                                  The Attony          General of Texas

  JIM MAlTOX                                      .Jnly11, 1986
  Attorney General



 Supreme Court Building          Honorable Mike Dri:%:oll          Opinion No. JM-517
 P. 0. Box 12548
                                 Harris County Attmney
 Austin, TX. 7871% 2548
 512f4752501
                                 1001 Preston, Suit':634           Re: Whether a justice of the peace
 Telex 9101874.1367              Houston, Texas   7 7002           may be relieved of liability for
 Telecopier  51Z4750266                                            cash shortages in his account

  714 Jackson, Suite 700
                                 Dear Mr. Driscoll:
  Dallas, TX. 752024509
  214,742.0944                        You ask the f,YLlowingquestions:

                                              1. 'An the commissioners court and county
  4824 Alberta Ave., Suite 160
                                           auditor relieve a justice of the peace of
  El Paso, TX. 799052793
  915/533-3484                             liability for cash shortages in his account?

                                              2.  IE  so,  what is the procedure ~to be
“31     Texas, Suite 700                   followed, in relieving him of this liability,
    aston,   TX. 77002-3111
                                           other tiim by cash payment?
  713l2255SSS

                                              3.  Can the statute of limitations bar the
  806 Broadway, Suite 312                  county's claim against the justice of the peace?
  Lubbock, TX. 79401.3479                  If so, tinatis the applicable period of time?
  SDS/747-5239

                                      In answer to your first two questions, we conclude that a justice
  4309 N. Tenth, Suite 6         of the peace is strictly liable for the money that actually is
  McAllen, TX. 78501-1685        collected by him. To the extent that cash shortages in the account of
  51218824547                    a justice of the j)saceconstitute shortages of public money actually
                                 received by the :ustice of the peace, the commissioners court and
  200 Main Plaza, Suite 400      county auditor may not relieve him of that liability. It also is our
  San Antonio, TX. 79205.2797    opinion that the statute of limitations does not bar a county's claim
  512f225-4191                   against the justice of the peace for such funds.

                                      It is settled Law of this state that the conmissioners courts and
  An Equal Opportunity/
  Affirmative Action Employer
                                 public officers OE the counties possess only the powers and duties
                                 that ars expressl!r
                                             _       conferred on them by law or that are necessarily
                                 implied from the Express powers. See C&ales V. Laughlin, 214 S.W.2d
                                 451, 453 (Tex. 19+8); Fort Worth Cavalry Club V. Sheppard, 83 S.W.2d
                                 660, 663 (Tex. 1935).

                                      Article XVI, section 61. of the Texas Constitution, requires all
                                 fees earned by district, county, and precinct officers to be paid into
                                 the cdunty treasury where earned. The statutes provide that all fees,
                                 commissions, funds, and money belonging to the county shall be turned
                                 over to the count)'treasurer by the officer who collected it. In the



                                                              p. 2369
Honorable Mike Driscoll - P,sSe2    (JM-517)




manner specified by article L709a, V.T.C.S., the county treasurer
shall receive all money be:tongingto the county from whatever source
it may be derived. See V.'P.C.S.arts. 1709, 1709a; Code Grim. Proc.      .
arts. 53.08(e), 53.09.

     Texas statutes also direct county and precinct officers to keep a
record of and account for the money received by them. In a county
having a county auditor, the county auditor has a duty to examine the
records.

     Article 3896, V.T.C.S., provides:

             Each district, (countyand precinct officer shall
          keep a correct st,atementof all fees earned by him
          and all sums coming into his hands as deposits for
          costs, together k,ith all trust funds placed in the
          registry of the court, fees of office and com-
          missions in a book or in books to be provided him
          for that purpose, ,Lnwhich the officer, at the time
          when such depostts are made or such fees and
          commissions are earned and when any or all of such
          funds shall'come into his hands, shall enter the
          same; and it shall be the duty of the county
          auditpr in counties having a county auditor to
          annually examine the books and accounts of such
          officers. . . .

     Article 1651, V.T.C.S., states:

             The Auditor shall have ~a general oversight of
          all the books and records of all the officers of
          the county, distr,ictor state, who may be author-
          ized or required by law to receive or collect any
          money, funds, fets, or other property for the use
          of. or belonging to, the county; and he shall see
          to the strict enforcement of the law governing
          county finances.

