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TEEATSORNEYGENERAL
OF TEXAS
Honorable Wayne Burns Opinion No. C- 190
County Attorney
Howard County Re: Whether a check depart-
Big Springe, Texas ment established by the
sheriff and operated In
the manner outlined is a
legal or permissive opera-
Dear Sir: Mon.
Your request for an opinion from this department has
received our attention. We quote from your letter of
October 18, 1963,is follows:
"In Howard County.there has been es-
tablished In the Sheriff's Office a depart-
ment known as the 'Check Department'. The
Check Department has employed two deputized
,clerks to handle the procedure outlined below;
the salaries of the two clerks are paid from
county funds. The clerks are bonded slnoe
they are required to handle money in their
duties. This department Is supervised by
the Sheriff.
"This department deals with all question-
able checks called to their attention by the
merchants or payee8 of the checks. This neoes-
sarily includes insufficient funds checks, un-
able to locate account, account closed, endorae-
ment cancelled, forgeries, etc., of all amounts.
"The department in Instances where It is
deemed necessary, conducts an investigation in
order to determine the name and whereabouts of
a checkwriter. In certain cases where the in-
tent to defraud on the part of the checkwrlter
Is obvious, the check is immediately referred
to either the District or County Attorney for
filing of appropriate criminal charges.
"In a typical case the following procedure
Is followed. The merchant of payee of a worth-.
less check brings the check to the check depart-
ment for processing in the following manner.
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Honorable Wayne Burne, Page 2 (C- 190)
First, the Check Department encourages the
merchant or payee of the check to make some
effort, Insofar as it Is possible, to notify
.or advise the checkwriter that the check was
not 'pald.
"At the time the merchant brings In a
check, It Is Inquired as to whether or not
the check was a hold or post-dated one, and
if so, the check is, rejected -by the depart-
ment. If not a hold or post-dated check, the
merchant is asked to sign an affidavit to that
effect, a oopy.of which is enclosed. At this
time, the merchant is asked whether he wishes
the department to mall a notice to the ch,eck-
writer by certified ,mall with a return receipt
and the.merchant is advised that should it be-
come necessary to flle,chargee on the check
that the.notlce muet be sentby certified, not
ordinary mall. The merchant then la required
to pay the department postage necessary to
send certified mail.
"The Check Department fills in some forms,
copies attaohed,~at the time the cheek is"
brought to the department. These forms consist
of a,relmbursement cheok',(whlch1s signed and
mailed to the merchant should the check be paid
later); a copy containing Information about
the check which la placed in a master file and
filed numerically, containing all the cheok-
writers kept In the department (should a case
be filed, this form 1s left,with the County or
Dlstrlct Attorney for hle ~flles), and the next
rtlon of the form 1s divided In two parts
r one part 18 sent to the checkwrlter as a notice
and the other part is given to the merchant as
a receipt for the check turned in) and the last
form Is one containing Information about the
check, or checks, which Is filed with the actual
check, alphabetically.
"Specifioally, your opinion is desired as
to whether or not a Check Department established
by the Sheriff and operated In the manner out-
lined above is a legal or permissible operation."
We quote from your letter of November 8, 1963,as follows:
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Honorable ,Wayne Burns, Page 3 .(C; 190 )
'(Atthe Inception of the check depart-
ment, both of the department clerks mentioned
in my request for this opinion were authorized
and'approved by the Commissioners Court. Fur-
there,,the check department makes no charge
,whatsoever for checks that are collected, and
the only,mon(typaid by the merchant is the a-
mount necessary to send.the notice to the check
writer."
Article 380a of Vernon's Penal Code provides:
.~,".AnyJustice of the Peace, -sheriff, con-
stable or other peace'offlcer In this State,
who shall,recelve~for collection or under-.
take the collection of~~anyclaim for debt for
others except under and by'virtue of the pro-
.cesses of law prescribing the,duties of such
.offlcers, or who shall receive compensation
therefor except as prescribed by law, shall
be guilty of a misdemeanor and upon conviction
thereof shall be punished by a fine of not
less than Two Hundred Dollars nor more than
Mve Hundred.Dollars, and In addition to such
-fine may be ~removed from office. Provided,
however; that nothing herein shall be con-
strued to prohibit any Justice of,the Peace
who Is authorized by ,lawto act for others in
the collection of debts from undertaking such
collecti~onswhere the amount Is beyond the
jurlsdlotlon of.the Justice Court.
The case of Lombardlno v. Fireman's and Policemen's
Civil Service Commlaslon of'the City of San Antonio, 310 S.
. 651 (TexXlvtApp. 1X%, error ref. n.r.e.1 involved an
appeal-f&m a judgm&Z of the~Dlstrict Court affirming an
order of the Firemen's and Policemen's Civil Service Com-
mission, dismissing a city detective from the San Antonio
Police Department, on the ground that he violated Rule 48
of,the rules and regulations of the police department. Such
rule provided:
"All officers ahall obey all the laws-of
the United States, State of Texas, and ordl-
nances of the City of San Antonio."
The Court stated that Article 380a of the Penal Code pro-
hibits the collection of debts by any peace officer for com-
pensation. The Court of Civil Appeals affirmed the judgment
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Honorable Wayne Burns, Page 4 (C- Igo)
of the lower court and held that the finding of,the Commission
that appellant violated Artlole 380a was supported by sub-
stantial evidence, notwithstanding the fact that appellant
caused to be filed fan assumed name certificate showing his
wife as owner of the collection agency, which wae operated
under the trade name of "San Antonio Creditor's Association".
It 18 observed from your letter of November 8, 1963,
that no compensation is being paid to the check department in
the case before us; however, It should be noted that Article
38Qa not only prohibits the collection of claims for debts for
compensation but also the collection of claims of debts for
others except under and by virtue of the processes of law pre-
scribing the duties of such officers. No enactment exists
which prescribes as one of the duties of a sheriff, the col-
lecting of such claims for debts.
We are therefore of the opinion that the procedure as
set out in your letters of October 18, 1963, and November 8,
1963, Is unauthorized.
SUMMARY
In light,of Article 38Oa of Vernon's Penal
Code, It Is our opinion that the sheriff le not
authorized to conduct the ,debt collecting pro-
cedure as outlined above.
YouxG3very truly,
WAOGONER CARR
Attorney General of Texas
torney General
JPB:cg:br
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Al10 B. Crow, Jr.
Robert Flowers
W. 0. Shultz
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone
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