THEA~~CORXEY GENERAL 

GROVER SEmS 

Honorable D. H. Utley 

County Auditor 

Clay county 

Henrietta, Texas 

Dear Sir: 

Opinion NO. 6208. . ,, 

Re: Who in Legel.l~:liabla ,30x. the penabby and 

Interest due on delinqueht: tama i4herr~the taxpayer 

gave hir personal check to Te+ Collector, who then 

ianued and delivered t&x rece,j@;:buGafter check wee 

not paid by bank, and returqed to Tax Collector on account of improper endereement~9nB Wax Collector then 

We are in receipt of your recent letter in which you request 

our opinion upon the above captioned matter. Your opinion request reads, 

in part, as follows: 

"There existed in Clay County; District Court a lawsuit 

styled Sims vs. Firestone, and an appeal'had been taken by 

the defendant, and this occurred in 1940; the suit was still 

on appeal, and the plaintiff secured the attached order from 

the District Judge of the 97th judicial District regarding. 

the payment of taxes, in 1941 the photostatic copies of the 

checks used are attached, these were honored by the bank and 

payment of taxes made, again in 1942, this same order was 

again given the plaintiff whereby the taxes were to be paid, 

and again the plaintiff gave checks on the same escrow account, for taxes as the order directed, and the bank refused to give credit to the Tax Collector and returned the 

checks (attached photostatic copies) to the Tax Collector 

who in turn recovered the issued tax receipts. Qusstion? 

-- Who is legally liable for the penalty and interest now 

due on the delinquent taxes?" 

The court order referred to by you in your opinion request, 

a copy of which was attached, reads as follows: 

"Carmen Firestone Sims, et al, vs. Tom Firestone, No6313 in the District Court of Clay County, Texas. On this 

the 14th day of October, 1942, it having been called to the 

attention of the Court that the taxes on the property invalved in the above entitled and numbered suit for the year 

of 1942, are now due and unpaid; and the Court being of the 

opinion that it is to the advantage of the estate,that the 

same be paid before they become delinquent, 

It is therefore ordered, adjudged and decreed by the 

Court that the defendant, Tom Firestone, execute checks,, 
Honorable D. H. Utley, page 2 (0-6208) 

drawn on impounded account, in the sum of $69.20, the correct amount of the County, State and School taxes on said 

property, to the Clay County Tax Collector; and that he 

further issue a check in the sum of $25.20, the correct 

amount of City taxes, payable to the City of Henrietta. 

It IO further ordered that the above taxer be pald 

on or before January 31, 1942, (Signed) Earl P. Bill, 

Judge." 

It will be noted from an examination of the photoetatic copies 

of the checks that the following notation was placed thereon by the cashier 

of the bank upon which they were drawn: "0. K. when presented properly 

endorsed." 

It is the opinion of this Department that the facts as stated 

by you constitute merely an attempt to pay the taxee, and that the same 

person or persons are now liable for the taxes, penalty and interest as 

would have been liable therefor had no attempt at all been made to pay 

the taxes before delinquency. Our conclusion above expressed is based 

upon the following authorities: 

The Court in the case of Graves vs. Bullen, 115 S. W. 1177, 

held that although tax receipts have been made out and delivered to the 

taxpayers, a county may still recover the taxes unless actually paid. 

The Court in the case of Ward, et al, vs. Marion County et al, 

reported in 62 S. W. 557 spoke as follows: 

"Collectors are not authorized to receive anything 

but money in payment of taxes. Under the testimony and 

findings in this case, no money came into the Collector's 

hands by reason of these receipts. The taxes indicated 

in such receipts were never paid or collected, and the 

right of the County to recover for such taxes has always 

existed and! still exists." 

In 40 Tex. Jur. Sec. 127, it is stated: "In the absence of 

statutory authority to accept payment otherwise, taxes are payable in 

currency." Citing Bryan vs. Sundberg, 5 Tex. 418; Austin vs. Fox (Corn. 

App) 1 S. W. 2nd 601, affirming (Civil Appeals) 297 S. W. 341. 

The rule is further stated in 40 Tex. Jur., Sec. 127 as follows: 

"The Collector may not accept checks or other paper; 

should he do so, he personally takes the risk of payment 

of the paper upon presentation, and the taxpayer takes 

the risk that the Collector will duly account for the 

proceeds, even if~an official receipt showing that the 
1. - 

Honorable D. H. Utley, page 3 (0-6208) 

tax had been paid was.delivered." Citing Scisson vs State, 

51 S. W. 2nd, 7030 

The Commission of Appeals in ihe case of Austin, State Banking Commissioner vs. Fox, reported in 15. W. 2nd 601 in affirming the 

judeplent of the Court of Civil Appeals, used the following language: 

"Some relevant formula+ee may be stated: (a) A tax 

collector has no authority to receive anything but cash in 

payment of taxes. Figures vs. State (Tex. Civ. App.) 99 

S. W. 412; Ward vs. Marion County, 26 Tex. Civ. App. 361, 

62 S. w. 557, 63 S. w. 155. 

(b) ,Private ar&gements for payment (differing from 

the statutory method) made between the collector and taxpayers, and performance thereof are at the risk of the 

parties thereto, snd not of the State or County. Ibid,; 

Orange Co., vs. T. & N. 0. R. Co., 35 Tex. Civ. App. 361, 

80 S. W. 670 (writ refused); T. & N. 0. R. Co., vs. State 

43 Tex. Civ. App. 580, 97 S. W. 142. 

(c) The State or County may adopt or, through assertion of estoppel, get the benefits of such acts or arrange- : 

ments (Ibid., Morris vs. State; 47 Tex. 592; Webb Co. vs. 

Gonzales, 69 Tex. 456, 6 S. W. 781; Mast vs. Nacogdoches 

Co., 71 Tex, 384, 9 S. W. 267), or, in case of loss, a 

breach of the bond can be rested thereupon (Ibid.; Wilson 

vs. Wichita Co., 67 Tex. 647, 4 S. ~.,67). If results 

that liability of the property owner persist6 until such 

acts are done as amount to payment of taxes in the statutory way, or until the State or County, etc., does some 

act, etc., which amounts to ratification of what had previously been done informally by the owner and collector 

with consequent release of the tax lien." 

It follows as a matter of course, as stated above, that the 

owners of the land would be liable for the delinquent taxes, penalty 

and interest because ~of non-payment and the County and State have the 

legal right to enforce its tax lien by reason of the non-payment of the 

taxes, before delinquency. 

Trusting that the above and foregoing fully answers your inquiry we are 

Yours very truly 

mmovm sEp 27 1944 ATTORNEY GENERAL OFTEXAS 

/S/ Grover Sellers By /s/ W. V. Geppert 

ATTORNEYGENERALOFTEXAS W. V. Geppert 

WVG: iv: lm Aseistant 

APPROVED OPINION COMMITPEE BY /s/ BWB, CHAIRMAN