Untitled Texas Attorney General Opinion, V-218

Untitled Texas Attorney General Opinion

V-218

| Tex. Att'y Gen. | Jul 2, 1947

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THE ATTORNEY GENEKEHII OF TEXAS

Arintin 11. TEXAS

HOSORBY GENERAL

May 28, 1947

Honorable Paul Worden, Criminal District Attorney, Collin County, McKinney, Texas

Opinion No. V-218 Re: Fees of out-of-county sheriffs for serving citations in suits by incorporated cities for taxes.

We refer to your letter of April 24th, 1947, in which you submit the following: "Reference is made to Article 7332, Vernon's Texas Civil Statutes and the following question is presented, requesting your opinion: "In a suit brought in the District Court by an incorporated city, represented by private atterness of the city's own choice, against a private individual for delinquent taxes; are the costs of suit and fees earned by the various county officials to be taxed as in an ordinary civil case, or are such costs and fees taxed in accordance with the provision of Article 7332? "Particula rly, inquiry is made as to whether, in such a case, an out of ooanty Sheriff who completes service of process, is entitled to the regular fees for such service as in other civil eases?"

Article 7332, of Vernon's Civil Statutes, fixes the fees which officers may receive in suits by the State for delinquent taxes. The part of that article which pertains to the fees of a sheriff is as follows:

*2 Honorable Paul Worden - Page 2 "The Sheriff or Constable of the County in which the suit is pending shall receive a fee of Two ( $\$ 2.00 $) D o l l a r s i n e a c h c a s e w h i c h w i l l c o v e r t h e s e r v i c e o f a l l p r o c e s s, a n d t h e s e l l i n g o f t h e p r o p e r t y a n d e x e c u t i n g d e e d s f o r s a m e . I f, i n a n y s u c h s u i t, p r o c e s s i s i s s u e d t o b e s e r v e d i n C o u n t i e s o t h e r t h a n t h e o n e i n w h i c h t h e s u i t i s p e n d i n g, t h e s h e r i f f o r C o n s t a b l e s e r v i n g t h e s a m e s h a l l r e c e i v e a f e e o f O n e ($ \ $1.00$ ) Dollar in each suit for his services."

We have not found any statute which expressily autherizes a sheriff to collect fees for serving citations in suits by incorporated cities to collect delinquent taxes, but the provisions of Articles 7337 and 7343,R.S. 1925, and Article 7345b of Vernon's Civil Statutes are germene.

Article 7337, R.S., 1925, is as follows: "Any incorporated city or town or school district shall have the right to enforce the collection of delinquent taxes due it under the provisions of this chapter. Acts 1897, p. 132; G. L. vol. 10, p. 1186."

The last paragraph of Article 7343, R.S., 1925, is as follows: "All laws of this State for the purpose of collecting delinquent State and county taxes are by this law made available for, and when invoked shall be applied to, the collection of delinquent taxes of cities and towns and independent school districts insofar as such laws are applicable."

All of the quoted statutory provisions are in Chapter 10 of Article 122, of Vernon's Civil Statutes.

Article 7345b, of Vernon's Civil Statutes, was enacted in 1937, Acts 45th Legislature, page 1494a, and prescribes the procedure in suits to foreclose tax liens. Section 1 of that article is as follows: "For all purposes of this Act, the term 'taxing units' shall include the State of Texas or any town, city, or county in

*3 Hox. Paul Worles - Page 3 said State with authority to levy and colleot taxes."

Section 13 of that Act is as follows: "The provisions of this Act shall be cumulative of and in addition to all other rights and remedies to which any taxing unit may be entitled, but as to any preceeding brought under this Act, if any part or portion of this Act be in conflict with any part or portion of any law of the State, the terms and provisions of this Act shall govern as to such proceeding. The provisions of Chapter 10, Title 122 of the Revised Civil Statutes of 1925 shall govern units brought under this Act except as means provided." Acts 1937, 45th Leg., p. 1494-a, on. 506. (Emphasis added).

In the case of City of San Antonio vs. Campbell, 56 S. W. 130, the question was as to the authority of a sheriff to collect fees for servious in tax suits. The court denied the right, saying: "We are unable to find any provision allowing the sheriff compensation for the notices required to be given to the parties and their attorneys."

We have been unable to find any law other than Article 7332 of Vernon's Civil Statutes which authorizes the collection of fees by sheriffs for serving citations in tax suits.

We are of the opinion that out-of-county sheriffs may receive $\$ 1.00 $f o r s e r v i n g c i t a t i o n s i n s u i t s b y i n c o r p e r a t e d c i t i e s t o c o l l e c t d e l i n q u e n t t a x e s; t h a t a n i n - c o u n t y s h e r i f f m a y r e c e i v e t h e s u m o f$ \ $2.00$ for all services in much a suit, and such officers may not collect the fees as in ordinary civil cases, regardless of the fact that "private attorneys" file such suits for such cities.

It is provided in Article 7332 that no fees shall be paid to County District or Criminal District Attorneys where such suits are filed by attorneys under contract to collect taxes.

SUMMARY

The sheriff of the ounty in which a city tax foreclosure suit is pending is entitled to gollent $\$ 2.00 $f o r a l l o f h i s s e r v i c e s i n s u c h s u i t, i n c l u d i n g e x e c u t i o n o f t h e d e e d t o p u r c h a s e r, a n d t h e s h e p e l f o f a c e u n t y o t h e r t h a n t h e c o u n t y i n w h i c h a t a x s u i t i s p e n d i n g i s e n t i t l e d t o c o l l e n t a f e e o f$ \ $1.00$ for serving the precees in each such suit. Other officers are not autherized to collect fees as in ordinary civil suits. Art. 7332, 7337, 7343, 7348b, V.C.5.; City of San Antonio vs. Campbell, 86 S.W. 180.

Yours very truly, ATTOBUTY CHEERAL OF TEXAS

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