,OFFlCE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
April 28, lQS9
Honorabla E. 0. Garvay
Cottut Awlltor
Bexar County
San Antonio, Texas
IS an
lb2 Inins
8herlfr or olalmed
t him on aoeouut
18tratlon 0r hir,
dauthorlamthe
tor to rorwa to
hi8 salary warrant*
addrosaod to the
an oplnlon upon
Ire& and oaro-
lotter a oom-
Bexor Ueunt;r, aQdre68edto
0osuiQore~'in eonneotlon
'a lettmrim too lengthr to%o
i It 6oal rith tbeorotloalquestions
*sue8 ai Saot. Eonror, wo hare given
o.him lottor and from It and hour
~084 tha subataaoo of the oontromr-
d tho 0herirr. We quote TOPT latter
*The dmrltf oi Bexar Ceunty ha8 requested that
I write you r0r an opinion ooororlng
a oortaln matter.
8iYiOahia roqUeBt noem t0 explain the Patter rexy
thorot@ly X~am enolo8lng herewith oopy or him ro-
qtmet.
*In oompllanoswlth hi8 raqnemt, I an asking an
opinion rrom you oorerlng the r0iimi~ quastlons:
Qst. Are the type of olalm mentioned in his
Hon. E. C. Carvey, April 28, 1939, I'age2
request under (a), (b), (o), and (A), suoh types of
olalm that would oome under Artiolo 3912e, Section
19, Paragraph m, that would make It wmdstory for
me to refuse to oounterslgu his salary oheok drawn
against the Offlaers Salary Fund?
'2nd. xr only a part of these olaims are types 0r
a-8 that would oomo under Artiolo 39120, Seotlon
19, Faregraph m, state rhether they are olalms that
would OOPS under (a), (b), (o), or (A), ot the
sherirr*s roquest.
"3rd. Ii any or all of the olelms above mentioned
znot a typo of olalm ooming under Artlolo 39lZ8,
Seotlon 19, Paragraph P, are thoy olalms or llebil-
lty thet would bo held against the Shsrltr or Oon-
stable under any other statute? If so, stat0 tho
Art1010.
"4th. 8lnoo these are an aooumulatlon of olaims
oovorlug a period rrom JBL 1. 1931, to Dooember 31,
1938, against tho Oonetablo and Sheriff, whloh havo
been reported by me each year to ths Crlmlnal Dle-
trlot Attorney, are any of these olalms, whothor
under Artlole 39X%, Seotlon 10, Patsgraph a, or a
olalm ooming under any other part of tho Btatutee,
barred by llmltatlon?W
In oonhleratlon of the questions propounded br
you and of tho propsr answers to be mods theroto by this
department,ws think that we should first Alreot your at-
tention to ths llmltatlons plaooa upon the Attornoy Oenorsl
by Artlolo -9, Revised Civil Btatutos of lQZ8, wheroln It
Is provided insorer as oounty auditors ars oonoornoa, that
tho Attorney General "shall give them wrltton adrice upon
any question . . . touohlng their orflolal duties.* It Is
not proper that this department shall abvlso oonoluslvely
upon 00ntiovereial matters 0r raot, or as to what testimony
should be oonsldered b;la court in the trial of a oause, or
as to what judgment should be rendered by a oourt In the
trial of a oauee, for to do so would be to InvaAe the funo-
tlons or the jualolary.
We shall, therefore, oonrlne this opinion to the
lnterpretatlon of ths pertinent statutes bearing upon the
eubstanoe or your lotter so as to advise you with regard to
Hon. 5..C. Harvey, April 28, 1939, Pwe 3
your offloial duties with respsot to the mntters dlscusaed
in this oplnlon. In oonneotlon with paragraph (m) of Article
3912e, WB quote 80 much of thls Artiole and Sections as are
deemed pertinent!
"(m) All moneys drawn from said Offioers* Salary
Funds shall be paid out only on warrants approved by
the oounty auditor. No warrants shall be drawn on
seld fund In favor of any person indebted to the State,
oounty, or to said fund or in favor of his agent or
asslgneo until suoh Aobt la paid, when notloe of auoh
indebtedness has beon filed with the oounty auditor..."
"(n) Eaoh Alstrfot, oounty and precinot offl-
oer shall keep a oorreot detailed statement of all
amounts earned by him and of sums ooalng Into his
hands as fees, oosts, ah& oomlsslons, in a book to
be provided for hlm by the proper authorities of
the oounty for that purpose In whloh the orrioer at
the time when foes or moneys are earned or shall
come into his hands shall enter the same in suoh
form as may be lawfully requixeA.W
It Is provided in paragraph (q) of Seotlon 19 of
the stated article of the statute, that a statement at the
alose of eaoh fiscal year shall be made by eaoh orrloer
theroln mentioned whloh shall be alreoted to the Dletrlot
Judge of the property oounty, and shall be submitted on
forms AeslgnoA and approved by the stato auditor; that a
oopy of suoh statenont shall bo fomardea to the state audl-
tor by the olerk of tho Alstrlot oourt within a given tlma
and that one oopy shall bo filed with the oounty auditor.
