OFFICE OFTHE A-ITORNEY GENER/iLOFTEXAS
AUCTIN
Ronarable Quorge B. Sheppard
Comptroller of Publio Aooounte
Austin, Texas
Dear s1r:
on the: queationn
by this depart-
ed opinion you
of oHioa should
rri0er ~h00d t0n6
but 8hould -be ool-
ooessor In offioe. 10~ it
t thle ruliug will apply
partionlar, and possibly
foore who aollsbt fees frm
thereof, seoura the approval of the distriot
judgai atO?.
32
Honorable George H. Sheppard, page 2
“If your ansyer ie in the aifirmatlve,
then your opinion on the rollowing is re-
speotfully requested:
“A term Of court closes on
or about December 31st, making
it impossible ror the offloer who
performed the service to collect
his aooounta from the State prior to
January 1st. Ha retires from office
on Deoember Pat. Should such ao-
oounts be oolleoted from the State
.by the retiring offioer or his suoces-
SOI-?
“In felony oases where punish-
ment may be assessed as tine or jail
sentence, the State pays no rees to
any orfloer prior to- final dlsposl-
t1on. A sherirf perionns certain
service in suoh ease, but the ease
Is pending and therefore See is not
payable prior to the time he retires
froa.‘of floe. Subsequent to the time
he retiree frcol otfioe the ease is
dlsmlssed or otherwise disposed of
other than rine or jail sentence,
and fee beoomes payable. Should
the ofrioer who earned the ree file
claim or should it be oolleoted by
his suaceasor?
“Suppose the above mentioned
ease was continued for more than
twelve months from the time the
sheriff retired and was then dis-
mlss~ed--the fde was earned but did
not become payable--would. Article
3892 R. c. s. preolude payment to
the sheriff end require that the
present sharirf oollect from the
State and deposit with the ComtY
treasurer? n
Honorable George R. Sheppard, page 3
Article 3892 of Vemon*s Civil Statutes reads as
roii0w3:
nAny offloat_- mentioned
._ in this Chapter
who doea not colleot tne maxlmtueamount or
hJs fees ior any fiscal year and who reports
delinquent fees for that year, shall be en-
titled to retain, when 0olleoted, such part
Of eaoh.delinquent fees as Is aufrioient
to oomplete the QE~ximum compensation author-
ized By Articles 3883, 3883-A, and 3886
far the year In whioh delinquent fees were
oharged, aUa also retain the amount of SX-
oeas fees authorized by law, and the remain-
der of the deli uent reee~ ror that rieaal
year shall be p3. d as h&rein provided for
when oolleoted; proviq.ed, thi provlaions
of this Artiole shall not apply to any or-
flO8r after one year,Xrae the date he OBBBBS
to hold the oriioe to whloh any delinquent
fee 113due, and in the event th6~‘offloer
darning the fees that are delinquent ha,s
‘. not oolleoted the same wlthln twelve months
after he ,osases .to hold the ofrio,e, the
amount or tees colleoted’ shall be paid ‘i&to
the oounty treasury. Provided, however,
that nothing In thlrLAot preoludes -the pay-
ment of ex-oftiolo fees in aooordance with
Title 61 of the Revised Civil Statutes of
Texas, 1925, as part or the .maximumcompen-
sat Ion. Providetl, that any change made in
thie Artiole by this Aot shall not apply
to fees heretorore earned.”
&tic10 3891, Vernon’s Oivil Statutes as rol-
lows :
m* * *All fees due and no’t oolleoted;
as shown in the report required by Article
3897, shall be oolleot~ed by the OfflO0r t0
whose office the fees aaorued and shall be
disposed 0r by said orrioer in aooordanoe
tith the provisions or this Aot.* * *”
Honorable George 8. Sheppard, page 4
In an opinion written Marah 17, 1933, by
Donorable Eomer C. DeKolfe, Anslstant Attorney Oeheval,
alreotea to Eouorable X. C. Barkley, Criminal M0trlOt
Attormy, Eoustm, Texas, this departmeat held that au
orrhr who rails to OolleOt his maximumand exe088 feea
for a flroal par, and rho has reported dillnqueaO&e8
ia that year irr entitled to retain, nhen oolleoted, de-
llnqpent tee8 miffloient to complete his rpaxipuuDand 0x..
oeae for the year in whlah the delinquent fear were
obarged.
While ArtIdle 3894, Revlead Civil Statutes,
1925, has been repealed, all fees atust be oolleoted by
the orrioer to whose orrioe the geea aooruea, and ma
ho has retired from offioe, he no longer hae any author-
ity to oolleot fee8, even though the same were eerh0d by
hlm. When delinquent fee8 are Oolleoted, the offlOev
oolleotiug the same should pay thm oter to the retired
offioer until suoh retired oftlcer has reoeived &I0 ~mxl-
mumand exqees.
