Case Information
*1 Hon. Geo. H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Mr. Sheppard: Opinion No. O+KX?
Re: Can the :on of the county attorney be employed to col- lect delinquent ta~xes?
With your letter of March 7, 1944, you submit the opinion of this department the question raised in the letter from Judge Eugene G. Connally, County Judge of Somer- veil County, addressed to you, which letter is as follows:
"I am writing you with reference to our tel- ephone conversation of this date.
"Sonervell County, the City of Glen Rose, and the Glen Rose Ind . school district have de- cided at a joint meeting of all three governing bodies to employ an attorney and collect the del- ,inquent taxes due said taxing units.
-"The only attorney we have, thus far, been able to find who will attempt our del- inquent taxes is Penn J. Jackson of Cleburne, Texas, who i3 a son of our County Attorney B. Jay Jackson. "However is noted that at top of page two of the contract forms furnished by your office there is the statement the contracting is not related to, among others, the County attorney. "Unless this can be waived we will have to look further for an attorney.
"We would like to know about this at the earli- est possible moment, as we are anxious to get started either with this man or Someone else." is observed that the question with which the taxing authorities is concerned involve3 the construction 432 of Vernon's Penal Code of Texas, 1925, which reads a3 follows: *2 Hon. Geo. H. Sheppard, page 2 O-5922
“No officer of this State or any officer of any district, county, city, precinct, school district, or other municipal subdivision of this State, or any officer or member of any State, dis- trict, county, city, school district or other municipal board, or judge of any court, created by or under authority of any general or special law of this State. or anv member of the Legislature. shall appoint: or vote for, or confirm-the ap- ’ polntment to any office, position, clerkship, employment or duty, of any person-related within the degree by affinity or within the third degree by consanguinity to the person 30 appointing or or to any other member of any such board, so voting, the Legislature, or court of which such person 30 afE;;inting or voting may be a member, when the salary, or compensation of such appointee Is to be pald’for, directly or indirectly, out of or from public funds or fees of office of any kind or character whatsoever. ” (Emphasis added)
We think plainly that the county attorney Is em- braced withln this statute, because he is an officer of the county, and the statu.te clearly states, “No officer of this State or any officer of any district, count+ city, precinct, s,;;ool district or other municipal subdivision of this State,”
+ but when we come to that portion of the article, which Is $ohlbitory as It applies to the question before us, says : “Shall appoint, or vote for, or confirm the appointment to any office, positlon, clerkship, employment or duty, of any person related within the second degree by affinity or within ttie third degree by consanguinity to the person 30 appointed or so voting.” We fail to find that the county attorney has any prohibited relationship under the conditions stated in Judge Connally’s letter. In other words the county does not appoint, vote or confirm the appoint- ment of the attorney employed by the commissioners court collect taxes under special contract provided 7335, R. C. S., as limited by Article 7x358, R.C.S., by Article and hence does not come within any of the conditions con- demned as violations of Article 432 of Vernon’s Penal Code of Texas, 1925, quoted above.
It i3 therefore our conclusion that this article is precluding the commissioners Court from em- not a barrier, ploying the son of the County Attorney
taxes under a contract provided by Article 7335, R. C. S., is true that Article 7335a provides and 7335a, R. C. S. that such a contract must be approved by the Comptroller ~-Public Accounts and the Attorney General, both as to substance
and form, but this does not mean that perforce Of thl3 pro- *3 Hon. Geo. H. Sheppard, page 3 0 -5922 vision 7335a that the Comptroller or Attorney General may enlarge or extend the scope of Article 432 of Vernon's Penal Code, quoted above, by adding thereto a con- dition or relationship not comprehended In said article as a violation'thereof. To do so would be to override the pre- It must be borne in mind that rogatives of the Legislature. Article 7335 nor 7335a, supra, by reason of their neither own terms, fix any limitation upon the Commissioners Court, except that the attorney employed be competent, and that his shall not exceed 15% (fifteen compensation per cent) of the taxes. But we have no hesitancy in holding Article 432 of V. P. C., commonly known as the nepotism 7335 statute, ,would apply to a contract made unrler Article and 7335a, if the relationship of any of the contracting parties be such as is cond~emned by said article of the penal code; but the County Attorney is not vested with any author- ity to appoint, or vote or conform the appointment the Commissioners Court in employing an attorney 7335 taxes provided for under the terms of Article and 7335a. Hence we are unable to see how the employment of the son of the County Attorney under such circumstances would be in violation of said article of the penal code, assuming, of course, that he is not related within the prohibited degree to any member of the Commissioners Court.
