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### RNEY GENEWAL EXAS

Honorable Robert S. Calvert Opinion No. M-492 Comptroller of Public Accounts State Capitol Building Re: Liability of aTax Austin, Texas Collector with regard 

### to the issuance of a tax certificate under House Bill No. 322, Acts 61st Legislature, Regular Session, 1969, codified as Article 7258b, Vernon’s Civil Statutes. Dear Mr. Calvert: Your recent opinion request poses the following two questions with respect to the captioned House Bill No. 322, to-wit:

“1

. Is the tax collector and/or his bond liable for any tax due ataxing authority, in acase where an innocent purchaser was issued atax certificate showing notaxes due? 

### “2. Define the word lNEGLIGRNT’as used in Section #b and state, if in your opinion, a tax collector must be considered negligent in every case where hemayoverlook 

### taxes due and issues a tax certificate indicating no taxes due.” Relevant to your questions are the first four sections of said House Bill No. 322, which are quoted as follows:

“Section 1. Thetax collector or his deputy of any county in this state, or of any city 

### or political subdivision or tax assessing district within any such county shall, upon request, issue acertificate showing the amount of taxes, interest, penalty and costs due, if any, onthe property described in said certificate. This certificate shall contain acertification by the tax collector that he has checked each delinquent tax report, supplemental delinquent tax record and recompiled delinquent tax report from the last tax cancellation date, or to the extent of his records, upto and



### -2345 -Ron. Robert S. Calvert, page 2 (M-492)
including the records In present use. Acharge of not to exceed $2maybe madefor each such certificate Issued.

“Sec. 2. (a) Whenany such certificate so issued shows all taxes, interest, penalty and costs on the property therein described to be paid in full to and including the year therein stated, the said certificate shall be conclusive evidence of the full payment of all taxes, interest, penalty, and costs due on the property described in said certificate for all years to and including the year stated therein. Said certificate showing all taxes paid shall be admissible in evidence on the trial of any case involving taxes for any year or years covered by such certificate, and the introduction of the sameshall be conclusive proof of the payment in full of all taxes, interest, penalty, and costs covered by the same.

“(b) Theprovisions of this Act shall be applicable only in suits where the’ State of Texas or any political subdivision thereof sues for unpaid taxes. Such certificate shall not be conclusive in suits in which the title for land is involved in anymanner in suits between private citizens.

“Sec. 

### 3. In the event a tax certlflcate Is issued showing notaxes, interest, penalty, and costs due, whenin fact taxes, interest, or penalties were due, and the owner of the land is not that person under whomthe taxes, interest, penalty, and costs became delinquent, the tax collector mayissue, on request, acertificate relieving the orooerty from liability and stipulating that the delinquent taxes, interest, penalty, and costs are thereafter the personal liability of the person underwhom the taxes became delinquent. This cancellation certificate plus a copy of the tax certificate and anaffidavit stating that anerror wasmadeand that nofraud or collusion existed shall be submitted to the commissioners court. Thereafter, this cancellation certificate shall be conclusive proof for all purposes that neither the land 

### nor the present owner is liable for the delinquent taxes, interest, penalty, and costs.

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"Sec. 4. If either atax certificate or a cancellation certificate is issued or secured through fraud or collusion, the sameshall be void and of no force and effect, andany such tax collector or his deputy shall be liable on his official bond for any loss resulting to any such county or city or political subdivision 

### or tax assessing district or the State of Texas, through the fraudulent or collusl$e or negligent issuance of any such certificate. Thepredecessor statute to House Bill No. 322was Article 7258a, Vernon's Civil Statutes, which waspassed by the Legislature in 1929with regard to counties containing cities of 210,000 population or more, and which wasmadeapplicable to all T?x Collectors in Texas by anamendmentpassed in 1953. Section 2of such former law read as follows:

"Sec. 2. If 

### any such certificate Is issued or secured through fraud or collusion, the same shall be void and of no force and effect, and 

### any such TaxCollector or his deputy shall be liable upon his official bond for any loss resulting to any such County or city or political subdivision or tax assessing district or the State of Texas, through the fraudulent or collusive or negligent fssuance of any such certificate. Acts 1929, &lst Leg.2nd C.S. p0 

### 153,ch. 

### 77.” It is readily seen that the only difference in Section 2of the old statute and Section 4of the newis that Section 4is applicable not only to tax certificates but to cancellation certificates which are authorized for the first time by the newAct. International Paper Companyv. State, 

### 380S.W.2d 

### 1.8(Tex.Civ.App. 1964, error ref. n.r.e.) involved a suit by the State against aTaxCollector and the sureties onhis bond for loss resulting from the negligent issuance of a tax certificate. The

### State did not plead any fr?TM or collusion. TheCourt reversed the trial court':. disn1ec?~~ of the suit as to the TaxCollector andhis bondsman ant remanded the cause for trial on its merits, thereby expressly~ holding that acause of action lies for loss to ataxing unit resulting from the negligent issuance of atax certificate.



