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    Honorable   George H. Sheppard
    Comptroller   of Public Accounts
    Austin, Texas

    Dear   Sir:                                 Opinion No. O-2290
                                                Re: Are earned fees by sheriff
                                                      in criminal    cases and un:
                                                     collectible    by reason of
                                                     Article   1027, C. C.’ P., ‘de-
                                                     linquent fees” when collected
                                                     more than a year after sheriff
                                                     retires   from office ? Applicabil-
                                                      ity of Article   3892, Vernon’s Anno-
                                                     tated Civil Statutes, modifying in
                                                     part opinion MO. O-1679.

                We have your request        for an opinion of this department under
    date of April 25, referring usto        our opinion No. O-1679, which request
    reads as follows:

                 “The Sheriff of Parker  County, in 1938, earned certain
           fees in criminal   cases that could not be colledted because
           Article  1027, C. C. P., provides that, ‘. . . such fees shall
           not be paid until the case is finally disposed of.’ The cases
           governing the fees in this claim were not disposed of until
           1940, more than a year after the Sheriff had retired from
           office.

                  “Are   these   fees to be defined   as delinquent   f&es ?

                “If they are not defined as delinquent fees, then is the
           ex-Sheriff  now entitled to receive from the present Sheriff
           such fee when paid by the State of Texas?”

                The above request is by reference,   a fact interpretation of the last
    or fourth question contained and answered    in opinion No. O-1679 and for the .
    purpose of clarifying  this opinion, we deem it pertinent to set forth the rele-
    vant portions pertaining to such questions,.   We quote from No. O-1679 as fol-
    lows :
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Honorable     George   H. Sheppard,   Page    2, o-2290




                    “In felony cases where punishment may be assessed         as fine
              or jail sentence, the State pays no fees to any officer prior to fi-
              nal disposition.  A sheriff performs    certain service   in such case,
              but the case is pending and therefore    fee is not payable prior to
              the time he retires from effiner~,. Subsequent to the time he retires
              from office the case is dismissed    or otherwise   disposed of other
              than fine or jail sentence, and fee becomes payable.       Should the
              officer who earned the fee file claim or should it be collected by
              his successor 7

                    “‘Suppose the above mentioned case was continued for more
              than twelve months from the time the sheriff retired and was then
              dismissed    --the fee was earned but did not become payable--  would
              article 3892, R. C. S. preclude payment to the sheriff and require
              that the present sheriff collect from the State and deposit with the
              county treasurer   1”

                   In answer   to the above    question,   we held:

                   II. . . If such fees are collected within one year after the retir-
              ing officer has ceased to hold office, the officer to whose office the
              fees accrued shall collect them from the State and deposit such
              fees with the county treasurer.*

                 We have reviewed opi.nion No. O-1679, particularly    the above
     quoted ruling as relating to your request.    We find that the question of “de-
     linquency” of such fees was not considered     in our answer to your fourth ques-
     tion, consequently,  we will reconsider  this portion of the rendered  opinion in
     the light of and along with the above request.

                 It is not necessary to restate or set forth all of the pertinent stat-
     utes or authorities   whkh are found in opinion No. O-1679, and only such addi-
     tional authorities  as deemed necessary,   will be discussed   herein.

                   Article   1027, Vernon’s    Annotated    Code   of Criminal   Procedure,   pro-
     vides:

                    “In all cases where a defendant is indicted for a felony but
              under the indictment he may be convicted of a misdemeanor         or
              a felony, and the punishment which may be assessed       is a fine,
              jail sentence or both such fine and imprisonment     in jail, the
              State shall pay no fees to any officer, except where the defend-
              ant is indicted for the offense of murder,  until the case has been
Honorable   George   H., Sheppard,   Page   3, O-2290




            finally disposed of in the trial court.     Provided  the provisions
            of this Article    shall not be construed as affecting in any way
            the provisions     of Article  1019, Code of Criminal   Procedure,
            as amended by Chapter 205, General Laws, Regular            Session,
            Forty-second      Legislature;   provided this shall not apply to ex-
            amining trial fees to County Attorneys       and/or Criminal    Dis-
            trict Attorneys.”

