OFFliZE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Ii. 8hoppard 

FublZc Accounts 

Dear &lx'* Shoppardt 

. 

RS~: MI&hor‘%$ Ilit the &lCCCpt8IlCO 

by tihhe--Cqwty Tax Collector 

Of 8 hX~+'S‘C@OCk for t&LX- 

,/- ',QS 8xvl the depoeit thereof by 

/ Colleotor &&opting *om 

bank 8 Cashier~e 

mount constiby the taxpayer 

qcoipt of your lottor of 

COUXit~ in Januthe bank closed. 

'It appaars that tho Tax Colleotor receivod approximately t&x+Nvo per cent OC 

the value of the CashUr*s checlt in dividends. 

8x0~ wili please advieo tbia department 

whether tho Tar COllCOtOP or the t&qXayer 

should bo bold liable for tho paymmt of the 

t8xes ." 
418 , 

non. coo. 8. Sheppard - Pago 2 

UnQar the facts etafed by you, it is our 

opinion tho Tax Collector and his bondernon should 

be held liable and not the taxpayer. 

It is, of course, well settled that fhe 

authority of the.Tax Collector in tho matter of collooting taxas oxtonds only to collections made in 

cash. Austin vs. Fox, 1 S. v. (2) 601; Figures vs. 

State, 99 8. w. 412; Ward vs. mrion county, 62 s. w. 

657, 63 s. 0. l55. 

Any payment by check 01. qthorwise than by 

the pqynumt of money amounts meroly to an arrangcmnt 

for accomdation to the taxpayer, or for comonicncc 

Saks, and ia smdo at the risk Of ths parties thoroto, 

8nd not of the State or county. Austin vs* FOX, 1 

8. 1. (2) 601s Wang3 County VB. T. & N. 0. R. Co., 80 

8. 0. 570 (i&t refused) T. W N. 0. R. Co. vs. Stat0 

97 8. 1. 142. The question, thoroforo, arises whethe; 

or not the transaction du&lled in your lottor constituted in legal esscncs 8 payment in cash to tho Tax Collector by tho impayor. 

In Davis vs. State, 51 8. W. (2) 703, a crimiMl C(LS8, it is Said: 

#Wo agree entirely nith the oontontion of counsel that no Tax Collector has 

any authority to rocaivo in payment and 

discharge thoroof anything but LswfuJ 

money of th3 United States, aiti th8t, if 

he does cccoyt any kind of property other 

than lawful money in payment of taxes, 

suoh aocoptanco by him of such property 

will not operate to discharge or pay such 

taxes - It is doubtless true that a collector Of taxes nay refuse to accept 8 

check or draft, in payzmt thorsof, and say 

insist upon being paid in actual mney, 

and until such pngnegt is made the tax08 

till not, be dlscharged~ but in this case 

iiin[;, the County Yroasurer, accepted in 

paymnt of thu taxes a check of Rodick 

drawn upon an Omaha bank. If this check 

had been I\rotosted or never had beon paid 
ilon. limo. JI . Shopparcl - PsgO 3 

of course it would not have operated as 8 

payrront or” the taxosi but the Treasurer 

obtained thO ir.onsy on this ahock from the 

bank on which it was drawn, and the mgmant 

he did so ho hold such nmnzy as Treasurer 

of tbo county, in his official capacity, 

and the taxes to pay which It was given WWo 

from that monent paid and discharged.* 

The opinion citoe Hubbard vs. Auditor Gen. 

(&ich.) 7ti N. VI. 978, and on annotation in 44 A. L. R. 

p. 1234. 

In tlio annotation cited Ve find the case of 

Wasson vs. Lcurb (InQ.) 22 H. 3. 729, 8 L. R. A. 101. 

