Case Information
*1 L. r Y GENERAL EXAS
OF AUSTIN 1% TEXAS GROVER SELLERS WN
AlTGRNEYGENEXSAL
Honorable Max W. Boyer
Cbunty ‘Attorney
Ochiltree Coufity
Perryton, Texas
Dear Sir: ;;inion No. O-6543
: Whether tax collector of independent school district is entitled usder. Article 2791, V.A.T.C’;S., to ki per- centage of penalties and Int’eretit collected on delinquent taxes’ or whether his commission 1s.Iitiitkd tb a pSrcentage’~‘on the amount of taxes assessed and collected.
Your request for opinion has been received and carefully considered. We quote from your request as follows:
“1”submit to you the following proposi.tion for official opinion.
“Con’struing Article 2791, Vernon’s Antiotated’ Civil Statutes, with reference to compen6atLMi oft ah’ Independent ‘School district assessor and bollec- tor;what Is meant by ‘ctie provision, ‘whole amount of taxes’ in line 7 of said Article?
“An independent school dlstrict”has asked me to advise them whether or not the tax co1liect.M for then dFsti+ict Is entitled to a percentage of the penalty and interest.‘colleCted upon delinquent taxes, ‘br Is his cbmpen#ktlon cohfined to the actual amount of taxes assessed and levied? “I, therefore, ‘desire ttiat you give me your bpinion upon this question at your very earliest convenience. ”
“Article 2791, Vernon’s Annotated Texas ClvIl Statutes, reads as follows :
“The district tax assessor aiid collector still have the same power and shalf perform ttie same duties with reference to the assessment and *2 collection of taxes for free school purposes that are conferred by law upon the city marshal of ln- corporated towns or villages, and he shall receive such compensation for his services as the board of trustees may allow, except in cities and towns provided for, not~to exceed four per cent of the whole amount of taxes received by him. He shall give bond in double the estimated'amount of~taxes coming annually into his hands, payable to and to be approved by the president of~the board, con- ditioned for the faithful discharge of his duties and that he will pay over to the treasurer of the board all funds coming into his hands by virtue of his office as such assessor and collector;'~pro- vided that in the enforced collection of taxes the board of trustees' shall perform the duties which devolve In such cases upon the city council of an incorporated city or.town, the president of the Board of Trustees shall perform the duties which devolve in such cases upon the mayor of an ln- corporated city or town, and the county attorney of the county in whlchthe independent school district is located shall perform the duties w'hich in'such cases devolve upon the city attorney of an Incorporated city or town under the provisions of law applicable thereto. It shall be~'wlthin the dis- cretion of the board' of trustees of an independent school district to~name an assessor of taxes who shall assess the taxable property within the limits of the independent school district within the time ahd in the manner provTded-by existing'laws', in so far as they are applicable; and whensaid assessment has been equalized by a board of equalSEatlon ap-- pointed by-the board of trustees. for that purpose, shall prepare the tax rolls of said district and'. shall duly~'sign and certify same to the county tax colletitor~ as provided for in the succeeding article.
The said assessor of taxes~ shall receive a'~fee of two percent of the whole amount of taxes asFessed by him as shownbg the completed certified tax " rolls. Acts 1905, p. 26 ; Acts 1923, 2nd C.S. p.
78." (Underscoring ours . .
Article Vernon's Annotated Texas Clvll Statutes, provides penalties for the non-payment of taxes when due. This statute Is lengthy and ~111 not be quoted here.
Also, the Legislature hasenactea many statutes with referende to the remission of p~enaltles and interest on delln- quent taxes.
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Hon. Max W. Boyer, page 3
The case of Morrison v. Lane, 157 S.W. '(2) 466, ln- volvedthe'constructlon of a contradt between a Commissioners' Court and an'attorneg'whereby said attorney agreed to collect delinquent taxes, p enaltie'a and interest'; After the execution of""the contract the Legislature enacted an Article (7336~) re- leasing penalties and Interest. It was contend'ed that said attorney could not be'paid his commissibn~ from any ijortlon“df the taxes'collected but could only be paid from'pehaltles and -The Court construed the contract', 'a-rid "- inte~collected. Articles 7264a, 7335, 7335a and 73361 and held that the-attorney was entitled to dollect his commissions from the taxes‘aswell as'from penalty and interest. The Court In this casecI&rIy recognlzed"the differences betweeii and separability"of~taxes, penalties and interest. We call attention to the following language In the court's opinion, towit:
"It is our conclusion that the lower court' correctly construed the delinquent tax statutes under which the contract in Issue was made.
Article 7335 authorized a contract 'for a'per cent of 'the taxes, pylty and interestactually collected.' Since t e interest and penalty were 'remitted, only the taxes remained from which appellee could be px Again, Article 7335 ex- pressly provided that the payment to appellee should be contingent upon the collections of'such taxes, penalty and interest. 'Appellee has col- mi3 taxes in the amount stated above. His contracwhorized paymentto be made to him' from the taxes "actually collected.' (Note--The above emphasis was made by the court in Its opinion.). Answering your inqulrx it Is our opinion that the pro- vision "whole amount of taxes in Article 2791, V.A.T.C.S., re- ferred to by you, only Includes taxes and does not include pen- alty and Interest.
It, therefore, follows that a tax collector of an ln- dependent school district is not entitled to a percentage of penalties and Interest collected upon delinquent taxes. Such tax assessor-collector would be, of course, entitled to collect such percentage as was allowed him, not to exceed 4 per cent of the whole amount of taxes received by him. He Is also entitled to a fee of two per cent of the whole amount of taxes assessed by him as shown by the completed certified tax rolls. *4 0 -6543
Yours very truly ATTORNEY GENERAL OF TEXAS By: s/urn. J. Fanning Wm. J.'Fannlng Assistant WJF:BT:wc
APPROVED MAY
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman