Untitled Texas Attorney General Opinion ( 1979 )

The Attorney General of Texas
October 10, 1979
MARKWHITE
Attorney General
Honorable D. R. “Tom” Uher Opinion No. m-67
Chairman, House State Affairs
Committee Re: Compensation of an attorney
P. 0. Box 2910 who has contracted to collect
A&in, Texas 78769 delinquent taxes on behalf of
Victoria County.
DearRepreserita’flve‘Uner:
You ask two questions about the compensation of a private attorney
who has contracted with Victoria County to collect delinquent taxes. Under
the contract, which you have submitted to us, the county, joined by the
state, employed the attorney to aid local officers in collecting delinquent
state and county ad valorem taxes. See V.T.C.S. art. 7335. It provides
compensation of fifteen percent of theamount collected of all dginquent
taxes, penaIty and interest subject to the contract See V.T.C.S. art. 7335a.
In performing hi4 duties under the contract, the attoney filed a motion to
compel answers to interrogatories, which the court granted, ordering the
defendant to pay reasonable attorney’s fees to the plaintiff.
You first ask whether the collection of attorney’s fees by the private
attorney from individual defendants violates the contract. There is
statutory authority for the award of attorney’s fees under these
circumstances See V.T.C.S. art. 7345b, SS; Tex. Civ. Proc. R. 168. The
question is whetherthe attorney may receive these fees in addition to the
fifteen percent compensation awarded under the contract. Paragraph V of
the contract provides in part:
. . . where it is necessary to file suit for the enforced
collection of delinquent taxes on real property,
Second Party [the attorney] shall have the authority
to procure on behalf of First Party Ithe state and
County] the necessary additional data and information
as to the name, identity and location of necessary
Parties and in the procuring of necessary legal
descriptions of the property may sue in the name of
First party for the recovery of the actual cost of this
information as Court Costs, as authorized by Article
P. 206
Honorable D. R. “Tom” Uher - Page Two NJ-67 1
7345B, Section 8, Vernon’s Annotated Civil Statutes. It is agreed
and understood that First Party will not be liable for any of the
above mentioned cost.
Paragraph Vll provides in part:
It is further agreed and understood that Second Party shall
furnish, at his own expense, . . . all labor necessary to complete
said contract including labor and expense incurred . . . in procuring
neeemary legal descriptions of the property as provided in
Paragraph V in all cases where such expenses are not collected as
costs against the defendant or defendants ln the tax suit, but in no
event shall such cost be paid to Second Party, either directly or
indirectly. . . .
Finally, paragraph XIII provides that the Second Party shall not “benefit directly or
indirectly from the performance of this contract except to the extent of compensation
provided in Paragraph VIII of this contract.”
Where provisions of the same contract are in conflict, the courts will construe the
contract to give effect to all provisions if possible. City of Midland v. Wailer, 430 S.W.2d
473 (Tex. 1968). In our opinion, the quoted contract provisions mean that the state and
county may recover attorney fees in connection with compelling answers to
interrogatories, but these fees may not be paid to the attorney over and above the
compensation provided in paragraph VIII of the contract Paragraph V permits suit in the
name of the state and county to collect attorney fees; thus, these political entities
actually receive the award. Paragraph VII specifies that costs collected against
defendants are not to be paid to the attorney, while paragraph XIII limits the attorney’s
compensation to that provided in paragraph VRl. Thus, the attorney’s fees are to be paid
over to the plaintiff state and county, and not to the attorney employed under the
contract in question.
you next ask whether the collection from individual defendants of attorney’s fees
for motions to compel interrogatories violates articles 7335 and 7335a, V.T.C.S. Article
7335 authorizes the commissioners court to contract with a private attorney to enforce
the collection of any delinquent state and county taxes for a percent of the taxes, penalty
and interest actually collected. Article 7335a provides that no contract may be made by
the commissioners court in connection with delinquent taxes “where the compensation
under such contract is more than fifteen percent of the amount collected.” The contract
in question limits comeensation to fifteen oercent of the amount collected. and as we
have construed the contract, the attorney’s fees are not paid to the attorney in addition to
the compensation. Thus, the attorney receives no more than the compensation authorized
by article 7335a, V.T.C.S.
SUMMARY
Under a contract to assist Victoria County in collection of
delinquent taxes a private attorney may not receive attorney’s fees
p. 207
Honorable D. R. “Tom” Uher - Page Three (~w-67 1
for motions to compel answers to interrogatories in addition to the
stated compensation. The compensation provision of the contract
is consistent with articles 7335 and 7335a.
MARK WHITE
Attorney General of Texas
JOHN W. PAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Jim Allison
David B. Brooks
Walter Davis
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
p. 208