This seotlon also provldss in substanos that the statement
shall show the amount of the rees, oommlsslons and oompon-
satlons earned by tha orrloer aurlnp the rlsoal year ana the
amount of fees, oommlsslons and oompensatlons oolleoted by
him during suoh year and their Alsposal, and it shall oon-
taln an ltemlted statement of all rees. oonnsisslo~ and
oompensatlons during the rleoal year whloh were not oolleotsd,
toaether with the style of the oase. the name of the party
owln~ euoh fees, oo~lsalons an4 o&pensstlons, and the -
nature of the saourlty for ooAt.8,and the reason for non-
oolleotlon. The balanoo of this paragraph and seotlon Is
here quoted oerbatlm, to-wit!
"For failure to file said report said offloer
shall be subjeot to removal from orfloe. The oounty
auditor shall audit euoh report and file his report
Hon. E. C. Cm-my, kprfl 26, 1939, Page 4
with the Commlsslonersl Court, and said oounty
auditor also shall prepare and file with the Als-
trlot or criminal dlstrlot attornoy a detailed
report 0r all r0e8, oomm.lsalons,and oompansatlons
unoolleoted which have been due and payable to any
officer of the county ror a period of more than six
(6) months; and a rrlmllarreport or all re08, oom-
nieslons and oompeneatlons oollooted by MIA offl-
oers and not reported by them and a list of oases
filed alnoe January 1, 1936, in whloh any oounty or
dletrlot olerk or justioe of the pesoe has not taken
adequate seourlty ror ooats or requIreA a peuper's
oath."
You are advleed that the word wolalmW and the word
"debt.*aro not necessarily synonymous, and that they are not
believed to be so used in these statutes. This la made evl-
dent by the pmvlslone of Paragraph (q) above referred to and
quoted. It must be contemplated both rrom the language of the
statute and In reason that ln the event of suit against the
sherift, as provided for In euoh statuto, ha mlpht establish
sufflolent reasons, wlthln the purview of tho law, why rees
whloh had aoorued In oortaln oases had not been collected,
or In other words, a valid defense to the suit.
Tho bgislaturo did not mean that the oounty auditor
should, merely beoause rm8 his at&It or tho shorirr*saooount,
he Is of the opinion that tho sheriff had been Aerellot in
oolleotlng tees or that he had msdo oolleotlons whloh he had
not aoootmted ror, ho, the auditor, should oxerolse tho au-
thority of wlthholalng the lasuanoe or the shorlrr*s salary
warrants. To give the auditor suoh unllmlted authority would
be to deprive the sheriff of his day ln oourt and to inpose
-upon him a penalty without a judicial hearing.
The stntuto makes It the duty of the Dlstrlot Attorney
upon the oondltlons and for the reasons named thoreln to lnstl-
tute a suit to oolleot the teea ror whloh the aherlrr Is thought
to be liable, with respect to any supposed derault upon his
part, either to oolleot fees or for fees supposedly oolleoted
and not aooounted ror. Until In suoh suit a judeplenthas been
rendered against the sheriff, the aseerted and unllquldeteA
olaime against him by reason of thsae matters do not heve the
absolute status of a “debt* within the purview of the law.
Ordinarily, you will have discharged your full duty under the
: -
. -
Hon. E. 0. Oarmy, April 28, 1939, Page 5
law 91th raapeotto tha lharIff*eatatammt when you aball
hatO 8uait8a the awe ana riha with the Dietriot Attommy
the ~reportw praaorlbea in the last quoted laotlon or the
atatuta,lup r a .
Itahouia furtherba borne inrinathattha lhmrI.fr
la raqulra6to auouta an orrlolalbond In an oaount a&
0ondltIonadam ra~uIra4by law rot the ralthralparr0~1308
o< hla oWlolal dutlaa,ana ordlnarll~auoh'bpnanoul4 k
miilolant protaotlont&the atate and awuty for rttan of
odaalon and oomIaalon by the aharIff In the aiaohuga or
him dutloa raquSraduuaar the law. Only in maem where
thara 0r8 LID augpakd ia8~aa or raot lmoivad; +hat 18 ti8n
tha 'olairagalxfatan orrloarham aoqulradfhq'otatusof a:
debt am herein dailnad, should the auditor'u- the-p&~
rogatlwboi ~ithbt~ldingthe orrloar*a salaryw8rr~t. rru-
tk-ro, in aaalth tctha~othar raaaou a8algm6;'tkara
la;,;?
~++ poliOy rhy tha$a+ion should aog~ba takan.
'..
Is 0-t fib9w ttm.opini~n PO- a8rinit8 in W;W
dthe’rbrurr whloh the quaatlona
in arm mubilttatl to the
Attohay 06naral*aDapartmant.
to anawr thk fourth
Thledapirtmnt ~daolinaa
~88tfonw8adn8a in m.l*tter r0rtb 7~4eri0i8nt
raaa@.tbat whatbar or not tha ltatutaa ot-liritatIon.may
k~&@@kariOly pluaaa .in.
auy oaaa la 0rdlimHly a riud
qua*tS&n of law a* iao&and It la aluayadmntte rm
deturlrutian or th8:0oort..
Youra wary tlQly
u. T. llhra
hat Aaalatant