Case Information

*1 TEE ATroRNEY GENERAL OF TEXAS

~~Hon. :;'ayne Lefevre

County Auditor

clay County

Henrietta, Texas

Dear Sir:

Opinion No. O-1960 Re: Fees of inspector of hides and animals in cou~nties subject to the laws regulating the inspection of hides and animals, Articles 6972 through 7008, Vernon's Annotated Civil Statutes, as emended.

Amount for which property under a tax judgment may be sold anti determination of the value of the property, Article 73b.5b, Sections 7, 8 and 9.

kuthority of County Commissioners' Court to deduct interest and penalties accrued on delinquent taxes mistakenly covered in certificate of tax-assessor-collector.

We are in receipt of your request fbr ai. opin- ion upon the following three questions:

"1. If and when a County is under the lays governing the inspection of hides and animals,.

are the fees which are allowed~the inspector under Art. 7OOS Vernons Texas Statutes 1936 tom be paid from the General fund of the County or to be paid by the person or persons owning the animals or hides where are inspected?

"2. Kay property which is being sold for property tax (State County School, etc.,) be sold for an amount less than the amount of the dclincuent taxes, penalties, interest, and costs accrued against the pro?arty? Or msy it be sold for what is considered as being the actual *2 Hon. Y!ayne Lefevre, Page 2

value of the property at the tize of the sale?

(Zhat .governi::g body, if any, would have author- ity to set the actual value of such property at the time of sale?)

“3. If a property omer applies to then Tax-Assessor-Collector of a County for infor- mation concerning the payment of taxes on a specific piece of property, and the Tax-Assessor- Collector issues a certified statement that there are no delinquent taxes against that property; then some five years later a delin- quent taxing agency finds that there are de- linquent taxes against this property for one or more years, which were covered by the cer- tificate issued by the Tax-Assessor-Collector, would the County Commissioners Court have the authority to deduct the interest and penalties accrued on the delinquent taxes? (;;hich had accrued during the period of time)lI

Artidle 7OOg, Vernon's Annotated Civil Statutes, relating to fees of an inspector of hides and animals, provides in Section 1, as follows:

"Each inspector of hides and animals, or deputy inspector, provided for in this chapter shall be entitled to receive ten cents for each hide or animal personally inspected by him, but if more than fifty hides or animals are inspected in the same lot, then ten cents each for the first fifty, and three cents each for all above that number, provided that the commissioners court of any county not ex- empted from the provisions of this chapter may, upon hearing showing the necessity there- for after due notice of the time and place of such hearing having been published once each week for three consecutive weeks in a news- paper of general circulation in such county, by order entered upon the minutes of such com- missioners court, authorize said inspector, or deputy inspectors, of said county to charge not to exceed twenty-five cents for each hide or animal inspected csce;Z in cases where *3 Hon. Wayne Lefevre, Page 3

more than fifty hides or animals are inspect- ed in the same lot, in :ihich event no more than twenty-five cents each fcr the first fifty hides or animals inspected and not to exceed ten cents- each for allhities or animals above that number shall be authorizcd.lt

Article 6985, Vernon's Annotated Civil Statutes, governs the certificates of inspection issued by the 'Inspector. It reads:

Wnenever an inspector shall have inspect- ed any ,animal or animals, as herein provided, he shall, on the presentation of a written bill of sale or power of attorney from the owner or owners of such animal,or animals, or his or their agent duly authorized in writing, duly sinned and acknowledged, and on nayment.to said Fnsnect- -- -- 'or of his legal mL deliver to the nu~rchaser -- z the ani!zjais mentioned in suzi bxl of sale

or no:rer of attorney, or his agent, a certificate setting forth that he has carefully examined and inspected such animal or animals, and that said purchaser has in all respects complied with the law, which certificate shall not be complete until the same and the bill of sale herein provided for shall he recorded in the office of the county clerk of the county, and &dc;;;.fied to by said clerk,under his hand

Such certificate snail be then de- livered to the purchaser and shall protect him from the payment of inspection fees in any other district .for the animals therein describ- ed, except from the county from which the,same may be exported; provided that any person driving cattle in his own mark and brand shall be entitled to the certificate of inspection provided for herein, on payment of fees to the inspector, and on presentation to the inspector of the certificate of the county clerk of the county where such‘mark and brand is recorded, to the effect that the mark and brand named therein is duly recorded in his office ES the mark and brand of the person so driving such cattleOTf (Underscoring ours),

Hon. YJayne Lefevre, Page 4

It will be noted that said article provides that tlon payment to said inspector of his legal fees", he shall present a certificate of inspection kere the owner or owners of the animals inspected are otherwise entitled.to it.

This article is authority for the proposition that inspection fees are payable to the inspector by the owner or ovmers of the animals or hides inspected. See also Article 6972, 6973, 6977, 6963, 69BG, 69%~, 6992, 6993, 6994, 7001, 7OC3, Vernon's Annotated Civil Statutes.

In answer to your first question, it is our opinion that in those counties subject to the law regu- lating the inspectionof hides and animals, as prcvided in Articles 6972 throllgh 7005, as amended, the foes of an inspector are payable directly to the inspectcr by the ower or owners of the animals or hides which are inspected.

Your second question is ans:-wed in Opinion j!o. O-1501 of this Department, written by Hon. Billy Cold- berg to Hon. C. '+i. Talbot, County Attorney, Eastrop, Texas, copy of vihich is enclosed.

