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: 

"Is the County Tax Assessor-Collector immune 

from claims of third persons in instances where 

title to a motor vehicle is issued under Section 

39 of the Certificate of Title Act (Article 1436-1, 

V.P.C.)?" 

You state that many tax assessor-collectors have been 

reluctant to grant titles without an indemnity bond of some 

sort, feeling that there is always a possibility of a third 

party having some claim unknown to the assessor-collector at 

the time the title is granted. However, you have presented 

no specific factual situation or a state of facts under which 

we might render an opinion as to the liability or non-liability 

of the public official concerned. 

It is the settled policy of this office not to write 

on speculative or hypothetical questions, particularly where 

no specific factual situation is presented. Accordingly, in 

rendering this opinion, we are necessarily confined to giving 

you a general 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 

of whether the official, based upon the particular facts before him, is rendering a strictly ministerial decision or a 

-5477- 
Hon. Joe Resweber, page 2, (~-1126) 

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-l Texas Penal Code), referred to in your inquiry, reads 

as follows: 

"Any person interested in a motor vehicle to 

which the Department has refused to issue a certificate of title or has 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 a hearing, whereupon such designated agent shall, on the same day such application 

for hearing is received by him, notify the Department 

of the date of the hearing, which shall not be less 

than ten (109 days nor more than fifteen (15) days, and 

at such hearing such applicant and the Department 

may submit evidence and a ruling of the designated 

agent shall bind both parties as to whether or not 

the Department has acted-justly in the premises. 

(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 in other 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 the Department complained 

of fs sustained, a certificate of title for the particular motor vehicle involved shall only be issued 

upon such rules and regulations as the Department 

may prescribe. 

-5478- 
Hon. Joe Resweber, page 3, (M-1126) 

(c) Should the final decision be against the 

ruling of the Department, the certificate of title 

shall issue forthwith." 

Section 26 of that Act provides as follows: 

"Sec. 26. The term 'Designated Agent' means 

each County Tax Collector in this State who may 

perform his duties under this Act through any regular deputy." 

It is held that the Legislature has the authority to 

add new and additional duties to those of the tax assessorcollector. State v. Glass, -167 S.W.2d 296 (Tex.Civ.App. 1942, 

error ref., 170 S.W.2d 470). 

Section 30 o?f the statute, as amended, reads, in 

part, as follows: 

'"No designated agent of the department shall 

be liable for civil damages arising out of his 

failure to reflect liens or encumbrances on such 

motor vehicle unless such failure constitutes willful or wanton neqliqence." (Emphasis added.) - 

In the absence of wanton or willful negligence,l 

1. Section 30, Article 1436-1, Texas Penal Code, 43 Am.Jur. 

91, Public Officers, Sec. 279, and cases cited. 

-5479.. 
Hon. Joe Resweber, page 4, (~-1126) 

malice or intentional conduct to inflict injury, 2 or corruption,3 or arbitrariness or self-enhancement so as to constitute 

an abuse of his legally entrusted powers,4 the County Tax 

Assessor-Collector would not generally be liable civilly under 

Article 1436-1, Texas Penal Code, when acting in good faith 

and within the scope of his official authority and in the line 

of his official duty in issuing a title to a motor vehicle 

under the Certificate of Title Act, even though his decision 

be in error.5 

In at least one appellate decision, it was held that 

if the act were lawful, it was immaterial as to what 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.): 43 Am.Jur. 86, Public Officers, Sec. 274, footnote 13 and cases cited: Sec. 275, p. 88, footnote 3 and 

cases cited: Sec. 278, p. 90, footnote 15 and cases cited. 

3. 43 Am.Jur. 88, Public Officers, Sec. 275, footnote 3 and 

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, (error dism.); Dallas County Flood 

Control ~Dist. v. Fowler, supra; Harwell v. Ward County, 

supra; 43 Am.Jur. 85, Public Officers, Sec. 273 and cases 

cited. Set - 274, pp. 86 and 87, and cases cited; andlsee 

Am. Ry. Express v. Kentucky, 273 U.S. 269, 273 (1926). 

6. Pridqen v. Giles, supra. 

-5480- 
Hon. Joe Resweber, page 5, (M-11~26) 

was recognized in a later decision7 and is also recognized 

in a number of other jurisdictions.8 We will not express an 

opinion on the element of motive, since the Texas law is 

unsettled and our opinion on that matter would then be speculative. See Attorney General Opinion No. O-3106 (1941), p. 19. 

_------ SUMMARY 

The County Tax Assessor-Collector is generally 

immune from liability on claims of third parties 

where title is issued in good faith and within the 

scope of his official authority and in line of official duty under Section 39 of the Certificate of 

Title Act, and even though done erroneously, there 

being no wanton or willful negligence, malice or 

intentional conduct to inflict injury, or corruption, 

or arbitrariness or self-enhancement so as to constitute an abuse of his 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. 43 Am.Jur. 88, Public Officers, Sec. 276, and cases cited. 

-5481- 
.- -. 

Hon. Joe Resweber, page 6, 

Bill Campbell 

Sig Aronson 

James Quick 

Bob Lemens 

SAMLJEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

(M-1126) 

-5482-