Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002 

THE ATTORNEY GENERAL 

OF TEXAS 

June 9, 1989 

opinion NO. JM-1055 

Re: Liability of a county 

assessor-collector for the 

of public funds (RQ-1608) 

Dear Mr. Driscoll: 

tax 

loss 

You ask whether a county tax assessor-collector may be 

relieved of personal liability for the loss of public funds 

if the commissioners court determines after an investigation 

that the funds were lost without negligence. You further 

ask whether the county tax assessor-collector may be reimbursed for personal funds used to replace lost funds upon 

such official establishing that the loss is due to a reason 

other than negligence. We understand you to refer to a 

shortage of funds already collected by the county tax 

assessor-collector, rather than to any failure on his, part 

to collect a fee or commission that he is required by law to 

collect.1 

Historically, Texas courts have enforced strictly the 

obligation of a public officer to account for and pay over 

1. Section 154.009, Local Government Code, permits a 

commissioners court, after a hearing, to deduct the amount 

of a fee or commission from the salary of any district, 

county, or precinct officer, if the commissioners court 

finds that that officer failed, through neglect, to collect 

that fee or commission that the officer is required by law 

to collect. Because you ask about a situation involving a 

loss of public funds that have already been collected and 

were in the custody of the county tax assessor-collector, 

rather than a situation involving any alleged failure to 

collect a fee or commission that the county tax 

assessor-collector is required by law to collect, any 

reliance upon section 154.009, Local Government Code, is 

inapposite. 

p. 5491 
Honorable Mike Driscoll - Page 2 (JM-1055) 

to the proper custodian the public money that he receives. 

See. e.a., Bexar Countv v. Linden, 220 S.W. 761 (Tex. 1920); 

Poole v. Burnet Countv, 76 S.W. 425 (Tex. 1903); Attorney 

General Opinions JM-517 (1986); H-360 (1974). An official, 

or his surety, was not relieved of liability, even in an 

instance in which the money was stolen by robbers through no 

fault of the official. See Coe v. Foree, 50 S.W. 616 (Tex. 

Civ. App. 1899, writ ref'd). Section 6.275 of the Tax Code 

constitutes an exception to this long-held rule. 

Section 6.275 of the Tax Code provides: 

A county assessor-collector is not personally liable for the loss of public funds in 

the custody of the assessor-collector or the 

assessor-collector's office if a district 

court enters a declaratorv iudoment that the 

loss is due to a reason other than the nealioence or misconduct of the assessor-collect9E. (Emphasis added.) 

H.B. 95, Acts 1987, 70th Leg., 2d C.S., ch. 37, 5 1, at 125 

[hereinafter H.B. No. 951. Section 2 of H.B. No. 95 further 

provides: 

The addition by this Act of Section 6.275, 

Tax Code, relating to the release of a county 

assessor-collector from liability for the 

loss of funds, applies only to a loss of 

funds occurring on or after the effective 

date of this. Act. Liabilitv for a loss of 

funds occurring before the effective date is 

governed bv the law in effect at the time of 

the loss, and the former law is continued in 

effect for this nuroose. (Emphasis added.) 

The effective date of section 6.275, Tax Code, was 

October 20, 1987. You do not indicate in your request for 

an opinion whether the loss of public funds occurred prior 

to the effective date of the section. If such were the 

case, of course, the county tax assessor-collector would not 

be relieved of personal liability by section 6.275. For 

purposes of this opinion, we assume that the loss of funds 

occurred after the effective date of section 6.275, Tax 

Code, and that section governs. 

As originally passed by the House, H.B. No. 95 provided 

that a determination that the county tax assessor-collector 

is not personally liable could be made by the commissioners 

court upon a finding that the loss was due to a reason other 

p. 5492 
Honorable Mike Driscoll - Page 3 (JM-1055) 

than the negligence or misconduct of the assessor-collector. 

However, the senate amended H.B. No. 95 to provide that such 

a finding must be made by a district court pursuant to a 

suit under the Uniform Declaratory Judgment Act, rather than 

by a commissioners court. As amended by the senate, H.B. 

No. 95 was approved by the House and then passed by the 

senate. 

