. . 

RNEY GENEWAL 

EXAS 

Honorable Robert S. Calvert Opinion No. M-492 

Comptroller of Public Accounts 

State Capitol Building Re: Liability of a Tax 

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 a taxing authority, in a case where an 

innocent purchaser was issued a tax certificate showing 

no taxes 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 he may overlook 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. The tax 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 a certificate showing 

the amount of taxes, interest, penalty and costs due, if 

any, on the property described in said certificate. 

This certificate shall contain a certification 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, up to and 

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Ron. Robert S. Calvert, page 2 (M-492) 

including the records In present use. A charge 

of not to exceed $2 may be made for each such 

certificate Issued. 

“Sec. 2. (a) When any 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 same shall be conclusive 

proof of the payment in full of all taxes, interest, 

penalty, and costs covered by the same. 

“(b) The provisions 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 any manner in suits between private 

citizens. 

“Sec. 3. In the event a tax certlflcate Is 

issued showing no taxes, interest, penalty, and 

costs due, when in fact taxes, interest, or 

penalties were due, and the owner of the land 

is not that person under whom the taxes, interest, 

penalty, and costs became delinquent, the tax 

collector may issue, on request, a certificate 

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 an affidavit 

stating that an error was made and that no fraud 

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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Hon. Robert S. Calvert, Page 3 (M-492) 

"Sec. 4. If either a tax certificate or a 

cancellation certificate is issued or secured 

through fraud or collusion, the same shall be 

void and of no force and effect, and any 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. 

The predecessor statute to House Bill No. 322 was 

Article 7258a, Vernon's Civil Statutes, which was passed 

by the Legislature in 1929 with regard to counties 

containing cities of 210,000 population or more, and 

which was made applicable to all T?x Collectors in 

Texas by an amendment passed in 1953. Section 2 of 

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 Tax Collector 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 

2 of the old statute and Section 4 of the new is that 

Section 4 is applicable not only to tax certificates but 

to cancellation certificates which are authorized for 

the first time by the new Act. 

International Paper Company v. State, 380 S.W.2d 

1.8 (Tex.Civ.App. 1964, error ref. n.r.e.) involved a 

suit by the State against a Tax Collector and the sureties 

on his bond for loss resulting from the negligent issuance 

of a tax certificate. The State did not plead any fr?TM 

or collusion. The Court reversed the trial court':. disn1ec?~~ 

of the suit as to the Tax Collector and his bondsman ant 

remanded the cause for trial on its merits, thereby expressly~ 

holding that a cause of action lies for loss to a taxing 

unit resulting from the negligent issuance of a tax certificate. 

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

We have carefully studied House Bill No. 322 as a whole; 

paying special attention to Section 3, which is entirely new, 

and the new provisions of Section 1 , and we perceive nothing 

to alter or modify the holding In International Paper Comoany 

v. State,supra, 

Section 4. 

or the clear and unambiguous language of 

It is noted in passing that under, Section 4 on177 

fraud or collusion can render a tax certificate or cancellation certificate absolutely void, but a cause 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 a Tax Collecttr 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, we must look to the general law for a proper 

definition. The following definition, supported by 

numerous Texas decisions, is quoted from 40 Texas Jurisprudence 2d 722, Negligence, Section 175: 

"Negligence may be defined as the failure to 

use ordinary care. And it is observed that the test 

of negligence is the exercise of ordinary care. 

More specifically, negligence may be 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 same or similar circumstances." 

There can be no actionable negligence without the 

existing of a duty and a breach of that duty. 

2d 447, Negligence, B 5. 

40 Tex.,Jur. 

With regard to checking the 

records of his office preliminary to the issuance of a tax 

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

"This certificate shall contain a certification 

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, 

up to and Including 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 Tax Collector with respect to the type and 

number of records that he should check preparatory to the 

issuance of a tax certificate. The full duty of the Tax 

Collector with respect to the act of issuing a tax 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 a direct 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 he may over-look taxes,,due and issues 

a tax certificate indicating no taxes due. 

Ordinarily the existence of neligence under a particular 

set of facts Is a question of fact, to be determined by 

the jury or the court in the absence of a jury. Negligence 

is established as a matter of law only when the 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 common prudence that it can be said, 

without hesitation Or doubt, that no careful person would 

have committed it. Gulf, C. & F. Ry. Company v. Gascamp, 

69 Tex. 547, 7 S.W. 227 (1948,. 1888); Lang v. Henderson, 147 Tex. 

353, 215 S.W.2d 585 

The Texas courts have also adhered to the rule that ” ~’ ,,. 

where there is evidence showing some care, and the question 

is one of the sufficiency of the care, a auestlon of fact 

for the jury is presented. Wichita Valley Ry. Company v. 

Fite, 78 S.W.2d 714 (Tex.Civ.App. 1934, no writ); Gulf, 

C. & S.F. Ry. Company v. Qaddis, 208 S.W. 895 (Tex.Comm. 

App, 1919); Henwood v. 

App. 1947, error ref.). 

Gilliam, 207 S.W.2d 904 (Tex.Civ. 

Under these well-established rules, we are not prepared 

to say that a Tax Collector is invariably negligent as a 

matter of law where he overlooks taxes due, as revealed by 

the records which he has the duty to carefully review, and 

issues a tax certificate indicating no taxes 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 Tax Collector would be standing in tremendous 

jeopardy of being found guilty of actionable negligence as 

a matter of law. 

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

SUMMARY 

Under House Bill No. 322, Acts 61st Legislature, 

Regular Session, 1969, Article 7258b, Vernon's Civil 

Statutes, a Tax Collector or his deputy Is liable 

on his official bond for any loss resulting to any 

tax unit through the fraudulent or collusive or 

negligent issuance of a tax certificate. The word 

"negligent," as used in said House Bill No. 322 

may be fairly and substantially defined as the 

failure to do that which an ordinarily prudent 

person would have done in the same or similar 

circumstances or the doing of that which an ordinarily 

prudent person would not have done in the same or 

similar circumstances. When a Tax Collector "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 a tax 

certificate indicating no taxes due, a question 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: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

Jack Goodman 

Jack Sparks 

Dyer Moore, Jr. 

Jim Swearingen 

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. I 

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

MEADE F. GRIFFIN 

Staff Legal Assistant 

HAWTHORNE PHILLIPS 

Executive Assistant 

NOLA WHITE 

First Asslstant 

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