### -2347-Hon. Robert S. Calvert, page 4 (M-492)

Wehave carefully studied House Bill No. 322as awhole; paying special attention to Section 

### 3,which is entirely new, and the newprovisions of Section 1, andweperceive nothing to alter or modify the holding In International Paper Comoany v. State,supra, Section 

### 4. or the clear andunambiguous language of

It is noted in passing that under, Section 4 on177 fraud or collusion can render atax certificate or cancellation certificate absolutely void, but acause of action is carefully provided for the negligent issuance of a certificate. Therefore, in answer to your first question, it Is the opinion of this office that aTaxCollecttr and his bondsman are liable, in the words of the statute,

. . . for any loss resulting to any such County or city or political subdivision or tax assessing district or the State of Texas, through the fraudulent or collusive such certificate." or negligent issuance of any Turning to the first part of your second question, since the word "negligent" is not defined In House Bill No. 322, wemust look to the general law for aproper definition. The

### following definition, supported by numerous Texas decisions, is quoted from 40

### Texas Jurisprudence 2d 722, Negligence, Section 

### 175:

"Negligence maybe defined as the failure to use ordinary 

### care. Andit is observed that the test of negligence is the 

### exercise of ordinary 

### care. More specifically, 

### negligence maybe defined as' a failure to do that which an ordinarily prudent person would have done in the 

### same or similar circumstances, or 

### as the doing of that which 

### an ordinarily prudent person would not have done in the sameor similar circumstances." There can be noactionable negligence without the existing of aduty and abreach of that duty. 2d

### 447,Negligence, B5. 40 Tex.,Jur. With regard to checking the records of his office preliminary to the 

### issuance of 

### a tax certificate, Section 1of House Bill No. 322provides:

"This certificate shall contain acertification by the TaxCollector that he has checked each delinquent tax report, supplemental delinquent tax record and recompiled delinquent tax report from the last tax cancellation date, or to the extent of his records, up to andIncluding the records in present use."

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Hon. Robert S. Calvert, Page 5 (M-492)

It thus appears that 

### the Legislature has limited the duty of the TaxCollector with respect to the type and number of records that he should check preparatory to the issuance of a tax certificate. Thefull duty of the Tax Collector with respect to the act of issuing atax certificate, as indicated in House Bill No. 322, is to carefully check the records mentioned and to carefully certify in writing the information revealed by such records. This brings us to adirect conslieration of the last Part of your second question, i.e.,

. . . state, If In your opinion, a tax collector must be considered negligent in every case where hemayover-look taxes,,due and issues a

### tax certificate indicating no taxes due. Ordinarily the existence of neligence under aparticular set of facts Is aquestion of fact, to

### be determined by the jury or the court in the absence of ajury. Negligence is established as amatter of law only whenthe evidence is undisputed and reasonable minds can arrive at but one conclusion, or where the act or omission appears so opposed to the dictates of commonprudence that it can be said, without hesitation Or doubt, that nocareful person would have committed it. Gulf, C. &F. Ry. Companyv. Gascamp, 

### 69Tex. 

### 547,7S.W. 227 (1948,.1888); Langv. Henderson, 147Tex. 

### 353,215 S.W.2d 

### 585 TheTexas courts have also adhered to the rule that ”
~’ ,,. where there is evidence showing somecare, and the question is one of the sufficiency of the 

### care, aauestlon of fact for the jury is presented. Wichita Valley Ry. Companyv. Fite, 

### 78S.W.2d 714 (Tex.Civ.App. 

### 1934,nowrit); Gulf, C. &S.F. Ry. Companyv. Qaddis, 

### 208S.W. 

### 895(Tex.Comm. App, 1919); Henwoodv. App. 1947, error ref.). Gilliam, 207 S.W.2d 904 (Tex.Civ.

Under these well-established rules, weare not prepared to say that aTaxCollector is invariably negligent as a matter of lawwhere he overlooks taxes due, as revealed by the records which hehas the duty to carefully review, and issues atax certificate indicating notaxes due. However, it is our opinion that such circumstances would inescapably raise the issue of 

### negligence, at least for determination as a question of fact, and under many, if not most, circumstances the TaxCollector would be standing in tremendous jeopardy of being found guilty of actionable negligence as amatter of law.

-2349-Hon. Robert S. Calvert, Page 6, (M-492)

SUMMARY Under House Bill No. 322, Acts 

### 61stLegislature, Regular Session, 1969, Article 7258b, Vernon's Civil Statutes, aTaxCollector or his deputy Is liable onhis official bond for any loss resulting to any 

### tax unit through the fraudulent 

### or collusive or negligent issuance of atax certificate. Theword "negligent," as used in said House Bill No. 

### 322 maybe fairly and substantially defined as the failure to do that which an ordinarily prudent person would have done in the 

### sameor similar circumstances or the doing of that which an ordinarily prudent person would not have done in the sameor similar circumstances. WhenaTaxCollector "overlooks" 

### taxes due 

### as reflected by the delinquent 

### tax report or the supplemental and recompiled delinquent tax reports or records of his office, and issues atax certificate indicating notaxes due, aquestion of negligence is inescapably raised. Whether actionable 

### negligence is actually present will be determined by the tries of facts based upon the facts and circumstances of the particular case.

Qeneral of Texas AW:pj Prepared by Alfred Walker Assistant Attorney General APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman George Kelton, Vice-Chairman Jack Goodman Jack Sparks Dyer Moore, Jr. JimSwearingen

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Hon. Robert S. Calvert, page 7 (M-492)

MEADE F. GRIFFIN Staff Legal Assistant HAWTHORNE

PHILLIPS Executive Assistant NOLAWHITE First Asslstant

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