Honorable Stanley Timmins 

County Attorney 

Marshall, Texas 

Dear Sir: Opitiion No. O-209 

Re: Validity of delinquent 

Tax Contract 

This offloe is~ in receipt of your letters of 

January 30th and February 4th, outlining certain facts and 

&questing an opinion in response to certain questions 

which will sufficiently appear below. 

Article.7335, Revised Civil Statutes, reads as 

follows: 

"Whenever the commissioners courts of any ccuntg 

after.thirty days written notice to the county attorney 

or district attorney'to file delinquent tax suits and. 

his failure to do'so, shall deem it necessary or expedient, said court may contract.with any competent 

attorney to enforee or assist in the enforcement of the 

c~ollection of any deiinquent State and county taxes for 

a per cent on the taxes, penalty and interest actually 

collected, and said court is further authorized to pay 

for an abstract of property assessed or unknown and 

unrendered from the taxes, interest and penalty to be 

collected on such lands, but all such payment and 

~expenses shall be contingent upon the collection of 

such taxes, penalty and interest. It shall be the 

duty of the county attorney, or of the district attorney, 

where there is no county attorney, to actively'assist 

any perscm with whom such contract is made, by filing 

and pushing to a speedy conclusion all suits for collection of delinquent taxes, under any contract made 

as herein above specified; provided that where any 

district or county attorney shall fail or refuse to file 

and prosecute such suits in good faith, he shall not be 

entitled to any fees therefrom, but such fees shall 

nevershaless be collected'as a part of the costs of 

suit and applied on the payment of the compensation 

allowed the attorney prosecut$ng the suit, and the attorney with whom such contract has been made is hereby fully 

empowered and authorleed to, proceed in such suits without 
Hon. Stanley TimmIns, February 10, 1939, Page 2, O-289 

the joinder and assistance of said county or district 

attorney." 

Article 7335a, Revised Civil Statutes, provides: 

"Sec. 1. NO contract shall be made or entered 

into by the Commissioners 1 Court in connection with 

the collection of delinquent taxes where the compensation under such contract Is more than fifteen per cent 

of the amount collected. Said contract must be 

approved by both the Comptroller and the Attorney 

General of the State of Texas, both as to substance 

and form. Provided however the County or District 

Attorney shall not receive any compensation for any 

services he may render in connection with the performance of the contract or the taxes collected 

thereunder. 

%ec. 2. Any contrac~tmade In violation of this 

Act shall be void." 

'_ 

The County Attorney of Harrison County waived the 

notice to.which he was otherwise entitled under Article 7335. 

However, that County Attorney was succeeded~by another man, 

ldr; Stanley TImmins, on January 1,'1939, whopromptly advised 

the Commissioners' Court that he would take care of all tsx 

matters as.provIded by statute and stoutly maintains that it 

is hIsrIght'to do so. 

Since the date of the contract,the county has been 

paying the contractor-co11ector~~100.00 per month under the 

contract, althoughneither the Comptroller nor the Attorney 

General have approved the same as required by Article 7335a. 

We are asked two~questlons, in effect, as follows: 

(1) Is the contract betwe,en Harrison Comty and A. E. Shepher 

valid? and, (2) are the monthly~payments to him authcrized 

by law? 

This Department has recently held that such contracts 

can bevalidly made withattorneys only. 

'In 14 Amerioan Jurisprudence, 210, the following 

said: 

II The members of a board of county commissIoner~.~~a~not, however, contract In reference to 

IS 

mattera'which are personal to theirsuccessors. Thus, 

a~ contract by which a board of county commissioners 

attempts to employ a legal adviser for a period of 

three years, to commence three months in the future 

and after the time ~for the election of a person to fill 
Hon. Stanley Tlmmins, February 10, 1939, Page 3, O-289 

the vacancy caused by the expirationof the term of 

office of one member of~the board, the term of 

employment extending over a period during which all 

the members of the board as constituted at the time 

of the contract will retire therefrom unless reelected, is against public policy . . :'I 

.This.geems to be the law In Texas, which Is expressed 

in 11 Tex..Jur., 631, as follows: 

"Ordinarily, contracts made by a commissioners* 

court may not be repudiated merely because the personnel of the body has subsequently changed. It is only 

where the employment by a commissioners' court is 

personal and confidential, as inthe 0888 of an attorney, 

that It is held that one commissioners' court has no 

power to bFnd its successors.s 

This last quoted.statement is based,on the only Texas 

case on the subject, the case of Gulf Bitulithic Co. v. Nueces 

County, 11 S.W. (2d) 305,,which says: 

"It Is only where the employment by'a commissioners' court Is personal and confidential, as In 

the case of an attorney, that It is held that one 

commissionersr court cannot bind its successors.s 

The court decisions in most of the other states that 

we have found hold that one commissioners' court cannot bind 

Its successors on personal contracts. Coffey County v. Smith, 

50 Kan. 350, 32 Pac. 30 (employment of county printer); 

Franklin County v. Ranck, 9 Ohio C.C. 301 (employment-of courthouse janitor); Milliken v. Edgar County, 142 111. 528, 32 N.E. 

493 (employment of poorhouse superintendent); Board of 

Commissioners v. Taylor, 123 Ind. 148, 23 N;E. 752 (employment 

of attorney); and Willett v. Calhoun County, ZL7 Ala. 687, 

117 So. 311 (employment of attorney). 

A tax collector-attorney would need tact, patience 

and diligence, and a commissioners' court would have every 

Incentive to want a man with those qualities, In short, 

each commissioners' court should be entitled to make its own 

contracts touching on the matter. 

Furthermore, the newly elected County Attorney has 

rights which we do not believe can be overlooked. 

Article 7332, Revised Statutes, provides for the 

county attorney torepresent the State and county In suits for 

delinquent taxes and provides fees for such services. 

The county attorney was elected with the understanding 
Hon. Stanley Timmins, February 10, 1939, Page 4, O-289 

that the ~above would be a part of his duties and that he would 

be paid for performing the same. We do not believe a closing 

adm-bistration of a commissioners' court, based upon a waiver 

signed by an outgoing county attorney, can deprive the Incomin: 

county attorney of these valuable rights. Also, we do not 

believe the County can be thus deprived of any change of having 

the newly elected county attorney perform these services at 

less cost than the attorney-contractor wI11 perform the same. 

It has been held that until such contracts have been 

approved by both the Comptroller and the Attorney General 

they are void. Sylvan Sanders Co. vs. Scurry County, 77 S.W. 

(2nd) 709; Essterwood vs. Henderson County, 62 S.W. (2nd) 65; 

White vs. McGill, 109 S.W. (2nd) 1102, 114 S.W. (2nd) 860. 

Hence, there has existed no contract between 

Harrison County and Mr. Shepherd. 

Both questions are answered in the negative. 

The contract has not yet reached this office, but It 

necessarily follows from the above that we would be forced to 

withhold our approval. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

BY 

Glenn R. Lewis 

hssistant 

GRL:N-cg 

APPROVED 

ATTORNEY GENERAL OF TEXAS