Honorable T. T. Sanders, Jr.
Assistant Crominal District Attorney
Edlnburg, Texas
Dear Sir: Opinlon No. O-1066
Re: What Is the procedure to pay the re-
cording fee in the case of Valentin
Ramlres, described, and the procedure
necessary to sell the property for
cash and dispose of the proceeds?
Your request for an opinion on the above stated
question has been received by.this office.
Your letter addressed to Honorable Gerald C. Mann,
Attorney General of Texas, reads as follows:
"Pursuant to a conversation had with you
personally over the telephone, on April 4, 1939,
our office received a telegram from you author-
izing this office, on your behalf, to purchase
at execution sale certain real property located
in this county.
"This sale was conducted in accordance
with Article 4401, Revised Civil Statutes of
1925; and was for the purpose of completing the
forfeiture of a bail bond of the above defendant.
"The amount of judgment which the State of
Texas recovered in this connection was $l,OOO.OO
together with the court costs In connection there-
with; thereupon a writ of execution was issued,
and the property sold in compliance with the statutes
governing executions. At the sale, this office
purchased the property for the State for $500.00
"The Sheriff of this county has executed
the Sheriff's Deed to said property to "The State
of Texas". Upon the delivery of this deed.to the
County Clerk of this county for recording, he re-
fused to accept the same without a guaranty as to
the payment of the recording fee; and the deed
remains in the office of the Sheriff.
Honorable T. T. Sanders, Jr., page 2 O-1066
"This office would like to ascertain from
your department the procedure tc pay the record-
lng fees In this connection, and also the pro-
cedure necessary to enable either your department
or thls,offlce, working in connection with your
department, to s&l this property for cash, If
possible, and the disposition of the proceeds
received therefrom."
Articles 4401, 4402, and 4403, of the Revised Civil
Statutes, read as follows:
"Article 4401. If any property shall be
sold~by virtue of any execution, order or sale
issued upon any judgment In favor of the State
or sale by vlrtue.of any deed of trust - except
executions issued upon judgments In cases of
sclre faclas the agent representing the State
by and with the advice and consent of the Attor-
ney General Is hereby authorized and required
to attend such sales and bid on and buy in for
the State said property when It shall be deemed
proper to protect the interest of the State In
the collection of such judgment and debt. His
bid shall not exceed the amount necessary to
satisfy said judgment and debt and .a11 costs due
thereon.
"Article 4402. In all cases where prop-
erty 1s so purchased by the State, the officer
selling the same shal?~execute and deliver to
the State s deed to the same, such as Is prescribed
for individuals In similar cases.
"Article 4403. The agent or attorney of
the State buying for the State such property
at such sales shall be authorized by and with the
advice and consent of the Attorney General, at
any time to sell or otherwise dispose of said
property so purchased.In the manner acquired and
upon such terms and conditions as he may deem
most advantageous to the State. If sold or ais-
posed of for a greater amount than Is necessary
to pay off the amount due upon the judgment or
debt, and all costs accrued thereon, the remain-
der shall be paid into the State Treasury to the
credit of the general revenue. When such sale is
made, the Attorney General shall, in the name of
the State, execute and deliver to the purchaser a
deed of conveyance to said property, which deed
BoMisbls T. T. SsuQers, Jr., .Pags S
the 8s~. awh se 18 prwerlbed fbr la-
dirlQt1al8 in similar 08808.
