Untitled Texas Attorney General Opinion ( 1940 )

TEE ATroRNEY GENERAL
OF TEXAS
:;'ayne
~~Hon. Lefevre
County Auditor
clay County
Henrietta, Texas
Dear Sir:
Opinion No. O-1960
Re: Fees of inspector of hides and animals in
cou~ntiessubject 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 antidetermination 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
Hon. Y!ayneLefevre, 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? (;;hichhad
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
Hon. Wayne Lefevre, Page 3
more than fifty hides or animals are inspect-
ed in the same lot, in :ihichevent 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:rerof 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. YJayneLefevre, Page 4
It will be noted that said article provides
that tlonpayment 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 throllgh7005, 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 vihichis 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 ainountof 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
fair val;effor "adjudged val.ue". Beyond this ~o~cr of
the court, we are not aware of the authority or any ocher
'judicial or administrz.tivoofficial or agency to deterkine
the value of the property involved in the f'oreclosure
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
shotringthe 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!leproperty 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
closest authority in poirlt?;hichwe have b?cll able to
find, hr,rthe follol:ingto sa-y,in regard to .;rticle
72jSa, supra:
.'!Inthis state there is nonstatute 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 to express opinion as to the construc-
tion or validity of chapter 77, Acts Second
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-caseof STATE v0 DAVIDSON, 280 S. W. 29Z;and'holds
as follows:
fiSincethe 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%asc:zercisi:is
for the city poi:ersessentially public and
goverznental, it follows that the city is not
estopped by the acts of the tax collector from
.. .
Hon. YJayneLefevre, Page 7
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."
>Jebelieve the City of San Angelo v. Doutsch
case is authority to the effect that there is no estop-
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:pulationof 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'nichit 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
BY /s/ Dick stout
Dj.cksto11t
rissiszant
DS:ob API'ROV6DZ'ZB27, 1940