Untitled Texas Attorney General Opinion

THE NEY GENERAL TEXAS PRICE DANIEL ATTORNEYGENERAL September 13, 1949 Hon. C. H. Cavnesa Opinion No-V-901 State Auditor Austin, Texas Re: The duty of the Commls- sioner of the General Land Office to collect accounts due that office Dear Sir: Your requeet for an opinion reads as follows: "In connectionwith our current audit of the account8 of the Qeneral Land Office we respectfullyrequest that you refer to Attorney General's Opinion No, O-5332 (dated July 22nd, 1943) and advise us which Depart- ment or Offlbtal of,the State has the duty of taking action to recover to the State the remaining uncollectedaccounts due the Qen- era1 Land Office - accounts such aa are described In that opinion, "Followingthe ruling of the above opfn- ion the Land Office ceased extending credit to all customers and required funds to be on deposit In the General Land Office or the State Treasury before services were rendered, etc. At that time there were uncollected accounts dub the Land Office as follows: "J. Ii,Walker Willfam Ii.McDonald Bascom Glles Total "Beglnnlng~.atthat time collectionswere made on these accounts to the point where the entire amounts shown due by J. H. Walker and Bascom Glles have been satisfactorilyaccount- ed for, and a total of $69.25 was collected on the William H, McDonald accounts, This .- - 1 .-~ . _ Hon. C, H, Cavness - Page 2 (V-901) leaves a total balance due of $1,551.65 on said McDonald accotznts. It ueems to us steps should be taken to collect this balance but of course it is out of our province, and your advice in the matter will be greatly apprecfated," We have discussed this letter with Rr, Grady Starnes of your Department,and, a8 we understandhim, you are not inquiring as to whfch department 01"offf- clal has the duty of inftiatlnglegal actfon to collect the amounts due the State, but your questions are as follows~ 1. Is it the duty of the Commfssionerof the General Land Office to make a written demand against the debtor for payment of delinquent sums due the State of Texas under Art, 3918, V,C.S.? 2. If the above question Is answered fn the negative, then which head of department or State Offf- cial has the duty of making demand? We answer your first question fn the afffrm- ativeand hold that the Commissioner of the General Land Office has the duty of making demand for the payment of delfnquent accounts incurred under Art, 3918, V.C,S, Generally. the Caamnfssfonhas onlr those oowers. duties, and respon~~bflftiesconferred State v, Post, 169 S.W. 401 (Tex, Cfv, other grounds, 106 Tex.500, 171 statute, given custody,and-controlof all accounts in the General Land Office (AI%. 5262,v.c,s,)and the general con- trol of the Land Office (Art. 5251, V.C,S.). He also has such implfed powers as ape necessary to the fulfillment of his express 46 C.J,1032, Officers,Sec.287; 34 Tex. Jur. 44$~%cers, Sec. 68. We believe the makfng of a demand for payment of sums due the Land Office rests upon the Colnfssfoner by virtue of the above cited authority. In Attorney General$s Opinion V-791, dated March 24, 1949, It was held as follows: .c Hon. C. H. Cavness - Page 3 (V-9011, “It la the dwty of Land Commissioner to asoertaln when Interest Is due on delln- quent bonus, rentals and royalty and to make demand therefore” (Emphaslls-) Attorney Qeneralts Opinion O-5332, date& July 22, 1943, holds that the Commiaslonerla without authority to extend credit In respect to fees required layArt,3918, v,c.s. The opinion also says: “In your letter you Inquire upon wbem rests the reaponulbllltyto collect accounts for ,theservices of ~,the CommissionerIn tiling documents and for certified copies, etc. under said Article 3918, Revised Civil Statutes. Since there la no authority on the part of the official to create such accounts, there Is no statutory provision with respect to the collectionthereof. The official bond of the official protects the rights of the State to receive the fees provided for In said Artl- cle 3918,” We Interpret%he above quoted paragraph to hold that the Land CommlsaionerIs without statutory authority to Initiate legal action for collection;and It does not, therefore, conflict with our holding In the present opinion, The duty of making demand rests upon the present Cou- missioner for Indebtednesscreated during the term of a predecessor. 46 C.J, 1035, Offfaers, Sec. 301 says: “As a general rule, dutlas lmposed~by law on public officers are functions and a$trlbutes of the office; and they remain, although the in- cumbent dies or Is changed, and are to be per- formed by the Incumbent,although they MJ: have been left undone by the predecesror, See also 34 Tex, Jur. 449, Public Officers,SeC.~. Since the first question Is answered~~inthe afflrm- atlve, it will not be necessary to answer the second quel- tlon, Hon. C. P. Cavnea8 - Page 4 (V-901), SUEMARY The-Commlsalonsrof the General Land OffIce has the duty of makIng a demand against debtors for delfn uent accounts incurred under Art, 3918',V.C.S. YourB VepJrfruly ATTORNEYGERRRALOF TEXAS ,JW:bt APPROVED