### THE ATIWBRNEY GENERAL cm TEXAS

Opinion No. M-1244

Re: Authority of Tax Aasessor-Collectorto issue redemption certificate to taxpayer paying only delinquent taxes, penalty and interest,after dismissal of tax suit againsthim by Court for want of Dear Mr. Hanna: prosecution. We quote from your recent opinion request as follows: Honorable Tom Hanna CriminalDistrictAttorney Jefferson County Beaumont, Texas

"We request an opinion from your office on the following question: 

### '1. Is the County Tax Assessor-Collector authorized to issue a redemption certificatewhere the taxpayer refuses to pay the court costs in a case thatwas dismissed for want of prosecution? 'Thefactual situation is as follows: 'Atax suit was instituteda few years back for the collection of real property taxes due the State and County. Said tax suit was dismissed for want of prosecutionby the District Court. The taxes have been delinquentuntil the present time. The taxpayer is now willing to pay the taxes,~penalty and interest;but refuses to pay any of the court costs involved in said suit. The Tax AssessorCollector refuses to give a redemption certificate until all costshave been paid." It is our opinion that the answer to your question turns uponwhether the defendant taxpayerbecame liable for court costs under the circumstancesoutlinedby you.

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The Rules of Civil Procedure and the statutes generally provide for the allowance of costsby the trial courts to the successful party, or otherwlse as specificallyprovided or according to the discretion of the court. Rules 

### 125,131, 141, l&J and Articles 2072, 2072a, 2075 and 

### 2076, Vernon's CivilStatutes. Specifically,Rule 141 provides that the courtmay, for good causes, to be stated-on the record, adjudge the costs otherwise than as providedby law or the rules. It is obvious that plaintiffs in a tax suit dismissed by the court for want of prosecutionare not therein to be classed as successful parties. Absent a proper provision in such dismissal order taxing the costs of the suit against the defendant taxpayer according to the specific provisions of Rule 141, it is readily apparent that the costsnever accrued against such defendant in view of Rules 125 and 127 to the effect that each party is liable to the officers of the court for the amount of costs incurredby each such party,but no more. As we understandyour query, the defendant taxpayer incurredno costs in such suit on his own behalf. Hence, under the foregoing fact situation, the County Tax Assessor-Collectorhas the duty to issue a redemption certificate to such taxpayer upon the paymentby him of the delinquent taxes,penalty and interest. In this connection we refer 8ou to the holding inAttorney General Opinion No. O-293 (1941) to the general effect that the fees provided for the officers enumerated in Article 7332,Vernon's Civil Statutes,

are not earnedby such officers until the tax suit results In judgment for the taxingbodies. SUMMARY Where tax suit against defendantwas dismissedby court for want of prosecution,without adjudicationof costs, taxpayerwas entitled to redemption certificateupon his payment of delinquent taxes, penalty and interest. Your dgery truly,

C. MARTIN General of Texas

-6092-Honorable Tom Hanna, Page 3 (M-1244)

Preparedby Robert L. Lattimore AssistantAttorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Bill Craig Milton Richardson Bill Flanary Lewis Jones SAMUEL D. m DANIEL Staff LegalAssistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

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