# THE ATTBRNJZY GENERAL OF TEXAS

June 26, 1974

The Honorable Richard E. Bowers County Attorney County of Brewster Alpine, Texas 79830 Opinion No. H- 335 Re: Basis upon which the attorney’s fees provided byArt. 7332, V.T. C.S. are tobe calculated. Dear Mr. Bowers:

Your opihion request requires us to determine the basis upon which theTattorney’s fees for collection ofdelinquent taxes, provided byArt. 7332, V.T.C.S., are to be calculated. Art. 7332 provides, in part: The Countv or”District Attornev shall represent the state and county in all suits against delinquent taxpayers, and all sums collected shaKbe paid over immediately to the County Collector.

. . . . In all cases, the compensation of said. attorney shall be such reasonable attorneys fees as may be incurred not exceeding ten per cent (10%) ofthe amount sued for. Under Art. 733.3, V.T. C.S., the attorney’s fees set under Art. 7332 are to be recovered from the delinquent taxpayer as court costs for the benefit of the **county.** The district attorney and county attorney are not personally entitled to such fe’es because they are compensated on a salary basis. Banks v. State, 362 S.W. 2d 155 (Tex. Civ. App., Austin, 1962, error ref ’d n.r. e.).

po 1546The Honorable Richard E. Bowers page 2 (H-335)

Also see, Attorney General Opinions G-6400 (1945); V-601 (1948) and WW-675 (1959).

**Your** question arises from the situation where an independent school district represented by aprivate attorney, files suit for the collection of delinquent school taxes, and, subsequently, the state and county enter the suit in order to urge their claims for delinquent taxes against the defendant. Other taxing entities such as a city or local water district may also intervene in the suit. There is usually awide variation in the amount sought by each taxing entity. You ask whether in this situation the county or district attorney’s fee provided byArt. 7332 is tobe assessed on the basis ofthe amount sued for by the independent school district which initiated the action or whether instead it should be based only onthe amount, oftthe claims entered by the state and county. In other words, if a school district has filed suit on a claim of.$l,OOD.in delinquent s’choolltaxea;and the,county ‘,‘:. attorney intervenes with a claim of $100in delinquent county and state taxes, under Art. 7332 should the county attorney’s maximum ten per cent fee by $100or merely $10.

In resolving this question it is important to distinguish between delinquent tax proceedings brought on behalf ofthe state and county and those initiated by an independent school district. The latter are governed byArt. 7343, V.T. C!S.,whiCh ,permits an independent school district to hire a private attorney to collect delinquent school taxes and to pay him as much as fifteen per cent ofthe amount ultimately recovered. Bell v. Mansfield Independent School Dist. s 12~9S.W. 2d629 (Tex. 1939). Ifa private attorney is hired by a school district his fees cannot be taxed as court costs. Arnold v. Crockett Independent School Dist., 389 S.W. 2d 608 (Tex. .Civ. App., Tyler, 1965), rev’d on other grounds, 404 S.W. 2d 27 (Tex. 1966).

Art. 7332, onthe other hand, directs the county or district attorney to represent the state and county in all suits against delinquent taxpayers and provi,des that for such represemation an attorney’s fee not to exceed ten per cent ofthe amount sued for is to be paid. This fee is tobe collected from the delinquent taxpayer as part ofthe court costs. Art. 7333, V. T. C.S.

p, 1547The Honorable Richard E., Bowers page 3 (H-335)

In construing Art. 7332, this office has held that the attorney’s fees provided therein are intended as compensation for services rendered and that when no services are rendered then nofee can be charged or allowed. Attorney General Opinion O-1695 (1940). This office has also held that when a county or district attorney represents both an independent school district as well as the state and county in a delinquent tax proceeding he is entitled to the fees prescribed byArt. 7332 as to each taxing unit. Attorney General Opinion V-742 (1948).

These opinions indicate that the attorney’s fee provided for inArt. 7332 was originally intended as compensation and therefore should be related to the services actually rendered bythe county or district attorney on behalf ofhis client. This objective is hdrdly served if the fee is based onan amount sued for by another party to the suit not represented by the county or district attorney.

Thus in the situatEon you describe it would~be improper under Art. 7332 to compute the county attorney’s fee on the basis ofthe amount sought by an independent school district not actually represented by the county attorney, When the county or district attorney represents only the state and county in a delinquent tax proceedin,g, his fee should be computed on the basis ofthe amount sought by those entities. That amount is “the amount sued for” as contemplated inArt. 7332. SUMMARY The attorney’s fees provided inArt. 7332 are intended to reflect services rendered and are to be calculated on the basis ofthe amount sued for by the taxing entities actually represented by the county or district attorney.

Attorney General of Texas

p. 1548The Honorable Richard E. Bowers page 4 (H-335)



# o,q DAVID M. KENDALL, Chairman Opinion Committee

pq 1549