     OFFICE OFTHE A-ITORNEY GENER/iLOFTEXAS
                         AUCTIN




Ronarable Quorge B. Sheppard
Comptroller of Publio Aooounte
Austin,  Texas
Dear s1r:




                                           on the: queationn
                                            by this depart-




                                   ed opinion you
                                   of oHioa should
                                 rri0er  ~h00d   t0n6
                                 but 8hould -be ool-
                     ooessor In offioe.        10~ it
                     t thle ruliug will apply
                     partionlar,     and possibly
                     foore who aollsbt fees frm


     thereof, seoura the approval    of   the distriot
     judgai atO?.
                                                          32


Honorable   George H. Sheppard, page 2


           “If your ansyer ie in the aifirmatlve,
     then your opinion on the rollowing is re-
     speotfully  requested:
                   “A term Of court closes on
             or about December 31st, making
             it impossible ror the offloer     who
             performed the service to collect
             his aooounta from the State prior to
             January 1st.    Ha retires   from office
             on Deoember Pat.       Should such ao-
             oounts be oolleoted     from the State
            .by the retiring   offioer   or his suoces-
            SOI-?

                    “In felony oases where punish-
            ment may be assessed as tine or jail
            sentence, the State pays no rees to
            any orfloer      prior to- final dlsposl-
            t1on.     A sherirf perionns certain
            service in suoh ease, but the ease
            Is pending and therefore        See is not
            payable prior to the time he retires
            froa.‘of floe.     Subsequent to the time
            he retiree     frcol otfioe the ease is
            dlsmlssed or otherwise disposed of
            other than rine or jail sentence,
            and fee beoomes payable.         Should
            the ofrioer     who earned the ree file
            claim or should it be oolleoted         by
            his suaceasor?
                   “Suppose the above mentioned
            ease was continued for more than
            twelve months from the time the
            sheriff   retired   and was then dis-
            mlss~ed--the fde was earned but did
            not become payable--would. Article
            3892 R. c. s. preolude payment to
            the sheriff     end require that the
            present sharirf oollect     from the
            State and deposit with the ComtY
            treasurer? n
 Honorable    George R. Sheppard, page 3


              Article   3892 of Vemon*s      Civil     Statutes     reads as
 roii0w3:

               nAny offloat_- mentioned
                                   ._      in this Chapter
        who doea not colleot      tne maxlmtueamount or
        hJs fees ior any fiscal       year and who reports
        delinquent fees for that year, shall be en-
        titled   to retain, when 0olleoted,       such part
        Of eaoh.delinquent      fees as Is aufrioient
        to oomplete the QE~ximum      compensation author-
        ized By Articles     3883, 3883-A, and 3886
        far the year In whioh delinquent fees were
        oharged, aUa also retain the amount of SX-
        oeas fees authorized by law, and the remain-
        der of the deli      uent reee~ ror that rieaal
        year shall be p3. d as h&rein provided for
        when oolleoted;     proviq.ed, thi provlaions
        of this Artiole     shall not apply to any or-
        flO8r after one year,Xrae the date he OBBBBS
        to hold the oriioe to whloh any delinquent
        fee 113due, and in the event th6~‘offloer
        darning the fees that are delinquent ha,s
     ‘. not oolleoted     the same wlthln twelve months
        after he ,osases .to hold the ofrio,e,      the
        amount or tees colleoted’ shall be paid ‘i&to
        the oounty treasury.        Provided,  however,
        that nothing In thlrLAot       preoludes -the pay-
        ment of ex-oftiolo     fees in aooordance with
        Title 61 of the Revised Civil Statutes of
        Texas, 1925, as part or the .maximumcompen-
        sat Ion. Providetl,    that any change made in
        thie Artiole by this Aot shall not apply
        to fees heretorore      earned.”
              &tic10    3891,   Vernon’s   Oivil     Statutes     as rol-
lows :
               m* * *All fees due and no’t oolleoted;
         as shown in the report required by Article
         3897, shall be oolleot~ed by the OfflO0r t0
         whose office   the fees aaorued and shall be
         disposed 0r by said orrioer    in aooordanoe
         tith the provisions    or this Aot.* * *”
Honorable   George      8.     Sheppard,    page   4



