         !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




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