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                            TEEATSORNEYGENERAL
                                        OF   TEXAS




                    Honorable Wayne Burns      Opinion No. C- 190
                    County Attorney
                    Howard County              Re:    Whether a check depart-
                    Big Springe, Texas                ment established by the
                                                      sheriff and operated In
                                                      the manner outlined is a
                                                      legal or permissive opera-
                    Dear Sir:                         Mon.
                          Your request for an opinion from this department has
                    received our attention.   We quote from your letter of
                    October 18, 1963,is follows:
                             "In Howard County.there has been es-
                         tablished In the Sheriff's Office a depart-
                         ment known as the 'Check Department'. The
                         Check Department has employed two deputized
                         ,clerks to handle the procedure outlined below;
                         the salaries of the two clerks are paid from
                         county funds. The clerks are bonded slnoe
                         they are required to handle money in their
                         duties. This department Is supervised by
                         the Sheriff.
                             "This department deals with all question-
                         able checks called to their attention by the
                         merchants or payee8 of the checks. This neoes-
                         sarily includes insufficient funds checks, un-
                         able to locate account, account closed, endorae-
                         ment cancelled, forgeries, etc., of all amounts.
                              "The department in Instances where It is
                          deemed necessary, conducts an investigation in
                          order to determine the name and whereabouts of
                          a checkwriter. In certain cases where the in-
                          tent to defraud on the part of the checkwrlter
                          Is obvious, the check is immediately referred
                          to either the District or County Attorney for
                          filing of appropriate criminal charges.
                              "In a typical case the following procedure
                          Is followed. The merchant of payee of a worth-.
                          less check brings the check to the check depart-
                          ment for processing in the following manner.
                                              -920-
Honorable Wayne Burne, Page 2 (C- 190)


      First, the Check Department encourages the
      merchant or payee of the check to make some
      effort, Insofar as it Is possible, to notify
     .or advise the checkwriter that the check was
      not 'pald.
         "At the time the merchant brings In a
     check, It Is Inquired as to whether or not
     the check was a hold or post-dated one, and
     if so, the check is, rejected -by the depart-
     ment. If not a hold or post-dated check, the
     merchant is asked to sign an affidavit to that
     effect, a oopy.of which is enclosed. At this
     time, the merchant is asked whether he wishes
     the department to mall a notice to the ch,eck-
     writer by certified ,mall with a return receipt
     and the.merchant is advised that should it be-
     come necessary to flle,chargee on the check
     that the.notlce muet be sentby certified, not
     ordinary mall. The merchant then la required
     to pay the department postage necessary to
     send certified mail.
           "The Check Department fills in some forms,
     copies attaohed,~at the time the cheek is"
     brought to the department. These forms consist
     of a,relmbursement cheok',(whlch1s signed and
     mailed to the merchant should the check be paid
     later); a copy containing Information about
     the check which la placed in a master   file and
     filed numerically, containing all the cheok-
     writers kept In the department (should a case
     be filed, this form 1s left,with the County or
     Dlstrlct Attorney for hle ~flles), and the next
        rtlon of the form 1s divided In two parts
     r one  part 18 sent to the checkwrlter as a notice
     and the other part is given to the merchant as
     a receipt for the check turned in) and the last
     form Is one containing Information about the
     check, or checks, which Is filed with the actual
     check, alphabetically.
          "Specifioally, your opinion is desired as
      to whether or not a Check Department established
      by the Sheriff and operated In the manner out-
      lined above is a legal or permissible operation."
      We quote from your letter of November   8, 1963,as follows:


                          -921-
Honorable   ,Wayne   Burns,   Page 3   .(C;   190   )




          '(Atthe Inception of the check depart-
      ment, both of the department clerks mentioned
      in my request for this opinion were authorized
      and'approved by the Commissioners Court. Fur-
      there,,the check department makes no charge
     ,whatsoever for checks that are collected, and
      the only,mon(typaid by the merchant is the a-
      mount necessary to send.the notice to the check
      writer."
      Article 380a of Vernon's Penal Code provides:
        .~,".AnyJustice of the Peace, -sheriff, con-
      stable or other peace'offlcer In this State,
      who shall,recelve~for collection or under-.
      take the collection of~~anyclaim for debt for
      others except under and by'virtue of the pro-
     .cesses of law prescribing the,duties of such
     .offlcers, or who shall receive compensation
      therefor except as prescribed by law, shall
      be guilty of a misdemeanor and upon conviction
      thereof shall be punished by a fine of not
      less than Two Hundred Dollars nor more than
      Mve Hundred.Dollars, and In addition to such
     -fine may be ~removed from office. Provided,
      however; that nothing herein shall be con-
      strued to prohibit any Justice of,the Peace
      who Is authorized by ,lawto act for others in
      the collection of debts from undertaking such
      collecti~onswhere the amount Is beyond the
      jurlsdlotlon of.the Justice Court.
      The case of Lombardlno v. Fireman's and Policemen's
Civil Service Commlaslon of'the City of San Antonio, 310 S.
 .   651 (TexXlvtApp. 1X%, error ref. n.r.e.1 involved an
appeal-f&m a judgm&Z of the~Dlstrict Court affirming an
order of the Firemen's and Policemen's Civil Service Com-
mission, dismissing a city detective from the San Antonio
Police Department, on the ground that he violated Rule 48
of,the rules and regulations of the police department. Such
rule provided:
          "All officers ahall obey all the laws-of
      the United States, State of Texas, and ordl-
      nances of the City of San Antonio."
The Court stated that Article 380a of the Penal Code pro-
hibits the collection of debts by any peace officer for com-
pensation. The Court of Civil Appeals affirmed the judgment

                                  -922-
Honorable Wayne Burns, Page 4 (C- Igo)



of the lower court and held that the finding of,the Commission
that appellant violated Artlole 380a was supported by sub-
stantial evidence, notwithstanding the fact that appellant
caused to be filed fan assumed name certificate showing his
wife as owner of the collection agency,  which wae operated
under the trade name of "San Antonio Creditor's Association".
      It 18 observed from your letter of November 8, 1963,
that no compensation is being paid to the check department in
the case before us; however, It should be noted that Article
38Qa not only prohibits the collection of claims for debts for
compensation but also the collection of claims of debts for
others except under and by virtue of the processes of law pre-
scribing the duties of such officers. No enactment exists
which prescribes as one of the duties of a sheriff, the col-
lecting of such claims for debts.
       We are therefore of the opinion that the procedure as
set out in your letters  of October 18, 1963, and November 8,
1963, Is unauthorized.

                          SUMMARY
          In light,of Article 38Oa of Vernon's Penal
      Code, It Is our opinion that the sheriff le not
      authorized to conduct the ,debt collecting pro-
      cedure as outlined above.
                                 YouxG3very truly,
                                 WAOGONER CARR
                                 Attorney General of Texas



                                               torney General
JPB:cg:br
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Al10 B. Crow, Jr.
Robert Flowers
W. 0. Shultz
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone

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