!y
Auwrq, TEXAS
PRICE DANIEL
ATTORNEYGENERAL
April 24, 1947
Ron. R. A. Barton Opi,nion No. v-151
County Attorney
Calhoun County Re: Whether or not the Comp-
Port Lavaca, Texas troller of Public Accounts
can pay sheriff fees under
Dear Sir: the facts presented.
..
Your .letter,requesting an opinion from this
Department on the above subject matter is as follows:
“I desire to request aa..oplnionregard-
ing the right of the Calhoun County Sheriff,
Mr. Leonard Fisher, to rece,ivepayment from
the State of Texas for fees due his office
groniag out of twoscases:
“Case No. 1061, a criminal case, nhere-
in execution was had ,on the .9/26/44. Indict-
msnt was returned 11&S/44 and the causes dis-
posed of 11/18/46.
“Case No. 1068, a criminal case wherein
execution was had on the 8/5/45, indictment
returned U/21/45, final dispositionon the
12/3/46.
“Mr. George Sheppard has by letter at-
tached of January 17th, 1947 denied payment
of certain Items, .The.first case was the
charge of passing a forged instrument;the
second for the sale of mortgaged property.
Roth cases were disposed of by dismissal
on motion of the District Attorney. It is
true that neither case was a reducible‘case
as provided by article 1027 V. C. C. P. How-
ever ,i~n
this county and district the District
Judge has heretofore refused to approve any
fees until the case under indictmentwas
disposed of. For that.,,reasonIt has been
impossiblefor the sheriff’s department to
submit to thenComptrollerhis statement of
fees due within a year from the date of
Eon. R. A. Barton, Page 2, V-151
indictmentor execution, unless the case
was disposed of within that time.
"Under that state of facts.lt la M-
just to deny this claim for fees. I find
no cases as to when a fee may become due.
Certainlya fee that doe& not have the Dis-
trict Judge's approval certainly Is not
due. There is no mandatoyy requirement
upon the judge to;approve a fee in such
causes until after final disposition.
"Under those facts Is the sheriff of
Calhoun County not entitled to his fees."
We quote the following from a letter written
to the sheriff'by Hon. George H. Sheppard, Comptroller:
"I hereby acknowledge receipt of your
District Court Account for the November 1945
and November 1946 Terms of,Court submitted in
the amount,of $161.20.
"In Case No. 1061 I note that the service
was performedSeptember 26, 1944, and as the
offense was ofta non-reduciblenature, and
the claim should have been~presentedto this
office within twelve months from the end of
that Term of Court. In Case No. 1068, the
offense was of a non-reduciblenature and
the claim should have been presented wLthin
one year from the end of ,theApril, 1945,
Term of Court. Your account will be redwed
by $4.00 and $110.20 on the above cases. I
wish to call to your attention regarding the
above catlea,'ArticleX027, V.C.C.P. and Ar-
ticle 1035 V.C.C.P. If'any dates or terms
of courtssubmitted on the above oases are in
error, do dot hesltate to notify me.
"I,am encldsing Warrants Nos. 333910 for
K5P&Oc~;~s3~3923 for $13.50 in payment ,ofthe
Article 1035, V. C. C. P., prior to being
amended in 1931, provides:
"The Comptroller upon the receipt of such
claim, and said certified copy of.the mlnutes
-
i:.
Hon. R. A. Barton, Page 3, V-151 2sw
of said court,.shall closely and carefully '..
examine the.same, and, if correot, draw.his
warrant on the State Treasurer for 'the.amount
due, and in favor of the officer entitled to
the same. If~the appropriationfor paying
such accounts is exhausted,, the-Comptrol1e.r
shall file t:he'same away, if correct; and
Issue a certificate in the'name of the 'of-
ficer entitled to,the same, stating there-
in the amount of the claim and the eharaoter .
of the services performed. All such claims
or accounts not sent to or plaoea on file in
the office ~of the'comptrollerwithin twelve
months --
from~.
