Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS

bpIL&lc. MANN - sol-L

Fianerabh A. II. Eludkeraon csanty Aodttor afontgomery Qouuty UoIlroe, Texas

Dear sira

Your letter rt an oplnlan ar this a*partmnt 80 lnqueat twpayere a&n8t yaur oount

*For lnitanoe, if WC hire an 8% tonmsy and awe te pay b.h for hlr euwrl(tO8, an3 ha owed li8llnqueut taxer, do I We th* authority to hold up hlr Olalmr"

We hate dil&@zitly sewehed the oathorl$iw lsa thlrr Stata anU can fbd m 6aase or st&tute that-rso;td rp+

352 Honorable A. L. Elokeraon,Fq$e e

offioally conrer the authority to you to do whet you seek to do in ral'ercnoeto holEing up olalms e&mt the aounty of person5 owing delinquenttaxes. It the County Auditor is to be elven anoh a right, and auoh a power, lt mast be oonrerred on him only by inpllaatlon. In answerinS: your qmt3tlon, we vmuld liks to oall your attention to a portion oi the opinion ol Aselmtant ht- tornay Genarsl II.L. "llllford, $4 dated October 29, 1.898, uhloh you forwardeU to this ofiioe~alongwith your letter. *It Is the law of this 3tate that a tax~~yar is not personally llable$or taxes wbloh Il00l-MQ&net X%51 DlTODhT- ty before b4 par8haseU it or aoqUlr@l the tltls thereto. It 1s also the law that s man la not personallyliable for taxem whlah aamae against real pmper- ty after he baa sold the sms arqn thou@ he thereafter re-aoqalrem euoh roperty, but in any merit rOal pTOpeI%y !a liable for tbs taxes lrried and asseseed against it, lmapeotire of the personal llabfl- itp of the omer. You aan psroelve inns what I have stated that not every owner Of FWI p0pM.y 18 p~8OMilf liable for all the taxem vdriehp.lghtbe due against it. Ee 1s only personally liable where he owns suah pmperty OR January 1st of the tax year, and a valid levy ana asaeaamQllt WaEma0 agalilsthim:Even in such a oaae* I doubt the wisdom of adopting the DOliOy Qf wlthholdlng pay- ments for right of way where e erson owns dellnquanttaxem, cause une11 a tar olalm is otticIally establishedbg a~ ad wltoation fn 8 oourt of OOaSget~t $u-ls~l ati on, lt x&&at be said to be doubtf'uland oft times on as&Wnt ot the omiaslon of sorm statutory requlelte er prwedure tar claims are defeated." Hr. Wlllif'ordcal.leyiiur attentlotito the faaot that a tax debt la dlfierent fms on ordinary debt. Be- muse or thts dlertlnatlon, the ~otarts of thla State have held that in (isalt for taxoa a 01&a a&nst the county ala not be act off by a taxpamr. The aonrt Qfsaubras th38 p~blem in the ease of Dallas Joint Stook Land Bank Of Dalb2m vs. Zlli6 &Wity Zesty~DrOrePaent Diatri4t t&h

F,onoreble A. E. Hlokerson, Page s

3, 55 2. c. (26) 229:

*The gemrel rule or lea ICIthat a alaIm lgalnnt the 8tet.eor munlol- p6lIty Oannot be eet oft agaltut a tax demand. Cooley on Tention (2d Ed.) 19. A tax 1s not a debt In the usu61 end ordlnery aexue of the word. Cit Or hr4~~rlORufJt. DWlQSOn, atfLa.A&. 541, 31 Am. l?ep.228; OoaJey on Texa- tion (ea Ed.) 15." In holding up money which the county owes to an lndlvldual,who 1s 8 delinquent taxpayer, a oounty Aadltor would be, In effeot, eotlng as judge end jury over eald tar- payer6 liability for the tax. Nowhere h6s the Legi8lature 6psalfioallygranted to a County Auditor this power, and we are or the opinloa that suoh authority doee not re6t in him. The method of oolleotion of delinquenttaxeSi 18 8et out In Chapter 10 of Title 122, Revised clvll statotee. The 8tetutes eontalned in thle Chapter presorlbe oertein notloer to be @en to delinquent taxpayers,end oertain methods o? prooedure in the aolleotlonof delinquent taxee. These atatutea are leghthy and in detail, end, In the opin- ion of thlr depar%ment,met be complied with In the eol- leotlon OS delinquent texee. The suggested method a? sol- leation oi the delinquenttex In your letter would not be in line with the prooedun set out In BRld Ch6pter. In your letter you refer 6pecIffoallpto holding up salaries of people employed by the oounty. AQ enalogoue situationwas dinouesed In the oase of Denman vs. Coffee, 91 S. PI. 801. In this ease Denman was Zharlif of Brown county, and some or hi6 fee6 of otfloe were held up beoeuse ot l debt whloh he owed to the County. The court held that this oould not be done, and 8teted as follows: wTh66e eeoount6 were for fees or or- rloe Cue Dsnaun a6 the shsriit or Brown County, end oould not be le$ally approprl- ated by the Oo6&16610nQr6cOourt to the payment ot an indebtednessof D6nman to the county, even ii the orders upon whiah that fndebtednsea~66 b66ed oould be au- eelled In e collateral proceeding. ,7angar Bras. v. City of ?&to, 15 Tex. Civ. App. 424, 40 S. W. S4St Banlr V. Blnk~, B6 TAX. 306, 24 8. F. 286, 40 ha. "t. liep. 885.'