You ask whether a suit under the Uniform Declaratory 

Judgment Act must be filed in district court pursuant to 

section 6.275 of the Tax Code, even in a situation in which 

the commissioners court agrees with the county tax assessorcollector that the loss was not due to the county tax 

assessor-collector's negligence. We conclude that, by the 

clear terms of the section, such a suit must be filed, 

regardless of whether the commissioners court agrees that 

the county tax assessor-collectoris not negligent. 

You contend that, to construe section 6.275, Tax Code, 

to require a hearing before a state district judge under the 

Uniform Declaratory Judgment Act, would serve to circumvent 

the evident intention of the legislature when it enacted the 

section. You argue that the purpose of the Uniform Declaratory Judgment Act is remedial and that it is inapplicable 

in the event that there is no real dispute or controversy at 

issue. See. e 4 F' n's Ins. Co. v. Burch, 442 S.W.2d 

331 (Tex. 1968i;'&al~~~%a Products. Inc. v. Puretex Lemon 

Juice, Inc., 334 S.W.2d 780 (Tex. 1960). You assert that, 

in an instance in which neither the county tax 

assessor-collector nor the commissioners court disagrees as 

to whether the county tax assessor-collector was negligent, 

there is no dispute in controversy: 

If it is uncontroverted that the county tax 

assessor-collector was not negligent, no 

purpose is served by seeking a declaratory 

judgment in district court. An action for 

declaratory judgment would lie when a real 

controversy has arisen and an effective and 

speedy remedy is sought to determine the 

rights of parties; without a real controversy , review by the district court would 

serve no purpose. In situations where the 

commissioners court has determined that the 

loss was not due to negligence, and is therefore in agreement with the Tax AssessorCollector, are the parties required to file a 

suit in the District Court and expend tax 

dollars to litigate an undisputed matter? 

Section 6.275 should be given a reasonable 

p. 5493 
Honorable Mike Driscoll - Page 4 (JM-1055) 

construction and not one which would require 

the performance of a useless act and a waste 

of taxpayers' money. In the event that the 

commissioners court determines that the 

county tax assessor-collector was negligent, 

the tax assessor-collector may choose to 

either accept the decision of the commissioners court or bring a declaratory judgment 

action pursuant to Section 6.275. [Citations 

omitted.] 

We disagree with your assertion for two reasons. 

Commissioners courts have no power or duties except 

those that are clearly s,et forth and defined by the Texas 

Constitution and the state statutes. Canales v. Laughlin, 

214 S.W.2d 451 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 

1084 (Tex. 1941). We have found no provision, either in the 

Texas Constitution or in the statutes, that purports to 

authorize a commissioners court to decide as a threshold 

matter whether a loss of public funds in the custody of the 

county tax assessor-collector is due to the negligence of 

that official or whether it is due to some other cause. 

Section 113.006 of the Local Government Code and its 

predecessor statutes relieve the county tax assessorcollector and his surety of responsibility for the safekeeping of funds collected from taxes, but only after the funds 

are deposited as required by law in the county treasury. As 

we noted earlier, section 154.009 of the Local Government 

Code empowers a commissioners court to deduct from the salary of a district, county, or precinct officer the amount of 

a fee or commission that the official was required by law to 

collect if, after a hearing, the commissioners court finds 

that such failure was due to neglect. With the exception of 

section 6.275 of the Tax Code, we have neither found nor 

have you directed us to any constitutional or statutory 

provision that sets forth any means whereby a commissioners 

court may relieve a county tax assessor- collector of his 

responsibility for the non:negligent loss of public funds in 

his custody; 

Second, we are required to construe statutory provisions in such a way as to give effect to the evident intention of the legislature. Gov't Code 5 311.021. Texas 

courts have held that the deletion of a provision in a pending bill discloses a legislative intent to reject the proposal. Smith v. Baldwin, 611 S.W.2d 611 (Tex. 1980): Transportation Ins. Co. v. Maksvn, 580 S.W.2d 334 (Tex. 1979) : 

Grass0 v. Cannon Ball Motor Freight Lines, 81 S.W.Zd 482 

p. 5494 
Honorable Mike Driscoll - Page 5 (JM-1055) 

(Tex. 1935). As introduced in and passed by the House, H.B. 