Discussing Sections 7,.6 and 9 of Article 7345b, Vernon's Annotated Civil Statutes, the opinion holds:

w * X because of Section 8 of Article 7345b of Vernon's Civil Statutes, a sheriff may not sell property to ~anyone except one of _ the taxing'units in the suit, unless said sale is for an amount equal to the adjudged value of the property or the aggregate ainount of the judgment against the property in the suit, whichever is lovrer.ll

As is pointed out in said opinion, the term "adjudged value" is defined in Section 5 of Article 731+5b, sunra. Under this section the court finds "reasonable Beyond this ~o~cr of fair val;eff or "adjudged val.ue". we are not aware of the authority or any ocher the court, 'judicial or administrz.tivo official or agency to deterkine the value of the property involved in the f'oreclosure *5 HOll. Zayne Lefevre, Page 5

proceeding.

In connection with your third questions, we call attention to Article 7256a, Vernon's Annotated Civil Statutes, which reads as follows:

"Sec. 1. On and after October lst, 14'29, the Tax Collector or his deputy of any coun- ty in this State containing 210,000 population or core according to the last preceding feder- al census, or any city or political sub-division or tax assessing district within any such county shall, upon request, issue a certificate shotring the amount of taxes, interest, penalty and costs due, if any, on the property describ- ed in said certificate. Xhen any certificate so issued shows all taxes, interest, penalty and costs on t!le property therein described to be paid in full to and including the year there- in stated, the said certificate shall be con- clusive evidence of the full payment of all taxes, interest, penalty and costs due on the property described in said certificate for all years to and including the year stated therein.

Said certificate showing all taxes paid shall be admissible in evidence on the trial of any case involving taxes for any year or years covered by such certificate, and the introduc- tion of the same shall be conclusive proof of the payment in full of all taxes, interest, penalty and costs covered by the same.

Vet. 2. If any such certificate is issued or secured through fraud or collusion, the same shall be void and of no force and effect, and any such Tax Collector or his deputy shall be liable upon his official bond for any loss re- sulting to any such County or city or political subdivision or tax assessing district of the State of Texas, through the fraudulent or col- lusive or negligent issuance of any such cer- tificate."

The Supreme Court of Texas, in the Case Of CITY 03 S;,ij hr,'c;&O V, il3L'fS;CFi, (1936), 91 S. il. (2d) 308, the *6 closest authority in poirlt ?;hich we have b?cll able to

find, hr,r the follol:ing to sa-y ,in regard to .;rticle 72jSa, supra:

.'!In this state there is non statute appli- cable.to plaintiff in error which undertakes to 'make entries in the tax records or tax receipts or certificates effective to estop the city from collecting its unpaid taxes. It is un- necessary tion or validity of chapter 77, Acts Second to express opinion as to the construc- Called Session, Forty-first Legislature, (1929) p. 153 (Artic~le '7%jSa, Vernon's Ann. Civ. St.) which provides that certificates showing payment of all taxes shall be conclusive evidence of such payment, as that statute ao- plies only to counties containing a population of 210,000 and to cities and political sub- divisions and districts in such counties.1' The questicn the Supreme Court had before it and upon which it reversed the Court of Civil Appeals at Austin (73 S. :'I. (26) 125) is as follows:

I(* * * 'Whether the city is estopped to assert a lien for unpaid taxes, to the injury of an innocent mortgagee who lends money on .such property as security, on the faith of, and in reliance upon, its assessment rolls showing that such taxes have been paid."' In an exhaustive opinion the Supreme Court re- jects the theory of estoppel in ,pais, as set forth in 'the-case of STATE v0 DAVIDSON, 280 S. W. 29Z;and'holds as follows:

fiSince the action of the tax collector in causing the tax records to show that the taxes were paid when in fact they were not paid was unauthorized, and since the tax coliector in collecting taxes and in keeping the records essential to their collection T%as c:zercisi:is for the city poi:ers essentially public and goverznental, it follows that the city is not estopped by the acts of the tax collector from . . . *7 YJayne Lefevre, Page 7

Hon.

asserting its lien for the taxes, unless exccp- tion is made to the well-settled rule that cities are not liable for the unauthorized or negligent acts of thair officials in the per- formance of the city's governmental functions." >Je believe the City of San Angelo v. Doutsch is authority to the effect that there is no estop- case pe.~ against the collection of the delinquent taxes .mis- takenly covered by the tax certificate in the present situation. It is not necessary.to point out that Art, Z5Sa, Vernon's Annotated Civil Statutes, has no appli- cation in this situation, since it applies only to counties containing the po:pulation of 210,000.and to cities and political subdivisions and districts in such counties, Ue are not passing upon the construction or validity .of this statute.

The County Cocnissioners' Court is a. court of limited powers, and it has no authority which has not been conferred by the Constitution or by statutes0 These is no constitutional or statutory authority conferred upon the, County Com?issioners' Court by w'nich it may release accrued interest and penalties for delinquent taxes. In a situation %here the delinquent taxes are still due, the County Comnissioners' Court has no Po?rer to deduct interest and penalties which have accruea.

In answer to your third question, it is our opinion that where a tax-assessor-collector of a county erroneously issues a certified statement that there are no delinquent taxes against certain property, the County Commissioners' Court upon the discovery of the error does not have the authority to deduct the interest and penalties accrued on the delinquent taxes which were mistakenly covered in the certificate and which are still due.

Trusting that we have fully answered the ques- tions submitted to us, we are

Yours very truly /s/ Dick stout BY Dj.ck sto11t rissiszant DS:ob API'ROV6D Z'ZB 27, 1940