             In an opinion written Marah 17, 1933, by
Donorable Eomer C. DeKolfe, Anslstant Attorney Oeheval,
alreotea to Eouorable X. C. Barkley, Criminal M0trlOt
Attormy,    Eoustm, Texas, this departmeat held that au
orrhr     who rails to OolleOt his maximumand exe088 feea
for a flroal par, and rho has reported dillnqueaO&e8
ia    that year irr entitled  to retain, nhen oolleoted,  de-
llnqpent tee8 miffloient     to complete his rpaxipuuDand 0x..
oeae for the year in whlah the delinquent fear were
obarged.
            While ArtIdle 3894, Revlead Civil Statutes,
1925, has been repealed,       all fees atust be oolleoted   by
the orrioer    to whose orrioe the geea aooruea, and ma
ho has retired    from offioe,    he no longer hae any author-
ity to oolleot    fee8, even though the same were eerh0d by
hlm. When delinquent fee8 are Oolleoted,         the offlOev
oolleotiug   the same should pay thm oter to the retired
offioer until suoh retired oftlcer has reoeived &I0 ~mxl-
mumand exqees.
            The Supreme Court ot TexaB ln the Oase                    0r   x1316
County v.   Thompson,          66 8.   81. 48,   aaId:

           Vhcmpson had ocsased to be the orrioar
      to whose offloe the,?ees aoorued,and had
      no authority to OolleOt the money after he
      wtd   lout   or   orrioe.*

              It ia our opiuion that the above quotatfcn 1s a
oorreot expression OS the law aa it exists now, even though
Artlola 3892 has been repeal6d, and that the only material
change In the law by reason of the repeal of this axtiole
was that thereafter     the offloer makin the oollectlon  wan
z     entitled   to a peroentage or the smouut oolleoted by
    .
           AS eupporting thlrr aoaalusion, re call you at-
t0ntlon to the faot that under the proviaioaa or the fee
law  MW  in efleot,  the fees, earned by OfflO6ra are re-
rem& to ag feea. of offloe     and not as fee0 belonging to
the Individual   who earned them.   In Xeoh(M on Pnbllo  of-
fioers,  it Is stated:
            e&g hss          bea   8eon,   the   relation   between
      the offlOer and the pub110 IS not the creature
      of ooutraot,   nor is: the orfloe  itself  5 oon-
      traot.   80 his right to aompensation Is not
      the oreature or oontraot.      It 02it3t8, it it
      exista at all, as the Or0atian Of law, and
      aen it EO eriebe,     it belongs to hb ‘not by
                                                                       32


Honorable   George H. Sheppard,    page 5


      forae of oon*.raot, but because      the law at-
      taohea it to the .o?fioe. n
             It will be further noted .that under the pro-
visions of Artiole      3897, Vernon’s Civil Statutes,      re-
lating to the;.reports     required to be filed,     the offioer
is only required to rile a report for a @@I.:-gear;.:,
and that there is no pr@islon        requiring   a. report to be
filed a8 to fees oolleoted       by the ,offioer after he retires
from orrg~e.     If the retir’ad officer     had the right tb ool-
lect dtiinquent     fees earned by him, then it would be &a-
possible   to determine the amount whioh he was authorized
to retain under the provisions       of the fee law, and to de-
termine the amount of excess tees payable to the county.
           It has been repeatedly   held by this department
that the oifioer:~ whose term of oifioe    has terminated has
no right or authority to colleot    delinquent fees which are
due him, that such fees shall -be oollected    by the offloer
to whose office   the fees acorued, and shall be disposed of
by said orrioer~: in accordance with the provisions     of the
laws governing the same.

