Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

Honorable 1s.0. (2smey County Auditor Benz? county Ban Antonio, Texas Dear Slrr

rob 18, 1940, impple- In whiah you enoloeed U &plnst the tax aemm- Both of thwr aotlom wera 5anua8ie80; pro itissrm and reridants oiBexar Qount ax essa8ao*t3olleetor In both MIlta and the aoetm wore hlmtaneeathamdt

l&r ctatoment af the Saotr surrountllng in your letter of Yaroh 18, 1940, from

engageQ in en of Bezar County who Ire! on 0r private tax exadnlng ntadea ds- mad on the Assessor and Collaotor of Baxar County to enter that part of the offioe whlsh is oloseb off fros the pub110 and looated where all reserda are kept to have ime aooem to all the reoor&a

455 Bonorable E. G. Garvey, Page 2

pertalnln~ to delinquenttaxes. "The Assessor and Colleator advised this citi- zen that he would gladly penlt hi;nand grant him this privilege to enter thie part of the offloe to 8.~8 and lnspeot any particular Item in his offioe if he would state whet item he dealred to see but that if he did not do this, he would refuse to grant him this privilege. This oltlzen did not state what items he desired to see so the Assessor and Colleotor refuse% him thle privilege, stating that he felt that if the public was allowed to enter this part 0r the 0rri00, which 1s not olose% off from the Colleotlon Department, 8110this being at a period when heavy tax oolleotlons were being made, that he might be endangering the countyfunds. The Assessor and Colleotor, however, stated that this was his aonatmotlon or the law on this matter. Be also #tats% that if the Criminal Distrlot Attorney of this Oountp as legal adviser, advised hitsthat this oonstruotlon was in error, he would be guided by and d0 a8 th8 Cri8dnal~DiStriOt Attorney rule%. *Before the Criminal Dlstriot Attorney had ruled on this question, this olflaen took t?$lsmatter before the County Commisslon~rat Court an% the Orlmfnal Dls- trlot Attorney adrim?% the Court that they had QO Jur- lsdlatlon ln the matter. Therefore, the Court took no aetlon an%jMs oitlzen 2118% suit against the As- seqor and Colleotor indlvldually and as Assessor and Collector of Taxes or Beatr County. *Tha oase was trlsd In the 45th Dlstrlot Court of Bexar Coqnty and the CrImlnal Dlstrlot Attorney repre- sents% the Assessoi an% Colleator ltithis cult an% Judg- ment was rendered in favor.of the plalntlff an% oosts assessed.agaibet the defendant. RArtlole 39l.Z-Bstates that no oounty shall pay to any orrloer ln any oounty oontalning a population or 20,000 Inhabitants er more aooording to the last pre- oedlng Federal census, any SW or oommlesioafor any servloe by him performdl as suah officer. As stated above, this suit was brought against the Asseesor an% Collator indlvid~tiug ad suI ~s~sor anb

Ronorable E. 0. Garvey, page 9

Collector of Tsxes of Bexar County and the Commls- sloners' Court was not made a party to this suit. "C,uestlon: Ie the Assessor and Colleotor liable for the oamnt of these costs to the Dlstrlot Clerk or emu this ease be anally olasslffe a.8a suit aRalmt ;~~;un;n~cI~vto~~r;;;;;; the As~sssor and Colleotor

*Another suit regarding the redmptlon fee of $1.00 allowed in Artlola 7391 was flled by this eann oltlzan against the kssessor and Colleotor lndlvldually and as Asssssor and Colleotor of Taxes of Bexar County, the Comnlssloners* Court not being made a party to this suit. The County was naturally very interested in the oase as it involved the revenues of the oounty. The Judment in this oase ws also rendered ln favor of the plalntlff and oosts assessed aga%nst the defendant. This Judgment 0s aourse means a loss in revenue to.the aounty. The Crlmlnal Dlstriot Attorney also represented the Assessor and Colleotor of Taxes in this case. *The question here 1s the sass as above mentloonedt Is the Assessor and Colleotor liable for the oayment of theeseoosts to the Dlstriot alerk or tsn this oase be leizallyolassifled as a suit against the oountP whloh would relleve the Assessor and Colleator of the'oayment . - 0s thess eosts7- Artlale 2056 of the Revised Clvll Statutes, 1925, reads es follows: "The sucoessful ?arty to a suit shall reeever of his adversary all oosts ooourred thereln, exoept where othemlse provided.n Article 1980 of the Revised 01~11 Statutes, 19885, provides thst.: "Suita by or agalnet e oounty or Incorporated olty, town or village shall be in it8 corporate name.w

