Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

GERALD C. MANN ATTORNEY GENERAL

May 20, 1939

Honorable Charles S. McMillan County Attorney San Augustine, Texas

Dear Sir:

Opinion No. 0-774 He: Whether or not sued in the purchase of gasoline and machinery to be used in road con- struction may be used in the payment of road and bridge taxes.

We are in receipt of your letter of May 6, 1939, wherein you request our opinion in response to the following three questions:

1. 'May believe of material to the county for use in road construction, maintenance, and repairs use bcript issued for this material in payment of their road and bridge tax levied under article 7048, Vernon's Aunt. Civil Statutes?'

2. 'If Article 7048 is a re- stitution upon such method of pay- ment, does the said article apply to the payment of taxes that are levied under Article 6790, where the levy is made under a different chapter?'

3. 'Is an agreement between the seller of this material to the county, valid, where the County Judge, the Com- missioners' Court, and the Tax Collector of this county agree to accept the script issued to the seller of this ma- terial in payment of taxes due the county

*2 Hemorable Charles 8. MoMillan, May 20, 1939, Page 2 for the General Road and Bridge Tax, and the Speoial Road and Bridge Tax for the political subdivision where the land is situatel"

Aecompanying your request is a letter from Judge R. M. Stripling, adrressed to you, from which it appears that the seript concerned in your question is that issued in payment for road building machinery and gasoline used in road building work.

Artioles 6790 and 6795, Revised Civil Statutes, make provisions for the calling of oleotions to determine whether road taxes not to exsod fifteen cents ( $15{\mathrm{g}}^{\prime }$ ) on the one hundred dollars' worth of property shall be levied in counties or political subdivisions or defined districts of counties. There is no statute authorizing the use of seript of any kind in the payment of taxes levied under the provisions of these artioles. Artiole 7048, R.C.S., among other things, provides for the levy of a tax of fifteen cents ( $15{\mathrm{g}}^{\prime }$ ) on the one hundred dollars' valuation for roads and bridges. Artiole 7049, R.C.S., reads as follows: "The taxes levied by this chapter are payable in surroacy or gain of the United states; provided, that persons holding serip issued to them for services rendered the county may pay their ceunty ad valorem taxes in such serip(t)."

Since the seript, with which we are concerned in this opinion, was not issued for services rendered the county, said Artiole, 7049, furnishes no authority for the use of the same in the payment of any taxes.

Artiole 8122, R.C.S., provides for the use of seript issued for jury service to be used in the payment of county taxes. In Chapter 3, Title 18, being Artioles 1037 and 1040, Code of Criminal Prooedure, we find authority for the use of seript issued to grand jurors, district jurors, county jurors, justiee court jurord and seript issued to the sheriff or to merchants for food and lodging of jurors, and for medical bills and funeral expenses of prisoners and to justioes of the peace for trial foes and inquest foes to be used in the payment of county taxes.

*3 Homorable Charles 8. MoMillan, May 20, 1939, Page 8

Nowhere in the statutes, however, is found any authority for the use of the eoript to which you refer in the payment of any ohareater of taxes.

The general rule is that the tax collector must aeeopt money only unjese the statute permits him to receive something different. Money is always understood in the tax laws when nothing else is mentioned. Cooley on Taxation, 4th Ed., Section 1282.

In R.C.L., Volume 26, Section 337, is found the following language:

"It is well settled that no right exists in law or equity to set off against taxes a debt of equal amount due to the taxpayer from the municipality to which the tax is payable. Taxes are levied to raise money for specific purposes, as indicated by the appropriations of the current year, and a taxpayer cannot, by exercising the right of setoff, divert the taxes to another purpose, namely the payment of the debt due to him."

To the same effect is the following language from 61 C.J. 963:

"The Legislature has power to preseribe the kind of funds in which taxes shall be payable, and may deolare that only gold and silver eoin shall be receive able for this purpose. But in the absence of such a restriction, taxes may be paid in any lawful current money, although the collector has no authority to aeeopt anything else, unless specially allowed by law!"

In the case of Dallas Joint Stock Land Bank vs. Ellis County Levee Improvement District No. 3, 85 S.F.

*4 Havorable Charles S. Molillan, May 20, 1939, Page 4 (2) 229, the improvement district sued the Joint Steok Land Bank for dolinquent taxes. The latter attempted to set off sertain past due bonds. issued by the improvement district and which were owned by the bank. The court held that such set-off could not be had. We quote from the opinion as follows: "The general rule of law is that a olaim against the state or munielpality cannot be set off against a tax demand. Cooley on Taxation (2d Ed.) 19. A tax is not a debt in the usual and ordinary sense of the word. City of New Orleans vs. Davidson, 30 La. Ann. 841, 31 Am. Rep. 228; Cooley on Taxation (2d Ed.) 18. "'The general rule, based on grounds of pablic policy, is well settled that no set-off is admissible against demands for taxes levied for general or local governmental purposes.' 24 R.C.L., p. 819. "In 89 C.J., at page 381, the rule is stated as follows: 'In an action for taxes set-off of an indebtedness of the state or muniplpality to the tax debtor will not be allowed, the statutes of set-off being construed in the light of public polley as not allowing the remedy in proceedings for this purpose, unless expresaly authorized by statute.' Numerous authorities are oited in support of the text."

Your first question is answered in the negative.

Addressing ourselves to your second question, we beg to advise that it is imaterial whether Article 9049 is a restriction upon the use of such acript in the payment of taxes levied under Article 8990, since in no event can such acript be so used.

*5 Homorable Charles 8. MoHillam, May 20, 1989, Page 8

Your third question is answered in the nogative.

Yours very traly ATTORNET GENERAL OF TEXAS By Glen M. Lewis Applatent

APPROVED: Gened E. Tenu ATTORNET GENERAL OF TEXAS