the.date of the.final disljos~Ltton~
of the case in which the services were render-
ed, shall forever barred." ,(Underscorlng
ours)
'~ Article 1035,~V:C.~C. P., as amended by Acts
1931, k&d legislature,p. 239,'provides:
.~ .~
"The Comptrollerupon the receipt of such
'claim,and said ~oertifiedOopy of the minutes
of said Court, shall cloae.)yand carefully ex-
amine the same,'an@ If herdeems the.sams to be
correot, he shall draw his warrant on the State
Treasurer for the amountfoundby him to be due,
and in favor.of the officer entitled to the
same. In the.appropriat$onfor paying such-ac-'
counts is exhausted, the Comptrollershall file
the same away, if found to.be correct, and is-
sue a .certiflcatein the name of the officer
entitled to the sams, stating here the‘amount
of the claim and the character of the services
performed.. All suoh claims or accounts not
sentto or placed on file inthe office of the
Comptroller,withintwelve (12) months from m
date the same becomes due and payabl; -1 be
forever barred-derscoring ours
Article lOZ7',V. C. C. P., provides:
"In all cases where a defendant is in-
dicted for a felong~but under the indictment
he may be convlkted of a misdemeanoror a
felony, and the punishmentwhich may be as-
sessed is a fine, jail sentence or both such
fine and .imprisonmentin jail, 'theState shall
Ron. R. A. Barton, Page 4, v-151
pay no fee& to any officer except where
the defendant Is indicted for the offense
of murders,until the case has been f lI$ally
disposed of’in the trial court. . . .
It will be noted that prior to the 1931
amendmentArticle 1035 provided that all olaims in
“non-reducible”oases not sent to or placed on file
in the Comptroller’soffice within twelve (12) months
from the date.of final dispositionof the case, would
be forever barred. The 1931 amendment to Article 1035
changed this provision to provide that all claims or
accounts In non-reducibleoases not sent to or Dlaoea
on file in the Comptrollerls office within twelbe
months from the date -----
the same became due and payable
EiG barred.
Article 1027 provides that la “reducible”
cases (except murder) no fees shall be pald by the State
to any officer unt11 the case has been flnally alsposed
of in a trial court0 Said provision implied that 111all
other cases fees would becollle
due and payable prior to
the disposition of the case. This lmpllcatIon becomes
stronger when construed In the light of the 1931 amend-
ment to Article 1035. The $eglslature,by said amend-
ment, changed thendate ‘fromwhich llmltatlon.would be-
gin to run In “non-reducible”cases to the date the
claim became due and payable ‘insteadof the date of
the final diepositionof the case in which the services
were rendered. Therefore, the Legislaturehas now made
it mandatory that all claims In ~Rnon-reaucible”cases
not filed with the Comptroller wlthti twelve month?
from the date the same @oomes due and payable shall bs
forever barred.
There is no indication from your le,tterthat
the claims for fees were submltted to the District Judge
for his approval prior to the final disposition of the
case. If the claims had been sublnitted to the District
Judge and the Distriot Judge had refused to approve
same, the sheriff would have had his releedyin court as
set out in Biafora vs. Robinson, 244 9. W. 807.
Since the claims presented to the Comptroller
were based eonoffenses of a “non-reduclbleDnature,
such claims should have been presented to the Comptroller
within twelve months from the da.tethe same beoams due
and payable. me Comptrollerhas oonslstentlyand un-
lformly construed the ltnguage “from the date the same
becomes due and payable In such cases as meaning the
close of each term of court after the service by the
Ron. R. A BaTton, Page 5, V-151 ~‘~
’
sheriff has been.r&dere,d.~,Thls~,coastruotion”
is based
on the provlsions’,ofArticle 1028;.V.%:C.P’;,
.Qhich
provides:
“All fees accruing under the two suc-
ceeding article’&shall be due and payable
at the close of each term,of the .distrlot
oburt, after being’dtiy approved, exce t
as provided for in.subdivisions7 and 8
of said articles, which shall be paid
when.approved by the judge,,underwhoae
order the ~writwas issued.
We quote the following from 39 Texas Juris-
prudence, pp. 235-237:
.~~“The
.courtswill ordinarilyadopt and
uphold-a’‘construct
Ion,,ljlaced
upon a statute
by an executive offleer or department charged
with its admlnlstratlon,if the statute is
ambiguous~or uncertain,and the cT;;t;;;iiOn
so given it Is reasonable’. . .
above stated is .partlcnlarlyapplicable to
an administrativecbtitruotionof long
standing e . . or vher& a flawthat has been
uniformly construe&by those’charged with
its enferceetit has.been reenacted without
a change of lan&a&e. n
In view of the foregoing, it is our opinion
that the claims for fees by the sheriff mentioned In
your request are forever barred by virtue of the maada-
tory provisions of Article 1035, V. C. C. P.
SUMMARY
Fees of a sheriff based upon claims
for services rendered in “non-reduoible”
cases become due and payable at the end
of the term of court in whioh the ser-
vices were rendered,and all such claims
not filed with the Comptrollerwithin
Hon. R. A. Barton, Page 6, V-151
twelve (12) months from the date the
claimsbecome due and payable are for-
ever barred. Articles 1027, 1028 and
1035, v. c. c. P.
Yours very truly,
ATTORNEY GENERAL OF !CEXAS
BY
Bruce Allen
Assistant
By 45f5v*
Assistant
JR:ajm:mrj