### THE ,~TTORNEY GENERAL OPI'EXAS

Honorable Joe Resweber Opinion No. M- 1126 County Attorney Harris County Harris County Courthouse Re: Whether the County Tax Houston, Texas 77002 Assessor-Collector is immune from liability regarding the issuance Dear Mr. Resweber: of a certificate of title

Your recent letter requests our opinion on the following question:

"Isthe County Tax Assessor-Collector immune from claims of third persons in instances where title to amotor vehicle is issued under Section 39 of the Certificate of Title Act (Article 1436-1, V.P.C.)?" You state thatmany tax assessor-collectors have been reluctant togrant titles without an indemnity bond of some sort, feeling that there isalways apossibility of a third party having some claim unknown to the assessor-collector at the time the title isgranted. However, you have presented no specific factual situation or a state of facts underwhich we might render an opinion as to the liability or non-liability of thepublic official concerned.

It is the settled policy of this office not towrite on speculative orhypothetical questions, particularly where no specific factual situation ispresented. Accordingly, in rendering this opinion, we are necessarily confined togiving you ageneral statement of the law,without making any attempt to cover all of the exceptions or to cover some specific factual situation. In this connection, we are not apprised ofwhether the official, based upon the particular facts beforehim, isrendering a strictly ministerial decision or a

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quasi-judicial judgment involving an exercise of discretion and judgment. Such consideration is significant on the question of liability. See Torres v. Owens, 380 S.W.2d 30 (Tex.Civ.App. 1964, error ref., n.r.e.1.

Section 39 of the Certificate of Title Act (Article 1436-lTexas Penal Code), referred to inyour inquiry, reads as follows:

"Anyperson interested inamotor vehicle to which theDepartment has refused to issue a certificate of title orhas suspended or revoked the certificate of title, feeling aggrieved may apply to the designated agent of the county of such interested person's domicile for ahearing, whereupon such designated agent shall, on the same day such application forhearing isreceived byhim, notify the Department of the date of thehearing, which shall not be less than ten (109days nor more than fifteen (15)days, and at suchhearing such applicant and the Department may submit evidence and a ruling of the designated agent shall bind both parties as towhether or not the Department has acted-justly in thepremises. (a) Such applicant feeling aggrieved with the ruling of the designated agent, may, within five (5) days and not thereafter, appeal to the County Court of the county of the applicant"s residence, who shall proceed to try the issues as inother civil cases, and all rights and immunities granted in the trial of civil cases shall be available to the interested parties. (b) If the action of theDepartment complained of fs sustained, a certificate of title for theparticular motor vehicle involved shall only be issued upon such rules and regulations as the Department may prescribe.

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(c) Should the final decision be against the ruling of theDepartment, the certificate of title shall issue forthwith." Section 26 of thatAct provides as follows: "Sec. 26. The term 'DesignatedAgent' means each County Tax Collector in this Statewho may perform his duties under thisAct through any regular deputy." It isheld that the Legislature has the authority to add new and additional duties to those of the tax assessorcollector. State v. Glass,-167S.W.2d 296 (Tex.Civ.App. 1942, error ref., 170 S.W.2d 470).

Section 30o?fthe statute, as amended, reads, in part, as follows:

'"No designated agent of the department shall be liable for civil damages arising out ofhis failure to reflect liens or encumbrances on such motor vehicle unless such failure constitutes willful orwanton neqliqence." (Emphasis added.) - In the absence ofwanton orwillful negligence,l

1. Section 30,Article 1436-1, Texas Penal Code, 43Am.Jur. 91, Public Officers, Sec. 279, and cases cited.

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malice or intentional conduct to inflict injury,2or corruption,3 or arbitrariness or self-enhancement so as to constitute an abuse ofhis legally entrusted powers,4 the County Tax Assessor-Collector would not generally be liable civilly under Article 1436-1, Texas Penal Code,when acting ingood faith andwithin the scope ofhis official authority and in the line ofhis official duty in issuing a title to amotor vehicle under the Certificate of Title Act, even though his decision be in error.5

In at least one appellate decision, itwas held that ifthe actwere lawful, itwas immaterial as towhat motive may have activated the officer to act,6 but a contrary rule

2. Dallas County Flood Control Dist. v. Fowler, 280 S.W.2d 336 (Tex.Civ.App. 1955, error ref., n.r.e.); Harwell v. Ward County, 314 S.W.2d 868 (Tex.Civ.App. 1958, error ref., n.r.e.): 43Am.Jur. 86, Public Officers, Sec. 274, footnote 13and cases cited: Sec. 275, p. 88, footnote 3and cases cited: Sec. 278, p. 90, footnote 15and cases cited. 3. 43Am.Jur. 88, Public Officers, Sec. 275, footnote 3and cases cited. 4. Harwell v.Ward County, supra. 5. 47 Tex.Jur.2d 167, Public Officers, Sec. 130, and cases cited: Pridqen v. Giles, 267 S.W.2d 187 (Tex.Civ.App. 1954, error ref., n.r.e.); Ross v. Gonzales, 29 S.W.2d 437 (Tex.Civ.App. 1930, (errordism.); Dallas County Flood Control ~Dist.v. Fowler, supra; Harwell v.Ward County, supra; 43Am.Jur. 85, Public Officers, Sec. 273 and cases cited. Set-274,pp. 86 and 87, and cases cited; andlsee Am. Ry. Express v. Kentucky, 273U.S. 269, 273 (1926). 6. Pridqen v. Giles, supra.

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was recognized in a later decision7 and is also recognized inanumber of other jurisdictions.8 Wewill not express an opinion on the element ofmotive, since the Texas law is unsettled and our opinion on thatmatter would then be speculative. SeeAttorney General Opinion No. O-3106 (1941),p. 19. SUMMARY _------ The County TaxAssessor-Collector isgenerally immune from liability on claims of third parties where title is issued ingood faith andwithin the scope ofhis official authority and in line of official duty under Section 39 of the Certificate of Title Act, and even though done erroneously, there being nowanton orwillful negligence, malice or intentional conduct to inflict injury, or corruption, or arbitrariness or self-enhancement so as to constitute an abuse ofhis legally entrusted powers. V&truly yours,

RD C.MARTIN orney General of Texas Prepared by James S. Swearingen Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E.Allen, Co-Chairman

7. Dallas County Flood Control Dist. v. Fowler, SuPra. 8. 43Am.Jur. 88, Public Officers, Sec. 276, and cases cited.

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Hon. Joe Resweber, page 6,

Bill Campbell SigAronson James Quick Bob Lemens SAMLJELD. MCDANIEL Staff Legal Assistant
ALFRED WALKER Executive Assistant NOLAWHITE First Assistant (M-1126)

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