%rtlob 4403. Tha sgmt or attor-
ney 0r the state -buying ror th* stat8
8uohproperty8tMh8akrrcrballbsap-
thori?.eQ bf anA with the drioa and ooa-
sent or the Attorasy Qaa ml, at say
tiu to .een or othomi8a diapo88 or
said property 80 puroha88d'ln th8maw
wr aoguired 8aQ upoa aus@ tsras 8aQ
ooaditlons 88 he aai Qeimt nost sQwa-
tageous tj0 the 6tst8. fr sold or bLs-
pose&or ror a grsatsr amountthan is
aooossary to pay off the mount dw up-
on the. jaQgmentor debt, end all 008ts
aoerped thsraoa-tilts razna~erahnll be
paid lato tka State Tr8amry to the
om3dLt orthe mrsl ~veauo. whoa
suoh Sale i6Sl8&,th8AttOlZl+J~~L&-
al 8hal1, in th8 x1653 of the State, ax-
eotsto sad delimr W.tIu purcha88r a
Qoaa 0r ooavrryawn to 8aid' property,
whlok dead shallvmat iu the right8
a04 title to the saw in tks pmksser
thSWf.-
sootlon 1 of artlole selsa, Rsv2864 citi stat-
utes, r8sQs a8 r0n0rs:
ofrlo0r 8imllbepaI4
*sodi8triot
by the State of Tom8 any teaa or aem-
mlesloa ror any serrloe parformsby
hir; nor, shall the State or any oouaty
pa7 to any countyorrleer fn tin7oouaty
8 p0pul8tht1 or .h08ty tdurcr-
00nfainlo(5
8anQ.fS0,OWl lakabltsnts or more so-
oording to tbs last prsss~ Psdersz
c6mu8 43ayit38 QC eomml8sioaror *y
SOLOS by hit8 psrtOZ%M 88 8UOb Or&
osr; providsd, kowever, tkat tks sasoe
8or sad eollsotior or t6ma 8kall OQptSn-
us ta oolleot 8aQ retala for the bsnarit
0t tbs orrhw~ salary Rmd or mm
hsrelnafter provl&& for, all r808 aab
oomulssioas sd;liahhe l8 authorized rrnQ&
law to oolleot; ati it 8hrllbe hl8 d&by
",,03t f0r qt9Q to prsf aU craahW8
himintothsfuaQorfund8
oreatdi pru~iQ& ror us&or t&a pm-
Honorable T. T. Sanders, Jr., page 4 0-1066
perform some services without compensation having been pro-
vided therefor by law. Such Is held to be Incident to the
office, upon the acceptance of which the obligation to per-
form is imposed.
In the case of Burke, County Clerk vs. Bexar County,
271 S.W. 132, the court held that It makes no difference
whether fees are provided for or not, in cases of adaltlonal
official work when compensation Is left to construction, It
must be most favorably construed In favor of the government,
and the official will receive no additional compensation
thereof unless provision Is made for compensation.
We are Informed by the Comptroller's Office that
Hldalgo County had a population of 77,004 inhabitants accord-
ing to the last Federal Census, and that the county officials
of Hlaalgo County are compensated on a salary basis.
Section 1 of Article 3912e, supra, specifically
provides that the State or any county shall not pay to any
county officer in any county.contalnlng a population of 20,000
inhabitants or more, according to the last preceding Federal
Census, any fee or,commlssion for any service by him per-
formed, as such officer, excepting fees that the assessor
and collector of taxes shall continue to collect and retain
for the benefit of the Officers ' Salary Fund or funds there-
inafter provided In the Act, and costs -In clvll cases by the
State.
You are respectfully advised that It Is the oplnlon
of this department that the County Clerk Is not entitled to
a fee for recording the deed for the State mentioned In your
'letter.
You are further advised that the agent and attorney
of the State buying for the State the property mentioned in
your inquiry at the sale shall be authorized by and with the
advice of the Attorney General, at any tlme to sell or other-
wise dispose of said property so purchased in the manner ac-
quired and upon such terms and conditions as the Attorney
General may deem most advantageous to the State. The proceeds
of such sale shall be applied to the judgment and costs, and
that lf such property 1s disposed of for a greater amount than
Is necessary to pay off the amount due upon the judgment and
all costs of suit thereon, the remainder shall be paid Into
the State Treasury to the cedlt of the general revenr!e,and,
when the sale iS made, the Attorney General shall, in the
name of the State, execute and deliver a deed to the purchaser
conveying said property to the purchaser.
Honorable T. T. Sanders, Jr., page 5 O-1066
Trusting that the foregoing anawera your inquiry,
we remain
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s,fArdellWilliams
Ardell Williams
Assistant
AW:FG:wc
APPROVED JULY 29, 1939
a/W. F. Moore
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By R.W.F. Chairman