Hon. Robert K. Ramsey **County** Attorney Kaufman County Kaufman, Texas

Dear Sir: Opinion No. S-38
Re: Highway Department’s interest in illegally collected, non-resident, registration fees and its authority to collect same from the **county.**

lows: Your request for an opinion of this office reads as fol-

“Reference is made to a letter addressed to you from the Honorable Chairman of the State Highway Commission dated March 27, 1953, requesting an~opinion relative to the collection of Automobile Registration Fees, In connection with this inquiry I would like to submit the following questions for an opinion:

“1. Does the State Highway Commissionhave authority to collect from a County, Automobile Registration Fees paid the County by non-residents, after an admittedly correct apportionment of such,fees under the terms of Article 6675a-10 has been made by the County Tax Collector?

“2. Does the Texas Highway Department have the authority to witl:?old funds from a County’s Farm-to-Market Road Progrz..n fo’r the purpose of enforcing such County to pay the I-.igilway Commission Automobile Registration Fees collected from Registering **Motor** Vehicles owned by non-residents ‘ofthe **County,** after an admittedly correct apportionment of such fees under the terms of Article 6675a-10 has been made by the **County** Tax **Collector?**

“3. After a **County** has received Registration Fees for motor vehicles from non-resident owners, and deposited the **county ’** **s** portion of such fees in the **County** Road and Bridge Fund, after an admittedly correct apportionment of such fees under the terms of Article 6675a-10 has been made by the **County** T~LXCollector, does said **County** have authority to take money out of the Road and Bridge Fund, or any other Fund, and pay same to the Texas Highway.- .



### Hon. Robert K. Ramsey, page 2 (S-38)

Department to settle a claim ofthe Highway Department for Automobile Registration Fees collected onMotor Vehicles registered in the County by non-residents of,the county7 ”
Section 2, Title 116, Chapter 1ofVernon’s Civil Statutes of 1925is comprised ofanumber of **statutes** 

### beginning with Article 6675a-1 andterminating with Article 6686, regulating regiatration ofmotor vehicles. Article 6675a-2, V.C.S., reads in part:

“Every owner ofamotor vehicle, trailer or semitrailer used or tobe uskd uponthepublic highways ofthis State shall apply each year to,the State Highway Department through the County Tax Collector ofthe county inwhich he resrdes for the registration ofeach suchvehicle owned or wed by him for the ensuing or current calendar 

### year or unexpired portion thereof.” )’ Subsequent statutes levy fees upon,tbe motor vehicle., and, Article 6675a-10, V.C.S. requires the County Tax Collector to collect thefees and apportion such moneys between the county’s Road andBridge Fund and theState tiighway Department.

(I) The collection bythe County Tax Collector ofRegistration fees from non-resident motor vehicle 

### owners is anunlawful collection. Miller v. Foard County, 59S.W.Zd 277 (Tex.Civ.App. 1933). There is a complete dearth ofcases interpreting theauthority of the State Highway Department to require the county to pay over suchfees to the Department, This office in thepast has consistently hcld.that the County Tax Collector is the agent of~theState Highway Department when he acts byvirtue of the registratfon laws., See Atty. Gen. Op. 

### NOS. O-2050 (hkch i8, 1940) andV-234 (June 5, 1947). Tha County Tax Collector issues theHighway Department’s license 

### receipts and license plates to motor vehicle owners upontheir filing 

### ofapplications, also supplied by theHighway Department, andthe **pnyment** 

### ofafee by such motor vehicle owner. The Collector holds him&elf outtothe public as having acted inbehalf oftheHighway Department. The Registration fees ~;le~~s~re in the nature ofetoll 

### for the **use** of the 

### highway,” Payn e y 145**Tex.** 

### 237, 196S.W.2d 493,;(1946). and, the Highway Department is the age&y designated by the legislature tobe vertedwith the control 

### of**our** 

### Highway s rat&. Robbim **V.** 

### Limestone 1925). County, 114Tex. 345, 268S.W. 915

Article 66758-9 provides that theHighway Department is tofurnish the County Tax Collector a “complhte anddetailed achcdule oflicense fees tobe collected” on thevarious types ofvehicles, such fees tobe determinad by the Highway Department. **Article 6675a**  

### 10s establishes in theDepartment the pdwsr 

### tomake careful audits ofHon. Robert K. Ramsey, page 3 (S-38)

the license fees collected pursuant to the laws of registering motor vehicles. Article 6684 specifically grants to the Department the authority to determine the classification of vehicles and the amount of fees to be paid by such vehicle owners.

