provide8 8s follows:
Section
(a) A taxing unit or appraisal district may the manner required by law provide, ia action by the body, that taxes that remain delinquent on July 1 of the year in which they become delinquent incur sn additional penalty to defray costs of collection, if the unit or district or another unit that collects taxes for the unit has contracted with an attorney pursuant to Section 6.30 of this code. The amount of the penalty may not exceed 15 percent of the amount of taxes, penalty, and interest due.
G A tax lien attache8 to- tne property on ~- which the tax is imposed to secure payment of the penalty.
(c) If a penalty is imposed pursuant to this section, a taxing unit may not recover attorney’s fees in a suit to collect delinquent taxes subject to the penalty.
(d) If a taxing unit or appraisal district provide8 for a penalty under this section, collector shall deliver a notice of delinquency and of the penalty to the property owner at least 30 and not more than 60 days before July 1. $. 571 *3 !
Aonoreble Margaret Moore
Page 3 (.JM-135)
Before a section 33.07 penalty may be Imposed. a contract with an services must first be executed attorney for delinquent tax collection pursuant to section 6.30 of the code. The code permits such contracts to be executed in two ways. First, section 6.30 provides that the governing body of a taxing unit other than a county my determine who represents the unit to enforce the collection of delinquent taxes and nay contract with any competent attorney. Subsection (b) specifically provide8 that, if a taxing unit collects taxes for another taxing I urdt. the attorney representing the collecting unit nay also represent the other unit with the consent of its governing body. Second, section 6.24 providesthat an Interlocal Cooperation Act contract assessment and collection services nay additionally provide for the collecting unit to contrsct with an attorney for the enforcement of delinquent tsx collection, as provided by section 6.30 of the code. shall discuss whether and under what circumstances a county
We first attorney or a city attorney nay enter directly into a section 6.30 contract. Then we shall turn to an examination of section 6.24 and the Interlocal Cooperation Act.
We conclude that a county or city attorney may not in his capecity. enter into a section 6.30 contract. Section 6.30 of the Tax Code provide8 the following:
(a) The county attorney or, if there is no county attorney, the district attorney shall represent the state and county to enforce of delinquent If commissioners court does not contract with a private attorney as provided by Subsection (c) of this section.
(c) The governing body of a taxing unit ma= contract with any competent attorney to represent the unit to enforce the collection ComDensation is 88t in the ha attOZXIaV’8 contract, but the -total imount of compensation provided may not exceed 20 percent of the amount tax, penalty, and interest collected.
(d) To be effective, a contract with an attorney for the collection of state taxes must be *4 . honorable Wargarct Woore
gonorable Jorge A. Solis
Page 4 0X-135)
approved by the State Property Tax Board and the attorney general.
(e) A contract with an attorney that does not conform to the requiraments of this rection is void.
As we noted in Attorney General Opinion JW-14 (1983). in order to penalty, 8 taxing unit must contract with an impose the additional :’ attorney pursuant to section 6.30 of the code. That opinion, concluded that Harris County could not impose the additional penalty when the Harris County Attorney represented his county in collecting delinquent taxes, because the county lacks authority to contract with it8 0”” attorney. The county attorney has a statutory duty to enforce collection stete and county taxes, and he may not contract to receive extra compensation from the county for performing hi8 statutory duty. See V.T.C.S. art. 336; gill Farm, Inc. v. RI11 County. 425 S.W.2d 414(Tex. Civ. App. - Waco 1968). aff’d 436 S.W.2d 320 (Tex. 1969); Jones V. Veltmann. 171 S.W. 287 (Tex.x App. - San ref’d); Attorney General Opinions O-3656 (1941); Antonio 1914, writ Attorney General Opinion m-483 O-2610 (1940); O-864 (1939); cf. - (1982).
Article 336, V.T.C.S., prohibits. inter alia, the county attorney from receiving compensation to prosecute any case which he is required by law to prosecute. In Lattimore v. Tarrant County, 124 S.W. 205.
207 (Tex. Civ. App. - 1909, no writ), the court construed article 336. V.T.C.S., and declared the following:
[Tlhe commissioners’ court may lawfully employ the county attorney to represent the interest of their [sic] county in any cause where such duty is not enjoined upon him by law. Browning v. Tarrant County, 111 S.W. 748. In other words, [article which makes it unlawful for a 336, V.T.C.S.], county attorney to accept any fee. article value, compensation, reward or gift, prosecution of any case. or for services in any case, applies only to cases where he ‘is required by law to prosecute.’
In this instance, neither the county attorney nor the city attorney required by statute to enforce delinquent tax collections on behalf of other taxing units. However, the absence of a statutorily imposed duty does not amount to a grant of authority permitting either a county attorney or a city attorney to enter directly and in his into a section 6.30 contract.
Section 6.30(c) of the code provides that “[tlhe governing body of a taxing unit may contract with any competent attorney to represent the unit to enforce the of taxes.” (.Emphasis *5 Honomblo Meruaret Moore
Honorable Jorge A. Solia
p*ee 5 (311-135) In thin instance, neither a county attorney nor a city
added) . attorney has been granted the contrrctual capacity to enter into euch Generally, a public a contract while acting in an official officer has no authoritv to nerforw an act not authorized or reauired of him by law. Duncan v. Skate. 67 S.W. 903 (Tex. Cfv. App. - -1902.
no writ).
