HonorableRobert S. Calvert

Comptrollerof Pub1 .icAccounts 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 connectionwith 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

collectionof delinquentad valorem taxes was awarded to an attorneyby the Commissioners Court of Hardin County. The duration of the contractwas 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 containeda waiver from the County Attorney with regard to the x0-day notice required by Article 7335.
"At the terminationof the above mentioned contract,a new contractwas awarded to a differentattorneyand 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, inasmuchas the County Attorneyhad signed a waiver some two years earlier in connectionwith the prior contract.

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'Your officialopinion is respectfully requestedwhether the new contract should be approved,as provided by Article 7335a, in view of the County Attorney'srefusal to waive the necessityof the x0-day notice as required by Article 7335.” Article 7335, Vernon's Civil Statutes of Texas, in its relevantportion, reads as follows:

"Wheneverthe Commissioners court of any county after thirty days written notice to the county attorney or district attorney to file delinquenttax suits and his failure to do so, shall deem it necessary or expedient, said court may contractwith any competent attorney to enforce or assist in the enforcement of the collectionof any delinquentState and county taxes for a per cent on the taxes, penalty and interestactually collected,

. .." Article 7335a, Vernon's Civil Statutes of Texas, In its relevantportion,reads as follows:

"Section1. No contract shall be made or entered into by the Commissioners' Court In connectionwith the collectionof delinquent taxes where the compensation under such contract is more than fifteenper cent of the amount collected. Said contractmust be approvedby both the Comptroller and the AttorneyGeneral of the State of Texas, both as to substance and form.

... 'Section2. Any contractmade 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 districtattorney is merely one prerequisiteto the letting of a tax collectioncontract Fanother attorney. Before the Commissioners Court is authorizedto enter into such contractanother statutory prerequisite

must exist; namely, the famr refusal of such county or districtattorneyto file such tax suits.

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HonorableRobert S. Calvert,page 3 (M-808)

This failure or refusalmay be manifestedby words or acts. His mere assent to the letting of a contract for such services can operate as a waiver of this statutorythirty dass notice to him, and of his riaht to file and orosecute such delinquenttai suits during zhe term of such-contract. 96 S. W. 2d 537 (Tex.Civ.App. 1936, Earnest,34S.W.2d 685 (Tex. Clv.

it should be oolnted out that the waiver executedby the county atiorney of Hardln County In respect to the notice prerequisiteof 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 enforcementof collectionof delinquentState 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 contractwith an attorney other than the one contractedwith in the expired contract,can be resolved only by the determinationof this question: did the subordination by the CountyAttorney 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.distrlctattorneymust be In oossession of-knowledgeof all the material facts concerningkhe right or privilege that he is to relinquish. Maanolia Petroleum Co. v. Butler,

86 S.W.2d 258 (Tex.Clv.App. 1935,errordism.). nus, in regard to a certain contractproposed to be entered into with a-certain attorney for a definiteperiod of time, it Is reasonablethat his waiver was motivated only by such facts then known by the county or district attorney and not by unknown future contractswith other attorneys and for differentperiods of time. In 60 Tex. Jur.2d 186, Walver,Sec.5,It is said:

"To constitutea waiver, the right or privilege alleged to have been waived must have been in

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It has been held that a waiver operates in praesenti and when intendedto operate in futuro, it is merely an agreementto waive which re consideration. Roberts v. Griffith,

207 S.W.

2d 443 Tex.Civ.App.1948,errorref. n.r.e.) WI

g find no indicationIn the wording of the waiver.ofthe 1969 contractthat any right accruing to the county.attorney

of Hardin County after the expiration of such contractwas 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 contractof January 1, 1969, and the consequent surrenderthereby of his rights and privilegesto file and prosecute delinquenttax suits during the term of such contract, Is not effectiveas to the new contractnow under consideration by you, which was not in existence at the time of such waiver and the facts and circumstances thereof being completelyunknown 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 contractnow under considerationshould not be approved for the reasons given herein.
SUMMARY

The waiver of written notice to file and prosecute delinquenttax suits, executedby a county or district attorney in connectionwith a contract letting such duties to another attorney and containingsuch county or district attorney'sassent thereto, does not operate as to any other such contract thereaftermade 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 delinquentstate and county taxes entered into

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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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