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 ofpublic funds (RQ-1608)

DearMr. Driscoll: tax loss

You askwhether acounty tax assessor-collector may be relieved ofpersonal liability forthe loss ofpublic funds ifthe commissioners court determines after an investigation that the funds were lostwithout negligence. You further askwhether the county tax assessor-collector may be reimbursed forpersonal fundsused to replace lost funds upon such official establishing that the loss isdue 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 onhis, part to collect a fee or commission that he isrequired by law to collect.1
Historically, Texas courts have enforced strictly the obligation of apublic officer to account forand pay over

1. Section 154.009, Local Government Code, permits a commissioners court, after a hearing, todeduct the amount of a feeor 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 feeor commission that the officer isrequired by law to collect. Because you ask about a situation involving a loss ofpublic funds that have already been collected and
were inthe custody ofthe 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.

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to the proper custodian the public money that he receives. See. e.a., Bexar Countv v. Linden, 220 S.W. 761 (Tex. 1920); Poolev. Burnet Countv, 76 S.W. 425 (Tex. 1903); Attorney General Opinions JM-517 (1986);H-360 (1974). An official,
orhis surety, was not relieved of liability, even in an instance inwhich themoney was stolen by robbers through no fault of the official. See Coev. 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 isnot personally liable for the loss ofpublic funds in the custody of the assessor-collector or the assessor-collector's office if a district court enters adeclaratorv iudoment that the loss isdue to a reason other than the nealioence ormisconduct 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 2ofH.B. No. 95 further provides:

The addition by thisAct 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 ineffect at the time of the loss, and the former law iscontinued in effect forthis nuroose. (Emphasis added.)

The effective date of section 6.275, Tax Code, was October 20, 1987. You do not indicate inyour request for
an opinion whether the loss ofpublic funds occurred prior to the effective date of the section. If suchwere the case, of course, the county tax assessor-collector would not be relieved ofpersonal 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. 95provided that adetermination that the county tax assessor-collector isnot personally liable could bemade by the commissioners court upon a finding that the losswas due to a reason other

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than the negligence ormisconduct of the assessor-collector. However, the senate amended H.B. No. 95toprovide that such
a finding must bemade by adistrict court pursuant to a suit under theUniform Declaratory Judgment Act, rather than by acommissioners court. As amended by the senate, H.B. No. 95was approved by the House and then passed by the senate.

You askwhether a suit under theUniform Declaratory Judgment Act must be filed indistrict court pursuant to section 6.275 ofthe Tax Code, even ina situation in which the commissioners court agrees with the county tax assessorcollector that the losswas not due to the county tax assessor-collector's negligence. We conclude that, by the clear terms ofthe section, such a suitmust be filed, regardless ofwhether the commissioners court agrees that the county tax assessor-collectoris not negligent.

You contend that, to construe section 6.275, Tax Code, to require ahearing before a state district judge under the Uniform Declaratory Judgment Act,would serve to circumvent the evident intention of the legislature when itenacted the section. You argue that the purpose of theUniform Declaratory Judgment Act isremedial and that it is inapplicable inthe event that there isno realdispute or controversy at issue. See. e4 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 towhether the county tax assessor-collector was negligent, there isnodispute incontroversy:

If it isuncontroverted 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 courthas determined that the losswas not due tonegligence, and istherefore 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

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construction and not onewhich would require the performance of auseless 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 fortwo reasons.
Commissioners courts have no power or duties except those that are clearly s,etforth 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). Wehave found noprovision, 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 ofpublic funds inthe custody of the county tax assessor-collector isdue to the negligence of that official orwhether it isdue to some other cause.
Section 113.006 of the Local Government Code and its predecessor statutes relieve the county tax assessorcollector andhis surety of responsibility for the safekeepingof funds collected fromtaxes, but only after the funds
are deposited as required by law inthe county treasury. As
we noted earlier, section 154.009 of the Local Government Code empowers acommissioners court todeduct from the salary of adistrict, county, orprecinct 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 toneglect. With the exception of section 6.275 of the Tax Code, wehave neither found nor have you directed us to any constitutional or statutory provision that sets forth anymeans whereby a commissioners courtmay relieve acounty tax assessor- collector of his responsibility forthe non:negligent loss ofpublic funds in his custody;
Second, we are required to construe statutory provisions in such away as togive effect to the evident intention of the legislature. Gov't Code 5 311.021. Texas courts have held that the deletion of aprovision inapendingbill 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 BallMotor Freight Lines, 81 S.W.Zd 482

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(Tex. 1935). As introduced inand passed by the House, H.B. No. 95 conferred authority on acommissioners court to find that acounty tax assessor-collector's loss ofpublic funds inhis custody isnot due tohis negligence or misconduct, thereby relieving the county tax assessor-collector of personal liability forthe 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. Ifwewere to construe section 6.275 of the Tax Code inthemanner thatyou suggest, we effectively would circumvent the express language of the senate in amending H.B. No. 95 and of theHouse inagreeing with the senate's amendment. Thiswe~cannot do.2

Absent the enactment of section 6.275, Tax Code, an action under theUniform Declaratory Judgment Act would not lie inan instance inwhich therewas no real dispute of factbetween the commissioners court and the county tax assessor-collector; However, the legislature did enact section 6.275, andby the clear terms of itsprovisions such
an action will lie even inan instance inwhich there is no dispute as to facts.
Therefore, we construe section 6.275 of the Tax Code to require an action under theUniform Declaratory Judgment Act, even inan instance inwhich acommissioners 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, nowrit), 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. - SanAntonio 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 apolitical 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 adispute between apolitical subdivision and
aprivate individual, were not applicable ina situation involving thevalidity of a transfer of real property from
one political subdivision to another.

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public funds in the custody of the county tax assessor-collector isnot through that officer's negligence or misconduct.

Your second question concerns the reimbursement of the assessor-collector upon a determination that such official isnot personally liable forthe loss of funds inthe custody ofhis office. A review ofyour 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 isbased on an approach you suggest as an alternative inyour brief, as follows:

An alternative approach would be to conclude that the enactment of section 6.275 obviates the practice of requiring tax assessorcollectors tomake up shortfalls in official accounts with personal funds. This step may be postponed until adetermination ismade by the commissioners court, andwhen necessary by the district court, that the tax assessorcollector is.liable forthe lost funds.

We construe section 6.275 toprovide that the filing of
a suit to determine whether "the loss isdue to a reason other than the negligence ormisconduct of the assessorcollector" stays the necessity of the assessor-collector paying the amount of the shortfall fromhis personal funds pending judgment of the court. As heretofore noted, such suitmust be filed inthe.district court pursuant to section 6.275,,rather than left to the determination of the commissioners court. Ifwe construed section 6.275 to require payment of the shortfall prior to the determination of liability by the court, wewould defeat the apparent legislative intent to relieve the assessor-collector of the possible heavy burden ofprepaying large sums ofmoney pending judgment of the court. Personal liability results absent a finding by the district court that the loss was not occasioned by negligence ormisconduct by the assessorcollector. Webelieve this construction isconsistent with the stated purpose ofH.B. No. 95, as set forth in the bill analysis, to release the county tax assessor-collector from personal liability upon adetermination that the loss isnot based on the negligence ormisconduct of such official.

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SUMMARY

Section 6.275 of the Tax Code provides the exclusive method for relieving the county tax assessor-collector ofpersonal responsibility for loss of funds inhis 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 FirstAssistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Tom G. Davis Assistant Attorney General

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