### THE ATTORNEY GENERAL OF TEXAS

Honorable Randy M. Phillips Opinion No. JM-1193 Lipscomb County Attorney BOX 348 Re: Authority of acounty to Booker, Texas 79005 pay itsemployees who are in debted to the county forpro perty taxes (RQ-1826)

DearMr. Phillips:

You advise that certain county employees aredelinquent inpaying advalorem taxes owed to the county, and that these employees are making periodic payments on the taxes owed. YOU ask whether section 154.025 of the Local Government Code prohibits thepayment of salaries of county employees or elected officials who owe taxes to the county ifthe employees or elected officials have made arrangements with the county to make periodic payments to retire the obligation.
Section 154.025 of the Local Government Code reads as follows:

Awarrant may not be drawn on a salary

fund in favor ofa person, or an agent or assignee ofaperson, who is indebted to the state, the county, or the salary fund.

The attorney general responded to a similar question in Attorney General Opinion O-5249 (1943).1 In Attorney General Opinion o-5249 the question posed was whether article 4350, V.T.C.S., prohibited the comptroller from issuing awarrant toaperson against whom the state had an

1. Debt as a bar to the issuance of government warrants, and the determination of when such indebtedness exists has been discussed ina number of attorney general opinions over the years. See, e.a., Attorney General Opinions JM-255 (1984);Mm-416 (1981);Letter Advisory No. 57 (1973); WW-1504 (1962); hW-671 (1959); v-1113 (1950); O-4655 (1942).

P. 6299Honorable Randy M. Phillips -Page 2 (JM-1193)

outstanding judgment for delinquent tax payments. At the time Attorney General Opinion O-5429 was issued article 4350 read as follows:

Nowarrant shallbe issued to any person indebted to the State, or to his agent or assignee, until suchdebt ispaid.

The attorney general held that the term "debt," as ordinarily used, did not include a tax, and that consequently, the comptroller was not authorized towithhold awarrant on this basis. In so holding, the attorney general was in linewith thepreponderance ofprecedent in American courts. &B Words and Phrases, l'Debt,q*(West 1971). But cf. Price v. (1926).2 Texas United States, 269 U.S. 492 courts have also held that, ordinarily, l@debt'q

does not include taxes. Brooks v. Brooks 515 S.W.Zd 730, 733 (Tex.Civ.Anp. -Eastland 1974, writ'ref'd 

### n.r.e.). in&3helle

car:. denizd,Citv‘ of Dal1as, 264 Fi2d 166 (5th Cir. 1955) 361U.S. 828 (1959), the court stated:
[W]hile occasionally thewords *'debtsl*and

Vaxes" are used interchangeably, this is not so. ordinarily Indeed in most instances they are used distinctively. This established, it follows that to support a construction of a statute that the word "debt**include taxes, there must be some reason shown to soread a statute other than the fact that sometimes the word debt will include taxes. This reason must be sought in the purpose of the statute, that is the mischief sought to be prevented and the appropriate means to achieve that end.

2. Inholding United States for

_ . that '1debt'1 included taxes owed the purposes of the priority of federal claims, the court inw stated: "Themeaning properly to be attributed to thatword depends upon the connection in which it isused in theparticular statute and the purpose tobe accomplished." 269U.S. at 500. The statute construed inPrice, the former R.S. 3466, now appears as 31 U.S.C. 5 3713(a) anduses theword V'claim.'O

P. 6300Honorable Randy M. Phillips -Page 3 (JM-1193)

The purpose of section 154.025 ofthe Local Government Code is to insure payment of obligations owing to the county. Rains v. Mercantile Nat'1 Bank at Dallas, 188 S.W.2d 798, 804 (Tex.Civ.App. -El Paso 1945) (construing section 7of predecessor article 3912e) u, 191 S.W.2d 850, 854 (Tex.1946). While such apurpose could as easily apply to delinquent taxes as to any other obligation, we have nobasis for finding that the legislature meant the word "indebted" insection 154.025 of the Local Government Code to have a more inclusive meaning than it would ordinarily have. To the contrary, we note the legislature has, with regard to other legislation, affirmatively indicated by the use of express language its intent to include delinquent taxes as a bar to the issuance of government warrants.

For example, article 4350, quoted above, was amended by House Bill 2067 in 1977 to read:

Nowarrant shallbe issued to any person indebted or owina delincuent taxes to the State, or tohis agent or assignee, until such debt or taxes arepaid.

Acts 1977, 65th Leg., ch. '682,5 1,at 1715 (emphasis added to show 1977 changes).3 Thebill analysis ofHouse Bill 2067 states:
around:

The state treasurer under present law mav withhold warrants frompersons indebted t'o the state.

purpose: This bill enables the state treasurer to withhold warrants from persons owing delinquent taxes.

3. Article 4350was subsequently amended in 1983 to prohibit the issuance of a warrant to a person owing delinquent taxes onany tax administered or collected by the comptroller. Acts 1983, 68th Leg., ch. 100, at 499. In 1987, article 4350was codified into the Government Code where itnow appears as section 403.055. Acts 1987, 70th Leg., ch. 147, § 1,at 333.

P- 6301Honorable Randy M. Phillips -Page 4 (JM-1193)

The 1977 amendment to article 4350 indicates recognition by the legislature that the term "indebted'@ in the original version of the statute did not include obligations fordelinquent taxes. As the legislature has not enacted an analogous amendment to section 154.025 of the Local Government Code,we conclude that the term "indebted" asused in that statute does not obligations.4 include outstanding tax

Inconclusion, section 154.025 of the Local Government Code does not prohibit a county frompaying the salaries of county employees or elected officials who aredelinquent in advalorem tax obligations. As this resolves your question, we need not consider under what circumstances, ifany, an agreement tomake periodic payments could be considered a discharge of indebtedness for purposes of Local Government Code section 154.025.

Code SUMMARY
Section 154.025 of the Local Government does notprohibit acounty from paying the salaries of county employees or elected officials who aredelinquent inad valorem tax obligations.

.

-J IM MATTOX Attorney General of Texas

MARY KELLER First Assistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLKY Special Assistant Attorney General

4. The source law for section 154.025, former section 7of article 3912e,was slightly reworded when included in the Local Government Code, but no substantive change was made. Acts 1987, 70th Leg., ch. 149, 55 1, 51at 936, 1308.

P. 6302Honorable Randy M. Phillips -Page 5 (JM-1193)

RENEA HICKS Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared byJohn Steiner Assistant Attorney General

P- 6303