### .

NE GEMERAL

EXAS

PRICEDANIEL ATTTORNEYGENERAL AUSTIN ax. T-s April 8, 1948

Hon. Stuart B. Lumpkins CountyAttorney Ellis County Waxahachie, Texas OpinionNo. V-536

Re: Authority of tax collectors to receive the $1.00 fee for preparing an annual delinquent tax list as provided POP in Article 7331,V.C.S., prior to the amendment in 1923.

Dear Mr. Lumpkins:

Your request for an opinion of this Department is substantiallyas follows:

"A questionhas arisen in this County concerning the accounting of the Tax Collector to the County on which we feel we would like to have your opinion.

"Wherea tax collector in 1947 receives the $1 delinquent fee 

### due for the preparation of delinquent tax lists in 1919-1923,may the County

### demandthe entire amount receivedby him without showingwhether the tax Collector for the prior years received the maximum fees allowed him under the maximum fee law.
"EllisCounty is under the Cfficer*s Salary Law. During the years 1919-1923 Ellis Countywas under the Maximum Fee Law. This question as to the burden of proof is importantbecause of the extreme difficulty in getting up the older records for the years 1919-1923 as to what amount was retainedby the Tax CollEctor during those years as compensation.
Article 7691, R. C. 9. of Texas 1911, which
was in effect during the years mentioned in your inquiry and applicable to this opinionwas as follows:1.

.

Hon. StuartB. Lumpkins,page 2 (V-536)

"The collector of taxes, for preparing the delinquent list and separating the property previously sold to the State from that reported to be sold as delinquent for the precedingyear, and certifyingthe same to the Commissioners"Court shallbe entitled to a fee of $1.00 for each correctassessment of the land to be sold, said fee to be taxed as costs against the delinquent; o 0 o provided, that in no case shall the State or countybe liable for such fees, but in each case they shallbe taxed as costs against the land to be sold under judgmentfor taxes
ana paid out of the proceeds of the sale of
sameafter the taxes,penalty, and,,interest due thereon to the State are paid.
By the Acts of the Third Called Session of the 38th Legislature,Chapter 21, approvedJune 21, 1923,
now Article 7331,V. C. S., the above Article 7691 of the 1911 codificationwas amended so that part of same reads as follows:

"Forpreparing the annual delinquent list of assessments charged to the tax collector upon the tax roll, o 0 0 the tax collector shallbe entitled to a fee of $1.00 for each correct assessment of land to be sold, said fee to be taxed as cost against the delinquent. Provided, that in no case shall the State OP countybe liable for said fee which shallbe additional and cumulative of all other fees now allowed by law and shallnot be accounted for under the fee bill as fees of office."

Under the law as it existedduring the years of 1919 to 1923, the tax collectorhad to account for such fees under the "MaximumFee Bill". Bitter v. Bexar County,(Corn. App.) 11 S.W.(2d) 163.

In the case of Cameron Countyv. Fox (Corn. App,) 61 S.W.(2d) 483, the court statedas follows:

"The fee was earnedwhen the services prescribed in article 7691.bR,S. 1911)were performed. The fee became due at that time, and was chargeable against the delinquent, although the en-. -

Ron. StuartB. Lumpkins, page 

### 3 (V-536)

forcement of collectiondepended upon contingenciesincident to the enforced collection of the delinquent taxes involved. The new statute of 1923 (article 7331, R. 9. 1925) did not purport to modify any provision of the Maximum Fee Law with respect to such fee where samehad already accrued, OF to surrenderany right which had accrued to the county respecting same. In this respect, the
new statutedid not have retroactive effect. Turner v. Barnes, supra.n
Article 3892,V. C. S., reads as follows:
"Any officermentioned in this Chapterwho does not collect the maximum amount of his fees for any fiscalyear and who reports delinquent fees for thatyear, shallbe entitled to retain, when collected, such part of such delinquent fees as is sufficientto complete the maximum compensationauthorizedby Articles 

### 3883,3883-A,and 

### 3886for the year in which delinquent fees were charged, and also retain the amount of excess fees authorizedby law, and the remainder of the delinquent fees for that fiscalyear shallbe paid as herein provided for when collected;provided, the provisions of thisArticle shallnot apply to any officerafter
one year from the date he ceases to hold the office to which any delinquent fee is due, and in the event the officer earning the fees that are delinquenthas not collected the same within twelve months after he ceases to hold the office, the amount of fees collected a%11 be paid into the county treasury.