     In addition, section :!7.001of the Government Code requires each
justice of the peace to give a bond payable to the county judge and
conditioned that the justicme of the peace will discharge the duties
required by law and "promptly pay to the entitled party all money that
comes into the justice's hand during the term of office."

     We find no provision in the statutes of this state that
authorizes a county commisf;ionerscourt and county auditor to relieve
a justice of the peace of liability for any public money that comes
into the justice's hands. Further, article III, section 55, of the
Texas Constitution, denies to the legislature the power to authorize
the release or extinguis'lment of any part of the indebtedness,
liability, or obligation of anyone to a county, except certain



                                   p. 2370
Honorable Mike Driscoll - Eage 3   (JM-517)




delinquent taxes. An agreszmentof the county to accept a lesser sum
than actually is due it is unconstitutional and invalid. --See Rowan
Oil Co. .v. Texas Employmr_nt Commission, 263~ S.W.2d 140, 144 (Tex.
1953); Bland v. Orr, 39 SW. 558, 559 (Tex. 1897); Ashburn Bros. v.
Edwards Co., 58 S.W.2d :'I.,72 (Tex. Comm'n App. 1933, judgment
adopted).

     Historically, Texas courts have strictly enforced the obligation
of a public officer to account for and pay over to the proper
custodian the public money that he receives. In Coe v. Force. 50 S.W.
616 (Tex. Civ. App. 1899, ,sritref'd), the court held that in Texas a
public officer is not a bsilee who is not responsible for funds lost
without fault or negligenc:s. It was no defense, to an action on a
public officer's bond for Eailure to account for public money that
came into his possession. that the money had been stolen by robbers.
In Poole v. Burnet Co., 76 S.W. 425, 427 (Tex. 1903), the court stated
that the "obligation to ke,ep safely the public money is absolute,
without any condition, expr'essor implied" and "public policy requires
that every depositary of the public money should be held to strict
accountability" for the money that comes    into h~is hands. The fact
that the bank in which the officer made the deposit failed did not
constitute a defense to his;liability. In American Idemnity v. State,
LO4 S.W.2d 68, 70 (Tex. Civ. App. - San Antonio 1937, writ dism'd).
the court approved language -from     another jurisdiction that the
custodian of nublic monev i.sa debtor and insurer to the extent of the
amount received and excusable for no losses except those resulting
from acts of God or the pcblic enemy. See also Bexar Co. v. Linden,
220 S.W. 761 (Tex. 1920); @nham v. Dies, 98 S.W. 897 (Tex. Civ. App.
1906, no writ); Attorney General Opinion O-6929 (1945):

     We conclude that the commissioners court and the county auditor
may not relieve a justice of the peace of liability for shortages of
public money that actually is collected and received by the justice.
It is our opinion, however, that the law is different as to funds that
are not collected by a justice of the peace who has used due diligence
to collect the money.

     Article 1619. V.T.C.S., provides:

             Fines imposed and judgments rendered by
          justices of the LNeaceshall be charged against the
          justice imposing or rendering the same. He may
          discharge said @debtedness by filing with the
          county clerk tL.e treasurer's receipt for the
          amount thereof, or by showing to the satisfaction
          of the commissioners court that he has used due
          diligence to coliect the same without avail, or
          that the same ha& been satisfied by imprisonment
          or labor. (Emphasis added).




                               p. 2371
IionorableMike Driscoll - PnSe 4   (JM-517)




     The courts have discussed the obligation of officers to pay into
the county treasury fees coL:Lectedand fees uncollected by an officer.
In State v. Glass;167 S.W.2d 296, 299 (Tex. Civ. App. - Galveston
1942, writ ref'd), the collrt affirmed the trial court's conclusion
that

          the sentence in Sec. 61, Art. 16, of the'Stat=
          Constitution, Vel:non's Ann. St., reading: 'All
          fees earned by district, county and precinct
          officers shall b? paid into the county treasury
          where earned for t:heaccount of the proper fund,'
          indicates an int.ention that all fees of every
          character collected by a county officer officially
          . . . shall becor;; fees of office . . . and any
          fees collected by 'himofficially must be paid into
          the county depository as directed by the constitu-
          tional provision. (Emphasis added).

