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’
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