The Supreme Court ot TexaB ln the Oase 0r x1316
County v. Thompson, 66 8. 81. 48, aaId:
Vhcmpson had ocsased to be the orrioar
to whose offloe the,?ees aoorued,and had
no authority to OolleOt the money after he
wtd lout or orrioe.*
It ia our opiuion that the above quotatfcn 1s a
oorreot expression OS the law aa it exists now, even though
Artlola 3892 has been repeal6d, and that the only material
change In the law by reason of the repeal of this axtiole
was that thereafter the offloer makin the oollectlon wan
z entitled to a peroentage or the smouut oolleoted by
.
AS eupporting thlrr aoaalusion, re call you at-
t0ntlon to the faot that under the proviaioaa or the fee
law MW in efleot, the fees, earned by OfflO6ra are re-
rem& to ag feea. of offloe and not as fee0 belonging to
the Individual who earned them. In Xeoh(M on Pnbllo of-
fioers, it Is stated:
e&g hss bea 8eon, the relation between
the offlOer and the pub110 IS not the creature
of ooutraot, nor is: the orfloe itself 5 oon-
traot. 80 his right to aompensation Is not
the oreature or oontraot. It 02it3t8, it it
exista at all, as the Or0atian Of law, and
aen it EO eriebe, it belongs to hb ‘not by
32
Honorable George H. Sheppard, page 5
forae of oon*.raot, but because the law at-
taohea it to the .o?fioe. n
It will be further noted .that under the pro-
visions of Artiole 3897, Vernon’s Civil Statutes, re-
lating to the;.reports required to be filed, the offioer
is only required to rile a report for a @@I.:-gear;.:,
and that there is no pr@islon requiring a. report to be
filed a8 to fees oolleoted by the ,offioer after he retires
from orrg~e. If the retir’ad officer had the right tb ool-
lect dtiinquent fees earned by him, then it would be &a-
possible to determine the amount whioh he was authorized
to retain under the provisions of the fee law, and to de-
termine the amount of excess tees payable to the county.
It has been repeatedly held by this department
that the oifioer:~ whose term of oifioe has terminated has
no right or authority to colleot delinquent fees which are
due him, that such fees shall -be oollected by the offloer
to whose office the fees acorued, and shall be disposed of
by said orrioer~: in accordance with the provisions of the
laws governing the same.
In a case under the following faots, “A dlstriot
olerk, prior to going out or ofrioe, riles all papers in
the 0888, completes transcripts In the, Court of Criminal
Appeals, and then retires from oifioe. His successorls
.duly elected and qualifies. The fees in the case held
and tried in the former administration are now due and
payable under the latter admlnlstration;n This department
held in a letter opinion addressed to you on August 10,
1934, that:
“Although the fees you mentioned Would be-
long to the ,flrst district :olerk under the Clr-
oumstanoes set out by you, since the servioea
were completely parronaed by the first district
clerk, (Hake v. simondon, 46 S. PJ. (26) 1013;
Barues v. Turner, 27 S. W. (26) 532; f.hmerOn
county v. yox, 61 s. w. (26) 483) it 1s mY
opinion that such fees would be delinquent
fees; therefore, they would be payable and
collectible by the second district clerk by
virtue or the provisions of Artiole 3892, 8s
amended, Revised Civil Statutes. P&en so ool-
leoted by the second district clerk, they would
325
Honorable George H. Sheppard, page 6~
belong Inpart to the first distrlot clerk,
provided the latter clerk reported them as
delinquent reea in the statement required
by Artlole..3897.-as amended, Revieed Civil
Statutes, and provided that the first district
olerk ha8 not already oolleoted his maximum
oompensation. Asstated, however, the proper
person to receive payment Of such fees, fs the
aeoond distriot Clerk."
Articles 1033, 1034 aa 1035, cod0 or Crlm-
Prooedure, read .a8 follows:
wAr;i 1033. Offlpar shall make out cost
“Before the close of each term of the
di8triOt oourt; the distrlot or oounty at-
torney, sherlrr and ~olerk of said oourt
ahall each make out a bill of the oosts
olaimed to be due them by the State, re-
8peOtiVdly, in the felony oa868 tried at
that term; the bill shall ehbw:
"1. The style and number of each oase.
"2. The offense, oharged against the
defendant.
"3. The term of the court at whloh
the oase was disposed or.
"4. The disposition of the oase, and
that the case was finally di8paed or, ma
no appeal taken.
“5. The name and number of detendants;
and, if more than one, whether they were
triad jointly or separately.,
"6. Whdra each derendant was arrested,
or witness served, stating the county in
which the service was made, giving distanoe
ana dlreation rrom county seat pi ooimty
In which the prooess Is served.
Honorable George H. Sheppard, page 7
"7. The oourt shall inquire whether
there have been, several prosecutions for
a transaotionthat 5s but one orren8e in
law. Ir there Is more than one prosaoution
for the same traneaotlon, or a portlon there-
Of, that ooulu he~e been oombined in one in-
dlatment against the 81~1) defendant, the
judge ahall allow fe88 to sheriff8, clerks
and distrlot and county attorney8 In but
one proseoution.