In Rarris Co. v. Schoenbac:h,er,594 S.W.2d 106. 109, 111    (Tex. Civ.
APP. - Houston [Lst DistTr1979,      writ ref'd n.r.e.),    the court
determined that the person in question was an employee      and not a
public officer, but citing .theGlass case, disagreed with   the theory
that an officer cannot be liable for fees earned but not    collected.
The ~court stated that

             Article 3912e. V.A.C.S. is a    corollary to
          article 16, section 61. It provides in pertinent
          part:

             . . . .

              Sec. 5. It shall be the duty of all officers
          to charge and co:il.ect in the manner authorized by
          law all fees and conrmissicnswhich are permitted
          by law to be sssessed and collected for all
          official service performed by them. As and when
          such fees are collected
                             --    they shall be deposited in
          the Officers' Salary Fund, or funds provided in
          this Act. In event ;he Commissioners' Court finds
          that the failure 1:ocollect any fee or commission
          was due to neglect on the part of the officer
          charged with tt.e responsibility of collecting
          same,  the amount of such fee or commission shall
          be deducted from the salary of such officer.
          Before any such deduction is made, the Commis-
          sioners' Court shall furnish such officer with an
          itemized statement    of the uncollected fees with
          which his accountz is to be charged, and shall
          notify such officer of the time and place for a
          hearing on same, to determine whether such officer
          was guilty of nc,gligence,which time for hearing



                              p. 2372
Honorable Mike Driscoll - P@e   5   (JM-517)




          shall be at least ten days subsequent to the date
          of notice. Unleris;~an officer is charged by law
          with the responslbility'of, collecting fees, the
          Commissioners' Court shall not in any event make
          any deductions from the authorized salary of such
          officer. (Emphasis added in original by court).

The court further stated that section 5 provides that if the
commissioners court finds that the failure to collect a fee or
commission was due to negligence on the part of the officer charged
with the responsibility for collecting such funds, the commissioners
court can recover the uncollected fees from the officer's salary. For
the officer to be liable for earned but uncollected fees, it must be
found, after a hearing, thi$tthe officer was guilty of negligence in
failing to collect the funds.

     Eguia v. Tompkins, 7% F.2d 1130 (5th Cir. 1985), involved a
Texas justice of the peace with a duty to collect and record fees due
for his services and a duty to deposit them in the county treasury.
The county auditor withheld the justice's final paycheck due to
alleged deficiencies in his .accounts. Subsequently, the commissioners
court found that the jus.::iceof the peace negligently failed to
collect fees that he should have collected. The federal court
determined that section 5 of article 3912e sets forth the notice and
hearing requirements of the state of Texas but, in addition, a justice
of the peace is entitled tc the guarantee of due process of law under
the federal constitution. For instance. the commissioner's hearing
must be timely.

     This office discussed e'heliability of a justice of the peace for
uncollected fines in Attcrney General Opinion O-6740 (1945). As
pointed out, article 1619, V.T.C.S., provides that a justice of the
peace may discharge his indebtedness by showing to the satisfaction of
the commissioners court that he has used due diligence to collect
fines and judgments w1thor.t avail. This office stated in Attorney
General Opinion O-6740:

             The duty of a .Justiceof the Peace to issue a
          certified copy of a judgment of conviction, a
          capias, or an exc:cution,as the case might be, is
          certainly one en:joinedupon him by law before he
          could escape the onus of having failed to use due
          diligence in casc:swhere he had failed to collect
          the fines etc.

             .   .   .   .

             If the Just:tce of the Peace refuses or
          negligently fails to issue any and all writs
          allowed by law to enforce collection of a judgment
          entered by him in a criminal case, and as a result



                                p. 2373
                                                                         ,


Honorable Mike Driscoll - P;bge6 (JM-517)




         thereof same wa3 not collected, he        and   his
         bondsmen would be liable therefor.

See also Attorney General OpLnion MW-37 (1979) (JP's liability can be
discharged under article 161.9,V.T.C.S., if he exercises due diligence
to collect fine).