Honorable E. 0. Ganey, Page 4

A ease slolllarto the one at hand was August A. Busah % Go. v. Gaufrlsld (C.C.A. 1911). 13S S. W. llO8, in *hIah a xuandamuspmoeedlng was Instituted by relators against t,b County Judge and County Clerk Of MoKinney County, Texas, ms ondents, Indlvldually and in thslr rapresentatIve oapa- sItf es, to compel them to Issue to relators a oouuty warrant In paymsnt of their olalms agalnrt the oounty. Costs were taxed agaInat raspondannfsas IndIrlduals and an appeal was takeu to the Court of Civil Appeals Innlstlng that the oourt ghoul8 tax the oo8ta agalnrt them in tbair offloial aapaeltlss au& not as Indlvlduals, so that they night reawer oostm al- ready paid by thktafrom the aouuty. This the oourt daalined to do and In the aourae of lts opinion It aald: *It is not sbom by the motion that they have sny funds Iu their hands a8 rush offloers wlth whioh to pay suoh aosts, and wa preawm that there am no woh.fuals at their Bfapoaal. Themfore, to retax the mats, 80 that plalntiffr ecald rwover againat them only ln.thair offIoPa1 eapaolty,would, ln the aboeuse of muoh showing, be equivalent to heldI that appellants wera not entftled to naov6r the T r awls, whloh would oontruveue the prorislo~ of artlole 1425, Saylea* Rev. Stat. 1897, wblch pra- rldas that the ~uooesrful party to a suit shall re- eover of hip adversary all the aosts expaudad or In- aarred thenln, exsept where it ls or may be other- wise provided by law. It Is saI% In 86 Qye. p. 311, i~peaklng with referennoeto soate Iu mandamus oases1 *In oonstraing etatutes, ooarts have generally roi- lowed the geu6xU rule in slYll aatlonm and awarded costs to ths prevallIug party.* *In desliuing to Issue the vrlt, it lr true, they aoted upon the seoond order of.the oasmIssiunors* aourt reaolndlng the first order, but in doing so the ware not proteetedby reason of said awond order, aInce the same transeendad the power of the msmIssloners* oourt. Doubtlass the amaaIssfoners' oourt, uuder the olrowsstaaoes,wIl1 refund -4 oosts so paid by then, but wa are not JustIfIad in axi.ng the createothemIao than we have already done; for whIoh reason the motion 18 overruled."

Honorable It.G. Oarrep, Page %

In Gouhenour r.'Anderwon (C.C.A. 1904), 35 C.A. 563, 81 S. #. 104, It was held that notwlthatandlng osrtaln Qolultyaoamlssloners, detendants ln a aendaaus prooeedlng brought agalnst than, bad resigned rmm offios arter the ln- stltatlon or the suit egaln8t than, they were nsrsrthe~sss personally llsbls r0r croote. In the oourae of its opinion the 0ourt saldr ‘Whether the sasosedlng amben, should bs oltsd, and thus made formal partles to the prosssd- in& or bs treat& as alNady bsfors the ooart, 18 a qasstlon on whloh the luthorltlss do not sesm to be altogether satlstaoto~~ bat we sre of oplnloti that whsre ths body prooesdsd a&alnst, like the som- mfsslonws* 00tsrt ;r~gx&lS not a oorporats body, h members ,dh

Your request pzesents a situation whloh 1s also sim- ilar to that lnrolred in the oase of Pearsall et al Y..Woslis, (C.C.A. 1899), 50 S.~W. 9W. Thor8 mandamus was lnntltuwu against sahooltmatsss ta axapel thsmte reao@lse a8 a tesohsr 6ns olalming the right to teaoh under a oontrsot with ths sohool board. It held that the trwtsss were properly joined both as t'mstses and as indlvl~uals and that they were liable psrsonally and lndlridnslly for the sosts Of the pmseedlng if ths plain- tiir prevailed. We presume that the judgmnt la eaoh o,f the s&t8 broq&t against the assessor and oolleotor or taus or BSxsr County assessed the oosts agaInat the dsfendants,making f10dlstlnetlon as to their lndlridual ar representativeeapaol- ties. Yet ths defendants wsre personally and lndlvidaallr ar- ieotsd bjrthe judgment, and as suoh were personally and fndlvld- ually lleble ror the bOSti6. Poarsall et al v. Waolls, supra; se6 also 2% Tax. hr. bag 11 mm. Yur. 853.

Ronorebla E. G. Garvay, Pugs 6

As a rule it la trua that In a suit brought against ana in his represantstIvaoepeolfp, ha Is not lleble for the 008ts a8 an imdaud. 11 Tex. Jur. 262. It 1s also true that the manner in which costs are asssssed Is largely within the dlsoretlon of the trial court. Tha ssoeptlons to these rulea, however, are as well sstabllshed as the nilea tham- selves, and ens suoh sxaeptlon Is a mandamus prooasdlng brought against en officer to oompal him to perform a mlnlstarlel duty. r oosts may bs assessed against the orfleer as au fndlvld- Paarsall v. Woolls (C.C.A. 1899) 50 3. W. 959; Gouhenonr t. indsrson, 35 C. A. 569, 81s. W. 104. Moreover, when the offlosr 1s joined both as an Individual and in hls raprasanta- tIva oapaclty, in the absenae of a showing of funds on hand sufrlolent to pay the aosts, the ooart will not assass them against the offloar in his ofHale aepaalty. Busoh & Co. v. Cauftleld, 138 5. W. 1108. For another reason we hold that costs assassaQ against aounI&~orricers in mandamus prooaadlngs broogat again& thaw to aompel thaw to parfcmn a mInlstarlal duty am mperly assss- sad agelnat thsllras lnfflvldusls. It Is wall ssttPad that a pra- csedlngbrought by msndams to uompal 0. Orfloor to perform a ministerial duty imposed upon him by 1~~6~ Is not a sriltaga:ainst ' the State. Leidlew R-OS. v. MBrrs, 114 Tax. 561, 273 3. 91.709; JarnIgan Y. Finley, 90 Tex. 205, 38 6. W. 24; 38 Tax. Jar. 8%. We believe that it la eqtinlly olaar that a prooaedlng brought by mandamus to oampal a County Tax hseassor-Collector to per- tons a mInlstaria1 duty Inposad upon him by law Is not a suit As stated in the Jar&an oasa, supxw, a t doesthe eP* not coonty* rollow that beoausa an ofrloar 1s aallad a oounty OfrIOerr,the funotlons he exerolses ara axerelsed for the qua@% oorporstIon.* The Interests of the.aounty are not subserved by a aounty offloor being dareliat In t&e perrOrmsnO8of poiitlva duties enjoined upon him by law. Wm3ovar, Artlcls 1980 or the Ravlsad Civil Statutea, rsqulres that suits brought against a aounty ba brought against it in its corporate nam. Under this ~rtlcle it has been held that li the purpose of the suit ls~to hold the oounty liable or ln anjrway to afract its Interests, tha County Is a mnaeassary party" and a oounty is not made a party defandant by jolnIng the county ofrloers alone. Alllson v. Ellis (C8.A.) 248 S. W. 814; Estes v. Conmlssloners* Court of Rood County (C.C.A. 1938), 116 S. W. (2d); Miller v. Snelson, (C.C.A. 1039) 1245.8.y, (ad) 904, as afrlrmed by the Comiaelon of Appeals, 129'S; u,.ted) 268; 11 Tax. Jur. 616.

460 Honorable E. G. Gervey, Page 7

Consequently, it is the opinion or this dspart- nent and you are respeotfully adrleed that when Judgment 1s had against a county ofrlosr and his deputy in mandsme pro- ceedfngs brought against thm to oo!npeLthe parfomance of Prinlsterlalduties, defendsnts being joInad In thslr lndlvld- eal 0na orrloial oepecItIss,end judgumt I6 ror relator and oosts are assessed a alnst the rsspondats, respondents ars personally and Indlt !dually responsible for the sosts. It la the further opinion of thls department that neither a mndamus prooeedlng brooght against R oomty tax asesssor-oolleotor to ooxpel him to perform the alnlstsrIal duty of aoaa~tlng relator*@ tender of taxes and ths Issuauce- or a reoeipt thersror, nor a mandamus proeesdiag to oompel the assessor-oolleotor of taxes and his deputy to sllow relator to aooess to the dellnqusnt tax and other pub110 roeorb nndsr their control, may be olassed es *suIts aginst the oountyg (the oofmty not being JoInsd ln its oorporate name as a party ~;rs~;zM so es to relieve dsraadantsor ths paymsnt or 008t~ .

Yours very tlnly

ATTOl?l?lZ GISBRN. OF TEXA8

Walter 8. Kooh Assistant

BY James Smullan

J8SrEBB

b?TROVEDmy 2, lg40