JIM MATTOX :torneyGeneral

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# TheAttorney General ofTexas

December 21. 1984

Ronorable Houston Munson District Attorney 25th Judicial District P. 0. Box99 Gonzales, Texas 71’629 Opinion No.JM-264
Rc: Whether a county tax assessor-collector may retain fees for clericals and work performad in aiding anattorney hired by the county to collect delinquent taxes, and related questions
DearMr.Munson:
Youask us the following twoquestions:

1. Is a county entitled to retain those monetary benefits as a fee of office paid to the county tax collector’s office staff for clerical work performed by said offi.ce on county time in aiding the attorney hired by the county to collect delinquent taxes, or do said benefits belong to the office staff?
2. Is a county entitled to retain those sums of money .SSa fee of office paid by automobile dealers I,Cthe county tax collector’s office for copies o:i motor vehicle registration lists prepared by e;aid office oncounty time and furnished to said automobile dealers, or do said benefits belong to the office staff?
Your letter states that the office of the Guadalupe County tax collector has assisted the attorney hired by the county to collect delinquent taxes br preparing lists of names of delinquent taxpayers and sending notices of delinquencies to these taxpayers. In return. the attorney paid asumof money to the tax collector’s office which was divided among the tax collector and his deputies. This sum of moneywas paid by t:he attorney to the tax collector’s office once a year. The lists were prepared by county employees during regular working hours. Additionally, employees of the tax collector’s office prepared lists of all motor vehicles sold and registered in Guadalupe County. These lists were photocopied and distributed to area automobileMonorable **Houston** Munrou- Page2 (JM-264)

dealers onaregular basis. Theautomobile dealers paid amonthly sum of money that again **vas** divided **among**the employeas of the tax office. Likawise, these lists were p,reparcd by county employees during regular working hours.
Both of your questions ask about the proper disposition of certain monies received anti retained by the office of county tax assessor-collector. Both questions appear to presuppose the propriety of the county

’s retaining such **monies** in the first place; your only concern appears to be to vhomsuch funds should be distributed, the county or the clerical stai’f actually performing the work. Wemust first answer, however, the threshold question, the answer to which you presuppose, aa to whethw the county tax assessor-collector is entitled to accept such monies in the first place. Weconclude that he is not authorized to do*ICI. Generally , a public oUficer has **no** authority to perform an **act** not authorized or requested of himby lav. Duncanv. State, 67 S.U. 903 (Tex. Civ. bpp. 1902, **no**writ).

All public offices and officers are creatures of law. The powers and duties of public officers are defined and Mnited by law. Bybeing defjned ar.d limited by law, wemean the act of a public officer must be e,xpressly authorized by law, or implied therefrom.
Fort Worth Cavalry Club v. Sheppard, 83 S.U.Zd 660. 663 (Tex. 1935). Specifically, anofficer nwynot charge a fee for the performance of a particular duty unless af@!eis provided by law and its amount thereby fixed. Nueces County hrrington, 162 S.W.2d 687 (Tex. 1942); McCalla v. City of Roc&?a, 246 S.W. 654 (Tex. 1922); Binford v. Robinson, 244 S.W. 807 T&x. 1922). Nor may he receive extra compensation for performinlg aduty otherwise imposed upon himby law. Set Hill Farm, Inc. V. Hill County, 425 S.W.2d 414 (Tex. Civ. App. - Waco1968). aff

’d, 436 S.W.Zd320 (Tex. 1969); Jones v. Veltmann. 171 S.U. 287 (Te-v. App. - SanAntonio 1914, vrit ref ’d); Attorney General Opinions JM-135 (1984); O-3656 (1941); O-2610 (1940); O-864 (1939); cf. Attorney Gener;lL Opinion Mu-483 (1982).