That was o cascv whore a Courzty Treasurer depositsd in 

n bnnlc roooipts for taxes i?uO frcm the bank, receiving crw t SW Chc, amount of sucf, taxes, and sftoruards 

Qrtw the money out by c>ock. Xn tha course of the oplnion it 309 ssS&~ 

** * **If t&3 custorwr assents to ’ 

such action on the gart of the be.nX by 

drawing chooks a&xlnst the croi?it, or 

in sny other way, bo rz.nifests with 

equal olearuoss his intoEM.w to be 

traatcd as 8 depositor of mOMy.’ If, 

by cut&al oonsent, the bank and thO appellant choose to tr03t the tax reoeipts 

as so much cash doposit@d to the crsdit 

of 6hs latter, the transaction must be 

rogardod as aocorting to tbs intontlcn 

of the parties at tlzs t&3. 

“The conclusion which follows from 

wlct hrra procoded is t3nt w?xn ths appollant transforrod l&3 tax roooipts to 

ths bcnk, and rocoivcd cri?&it fnr thr, 

amount theroof, the tranarctlcn w.+s, in 

la@ Ofr3Ct) the sam as if be had doposited the aniount in ccatl.* 

. 

II" tllz tN.ll4Wii0E V23 033 bf3tWQOn private 

lndivi~uals, thO quo&ion ROUU bO easy flf solution. 

Berg ~4. Foclcral l7cscqo Bank of Mnnoapolis 

419 
420 

Non. Goo. II. Shopp;rrd - I3go 4 

(N. D .) 213 N. IV. 963, holds that if the holdor of a 

chook Is rpllling t0 aCOept Mything else, and drawee 

bank is willing to &iv0 it, the drawer io not ooncermd, end the chock clay bo paid in e medium other 

then oash. The drever's contraot is fulflllod rhon 

tho check is paid. ' 

So, in Joffcoat vs. Zlckgraff', (S. C.) 140 

s. g. 47~) it ~36 hold that e vendor, ah0 aoooptcd 8 

oashlar*s cheok folloning the purchaaer@s payment of 

draSt to bank, took the risk of tho chock's invalidity. . 

Again, in Ltorris vs. Clove (N. C .) 14g S. E. 

253, It vns held that a bolder of 8 check may pFseent 

it porsonallg end is ontitlod to cash. If ho proaonts 

it through the Federal Roserve Uank, or tho Express 

Coqxmy, or the postoffico, utier a statuto which nllows pegrmont by check, ho talc06 tho risk that the dreft 

issued by the dragon bank will not be 8;oottL. The check 

itself Is paid vhcn the dravoo chergos it agtinaf the 

drawer* 8 aooount . 

Litchficld VB . Reid, Sheriff, (N . C .) 141 8 .E. 

543, a tax case, says! 

l * * at The check vaa issued on January 3, 1925; It was present&d for payment on or boforo January 13, 1926 8 when 

the check was acoeptod for paynrent by the 

drevee bunk it vas ohergod to the eooount 

of the drawor, aml subsequently returned 

to blm stsmped or perforated, 'Paid, 

l&25. Them is no ovidmoo tonding 

08 what disposition we8 made by the 

dreweo bank of the amount charged to its 

dopoaitor, the drnwor of the aheok, on 

acoount of tho samno. Upon the facts 

shown by tho ovidmoe, piaintirf has no 

concern 3s to such ~disposltion. The jury 

dght have found from the evidonae that 

t,ho procoods of the check were peid to 

the holdor cf the cheek, who prsssntod it 

for payment, nnl who had the right, i.f he 

chose to exercise l,t, to demand money for 

said chaok. m * ** - 
lion. Geo.Il. sbeppard - Page 8 

Palmer, Ta Collector vs. Siarrlson @a.) 