                 Article   3892, Vernon’s    Annotated   Civil   Statutes.   in part provides:

                  “Any officer mentioned in this Chapter who does not col-
            lect the maximum amount of his fees for any fiscal year and
            who reports delinquent fees for that year, shall be entitled to
            retain when collected,    such part of such delinquent fees as is
            sufficient to complete the maximum compensation         authorized
            by Articles   3883, 3883-A. and 3886 for the year in which de-
            linquent fees were charged, and also retain the amount of ex-
            cess fees authorized by law, and the remainder       of the delin-
            quent fees for that fiscal year shall be paid as herein provided
            for when collected;   provided, the provisions   of this Article
            shall not apply to any officer after one year from the date he
            ceases to hold the office to which any delinquent fee is due,
            and in the event the officer earning the fees that are delinquent
            has not collected the same within twelve months after he ceases
            to hold the office, the amount of fees collected shall be paid into
            the county treasury.   . . .*

                  According to the proviso portion of Article    3892, supra, if the
     delinquent fees are not collected by the officer earning them within twelve
     months after he ceases to hold office to which the delinquent fees are due,
     the amount of fees collected shall be paid into the county tre~wry:.      Con-
     versely,  if such fees are collected by the officer earning them within the
     twelve months after he ceases to holdthe     office, such fees may be applied
     to making up the officer’s  maximum according       to the preceding  provisions
     of the statutes.

                 The provisions   of Article 3892, particularly the latter portion,
     were not intended to operate to prevent an officer where he has reported
     such fees in his fiscal report for the year in which earned and has not
     collected the maximum amount of his fees for any fiscal year, by reason
     of the termination  of his term of office, from receiving   such fees earned
     which could not be collected by him because of the provisions      of Article
Honorable   George   H. Sheppard.   Page   4, O-2290




    1027, C. C. P., before he went out of office.    The prohibitlon section of the
    statutes goes primarily   to the collection of those fees earned and due and
    payable yhere collection depends on the efforts of the officer and he is not
    prevented therefrom    by operation of the law.

                The word “delinquent’ as used in connection with the fee statutes,
    refers to fees that are due and uncollected,   but carries   with it the idea of
    a previous   opportunity to collect on the part of the officer earning same.
    Under Article    3894, Revised Civil Statutes of 1925. before its repeal by the
    Acts of 1930, Forty-fourth    Legislature, Fourth Called Session, all fees due
    and not collected as shown in the report required by the officers were con-
    sidered ‘;:#elinquent fees.”

                 The Legislature   in enacting Article 1027, C. C. P., supra, certainly
    did not contemplate    or attempt to make any change in the operation of our fee
    statutes with refere,nce to the dispos,ition of those fees earned and ,payable upon
    presentation   to the Comptroller   by the methods prescribed..   The purpose of
    such amendment was clearly to eliminate such excess work and bookkeeping
    required   by paying the fee,s earned prior to the disposal of the case and having
    same refunded in cases where the offense resulted in a conviction for a mis-
    demeanor.     This article, precluding   payment of such fees until final disposition
    of the case was not meant to penalize an officer and deprive him of such fees
    merely because his term of office had expired prior to the final disposition       of
    the case in which his fees are earned and until such time, by operation of the
    statute, he is prevented from making a coIlection.

                 It is therefore   the opinion of this department that in criminal       cases
    to which Article     1027, Vernon’s    Code af Criminal    Procedure,   is applicable,
    where the sheriff earns certain fees which are not collected until more than
    twelve months after he retires       from office when the case is finally disposed
    of during the term of his successor       who makes the collecti.on, such fees are
    to be classified   as delinquent fees, subject to Article      3892, Vernon’s    Annotated
    Civil Statutes, and may be received        by the ex-officer   provided he reported them
    for the year in which they were charged and the retention of same will not in-
    crease his compensation       for that year beyond the maximum and excess fees au-
    thorized by law.      Our answer to the fourth question in Opinio~n No. O-1679 is ac-
    cordingly   modified in keeping with the above.
                                                               Yours   very truly
    WMK:LM                                             ATT                           OF TEXAS
                                                       By


                                               Approved                  Assistant
                                           Opinion Committee
                                           BY
                                                Chairman