No. 95 conferred authority on a commissioners court to find 

that a county tax assessor-collector's loss of public funds 

in his custody is not due to his negligence or misconduct, 

thereby relieving the county tax assessor-collector of 

personal liability for the loss. The senate removed the 

language conferring such authority on the commissioners 

courts and replaced it with language conferring such authority on a district court pursuant to an action for a 

declaratory judgment. The House subsequently agreed to the 

senate's amendment. If we were to construe section 6.275 of 

the Tax Code in the manner that you suggest, we effectively 

would circumvent the express language of the senate in 

amending H.B. No. 95 and of the House in agreeing with the 

senate's amendment. This we~cannot do.2 

Absent the enactment of section 6.275, Tax Code, an 

action under the Uniform Declaratory Judgment Act would not 

lie in an instance in which there was no real dispute of 

fact between the commissioners court and the county tax 

assessor-collector; However, the legislature did enact 

section 6.275, and by the clear terms of its provisions such 

an action will lie even in an instance in which there is no 

dispute as to facts. 

Therefore, we construe section 6.275 of the Tax Code to 

require an action under the Uniform Declaratory Judgment 

Act, even in an instance in which a commissioners court and 

the county tax assessor-collector agree that the loss of 

2. You rely on El Paso Countv v. Citv of El Paso, 357 

S.W.Zd 783 (Tex. Civ. App. - El Paso 1962, no writ), Citv of 

Tvler v. Smith Countv 246 S.W.2d 601 (Tex. 

Ninasville Indeo. School 

1952), and 

Dist. v. Crenshaw, 164.S.W.2d 49 

(Tex. Civ. App. - San Antonio 1942, writ ref'd w.o.m.) in 

support of your argument. None of the three cases is 

apposite. Those. cases addressed 'the inapplicability of 

statutes governing eminent domain to situations involving, 

not an attempt by a political subdivision to comdemn real 

property owned by an individual, but rather a dispute 

between two political subdivisions regarding the disposition 

of real property owned by one of them. The courts simply 

declared that the eminent domain statutes, which by their 

terms involve a dispute between a political subdivision and 

a private individual, were not applicable in a situation 

involving the validity of a transfer of real property from 

one political subdivision to another. 

P. 5495 
Honorable Mike Driscoll - Page 6 (JM-1055) 

public funds in the custody of the county tax assessor-collector is not through that officer's negligence or misconduct. 

Your second question concerns the reimbursement of the 

assessor-collector upon a determination that such official 

is not personally liable for the loss of funds in the custody of his office. A review of your brief reflects that 

this question presupposes the necessity of the assessorcollector repaying the funds (reflected by the shortfall of 

funds in the office) pending the determination of personal 

liability. 

Our answer to this question is based on an approach you 

suggest as an alternative in your brief, as follows: 

An alternative approach would be to conclude 

that the enactment of section 6.275 obviates 

the practice of requiring tax assessorcollectors to make up shortfalls in official 

accounts with personal funds. This step may 

be postponed until a determination is made by 

the commissioners court, and when necessary 

by the district court, that the tax assessorcollector is.liable for the lost funds. 

We construe section 6.275 to provide that the filing of 

a suit to determine whether "the loss is due to a reason 

other than the negligence or misconduct of the assessorcollector" stays the necessity of the assessor-collector 

paying the amount of the shortfall from his personal funds 

pending judgment of the court. As heretofore noted, such 

suit must be filed in the.district court pursuant to section 

6.275,,rather than left to the determination of the commissioners court. If we construed section 6.275 to require 

payment of the shortfall prior to the determination of 

liability by the court, we would defeat the apparent legislative intent to relieve the assessor-collector of the possible heavy burden of prepaying large sums of money pending 

judgment of the court. Personal liability results absent a 

finding by the district court that the loss was not 

occasioned by negligence or misconduct by the assessorcollector. We believe this construction is consistent with 

the stated purpose of H.B. No. 95, as set forth in the bill 

analysis, to release the county tax assessor-collector from 

personal liability upon a determination that the loss is not 

based on the negligence or misconduct of such official. 

P- 5496 
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4 

Honorable Mike Driscoll - Page 7 (JM-1055) 

SUMMARY 

Section 6.275 of the Tax Code provides 

the exclusive method for relieving the county 

tax assessor-collector of personal responsibility for loss of funds in his custody or 

the custody of his office. The assessorcollector is not required to prepay any 

shortfall pending the determination of the 

district court regarding negligence or 

misconduct of such official. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 5497