242 8. E. 228, another tax oaee, rtoldsr 

flThe oolloctlng bank was the agent 

of tho tax collectors and, while *taxes 

mast b$ paid in gold or silver, or in 

the bills of euoh banks 08 pay specie 

p~onxptly' (Civil Code 1910, 8 1013), yet 

the effect or the traneaotion in the instant case was to pay the taxes in lawful money ; and the court did not orr in 

ovorrull~~ the demrrer to the petition 

'and in granting the Injunction. Soo Stith 

Roofing Co. v. Utchell, 117 Ge. 772, 45 

S. E. 47, 97 Am. St. Rap. 217; Pollek vb 

llall-Herin CO., 137 Ge. 23, 72 S. SO 

415, 36 L. B. A. (S.S.) 131 Comer v'. DIP 

four, 66 Ga. 378, 22 S. If. 643, 30 L.R.A. 

300, 61 Am. St. hop. 89.' 

Flually it Is said in C. H. hey Corporetion VS. 

willi-, City Treasurer, (Wch.) 238 N. 51. 216: 

*YEhcn tble cheek was deposited to the 

credit of the defendant and Charged to-that 

0r tho fuel ;u;d eupply Compaq, the ~mney 

repreeontod by it ves, in legal effect, paid 

to him by the fuel cornpang. The burden of 

shoving that ho was thereafter juettfied in 

repaying it to the bank was llpon him. 

nFi?lile tho stntuto (1 Cmnp. Law6 1929, 

1 339) provides that a oheok tendered for 

the payxcont of a tax shall not operate es 

mch, unless 'it shall bo pald on preeontetam,* tbie caook see paid when it was daposited by the treeeuroc ati credited to 

his account and charged to the account of 

tho fuel aud euyply oom~uy~ there bolng 

then in <hi.3 account a sum sufficient for 

the paymnt thereof. No claim is or could 

be mdc that the check aam fraudulently lsau&, or that any mistake was nade by an mploy00 of the bank in the debiting or croditing of it.. 
hon. Gee. h. Sheppard - Page 6 

The rule is, of course, more rigid where a 

Tax Collector is invOlvod, nevertheless, wc think the 

facts stated by you as surrounding this transaction 

show in loge1 essence a pagmont moetine, the requirement of cash payment by the taxpayer to the Collector. 

While the Collector did not physically receive cash, it was his own fault, and ho oonstruotively rooeivsd it, because he accepted tho bank cashior*s 

check in lieu thoroof, cuusing the taxpayer's chock to 

be paid an;f her account accordingly charged. The situation wao precisely as tbough the bank had paid to the 

Collector tha cash and the Co&loctor had lmmodiately 

purchased the cashier *s check therewith. 

This real nature Of the transaotion has been 

rooognlzed by the Collector , for It appears ho filed his 

claim as Collootor with the Banking Comnissionor in 

charge of tic: failed bank, and has actually received 

dividends on his claim to the extent stated by you. Undoubtedly, the State's rights in tho nutter of collcotin; tax% arz paramount to the taxpayer's right to make 

conventional payment through check, but yet the humble 

taxpayer has some rights that should be protected, especially Nhore, as here, the State is secured by the 

Tax Collector's bond, the very purpose of which is to 

indemnify tbo State against loss for tho Collector*s 

failure to account for collections coming Into his 

hands. 

The opinion of this department written by 

Judge F. 0. hlcIiinsey, of date January 16, 1932, aadrossed to you, is clearly distinguishable in this, 

there the Collector put the taxpayer's check (drawn 

on an out-of-town bank) in his county seat bank for 

oollection through the usual banking channels, and 

the clrevez bank failed before the Check was cleared. 

The Collector, unlike the instant case, never prcsented the check to tho~drewee bank, and never voluntarily 

surrendered it for payment and cancellation, and ncvor 

voluntarily accepted a cashier's check cr other medium 

rhatsoovcr in lieu of Cash in ivqvent. 

Yoii aro therefore respectfully a::visc:2 that 

in our opinicli the Tax Collector and not the taxpayer 
I ,I 

Ron. 480. 4~. smeppara * Pqp T 

muld be liable, aa herotofon &at@. 

. 

APPJOVEI3OV 19, 1940 

ATTORNEY GEKZRAS 0' Tx‘;iAs