     It has been suggestlrd that the Texas Constitution renders
unconstitutional the statutes which hold a justice of the peace not
liable for uncollected money where the commissioners court finds that
the justice of the peace used due diligence in his efforts to collect
that money.   Article III, section 55, of the Texas Constitution
prohibits a release or extin$;uishmentof an existing indebtedness to a
county, but it.does not make a public official the guarantor of funds
that are uncollectible after using due diligence. It is our opinion
that a public official incurs no indebtedness to the county for such
uncollected funds.

     Your last question inquires whether the statute of limitations
can bar the county's claim against a justice of the peace for public
money collected by the justice. We conclude that the county's claim
is not barred by limitation~~..

     Early Texas cases fotnd that certain claims by counties were
barred by the two-year ani. four-year statutes of limitations. See
Grimes v. Bosque County, 2~0 S.W.2d 511, 515 (Tex. Civ. App. - Wz
1951, writ ref'd n.r.e.) (county’s     suit against sheriff and his
bondsmen governed by four-year statute of limitatidns instead of
two-year statute); Bexar County v. Maverick, 159 S;W.2d 140 (Tex. Civ.
APP. - San Antonio 1942, w&    ref'd) (county's suit on official bond
of tax collector subject to the two-year statute of limitations);
Tarrant County v. Prichard, 89 S.W.2d 1028 (Tex. Civ. App. - Fort
Worth 19~35, writ dism'd) (two-year and not four-year statute of
limit,ationsapplicable to ~;nit against justice of the peace and his
surety for accounting to determine fees which justice of the peace
allegedly failed to turn over to county).

     Prior to 1953, articll? 5517, V.T.C.S.. expressly exempted only
the state from the provisjons of Title 91, Revised Statutes, which
title relates to limitations. In 1953, the legislature amended
article 5517 to read as fol:lows:

            The right of the State, all counties, incor-
         porated cities and all school districts shall not
         be barred by any of the provisions of this
         Title. . . .

Subsequently, the Texas Supreme Court in a per curiam opinion stated
the following:



                              p. 2374
,


    Honorable Mike Driscoll - I?age7   (JM-517)




                 The court o:i civil appeals has held that
              Hemphill County's cause of action for damages for
              conversion of county property, asserted in a suit
              against the sheri.ff and a former sheriff of the
              county and their bondsman. can be barred by a
              statute of limitation and is barred by the
              two-year statute. 406 S.W.Zd 267. The primary
              holding is in conflict with our opinions in Brazes
              River Authority v. City of Graham, 163 Tex. 167,
              354 S.W.Zd 99 (:?161)and City of Port Arthur V.
             'Tillman. Tex. Cpr. App.. 398 S.W.Zd 750 (1965) in
              which we held that bv virtue of the orovisions of
              article 5517, V.T.C.S., rights of action held by
              the governmenta,L entities there named, which
              includes counties, cannot be barred by any statute
              of limitation.

    Hemphill County V. Adams, 408 S.W.Zd 926 (Tex. 1966). By the 1953
    amendment to article 5517, counties were placed on a parity with the
    state insofar as immunity f,romlimitations is concerned. Lewis Cox 6
    Son v. High Plains Underground Water Conservation District, 538 S.W.Zd
    659, 660 (Tex. Civ. App. -Amarillo 1976, writ ref'd n.r.e.1.

         The Civil Practice and Remedies Code, enacted in 1985, recodified
    former article 5517, Revised Statutes, without substantive change.
    Section 16.061 of that codt!now reads as follows:

                516.061. Rights not Barred

               A right of action of this state, a county, an
            incorporated city or town, or a school district is
            not barred by any of the following sections [of the
            Civil Practice alld Remedies Code]: 16.001-16.007,
            16.021-16.033, 16~035-16.037, 16.051, 16.062-16.071.
            or 31.006.

                                SUMMARY

                The commissioners.court and county auditor may
             not relieve a justice of the peace of liability
             for shortages of public money received by the
             justice. The statute of limitations does not bar
             a county's clain. against a justice of the peace
             for such funds.




                                                    MATTOX
                                            Attorney General of Texas


                                  p. 2375
Ronorable Mike Driscoll - P;rf;e
                               8   (JM-517)




JACK RIGHTOWKR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorne:rGeneral

RICK GILPIN
Chairman, Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General




                              p. 2376