Honorable A. B. Hiokerson, Page 4

In the oase of Sanger Dros. vt3.City ot Waoo, 40 S.K. 849, whioh wae olted in the Dennan ease, *n attempt was made to garnish zioneynhIoh the oounty owed one of Its 0fri00m. The oourt held that this ooald not be done, that It was against pub110 polloy. The oourt strrtcdthat the reasoning In that ease was analogous to tht.roasoningwed by the Supreme Court In the oaaa at Bank VS. Fink, 86 Ter. SO6, in whloh the court etatsd ea l’ollowe: **Dignity ot office,* In the meme that the term is wed in the English oases, doe6 not exist In this country; and yet there le a dignity, or at least should be, attending evorp offItterin that senee that 6 proper aad Independ- ent dlaoharge of Its duties Inspires re- epeot ror the oriiaer and ror the offioe. In this nore important sense o? dignity, the mne reaaoa can be well.applied in thlt4aountry. The law provides eompen- aation for offio$al servloe In order to enable the officer to be rrse from the oarw or making provision ror hla own impport end that of his family during the term of o~loe, that he may devote h%a whole tlms to the disoherge of the duties of hln orrio.. Ir such offioer is penaitted to assign hIa salary or few before earned, he may thus deprive hlmaelf and SamUp of this support, and, to secure It, he must look to come other source, thereby deprIvfnS the state of the oareful end thoughtfulattention that the poblio Interest demands. A hungry man ia weak in the paesenoe of '.. tcroptatlon, no matter what .?lay be his ability to tithstand it fn B state of lndependenos. To deprive aucrhan otti- oer 0r the means of dally oup.prt for himself and redi &Ile his time must be given to work l’ n whioh he can erpeet no rellsr, would be a stroug Induoaaent to resort to methods which if not dis- honest, would at least be inoonaiotent wlth the public good, and the dLgnIty of his ofiioe be destroyed by lOsing the respeat and eorniidenoe of the pub- llo.*

Eonorable A. E. HIokar#5on, Page 5

From the above authority, it is unquestlonablr the law that the County Auditor would not have the author- ity to hold up aalarlta or tees owing to Ite county otli- oera beoauae said ofY1cez-sowed delinquent taxea. BY WY or analogy the reeaonlngused by the oourts In disousslne that type of situation muid elao epply to all ealarles paid by the oounty to any of it8 employeea. The public polloy involved la that OS keeping the aervloe rendered to a oounty by Ita employeeson a high level by not having them put In feer of having their salary subjeot to garniah- ment. In your letter you also Inquire apeoltioallgaa to the holding up of noney due an attorney for serviosr rendered In oonneotlonwith the oolleotlon of delinquent tarea, bemuse aald attorney owes dtlinQUent taxee h,Iwelf. In the oaae of Fume va. Zuehl, 119 S.Vf.(2d) 805, the oourt held thtt B oontraot with an attorney for tha ool- ;rg;go;gordelinquenttaxes waa a aontraot for personal You, therefore,are advised that the aame rea- aonlng will apply to him aa to other employees or the oounty. It la the opinion of thla de-pertmmt,thsrerore, that the is unauthorized Oounty Auditor to hold up money uhieh the county owes because the party to ?&horn the oounty ie indebted happens to owe delinquent taxes.

Yours very truly