"8. Where the defendant8 in a case
have aerered on the trial, the judge ehall
not allow the charges ror service 'or process
ana mllaage to be duplioated In eaoh ease a8
trfed; but Only such additional fee8 shall
be allowed as are cmnsed by.the severanoe."
"Art: 1034. Judge to examine bill, etc.
"'The District Judge, when any auoh bill
iS presented to him, shall examine'the same
Oarefully,,.and &nqUire~intO the oorreotn888.
thereor, and approve the acme, in whole or
in part, or disapprove the entire bill, as
the rat%3 and law may require; and’ such ap-
proval shall be oondltloned only upon, and
subject to the approval of the State Comp-
troller as provided ror in Article 1035 or
this Code, and the Judge's approval shall
80 atate therein; ,and 8UOh bill, with the
a&ion of Ju&e thereon, shall be entered
on the minutes of said Court; and famediate-
lp on the rielng of said Court, the Clerk
thereor shell make a oertified copy rrom the
minute8 of said Court of said ‘bill, and the
aotion of the Judge thereon, and send 881118
bp registered letter ,tO'the Comptroller.
Proyiaed the bill hereinreferred to shall
berore being presented to such District
Judge, be rlrst presented to the County
Auditor, if such there be, who shall care-
fully examine and oheok the same, bnd shall
make whatever recommendation8 he shall think
proper to be made to s~uoh District Judge re-
lating to any Item or the whole bill.
327
Honorable George H. Sheppard, page 8
"Fees due District Clerk8 ror reoord-
ing sherlrt's aooounte shall be paid at
the end of 8aid term; and all fee8 due
DistrictClerks for making tran8oripts on
ohanue of YenUe and on appeal shall be paid
as soon a8 the servloe is performed; and the
Clerk's bill for 8uoh re8S shall not be re-
quired to show that the oase ha8 been flnal-
ly di8po8ed or. Bills for fee8 for such
tranecripts shall be approved by the Di8triOt
Judge a8 above provided, and with the 88818
oonditions, and when approved shall b8 re-
corded as part of the mlnuterr of the last
preoeding term of the Court.
*Art. 1035. Duty 0r Comptroller
YThe Comptroller upon the reoeipt of
such olaim~and said oertlfied oopy of the
mixnate of said Court, shall olosely and
aarefullj examine the s8me, and, if.he deems
the same.to be correot, he shal.l~draW his
warrant onthe State Treasurer for the amount
round by him to be due, and In favor Of the
offloer entitled to the same. It the approp-
riations ior'peying suoh accoUnta 18 exhausted,
the ComDtroller shall rile -the sametmay, ii
foturd to.be oorreot, and IseUe a certifloate
In the name of the offioer entitled to the
mane, etetlng herein the amount of the claim
and the oharacter.of th8 service8 perrormed:
All suoh olaims or accounts not cent to or
placed on file ~inthe office of the Comptrolti
wlthln twelve (12) month8 from the date the
same beoomes due and payable shall be forever
barred.~"
Artlole 16560, Vernon's Civil Statutes, provide8
that the State Comptroller of Public Accounts ahall pre-
scribe.and prepare the rOZ7Ji8to be used by all county Of-
riCidL8 in the colleotion Of oounty revenues, funds, fee8
and other moneys, and in the di8bUrsement of all funds,
ehall prescribe the mode and manner of keeping and stating
their aooounts, which forms shall be 8o'prepared as, in
328
Honorable Oeorge H. Sheppard, Page 9
the dudgment or the Comptroller, will meet the need8
or the oountles 0r dfrrerent sizes in the State.
Also, ohaptere 1 and S of tit10 15 or the
Code 0s Orlminal Procedure speoliioally raqulre that
oertain aooounts .presented to the Wmptroller for pay-
ment ahall be verified.
Thle department held in an oplnlod written by
Honorable Leon 0. Nosea, Aseieta~k Attorney Oeneral, on
February 15, 1935, that all fee8 due and not oolleotdd
when the orrloial earning the lame retire8 iron otti0e
should be oolleoted by the present enoumbent or the of-
rioe. We enolose a oopy 0r this opinion ror your oonyen-
ienoe.
In view or the roregolng authorities, in
anewer to your rirst queetlon, you are re6peotrully
advised thatlt is the opinion of thie department that
delinquitnt fees or orrioe cannot be oolleoted by the
aherirr or any other orrioer who80 term or orrioe has
terminated, but by his 8UOOOBBOr in orrloe.
The answer to your rfrst question necessarily
anaware your eeoond and third que8tlon8.
&8wuring your fourth question, you are adviattd
that ii suoh feel, are not oolleoted wlt!in one year after
the retiring orrioer has oeaaed to hold orrioe, tho orti-
oer to whoae~ofiloe the reefs aoorued s&all oolleot thea
rron.the etate hnd deposit suoh i%a8 wlth the oounty
treasurer.
Tru8ting that the toregoing ruiiy :answers 70tu
Inquiry, we are
Yotis very truly
AppROVmDEC 19, 1939