A fact further substantiating the view that the County Tax Collector acts as the agent ~ofthe Highway Department, rather than his County, is the statutory fee to which he is entitled, compensatory for registering motor vehicles. See Article **6675a-** 11, V.C.S. Such a provision is in accord with the general practice of compensating an officer of one governmental unit for collecting taxes levied by and owing another unit. 51 Am Sur. 844, Taxation, Set: 964.

“Accounting for Moneys Received Officially but without Authority. A Collector of taxes must pay over to the proper authorities all funds which come into his hands officially, regardless of whether the tax collected by him was a constitutional tax, or whether it was illegal or void, or improperly collected. Whatever he actually collects as taxes by virtue of his office he must pay over to the body politic for which he was acting;

. , .” 51Am. **Jur.** 873,
The County is not entitled to **any** funds not lawfully collected by virtue of the Registration statutes. The Tax Collector should pay such moneys over to the body politic for which he was acting, in this instance the State Highway Department. When unlawfully collected fees are given to the custody of the County, the Department has a lawful claim against the wrong custodian. 4 Cooley on Taxation (4th Ed.) 3212 Sec. 1006; 51Am. **Jur.** 845, Tzxation, Sec. 965.

(2) Your second question assumes that the Highway Department withholds the benefits of the Farm-to-Market Road Program solely for the reason of enforcing the collection of non-resident fees from the counties.

In matters ofjudgment touching upon the Highway Commissioners’ functions, theirs, and not that of another, is supreme. Their acts in the exercise of an honest discretion, untainted by fraud, accident or mistake occurring in their performance, or abuse of discretion as under the authorities would avoid the same, must be respected. Bobbitt v. Gordon, 108 S.W.2d 234 (Tex.Civ.App. 1937). The Highway Department s fund from which it pays for the Farm-to-Market Road Program receives its moneys from various **sources,** including the federal government. The moneys provided by the motor vehicle taxes and allocated to the Department by Article 7083a (4-b) V.C.S. supplies a good portion of the money used in the program as well as the legislature’s mandate to the Highway Department as to how the money should be spent. This. .



### Hon. Robert K. Ramsey, page 4 (S-38)

statute states in part:

“These funds shall be expanded onasystem of 

### roads selected by the State Highway Department after consultation with the county commiaaioners courts of the counties ofTexas relative tothe most needed unimproved rural roads in the counties involved. The selections shall be made inamanner to insure equitable aridjudicious distribution of 

### funds andwork among the several counties of 

### the State,”
A similar **statutory** 

### mandate to the commissioners’ courts in their expenditures, Article 6740, V.C.S., was discussed in Stovall v. Shivers, 103S.W.2d 3.63(Tex. Comm. App. 1937). In the light ofthe discussion by the Court in this latter cited case, and inview ofthearsumption that **no** 

### consideration was taken ofthe roads’ needs inwithholding their Farm-to-Market Road Program, it is our opinion that theHighway Department does not have authority towithhold the Program under the azsumed state of facts.

(3) The Highway Department has avalid claim against the County for 

### the unlawfully collected non-resident Registration fees and the County is authorized topay this claim, Article 2351-10, V.C.S.

SJIM,MARY Non-resident registration fees, unlawfully collected’, should be paid dver 

### tothe State Highway Department. The State Highway Department is not authorized towithhold theFarm-to-Market Road Program 

### from a county solely as ameans to collect the nonresident fees, from said county, The county is authorized to pay the Highway Department any lawful claim exerted by the Department againat the county. 

### Yours very truly,
APPROVED:
W. V. Geppert Taxation Division Willis E. Grerham Reviewer Robert S.Trotti First Assistant JOHN BEN SHEPPERD **Attorney** 

### General
,$&&&q/
William W. Guild Assistant

JohnBen Shepperd Attorney General