Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GERALD C. MANN ATTORNEY GENERAL
Honorable Geer. B. Turner District Attorney Johnson County Cleburne, Texas
Dear Sir:
Opinion No. G-4597 We: May an assistant county attorney receive compensation under a delinquent tax contract which he entered into prior to his appointment as assistant county attorney?
Your letter of May 18, 1942, requesting our opinion on the above stated question reads as follows:
"Your letter of the 8th instance directed to R. L. Crozier together with copy of your opinion No. G-3448 enclosed therein, duly received. As Mr. Crozier is shortly to enter the United States Naval Reserve and not having the time to do so himself asked me to prepare for him a brief on the question which he submitted to you in his letter of the 8th instance for your opinion with reference to the right of his assistant; J. N. Bauldwin, to receive commissions on delinquent taxes collected under a contract entered into with Johnson County, prior to his appointment as Assistant County Attorney.
"It is my understanding the order appointing Mr. Bauldwin, Assistant County Attorney, does not provide for the payment of any salary to him out of any county or other public funds. It is also my understanding that the contract relating to the collection of delinquent taxes expires the 31st day of December, 1942.
"I submit the following for your consideration: Article 73E6, R. C. B. makes it the duty of the County Attorney to file suits for the collection of delinquent taxes, etc.
*2 Hucornble Gean b. Turner, Page E "Artiole 7535 R. C. S. authorizes ti:e Commisgioners Court of any oounty after the oxjiration of thirty days notice in uriting to the County Attorney to file delinquent tax sults and his failure to do so, shall deem it necesaery expldent, said Comilsaioners Court may contract with any conpstent ittarney to onforce or asgist in the onforoenent of the collection of any state and ounaty taxes for a pereentare of the texes, eto., actually collected, eto. "The contrect between the County and ir. Beulowin for tho colleetion of the delinquent texes is atill in foree and offeet and he has alnoe the date of ame been angaeged in carrying out its terms and provisions. "34 Texas Jurisprudence, pege 607, it is said the duties of an Asgistant are to be performed in connection with and under the direetion of the principal. "In Meaper ve. Stewart 66 S. W. (Rd) 815, in diecuesing the weaning of the word 'Asgistent' the ocurt stated that it is universally defined as one who aids, belpe or asslats also thet the word 'Asgistent' meceaserily implies that the duties are to be performed in connection with and under the direction of the Superintendent, in diecuesing the duties of an Asgistent County Superintendent. "It seems to me that in as much as the Statute reiled to make it the duty of the Asgistent County Attorney to eollent the delinquent texes and in as much as the etetute also by implication gives the County Attorney the right to refuse, in his diseretion, to file suit for the collection of deliaquent taxes, and authorize the Commissioners Court to enter into contract with some competent attorney for the collection of the delinquent texes; and the fact that the contrect for the collection of the delinquent taxas anti dated the appointment of said attorney as Asgistent County Attorney, coupled with the fact that his appointment as Asgintent
*3 Honorable Gnon E. Jurner, Paço 3
County Attorney does not provide for the payment of any salary or compensation from the county funds or any other public funds for his services as Assistant County Attorney, it is my judgment that Mr. Bauldwin would be authorized under the law to continue to collect his commissions on the delinquent tax contract until the expiration of same and also discharge the duties as Assistant County Attorney at the same time.
"Your opinion wit: reference to the above matter will be greatly appreciated."
Article 3908 and Article 331, Vernon's Annotated Civil Statutes, authorize county attorneys, by consent of the Commissioners' Court to appoint in writing one or more assistants for their respective counties, who shall have the same powers, authority and qual. fientions as their principals. Such assistants, before entering on the duties of their officers, shall each take the official oath which shall be endorsed upon their appointments and the oath and appointment shall be recorded and deposited in the county clerk's office.
Our opinion No. 0-988, among other things, holds in effect that the Commissioners' Court is act authorized to contract with or to pay a county attorney a percentage of delinquent taxes collected.
In opinion No. 0-1692, this department held in response to the following question: "May a county attorney represent an independent school district of the same county in the collection of delinquent taxes and the filing of and intervention in tax suits in its behalf?" that:
"From a consideration of the foregoing statutes it is evident that the office of county attorney is incompatible with the duties of a delinquent tax attorney for an independent school district located in the same county inasmuch as he might be required to take some action as delinquent tax attorney for the independent school district which might result in the county sustaining some loss of its tax revenue."
We also direct your attention to opinions No. 0-87, No. 0-2410 (conference opinion No. 3105) and No. 0-2610 of this department. Copts of all the above mentioned opinions are enclosed for your convenience.
*4 Hoorable Geen h. Turner, Page 4
Under article 331, supra, an asgistant county attorney possesses the ease powers, authority and uelifications as his principal. Therefore, it would naturally follow the (the asgistant county attorney) would have the same duties as his principal. The duty of collecting delinquent taxes is imposed upon the county attorney by statute. It is apperent that the same duty is imposed on the asgistant of the county attorney. As the county attorney cannot contract with the county to collect delinquent taxes neither could his asgistant. Under the facts as above stated, the asgistant will be performing all the duties of the county attorney during the absence of said county attorney: when he is in the Naval Reserve.
Article 7535, Vernon's Annotated Civil Statutes, authorizes the Commissioners' Court of any county after the expiration of thirty days' notice in writing to the county attorney to file delinquent tax suits, and his sallure to do so shall deem it necessary and expedient, said Commissioners' Court may contract with any competent attorney to enforce or assist in the enforcing of the collection of any state and county taxes for a percentage of the taxes, etc., actually collected.
In view of the foregoing facts and authorities, it is our opinion that the same duty is imposed upon the asgistant county attorney to collect delinquent taxes as is imposed upon the county attorney. It is our further opinion that the asgistant county attorney in question has no authority to collect delinquent taxes under the contract in question and receive the compensation provided for in said contract. If the asgistant county attorney collects said delinquent taxes, he must do so in the capacity of his principal as required and authorized by statute, and not by virtue of contract. It is our further opinion that the duties of an asgistant county attorney are incompatible with the duties of a delinquent tax attorney for the county. Therefore, the above stated question is answered in the negative.
Trusting that the foregoing fully answers your inquiry, we are
Yours very truly
ATTORNEY GENIRAL OF TEXAS
Andel G. L. L. G. H.