Untitled Texas Attorney General Opinion

,,/’ ’ THE A NEYGENERAL OFTEXAS AUSTIN, TEXAS Ootober 18, 194s~ Hon. Sen 9. Fuller Criminal District Attorney -~~ Jefferson County Re: ApplZcabilityof two Beaumont, Texas gear lrtrtuteof llmlte- t1,0tla to the recowry of the balanoe of de- ltnquent fees due the Dlatrlot Clerk under Dear Qb: faata submitted. The Dlstrlot;Clerk of Jefferson County wee elected In 1932 and aaaumed the off&e January 1, 1933. In the pear 1933 he received $2,210, leas then the mex- lmum amount provlded.bylaw. Subsequentlywlthia the time prescribed by law the Dlatrlot Clerk reported as delinquent fees for 1933 an amount in 8x0888 of $2,210. n 1934 the Dlrtrlct Clerk oollected the amount of $2,- ii 10.99 in delinquent feea whloh WBFB oherged end re- Ported in 1933. He retained only one-fourth of this amount upon IusUruotlonato that effeot by the County Auditor. In subsequent years he has oolleoted addltlon- al amounts for fees reported delinq~e~tln 1933 and la eeoh lnatanoe has been parrPittedto retain only one- fourth of the amount aollected. On the basis of the foregoing feats, you hew requested ansplnlon on the following questions: '1. Is the two year ata,tutHof litalta- Mona applloableto reooverj of Zhe balance of the delinquent feea due tlaedl&rlot olerk? “2. When did the right of &Ion of the distrlot clerk aeopue ao aa to ata& the run- ning of the statute of llmlt~~&c+~?" In the ease of lPmlthv. Vlae'CiYunt~.187 3.W. 705 (Tex.Clv.App.1916,e& County for the balanoe due him as~~on@enostlona8 ooun- tg treasurerfor four yearn beglanlag Rowmber 10, 1910, and ending Aowmber 16, 1914. Wise Colmty pleaded the two year statute of llmltatlons. The oourt in dleaua- sing the questlon of whether the alalm wan barred by the two year statute of llmltetlonsheld: Eon. Jep S. Fuller, page 2 (v-936) - _ “AS to the last questlon prsaented, we are of the opinion that the statute of llmlta- tlon would preclude a reoovery~forany amount further than for oommlsalons aocrulng end due and payable under his second term of office, aud for the two years preoedlng.t&edate suit wee filed, to Wit, De~embsr 2, 1914. dppel- lent presented his olalm to the oolllplaslon- ora1 oourt, In the sum sued for, on Howmbep 25, 1914, and on the 27th thereafter It waa by sald court rejeoted. Appellant urges that the statute of llmitatlondid snotbegin to run until aueh disallowance by ~the aourt, and oltea, in support of this oonteti$lon, artlole 1366 of the Revised Civil Stetuter, which pro- tides that: 'Wo oounty shall ba aueU.til6asthe clalmupon whloh auoh suit is ~fowided@hall hew first been presented to the ootitj 0010- mlaalonera~oourt for allowance, aQd such court shall have negleoted or refused to au- dit aud allow the aama or any gaz+tthereof.' " The statute was ev%db&ily en- aated.io;ihe benefit of the a6w; that It might have the opportunityto heve paaa- ed on by Its representativesaanaglng body all olalma against it before it oould be subjected to the expense and wxatlon of suit. It aertalnly never was aontemplated that one having a olalm against a aounty could delay its presentationto the commla- aionera* 00th lndefinltely,end thereby preclude the running of llmltatiop. As is well said ln 25 Cyo. 1198: '~ nWhere plalntlfflaright'df action de- pends.upon aoaiesot to be performed by hlm preliminaryto ooasaenalng suit, a&I he la un- der no restraint or disability in the par- fomanoe of auoh aat, he oannot suepend ln- definitely the running of the statute of llmltatiouaby d8hTing the performance of the prellmlnary sot; If the time for auoh performanoeIs not definitelyfixed, a raa- sonable time, but that only, will ba allowed therefor.' Hon. Jep S. Fuller, page 3 (v-936) "In the same text, page 1198 [B), It la further stated: q ‘wh e r a ) although the cauao of a&Ion Itself has aoorued, some prelltulna~step la required before a resort oan be had to the remedy, the condition referringmerely to the remedy and not to the right, the oause will be barred If not brought within the statutory period; therefore the prellmlnary step must be taken within that period.'" In view of the foregoing case it Is our opln- ion that the two year statute of llmltationaapplies to the fact situation presented by you In your request and begins to run when the right to retain delinquent fees oolleoted aooruea. Stegall ~.~PloLeiiiMiGOtit+, 144 S.W. 26 1111 (Tex.Clv.App~40, error dlsm.). In arriving at the follegolngooncluslon we are not unmindful of the oaae of Ke&~'ir.‘~Cbll'lti C