Honorable Robert S. Calvert 

Comptroller of Pub1 .ic Accounts 

State of Texas 

Austin, Texas 

Dear Mr. Calvert: 

Opinion No. 'M-808 

Re: Whether Waiver Qf 

notice and rights 

to file tax suits 

by county attorney 

in connection with 

tax contract let 

to another.attorney, 

operated as a waiver 

of such rights as 

to any such'contract 

made in the future. 

Your letter of date February 25, 1971, is quoted In full 

as follows: 

"On January 1, 1969 a contract for the 

collection of delinquent ad valorem taxes 

was awarded to an attorney by the Commissioners 

Court of Hardin County. The duration of the 

contract was for the t,wo year period beginning 

January 1, 1969 and extending through December 

31, 1970, and was approved by the Attorney 

General and Comptroller as required by Article 

7335a, V.A.C.S. The contract contained a 

waiver from the County Attorney with regard 

to the x0-day notice required by Article 7335. 

"At the termination of the above mentioned 

contract, a new contract was awarded to a 

different attorney and the same County Attorney 

has refused to grant a waiver of his rights, 

in this instance, holding himself out as 

ready and willing to file and prosecute delinquent 

tax suits to a conclusion. However, the 

Hardin County Judge contends that a new waiver 

is not necessary, inasmuch as the County 

Attorney had signed a waiver some two years 

earlier in connection with the prior contract. 

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Honorable Robert S. Calvert, page 2 (M-808) 

'Your official opinion is respectfully 

requested whether the new contract should be 

approved, as provided by Article 7335a, in 

view of the County Attorney's refusal to 

waive the necessity of the x0-day notice as 

required by Article 7335.” 

Article 7335, Vernon's Civil Statutes of Texas, in its 

relevant portion, reads as follows: 

"Whenever the Commissioners court of any 

county after thirty days written notice to the 

county attorney or district attorney to file 

delinquent tax suits and his failure to do 

so, shall deem it necessary or expedient, 

said court may contract with any competent 

attorney to enforce or assist in the enforcement 

of the collection of any delinquent State and 

county taxes for a per cent on the taxes, 

penalty and interest actually collected, . .." 

Article 7335a, Vernon's Civil Statutes of Texas, In its 

relevant portion, reads as follows: 

"Section 1. No contract shall be made or 

entered into by the Commissioners' Court In 

connection with the collection of delinquent 

taxes where the compensation under such contract 

is more than fifteen per cent of the amount 

collected. Said contract must be approved by 

both the Comptroller and the Attorney General 

of the State of Texas, both as to substance 

and form. . . . 

'Section 2. Any contract made in violation 

of this Act shall be void." 

Leg. 4th C.S. p. 9 ch. 8.). 

(Acts 1930, 4lst 

It is readily apparent that the notice required in Article 

7335 to be given to the county or district attorney is merely 

one prerequisite to the letting of a tax collection contract 

Fanother attorney. Before the Commissioners Court is 

authorized to enter into such contract another statutory 

prerequisite must exist; namely, the famr refusal of 

such county or district attorney to file such tax suits. 

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, . 

Honorable Robert S. Calvert, page 3 (M-808) 

This failure or refusal may be manifested by words or acts. 

His mere assent to the letting of a contract for such 

services can operate as a waiver of this statutory thirty 

dass notice to him, and of his riaht to file and orosecute 

such delinquent tai suits during zhe term of such-contract. 

96 S. W. 2d 537 (Tex.Civ.App. 1936, 

Earnest,34 S.W.2d 685 (Tex. Clv. 

it should be oolnted out 

that the waiver executed by the county atiorney of 

Hardln County In respect to the notice prerequisite of the 

January 1, 1969, contract, was a waiver of the required 

written notice and, as well, an assent to the letting 

of that contract for the enforcement of collection of 

delinquent State and County taxes to another attorney. 

The problem raised by the present refusal of such 

county attorney to waive the thirty days written notice 

and his right to file and prosecute tax suits in respect 

to the period covered by the proposed new contract with an 

attorney other than the one contracted with in the expired 

contract, can be resolved only by the determination of this 

question: did the subordination by the County Attorney of 

his rights to file tax suits to another attorney during 

the life of the first contract operate as a continuing 

surrender of such rights under any other such contract 

made during his tenure of such office? 

It can hardly be disputed that Article 7335 requires 

notice and failure or refusal of the county or district 

attorney to act in response thereto, each time such a 

contract Is entered into. FUrthermore,oxve his 

rights the county or.distrlct attorney must be In oossession 

of-knowledge of all the material facts concerning khe right 

or privilege that he is to relinquish. Maanolia Petroleum 

Co. v. Butler, 86 S.W.2d 258 (Tex.Clv.App. 1935,error dism.). 

nus, in regard to a certain contract proposed to be entered 

into with a-certain attorney for a definite period of 

time, it Is reasonable that his waiver was motivated only 

by such facts then known by the county or district attorney 

and not by unknown future contracts with other attorneys 

and for different periods of time. In 60 Tex. Jur.2d 186, 

Walver,Sec.5, It is said: 

"To constitute a waiver, the right or privilege 

alleged to have been waived must have been in 

-3925- 
Honorable Robert S. Calvert, page 4 (M-808) 

It has been held that a waiver operates in praesenti 

and when intended to operate in futuro, it is merely an 

agreement to waive which re consideration. Roberts 

v. Griffith, 207 S.W. 2d 443 Tex.Civ.App. 1948,error ref. 

n.r.e.) WI gfind no indication In the wording of the 

waiver.of the 1969 contract that any right accruing to the 

county.attorney of Hardin County after the expiration 

of such contract was intended to be waived, neither do 

we find any consideration for any such future relinquishment 

of rights by the county attorney. 

Hence, in view of the foregoinn, it seems clear that 

the waiver of the county attorney of Hardin County contained 

in the tax contract of January 1, 1969, and the consequent 

surrender thereby of his rights and privileges to file and 

prosecute delinquent tax suits during the term of such 

contract, Is not effective as to the new contract now 

under consideration by you, which was not in existence 

at the time of such waiver and the facts and circumstances 

thereof being completely unknown to such county attorney 

when he executed the waiver on the first contract. 

Therefore, it is the opinion of this office, based on 

the facts herein discussed, that the contract now under 

consideration should not be approved for the reasons given 

herein. 

SUMMARY 

The waiver of written notice to file and 

prosecute delinquent tax suits, executed by a 

county or district attorney in connection with 

a contract letting such duties to another 

attorney and containing such county or district 

attorney's assent thereto, does not operate 

as to any other such contract thereafter made 

with another attorney. Article 7335, V.C.S., 

requires notice and failure or refusal of a 

county or district attorney to act in response 

thereto each time a contract of this nature 

is entered into. 

The contract in question for the collection 

of delinquent state and county taxes entered into 

-3926- 
. . 

Honorable Robert S. Calvert, page 5 (M-808) 

by the Commissioners Court with another attorney 

without notice to the County Attorney, in the 

absence of his failure or refusal to act, as 

required by Article 7335,V.C.S., should not 

be approved. 

Yours very truly, 

CRAWFORD C. MARTIN 

Attorney General of Texas 

BY: 

First Assistant 

Prepared by R. L. Lattlmore 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Michael Stork 

Sally Phillips 

Harriet Burke 

Phil Warner 

MEADE F. GRIFFIN 

Staff Lena1 Assistant 

ALFRED Walker 

Executive Assistant 

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