In Opinion Ro. 2931, Report of Attorney Ceneral's Opinions, 1932-1934,page 

### 341,this Department stated as follows:

"The one dollar fee for the pre-Hon. Stuart B. Lumpkins,page 4 (V-536)

paration of a delinquent list has always been consideredby the courtsas being a fee earned upon the performance of the service and yet one which the tax collector is without power to collectuntil the delinquent taxes have been paid or until the tax lien has been foreclosed in court and the property sold to satisfy the judgment. Hoke vs. Simondon (Writ of error denieb) 46 S.W.(2d) 1013; Barnes VS, Turner, 27 S,W.(2d) 532."

It will be seen that the one dollar fee from 1919 to 1923 was accountableas a fee of officeand that from June 13, 1923 to January 1, 1931 the fee was not accountable. Prior to 1931 the fee was earned when the services for which it was Paid (that is, the calculation of the delinquent tax list had been completedand unless it was collectedwithin the currentyear in which the serviceswere performed it became a delinquent fee. However, sinceJanuary 1, 1931 this fee has not been earned until the taxes were actually collectedand, therefore, can onlybe consideredas a current fee. It has been repeatedly held by this Department that the officerwhose term of office has terminatedhas no right OP authority to collectdelinquent fees, that such fees shallbe collectedby the officer to whose office the fees accrued, ana shallbe disposed of by said officer ;;ea;;;dance with the provisions of the laws governing

0 (AttorneyGeneral's Opinion ho.O-1679).

In answer to your question, it is the opinion of this Department that the tax collector for the years 1919-1923,who is no longer in office,would not be authorized to collectdelinquent fees earnedby him while in office,but that the present tax Assessor-Collector should collect said fees and pay them to the tax collector of 1919-1923,provided such officerhas not earned and collectedhis maximum fees. The former tax collector in 1919-1923 is only entitled to such delinquent fees as are sufficient to corn lete E83, the maximum compensation authorizedby Articles 3 3883-A, and 3886, V, c. s., for thoseyears and any balance shouldbe paid to the County Treasurer for said county.

Further, it will be observed that if your county initiatesa claim for such fees, as indicated in your opinionrequest, it must be predicated on the basis. -

Hon. StuartB. Lumpkins,page 

### 5 (V-536)

that the tax collector of 1919-1923 has earned and collected his maximum fees for saidyears. The fees either belong to the tax collector of 1919-1923 or to the county and if your aounty asserts a claim the burden of proof is upon the county to establisha priority to such fees,
as the general rule is that the burden of proof in any cause rests upon the party who asserts the afffrmative of an issue. 20 Am. Jur. p. 138; 17 Tex,Jur. p0 315. Therefore, it is the opinion of this Department that to be entitled to such fees the countymust establishas .a matter of fact that the tax collector of 1919-1923has earned and collectedhis maximum fees for thoseyears. All fees in excess of the maximumbelong to the county. Barnes v. Turner, 19 S.W,(2d) 325, 

### 27 S.W.(2d) 532; CUPtin v. Harris County, 203 S.W. 

### 453, 242 S.W. 

### 445.

It shouldbe noted that the 'oneyear limitation feature' contained in Article 3892,V. C. S., was not enacteduntil the year 1930 and became effective January 1, 1931, and consequently,has no application to the question under consideration. However, this opiniondoes not pass upon the question of whether the general Statutes of Limitation could OP shouldbe pleaded OP claimedby the Commissioners1Court, if a suit
were brought to collect the unpaid portion of the fees due the tax collector of 1919-1923.

SUMMARY

A tax assessor-collectorof a county operatingunder the Officer's Salary Law, who, in 1947, collectsa $1 fee for the preparation of a delinquent tax list which
was earnedby a tax collector of 1919-1923 when the countywas operatingunder the Maximum Fee Law, shouldpay the same to the tax collector of 1919-1923,provided such officerhas not earned and collected his maximum fees for said years. The fee
was earnedwhen the work was performedand being subject to the &ximum Fee Law a claimby a county for such fee must be predicatedupon the basis that the tax collector of 1919-1923has earned and collectedhis maximum fees for saidyears, (Art. 1761, R.S. of 1911;Art. 7331,V.- .

Hon. StuartB. Lumpkins,page 6 (V-536)



## c. 9.; Cameron v. Fox, 61 S.W.(2d) 483; and Turner v. Barnes, 27 S.W.(2d) 532.

Yours very truly,

Al'TORNEY

GENERAL OF TEXAS

BW:mw Burnell Waldrep Assistant

APPROVED: