. 

NE GEMERAL 

EXAS 

PRICEDANIEL 

ATTTORNEYGENERAL 

AUSTIN ax. T-s 

April 8, 1948 

Hon. Stuart B. Lumpkins 

County Attorney 

Ellis County 

Waxahachie, Texas 

Opinion No. 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 substantially as follows: 

"A question has 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. 

"Where a tax collector in 1947 receives 

the $1 delinquent fee due for the preparation 

of delinquent tax lists in 1919-1923, may the 

County demand the entire amount received by 

him without showing whether the tax Collector 

for the prior years received the maximum fees 

allowed him under the maximum fee law. 

"Ellis County is under the Cfficer*s 

Salary Law. During the years 1919-1923 

Ellis County was under the Maximum Fee Law. 

This question as to the burden of proof is 

important because of the extreme difficulty 

in getting up the older records for the 

years 1919-1923 as to what amount was retained by 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 opinion was as follows: 
1. . 

Hon. Stuart B. 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 

preceding year, and certifying the same to 

the Commissioners" Court shall be entitled 

to a fee of $1.00 for each correct assessment 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 county be liable for such fees, but in 

each case they shall be taxed as costs against 

the land to be sold under judgment for taxes 

ana paid out of the proceeds of the sale of 

same after 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, approved June 21, 1923, 

now Article 7331, V. C. S., the above Article 7691 of 

the 1911 codification was amended so that part of same 

reads as follows: 

"For preparing the annual delinquent 

list of assessments charged to the tax collector upon the tax roll, o 0 0 the tax collector shall be 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 county be liable for 

said fee which shall be additional and cumulative of all other fees now allowed by 

law and shall not be accounted for under 

the fee bill as fees of office." 

Under the law as it existed during the years 

of 1919 to 1923, the tax collector had to account for 

such fees under the "Maximum Fee Bill". Bitter v. 

Bexar County, (Corn. App.) 11 S.W.(2d) 163. 

In the case of Cameron County v. Fox (Corn. 

App,) 61 S.W.(2d) 483, the court stated as follows: 

"The fee was earned when 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. Stuart B. Lumpkins, page 3 (V-536) 

forcement of collection depended upon contingencies incident 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 same had already 

accrued, OF to surrender any right 

which had accrued to the county respecting same. In this respect, the 

new statute did not have retroactive 

effect. Turner v. Barnes, supra.n 

Article 3892, V. C. S., reads as follows: 

"Any officer mentioned in this 

Chapter who does not collect the maximum amount of his fees for any fiscal year and who reports delinquent 

fees for that year, shall be entitled to retain, when collected, such 

part of such delinquent fees as is 

sufficient to complete the maximum 

compensation authorized by Articles 

3883, 3883-A, and 3886 for the year 

in which delinquent fees were charged, and also retain the amount of excess fees authorized by law, and the 

remainder of the delinquent fees for 

that fiscal year shall be paid as herein provided for when collected; provided, the provisions of this Article 

shall not apply to any officer after 

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 

delinquent has 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 considered by the courts as 

being a fee earned upon the performance of the service and yet one which 

the tax collector is without power to 

collect until 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 accountable as a fee of office and 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 

P 

aid (that is, the calculation 

of the delinquent tax list had been completed and unless it was collected within the current year in which 

the services were performed it became a delinquent fee. 

However, since January 1, 1931 this fee has not been 

earned until the taxes were actually collected and, 

therefore, can only be considered as a current fee. It 

has been repeatedly held by this Department that the 

officer whose term of office has terminated has no right 

OP authority to collect delinquent fees, that such fees 

shall be collected by the officer to whose office the 

fees accrued, ana shall be disposed of by said officer 

;;ea;;;dance with the provisions of the laws governing 

0 (Attorney General'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 collect delinquent fees earned by 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 officer has not earned and collected his maximum fees. The former tax collector in 1919-1923 is only entitled to such delinquent 

fees as are sufficient to corn lete 

E 83, 

the maximum compensation authorized by Articles 3 3883-A, and 3886, V, 

c. s., for those years and any balance should be paid to 

the County Treasurer for said county. 

Further, it will be observed that if your 

county initiates a claim for such fees, as indicated in 

your opinion request, it must be predicated on the basis 
. - 

Hon. Stuart B. Lumpkins, page 5 (V-536) 

that the tax collector of 1919-1923 has earned and collected his maximum fees for said years. 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 establish a 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 county must establish as .a 

matter of fact that the tax collector of 1919-1923 has 

earned and collected his maximum fees for those years. 

All fees in excess of the maximum belong 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 should be noted that the 'one year limitation feature' contained in Article 3892, V. C. S., was 

not enacted until the year 1930 and became effective 

January 1, 1931, and consequently, has no application 

to the question under consideration. However, this 

opinion does not pass upon the question of whether the 

general Statutes of Limitation could OP should be pleaded OP claimed by the Commissioners1 Court, if a suit 

were brought to collect the unpaid portion of the fees 

due the tax collector of 1919-1923. 

SUMMARY 

A tax assessor-collector of a county 

operating under the Officer's Salary Law, 

who, in 1947, collects a $1 fee for the 

preparation of a delinquent tax list which 

was earned by a tax collector of 1919-1923 

when the county was operating under the 

Maximum Fee Law, should pay the same to 

the tax collector of 1919-1923, provided 

such officer has not earned and collected 

his maximum fees for said years. The fee 

was earned when the work was performed and 

being subject to the &ximum Fee Law a 

claim by a county for such fee must be 

predicated upon the basis that the tax 

collector of 1919-1923 has earned and 

collected his maximum fees for said years, 

(Art. 1761, R.S. of 1911; Art. 7331, V. 
- . 

Hon. Stuart B. 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 

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