In thus holding we are not to be understood as ap- proving as a settled policy the appointment under such cir- cumstances, but merely hold that the law does not prohibit in this instance.
The county officials of Somervell County may be and 7335a apply under the' impression that Article contracts for the collection of delinquent taxes in behalf of cities and independent school districts and other taxing and if so, such is not the case. units, These two articles apply only to contracts the collection of State and county taxes, and have no relevancy to contracts made by cities and independent school districts insofar as requiring the approval of such contracts by the Comptroller and the Attorney General. Bell v. Mansfield Independent School Dis- 129 S. W. (2d) 629, (Commission trict, of Appeals)
The Comptroller and the Attorney General would, therefore, not be authori.zed to approve or in any event disapprove a contract made by the city of Glen Rose or the Glen Rose Independent School District taxes.
We believe, however, that under the holding of Bell v. Mansfield Independent School District, supra, that cities and independent school districts are limited to the maximum *4 Hon. Geo. H ,. Sheppard, page 4 0 -,5g22 percentage of fifteen per cent fixed by Article 7335a as compensation t.o be paid to or received by the special employed by a city or independent school district, 7343, R. C. S., but this arises by virtue of Article read- ing in part-as follows:
“All laws of this State for the purpose of collecting State and county taxes are by this law made available for, and when invoked shall be applied to, of.delinquent taxes of cities and towns and independent school distrlc,Ls in so far as such ‘laws are applicable.” The application and the dlstinction is made clear by the fo,llowing language quoted from Bell v. Mansfield In,dependent Schoo,l District, su,pra:
I, ~ ” As above pointed out, the specific go’verns ttie character language of Article of conrrac~t which t:he parties could make. That language limits the compensation to that provided by law in suits for state and county tares, That amount Is limit,ed to fift~een per cent of the amount collected and there ~1s no authority in law for the payment of a greater percent,age. The contraci under review provides for t,he payment of twenty pe’r cent, is, Art v 7335a, 0 2. for that reason, void. “We t:hink it proper here to observe the requirement. 7335a, that contracts made by commissioners courts shall be approved by the Comp,troller and Attorney General, should not be held t,o be applicable to con,tracts made by in- Bye the concluding dependents school d.istricts. 7343, above quote;all sent erce of Article la~ws of this state ,the purpose of collecting del- Lnquent, st.ate and county taxes shall be applied to tne collection taxes of inde- pendent school districts In so far as such laws ar’e applicable, The st&t~e has a direct interest in the co1 lectlon of state and count,y taxes, but hss r,o such direct, interest In the co’liection t~axes of independent. school districts. The reason the provisions ,for the approval by ,the Compt.ro1le.r and Attorney General of contracts ,, But no made by commissioners courts is obvious similar reason exists for requirfng such approval of con~?racts made by independent school districts. of t,he opinion that such re- We a,re, therefore, quirement of approval is not applicable to these latter contracts ;” (Emphasis ours) *5 Hon. Geo~ H. Sheppard, page 5 O-5922
You are, therefore, respectfully advised is our view that Article 432 of Vernon's Penal Code, 1925, is'not violated by the employment of the County Attorney's son by the Commiss toners Court to collect State and county and 7335a taresunder'a contract authorized by Articles if he Is not related to any member of the Commlssloners Court the reasons heretofore stated, namely, the County Attorney, the father of the Attorney thus employed by the Commissloners Court, does not appoint, vote or confirm the appointment, and hence does nothing In violation of said Article 432 of the Penal Code.
And you are further advised that+tt.e Attorney
General and the Comptroller have no statutory duties perform in connection with the contract made by the City of Glen Rose and the Glen Rose Independent School District taxes.
Yours very truly ATTORNEY GENERAL OF TEXAS By s/L. P. Lollar L. P. Lo7lar Assistant LPL:AMMrwc
APPROL'ED MARCH 31, 1944
s/Gee- P. Blackburn
ATTORNEY GENERAL OF TEXAS (acting)
Approved Opinion Commii~tee By s/BWB Chairman