All public offices and officers are creatures of law. The powers and duties of public officers are defined and Malted by law. By being defined and limited bye .law. we mean the act of a public officer must be expressly authorized by law, or implied therefrom . . . . It follows from the above that public officem may make only such contracts for the government they represent as they are authorized by law to make. (Emphasis added).
Fort Worth Cavalry Club v. Sheppard, 83 S.W.2d 660, 663 (Tex. 1935). A county attorney may exercise only that authority conferred upon him by statute. See County of Wyd v. King, 454 SiW.2d 239 (Tex. Civ.
APP. - El Paso-70. writ dim d); Wexler v. State, 241 S.W. 231 (Tex. Civ. App. - Galveston 1922, no writ); Spencer v. Galveston County, 56 P Tex . 384 (1882) ; Attorney General Opinions (1942); O-1040 O-4301
(1939). A city attorney possesses those powers conferred upon him by statute or by city charter or ordinance. In this instance, there no statutory authority permitting either a county or city attorney acting capacity to enter into such a contract.
It has been suggested that the following sentence of section 6.30(b) of the code confers such authority: “If a taxing unit collects taxes for another taxing unit, the attorney representing unit to enforce the collection taxes may represent other unit with consent of its governing body.” We disagree. We believe this language merely permits an attorney who represents .a collecting taxing unit to also represent the unit for which taxes are to be collected. It does not confer authority to also contract with As we noted earlier, a the unit for which taxes are to be collected. county attorney is authorized to represent his county in enforcing tax collection, but he may not contract with hie own county to perform such services. When a county contracts with .a taxing unit to assess and collect it, the above-quoted sentence of section 6.30(b) merely permite the county attorney to aleo represent the taxing unit with the consent of that unit’s governing body.
We next address section 6.24, which permits any taxing unit contracting under the Interlocal Cooperation Act for assessment snd services to also contract for delinquent tax collection services on the other unit’6 behalf. Section 6.24 of the Tax Code provides the following:
:- . .
Ronoreblc Margaret Hoore
ilonorable Jorge A. Solla
Page 6 (JM-135)
(a) The governing body of a taxing unit ocher than a county may contract aa provided by the Interlocal Cooperation Act with the governing body of another unit or with the board of directors of an appralaal district for the other unit or the district to perform dutiee relating to the assessment or collection of taxes.
(b) The commissioners court with the approval of the county assessor-collector may contract as provided by-the Interlocal Cooperation Act with the governing body of another taxing unit in the county or with the board of directors of the appraisal dtstrict for the other unit or the district to perform duties relating assessment or collection of taxes for the county. If a county contracts to have its ‘taxes assessed and collected by another taxing unit or by the appraisal district, the contract shall require the other unit or the district to asses8 and collect all taxes the county is required to assess and collect.
(c) To be effective, a contract between a county and another taxing unit or an appraisal district the assessment and collection of state taxes must be approved by the State Property Tax Board.
(d) A contract under this section may provlde for the entity that collects taxes to contract with an attorney, aa provided by Section 6.30 of this code, for
The Interlocal Cooperation Act, article 4413(32c). V.T.C.S., merely intended to “improve the efficiency and effectiveness of local governments by authorizing fullest possible range intergovernmental contracting authority at the local level.” V.T.C.S.
art. 4413(32c). gl. As thla office declared In Attorney General Opinion H-28 (1973) :
The Interlocal Cooperation Act only authorizes local governments to contrect for another local government to perform for it a service which all the parties ‘are legally authorized to perform.’ V.T.C.S. art. 4413(32c), S4(b). See also Attorney. General Opinions ldlf-347 (1981); R-1019, 1018 (1977); E-454, 392. 345, 279 (1974). The very terms of section 6.24 permit an Interlocal Cooperation Act contmct to proHde for the collecting entity to contract with an *7 Uonorable Harpret More . . *.
p*ge 7 (m-135)
attorney for the enforcement of delinquent tax collection. as provfded by section 6.30 of the code. And as we have noted, section 6.30 does not confer upon any public official the authority to enter into. a contract for the enforcement of delinquent his official capacity.
* Accordingly, a taxing unit which contracts with a tax collection. City or county for the enforcement of delinquent tax collection may not impose the additional penalty as authorized by section 33.07 of the Tax Code when the county attorney or city attorney represents his ., jurisdiction respectively in such matters.
SUMMARY Neither a county attorney nor a city attorney possesses the contractual to enter into contract the enforcement of delinquent tax collection, while acting
No taxing unit which contracts with either a county or a city for delinquent tax collection may impose the additional penalty permitted by aectlon 33.07 of the Tax Code when the county attorney or the city attorney represents the county or city, respectively, in the enforcement of delinquent tax collection.
, Very/z& -
JIM MATTOX Attorney General of Texas TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jim Moelllnger
Assistant Attorney General
APPROVED :
OPINION COMMIlTEE
Rick Gilpln. Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
~Nancy Sutton