### THEA~~CORXEY GENERAL

GROVER SEmS

Honorable D. H. Utley CountyAuditor Clay county Henrietta,Texas

Dear Sir: Opinion NO. 6208.
. ,, Re: Whoin Legel.l~:liabla ,30x.the penabby and Interestdue on delinqueht: tama i4herr~the

taxpayer gave hir personal check to Te+ Collector, whothen 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 WaxCollector then

We are in receipt of your recent letter inwhich you request our opinionupon the above captionedmatter. Your opinion request reads, in part, as follows:

"There existed in Clay County; District Court a lawsuit styled Sims vs. Firestone, and an appeal'hadbeen taken by the defendant,and this occurred in 1940; the suitwas still on appeal, and the plaintiff securedthe attached order from the District Judge of the 97th judicialDistrict regarding. the payment of taxes, in 1941 the photostatic copies of the checksused are attached, these were honoredby the bank and payment of taxes made, again in 1942, this same orderwas again given the plaintiffwhereby 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 (attachedphotostatic copies)to the Tax Collector who in turn recovered the issuedtax receipts. Qusstion?

--Who is legally liable for the penalty and interestnow due on the delinquenttaxes?" The court order referred to by you in your opinion request, a copy of which was attached, reads as follows:

"CarmenFirestone Sims, et al, vs. Tom Firestone,No6313 in the District Court of Clay County,Texas. On this the 14th day of October, 1942, it havingbeen 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 Courtbeing of the opinion that it is to the advantage of the estate,thatthe samebe paid before they become delinquent,
It is therefore ordered, adjudged and decreedby the Court that the defendant,Tom Firestone, execute checks,,HonorableD. H. Utley, page 2 (0-6208)

drawn on impoundedaccount, in the sum of $69.20, the correct amount of the County, State and School taxes on said property, to the Clay CountyTax Collector; and that he further issuea 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 followingnotationwas placed thereonby the cashier of the bank upon which they were drawn: "0. K. when presentedproperly endorsed."

It is the opinion of this Department that the facts as stated by you constitutemerely an attempt to pay the taxee, and that the same person or persons are now liable for the taxes, penalty and interestas would havebeen liable therefor had no attempt at all been made to pay the taxes before delinquency. Our conclusionabove expressed isbased upon the following authorities:

The Court in the case of Graves vs. Bullen, 115 S. W. 1177, held that although tax receipts havebeen made out and deliveredto the taxpayers, a countymay still recover the taxes unless actuallypaid.

The Court in the case of Ward, et al, vs. Marion County et al, reported in 62 S. W. 557 spokeas follows:

"Collectorsare 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 handsby reason of these receipts. The taxes indicated in such receiptswere 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 statutoryauthorityto accept payment otherwise,taxes are payable in currency." CitingBryan vs. Sundberg, 5Tex. 418; Austin vs. Fox (Corn. App) 1 S. W. 2nd 601, affirming (CivilAppeals) 297 S. W. 341.

The rule is further stated in 40 Tex. Jur., Sec. 127 as follows: "The Collectormay not accept checks or otherpaper; shouldhe do so, he personally takes the risk of payment of the paper upon presentation,and the taxpayer takes the risk that the Collectorwill duly account for the proceeds, even if~an official receipt showingthat the1. -

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

tax had been paid was.delivered." Citing Scissonvs State, 51 S. W. 2nd, 7030
The Commission ofAppeals in ihe case ofAustin, StateBanking Commissionervs. Fox, reported in 15. W. 2nd 601 in affirmingthe judeplent

of the Court of CivilAppeals, used the following language:
"Some relevant formula+ee may be stated: (a) A tax collectorhas no authorityto receive anythingbut 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) ,Privatear&gements forpayment (differing from the statutorymethod) made between the collectorand 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 canbe 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 ratificationof what had previouslybeen done informallyby the owner and collector with consequentrelease 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 delinquenttaxes, penalty and interestbecause ~ofnon-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 answersyour 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