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 ‘of the 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~LX Collector, 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 of the Highway Department 

for Automobile Registration Fees collected on Motor Vehicles registered in the County by non-residents of, the 

county7 ” 

Section 2, Title 116, Chapter 1 of Vernon’s Civil Statutes of 1925 is comprised of a number of statutes beginning with Article 6675a-1 and terminating with Article 6686, regulating regiatration of motor vehicles. Article 6675a-2, V.C.S., reads in part: 

“Every owner of a motor vehicle, trailer or semitrailer used or to be uskd upon the public highways of this 

State shall apply each year to, the State Highway Department 

through the County Tax Collector of the county in which he 

resrdes for the registration of each such vehicle 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 the fees 

and apportion such moneys between the county’s Road and Bridge Fund 

and the State tiighway Department. 

(I) The collection by the County Tax Collector of Registration fees from non-resident motor vehicle owners is an unlawful 

collection. Miller v. Foard County, 59 S.W.Zd 277 (Tex.Civ.App. 1933). 

There is a complete dearth of cases interpreting the authority of the 

State Highway Department to require the county to pay over such fees 

to the Department, This office in the past has consistently hcld.that 

the County Tax Collector is the agent of ~the State Highway Department 

when he acts by virtue of the registratfon laws., See Atty. Gen. Op. NOS. 

O-2050 (hkch i8, 1940) and V-234 (June 5, 1947). Tha County Tax 

Collector issues the Highway Department’s license receipts and license 

plates to motor vehicle owners upon their filing of applications, also 

supplied by the Highway Department, and the pnyment of a fee by such 

motor vehicle owner. The Collector holds him&elf out to the public as 

having acted in behalf of the Highway Department. The Registration 

fees ~;le~~s~re in the nature of e toll for the use of the highway,” 

Payn e y 145 Tex. 237, 196 S.W.2d 493,; (1946). and, the Highway Department is the age&y designated by the legislature to be verted with the control of our Highway s 

r 

at&. Robbim V. Limestone 

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

Article 66758-9 provides that the Highway Department 

is to furnish the County Tax Collector a “complhte and detailed achcdule of license fees to be collected” on the various types of vehicles, 

such fees to be determinad by the Highway Department. Article 6675a10s establishes in the Department the pdwsr to make careful audits of 
Hon. 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 ~of the 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; . , .” 

51 873, Am. Jur. 

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; 51 Am. 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 of judgment 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 on a system of 

roads selected by the State Highway Department after 

consultation with the county commiaaioners courts of 

the counties of Texas relative to the most needed unimproved rural roads in the counties involved. The 

selections shall be made in a manner to insure equitable arid judicious distribution of funds and work 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, 103 S.W.2d 3.63 (Tex. Comm. App. 1937). In 

the light of the discussion by the Court in this latter cited case, and 

in view of the arsumption that no consideration was taken of the roads’ 

needs in withholding their Farm-to-Market Road Program, it is our 

opinion that the Highway Department does not have authority to withhold the Program under the azsumed state of facts. 

(3) The Highway Department has a valid claim against 

the County for the unlawfully collected non-resident Registration fees 

and the County is authorized to pay this claim, Article 2351-10, V.C.S. 

SJIM,MAR Y 

Non-resident registration fees, unlawfully collected’, 

should be paid dver to the State Highway Department. The State Highway Department is not authorized to withhold the Farm-to-Market 

Road Program from a county solely as a means 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 

John Ben Shepperd 

Attorney General