Could a county tax assessor-collector or staff keep payments for delinquent-tax clerical work or motor-vehicle registration lists prepared on county time?

Texas AG Opinion JM-264: Private Fees for Tax Office Work

Plain-English summary

The Guadalupe County tax office prepared delinquent-taxpayer lists and notices to assist the county's private delinquent-tax attorney. The attorney paid the office annually, and the tax assessor-collector and deputies divided the money. The office also prepared motor-vehicle sales and registration lists for automobile dealers, whose monthly payments were divided among employees. Both jobs were performed by county staff during regular work hours. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0264.pdf

JM-264 concluded that the tax assessor-collector lacked authority to accept the payments in the first place. A public officer could act only under express or implied legal authority and could not charge a fee for an official duty unless law provided and fixed the fee. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0264.pdf

The Tax Code already required the officer to make delinquent-taxpayer lists and notify the listed people. If the requested work was part of that duty, no extra fee was allowed. If it went beyond the duty, the officer still lacked statutory authority to perform it for private consideration using the public office. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0264.pdf

Public officers could sometimes earn private compensation for truly unofficial services they had no official obligation to perform. But JM-264 found no indication that the work here was private, and prior opinions prohibited employees from keeping compensation for services performed during working hours with county equipment, supplies, or other things of value. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0264.pdf

The motor-vehicle lists were public information retained by the tax office. Employees were carrying out their paid county duty when they produced the information, so neither the officer nor staff could keep separate payments for that work. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0264.pdf

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the tax office keep a payment from the county's delinquent-tax attorney?

No. JM-264 said the officer and personnel could not lawfully retain fees for preparing delinquent-tax lists on county time. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0264.pdf

What if the clerical work went beyond the Tax Code's required notices?

The result remained no. The opinion said the assessor-collector had no statutory authority to enter an arrangement in which county employees performed additional clerical tasks for private consideration. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0264.pdf

Could employees keep the money because they personally did the work?

No. The work occurred during regular hours with county resources and arose from the public office's functions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0264.pdf

Could the office charge automobile dealers for registration lists?

Not as private compensation for the staff. The lists were public information that the office was required to produce promptly under the cited Open Records Act provisions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0264.pdf

Could a public officer ever accept private compensation for an unofficial act?

The opinion recognized that possibility when the officer had no official obligation to perform the act and rendered genuinely private services. It found that exception inapplicable to the county-time, county-resource work at issue. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0264.pdf

Background and statutory framework

Tax Code sections 33.03 and 33.04 required the tax assessor-collector to prepare delinquent-taxpayer lists and notify the listed taxpayers of delinquency. JM-264 treated those tasks as statutory duties for which the officer could not demand extra compensation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0264.pdf

The Texas County Records Manual required retention of county motor-vehicle registration lists and transfer reports. The opinion treated those records as public information under section 3(a) of the Open Records Act and subject to prompt production under section 4. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0264.pdf

The cited cases established that public offices and their powers came from law, official fees had to be legally authorized, and an officer could not receive extra compensation for a duty already imposed by law. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0264.pdf

Citations and references

• Tax Code sections 33.03 and 33.04
• Article 5442c, V.T.C.S., and the Texas County Records Manual
• Open Records Act, article 6252-17a, V.T.C.S., sections 3(a) and 4
• Duncan v. State, 67 S.W. 903 (Tex. Civ. App. 1902, no writ)
• Fort Worth Cavalry Club, Inc. v. Sheppard, 83 S.W.2d 660, 663 (Tex. 1935)
• Nueces County v. Currington, 162 S.W.2d 687 (Tex. 1942)
• McCalla v. City of Rockdale, 246 S.W. 654 (Tex. 1922)
• Binford v. Robinson, 244 S.W. 807 (Tex. 1922)
• Hill Farm, Inc. v. Hill County, 425 S.W.2d 414 (Tex. Civ. App. - Waco 1968), aff'd, 436 S.W.2d 320 (Tex. 1969)
• Jones v. Veltmann, 171 S.W. 287 (Tex. Civ. App. - San Antonio 1914, writ ref'd)
• Crosby County Cattle Co. v. McDermett, 281 S.W. 293, 294 (Tex. Civ. App. - Amarillo 1926, no writ)
• Morris v. Kasling, 15 S.W. 226, 227 (Tex. 1890)
• Attorney General Opinions JM-135 (1984), O-3656 (1941), O-2610 (1940), O-864 (1939), MW-483 (1982), O-6702 (1945), V-14 (1947), and O-6908 (1945)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0264.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0264
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0264.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

December 21, 1984

Honorable Houston Munson
District Attorney
25th Judicial District
P. O. Box 99
Gonzales, Texas 78629

Opinion No. JM-264

Re: Whether a county tax assessor-collector may retain fees for clericals and work performed in aiding an attorney hired by the county to collect delinquent taxes, and related questions

Dear Mr. Munson:

You ask us the following two questions:

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 office 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 as a fee of office paid by automobile dealers to the county tax collector's office for copies of motor vehicle registration lists prepared by said office on county 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 by preparing lists of names of delinquent taxpayers and sending notices of delinquencies to these taxpayers. In return, the attorney paid a sum of money to the tax collector's office which was divided among the tax collector and his deputies. This sum of money was paid by the 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 automobile dealers on a regular basis. The automobile dealers paid a monthly sum of money that again was divided among the employees of the tax office. Likewise, these lists were prepared by county employees during regular working hours.