             In a case under the following       faots,  “A dlstriot
 olerk, prior to going out or ofrioe,        riles all papers in
 the 0888, completes transcripts       In the, Court of Criminal
 Appeals, and then retires      from oifioe.     His successorls
.duly elected   and qualifies.      The fees in the case held
 and tried in the former administration         are now due and
 payable under the latter      admlnlstration;n      This department
 held in a letter   opinion addressed to you on August 10,
 1934, that:
             “Although the fees you mentioned Would be-
      long to the ,flrst district     :olerk under the Clr-
      oumstanoes set out by you, since the servioea
      were completely parronaed by the first          district
      clerk,    (Hake v. simondon, 46 S. PJ. (26) 1013;
      Barues v. Turner, 27 S. W. (26) 532; f.hmerOn
      county v. yox, 61 s. w. (26) 483) it 1s mY
      opinion     that such fees would be delinquent
      fees; therefore,     they would be payable and
      collectible     by the second district     clerk by
      virtue or the provisions      of Artiole     3892, 8s
      amended, Revised Civil Statutes.          P&en so ool-
      leoted by the second district        clerk, they would
                                                                 325



Honorable George H. Sheppard, page 6~


    belong Inpart      to the first   distrlot  clerk,
    provided the latter       clerk reported them as
    delinquent reea in the statement required
    by Artlole..3897.-as     amended, Revieed Civil
    Statutes,    and provided that the first     district
    olerk ha8 not already oolleoted        his maximum
    oompensation.      Asstated,    however, the proper
    person to receive payment Of such fees, fs the
    aeoond distriot      Clerk."
         Articles 1033, 1034 aa          1035,   cod0 or Crlm-
    Prooedure, read .a8 follows:
          wAr;i 1033. Offlpar    shall     make out cost

           “Before the close of each term of the
    di8triOt    oourt; the distrlot or oounty at-
    torney, sherlrr and ~olerk of said oourt
    ahall each make out a bill of the oosts
    olaimed to be due them by the State, re-
    8peOtiVdly, in the felony oa868 tried at
    that term; the bill shall ehbw:
          "1.   The style   and number of each oase.

          "2. The offense,    oharged against      the
    defendant.

          "3. The term of the court         at whloh
     the oase was disposed or.

         "4. The disposition      of the oase,       and
    that the case was finally     di8paed  or,       ma
    no appeal taken.

           “5.  The name and number of detendants;
     and, if more than one, whether they were
     triad jointly  or separately.,
          "6. Whdra each derendant was arrested,
    or witness served, stating the county in
    which the service was made, giving distanoe
    ana dlreation  rrom county seat pi ooimty
    In which the prooess Is served.
Honorable George H. Sheppard,     page 7


           "7.    The oourt shall inquire whether
     there have been, several prosecutions    for
     a transaotionthat     5s but one orren8e in
     law.   Ir there Is more than one prosaoution
     for the same traneaotlon,    or a portlon there-
     Of, that ooulu he~e been oombined in one in-
     dlatment against the 81~1) defendant,     the
     judge ahall allow fe88 to sheriff8,     clerks
     and distrlot    and county attorney8 In but
     one proseoution.
          "8.  Where the defendant8 in a case
    have aerered on the trial,   the judge ehall
    not allow the charges ror service 'or process
    ana mllaage to be duplioated    In eaoh ease a8
    trfed; but Only such additional    fee8 shall
    be allowed as are cmnsed by.the severanoe."
          "Art:   1034.   Judge to examine bill,    etc.
             "'The District   Judge, when any auoh bill
     iS presented to him, shall examine'the same
     Oarefully,,.and      &nqUire~intO the oorreotn888.
     thereor,     and approve the acme, in whole or
     in part, or disapprove the entire bill,        as
     the rat%3 and law may require;       and’ such ap-
     proval shall be oondltloned       only upon, and
     subject to the approval of the State Comp-
     troller     as provided ror in Article    1035 or
    this    Code, and the Judge's approval shall
     80 atate therein; ,and 8UOh bill,       with the
     a&ion of Ju&e thereon, shall be entered
     on the minutes of said Court; and famediate-
     lp on the rielng of said Court, the Clerk
     thereor shell make a oertified        copy rrom the
     minute8 of said Court of said ‘bill,       and the
     aotion of the Judge thereon, and send 881118
     bp registered      letter ,tO'the Comptroller.
     Proyiaed the bill hereinreferred         to shall
     berore being presented to such District
     Judge, be rlrst presented to the County
     Auditor, if such there be, who shall care-
     fully examine and oheok the same, bnd shall
     make whatever recommendation8 he shall think
     proper to be made to s~uoh District       Judge re-
     lating to any Item or the whole bill.
                                                               327

Honorable   George H. Sheppard,    page 8


            "Fees due District    Clerk8 ror reoord-
     ing sherlrt's    aooounte shall be paid at
     the end of 8aid term; and all fee8 due
     DistrictClerks      for making tran8oripts   on
     ohanue of YenUe and on appeal shall be paid
     as soon a8 the servloe     is performed; and the
     Clerk's bill for 8uoh re8S shall not be re-
     quired to show that the oase ha8 been flnal-
     ly di8po8ed or.      Bills for fee8 for such
     tranecripts    shall be approved by the Di8triOt
     Judge a8 above provided,      and with the 88818
     oonditions,    and when approved shall b8 re-
     corded as part of the mlnuterr of the last
     preoeding term of the Court.
            *Art.   1035.   Duty 0r Comptroller
            YThe Comptroller upon the reoeipt of
     such olaim~and said oertlfied         oopy of the
     mixnate of said Court, shall olosely        and
     aarefullj   examine the s8me, and, if.he deems
     the same.to be correot,      he shal.l~draW his
     warrant onthe State Treasurer for the amount
     round by him to be due, and In favor Of the
     offloer   entitled    to the same. It the approp-
     riations   ior'peying    suoh accoUnta 18 exhausted,
     the ComDtroller shall rile -the sametmay, ii
     foturd to.be oorreot,     and IseUe a certifloate
     In the name of the offioer       entitled  to the
     mane, etetlng herein the amount of the claim
     and the oharacter.of      th8 service8 perrormed:
     All suoh olaims or accounts not cent to or
     placed on file ~inthe office       of the Comptrolti
     wlthln twelve (12) month8 from the date the
     same beoomes due and payable shall be forever
     barred.~"
           Artlole 16560, Vernon's Civil Statutes, provide8
that the State Comptroller of Public Accounts ahall pre-
scribe.and  prepare the rOZ7Ji8to be used by all county Of-
riCidL8 in the colleotion   Of oounty revenues, funds, fee8
and other moneys, and in the di8bUrsement of all funds,
ehall prescribe   the mode and manner of keeping and stating
their aooounts, which forms shall be 8o'prepared   as, in
                                                                      328


Honorable Oeorge H. Sheppard,      Page 9

the dudgment or the Comptroller,   will meet the need8
or the oountles 0r dfrrerent  sizes in the State.
          Also, ohaptere 1 and S of tit10 15 or the
Code 0s Orlminal Procedure speoliioally  raqulre that
oertain aooounts .presented to the Wmptroller   for pay-
ment ahall be verified.
          Thle department held in an oplnlod written by
Honorable Leon 0. Nosea, Aseieta~k Attorney Oeneral, on
February 15, 1935, that all fee8 due and not oolleotdd
when the orrloial   earning the lame retire8 iron otti0e
should be oolleoted   by the present enoumbent or the of-
rioe. We enolose a oopy 0r this opinion ror your oonyen-
ienoe.
            In view or the roregolng authorities,    in
anewer to your rirst queetlon,    you are re6peotrully
advised thatlt     is the opinion of thie department that
delinquitnt fees or orrioe cannot be oolleoted    by the
aherirr or any other orrioer who80 term or orrioe has
terminated, but by his 8UOOOBBOr in orrloe.
          The answer to your rfrst question         necessarily
anaware your eeoond and third que8tlon8.
            &8wuring your fourth question,     you are adviattd
that ii suoh feel, are not oolleoted    wlt!in one year after
the retiring   orrioer has oeaaed to hold orrioe, tho orti-
oer to whoae~ofiloe    the reefs aoorued s&all oolleot thea
rron.the etate hnd deposit suoh i%a8 wlth the oounty
treasurer.
             Tru8ting   that the toregoing    ruiiy :answers   70tu
Inquiry,    we are
                                      Yotis   very truly




           AppROVmDEC   19, 1939