- The tax assessor-collector is required by statute to makea list of delinquent taxpayers anmito ratify those persons whose names appear on the list of their dellrlquent status. Tax Code 5533.03. 33.04. If the notices about which you inquire are those required by the code to he prepared and sent out. the tsx assessor-colIector clearly maynot charge for them. If, on the other hand, the noclces at issue were prepared in addition to those which the code requires, the tax assessor-collector mayIjk.ewise not impose a charge because he had no statutory authority to prepare them in the first place. There is no provision in the Tax Code which purports to confer authority on the county tax assessor-collector to enter into an agreement vith s

p. 1177Honorable Houston huneon - P;rge3 (JM-264)

private delinquent tax attorney vhereby **county** employees perfona certain clerical tasks la return for consideration.
It is true that while a public officer may not receive extra compensstion for performing astatutory duty, he

mey earu a revurd, if he is under no obligation because of his official character to do the particular act for which the rcwsrd is promised. The general princ:lple prohibiting public officers from receiving rewards for the performance of **their** official dutles does not prevent them from entering into agr,zements with private individuals to render unoffic:I.al services in consideration of direct compensation being paid for such services.
22R.C.L. Public Officers 1235 (1918), noted in Crosby **County** Cattle Co. v. McDermett. 281 S.W. ;!93, 294 (Tex. Civ. App. - Amarillo 1926. no **writ);** see also Morris ‘c. Kasling, 15 S.W. 226, 227 (Tex. 1890). There is no indication, ho’atrver, that the work was performed by the county employees scting in s private capacity. Even if such ware the CSSC, the employees of the tax collector’s office would still be Prohibited from retsinfng the money If the servlccs were performed during working hours using “any equipment. supplies or anything of value belonging to the county.” Attorney General Opinion O-6702 (1945); see also **Attorney** Ge:aeral Opioions V-14 (1947); O-6908 (1945). Thus, in regard to your first question, it is our opinion that the tax collector of Guadalupe Couuty. or his personnel, may not lawfully retain the fees for preparing delinquent tax lists.
Wenowturn to **your** second question. concerning the collection of fees for copies of lists of motor vehicles that were sold and had titles registered in GuaiUupe County. The Texas **County** Records Manual, prepared under the authority of article 5442c, V.T.C.S.. is an nofflcial. legs1 guide to records retention requirements for Texas county officials.” Texas County Records Manual, at ix (1978). The Manual requires acounty tax assessor-collector to retain (for varying periods of time) lists of motor vehicles reP,jstered in the county and reports on motor vehicle t,rsnsfers. Texas County Records Manual. **at** B-223 (1978). The lists ws,uld be considered public information under section 3(s) of the Open Records Act, article 6252-17s. V.T.C.S.. which states that

[a]11 icformstion collected, assembled. or msintained by governmental bodies pursuant to law or ordinance or in connection with the transaction of official busines!; is public information andsvsilable to the publ:Lc during norms1 business hours of any governmental body.

. . .Honorable Houston Munson- Psge 4 (JR-2643

Whenaperson applies for alint of motor vehicles registered and sold in Guadalupe County, the **tax** collector’s office is required to produce the informstion promptly. V.T.C.S. srt. **62S2-17a.** 64.
Theemployees are simply discharging their duty to provide public informscion in accordance vith section 3of article 6252-17a **snd** are paid by,the county **for** discharg:ing such duties.

Becsuae the GusMupe County tax asseaaorcollector is required by statute to prepare a list of delinquent taxpsyers and to provide the public vith information of all the motor vehicles registered In the county, he has no **authority** to collect fees therefore either in public or private cspacity.

Very truly you 

# Jh

k JIM MATTOX Attorney General of Texas
TOM GREEN **First Assistant**  Attorney Geneml
DAVIDR. RICRARDS Executive Assistant Attorney General
RICRGILPIN Chairman. Opinion Cosssittec Prepared byJimHoelliager Assistsnt Attorney General
APPROVED

: OPINION 

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Rick Gllpin. Chairman JonBible Colin Carl Sussn Garrison TonyGuillory JimHoellinger Jennifer Riggs NancySutton Bruce Youngblood

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