Both of your questions ask about the proper disposition of certain monies received and 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 whom such funds should be distributed, the county or the clerical staff actually performing the work. We must first answer, however, the threshold question, the answer to which you presuppose, as to whether the county tax assessor-collector is entitled to accept such monies in the first place. We conclude that he is not authorized to do so.

Generally, a public officer has no authority to perform an act not authorized or required of him by law. Duncan v. State, 67 S.W. 903 (Tex. Civ. App. 1902, no writ).

All public offices and officers are creatures of law. The powers and duties of public officers are defined and limited by law. By being defined and limited by law, we mean the act of a public officer must be expressly authorized by law, or implied therefrom.

Fort Worth Cavalry Club, Inc. v. Sheppard, 83 S.W.2d 660, 663 (Tex. 1935). Specifically, an officer may not charge a fee for the performance of a particular duty unless a fee is provided by law and its amount thereby fixed. Nueces County v. Currington, 162 S.W.2d 687 (Tex. 1942); McCalla v. City of Rockdale, 246 S.W. 654 (Tex. 1922); Binford v. Robinson, 244 S.W. 807 (Tex. 1922). Nor may he receive extra compensation for performing a duty otherwise imposed upon him by law. Hill Farm, Inc. v. Hill County, 425 S.W.2d 414 (Tex. Civ. App. - Waco 1968), aff'd, 436 S.W.2d 320 (Tex. 1969); Jones v. Veltmann, 171 S.W. 287 (Tex. Civ. App. - San Antonio 1914, writ ref'd); Attorney General Opinions JM-135 (1984); O-3656 (1941); O-2610 (1940); O-864 (1939); cf. Attorney General Opinion MW-483 (1982).

The tax assessor-collector is required by statute to make a list of delinquent taxpayers and to notify those persons whose names appear on the list of their delinquent status. Tax Code §§33.03, 33.04. If the notices about which you inquire are those required by the code to be prepared and sent out, the tax assessor-collector clearly may not charge for them. If, on the other hand, the notices at issue were prepared in addition to those which the code requires, the tax assessor-collector may likewise 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 with a private delinquent tax attorney whereby county employees perform certain clerical tasks in return for consideration.

It is true that while a public officer may not receive extra compensation for performing a statutory duty, he

may earn a reward, if he is under no obligation because of his official character to do the particular act for which the reward is promised. The general principle prohibiting public officers from receiving rewards for the performance of their official duties does not prevent them from entering into agreements with private individuals to render unofficial services in consideration of direct compensation being paid for such services.

22 R.C.L. Public Officers §235 (1918), noted in Crosby County Cattle Co. v. McDermett, 281 S.W. 293, 294 (Tex. Civ. App. - Amarillo 1926, no writ); see also Morris v. Kasling, 15 S.W. 226, 227 (Tex. 1890). There is no indication, however, that the work was performed by the county employees acting in a private capacity. Even if such were the case, the employees of the tax collector's office would still be prohibited from retaining the money if the services 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 General Opinions V-14 (1947); O-6908 (1945). Thus, in regard to your first question, it is our opinion that the tax collector of Guadalupe County, or his personnel, may not lawfully retain the fees for preparing delinquent tax lists.

We now turn to your second question, concerning the collection of fees for copies of lists of motor vehicles that were sold and had titles registered in Guadalupe County. The Texas County Records Manual, prepared under the authority of article 5442c, V.T.C.S., is an “official, legal guide to records retention requirements for Texas county officials.” Texas County Records Manual, at ix (1978). The Manual requires a county tax assessor-collector to retain (for varying periods of time) lists of motor vehicles registered in the county and reports on motor vehicle transfers. Texas County Records Manual, at B-223 (1978). The lists would be considered public information under section 3(a) of the Open Records Act, article 6252-17a, V.T.C.S., which states that

[a]ll information collected, assembled, or maintained by governmental bodies pursuant to law or ordinance or in connection with the transaction of official business is public information and available to the public during normal business hours of any governmental body. . . .

When a person applies for a list of motor vehicles registered and sold in Guadalupe County, the tax collector's office is required to produce the information promptly. V.T.C.S. art. 6252-17a, §4.

The employees are simply discharging their duty to provide public information in accordance with section 3 of article 6252-17a and are paid by the county for discharging such duties.

SUMMARY

Because the Guadalupe County tax assessor-collector is required by statute to prepare a list of delinquent taxpayers and to provide the public with information of all the motor vehicles registered in the county, he has no authority to collect fees therefor either in public or private capacity.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood