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                  THE   A           NEYGENERAL
                            OFTEXAS
                            AUSTIN,   TEXAS



                             Ootober 18, 194s~

       Hon. Sen 9. Fuller
       Criminal District Attorney      -~~
       Jefferson County               Re: ApplZcabilityof two
       Beaumont, Texas                    gear lrtrtuteof llmlte-
                                          t1,0tla
                                                to the recowry
                                          of the balanoe of de-
                                          ltnquent fees due the
                                          Dlatrlot Clerk under
       Dear Qb:                           faata submitted.
                 The Dlstrlot;Clerk of Jefferson County wee
       elected In 1932 and aaaumed the off&e January 1, 1933.
       In the pear 1933 he received $2,210, leas then the mex-
       lmum amount provlded.bylaw. Subsequentlywlthia the
       time prescribed by law the Dlatrlot Clerk reported as
       delinquent fees for 1933 an amount in 8x0888 of $2,210.
        n 1934 the Dlrtrlct Clerk oollected the amount of $2,-
       ii
        10.99 in delinquent feea whloh WBFB oherged end re-
       Ported in 1933. He retained only one-fourth of this
       amount upon IusUruotlonato that effeot by the County
       Auditor. In subsequent years he has oolleoted addltlon-
       al amounts for fees reported delinq~e~tln 1933 and la
       eeoh lnatanoe has been parrPittedto retain only one-
       fourth of the amount aollected. On the basis of the
       foregoing feats, you hew requested ansplnlon on the
       following questions:
                 '1. Is the two year ata,tutHof litalta-
            Mona applloableto reooverj of Zhe balance
            of the delinquent feea due tlaedl&rlot olerk?
                  “2. When did the right of &Ion of the
            distrlot clerk aeopue ao aa to ata& the run-
            ning of the statute of llmlt~~&c+~?"
                 In the ease of lPmlthv. Vlae'CiYunt~.187 3.W.
       705 (Tex.Clv.App.1916,e&
       County for the balanoe due him as~~on@enostlona8 ooun-
       tg treasurerfor four yearn beglanlag Rowmber 10, 1910,
       and ending Aowmber 16, 1914. Wise Colmty pleaded the
       two year statute of llmltatlons. The oourt in dleaua-
       sing the questlon of whether the alalm wan barred by the
       two year statute of llmltetlonsheld:
Eon. Jep S. Fuller, page 2   (v-936) - _


          “AS to the last questlon prsaented, we
     are of the opinion that the statute of llmlta-
     tlon would preclude a reoovery~forany amount
     further than for oommlsalons aocrulng end due
     and payable under his second term of office,
     aud for the two years preoedlng.t&edate suit
     wee filed, to Wit, De~embsr 2, 1914. dppel-
     lent presented his olalm to the oolllplaslon-
     ora1 oourt, In the sum sued for, on Howmbep
     25, 1914, and on the 27th thereafter It waa
     by sald court rejeoted. Appellant urges that
     the statute of llmitatlondid snotbegin to
     run until aueh disallowance by ~the aourt, and
     oltea, in support of this oonteti$lon, artlole
     1366 of the Revised Civil Stetuter, which pro-
     tides   that:
           'Wo oounty shall ba aueU.til6asthe
     clalmupon whloh auoh suit is ~fowided@hall
     hew first been presented to the ootitj 0010-
     mlaalonera~oourt for allowance, aQd such
     court shall have negleoted or refused to au-
     dit aud allow the aama or any gaz+tthereof.'
           "      The statute was ev%db&ily en-
     aated.io;ihe benefit of the a6w;     that
     It might have the opportunityto heve paaa-
     ed on by Its representativesaanaglng body
     all olalma against it before it oould be
     subjected to the expense and wxatlon   of
     suit.   It aertalnly never was aontemplated
     that one having a olalm against a aounty
     could delay its presentationto the commla-
     aionera* 00th lndefinltely,end thereby
     preclude the running of llmltatiop. As is
     well said ln 25 Cyo. 1198:       '~
          nWhere plalntlfflaright'df action de-
     pends.upon aoaiesot to be performed by hlm
     preliminaryto ooasaenalng suit, a&I he la un-
     der no restraint or disability in the par-
     fomanoe of auoh aat, he oannot suepend ln-
     definitely the running of the statute of
     llmltatiouaby d8hTing the performance of
     the prellmlnary sot; If the time for auoh
     performanoeIs not definitelyfixed, a raa-
     sonable time, but that only, will ba allowed
     therefor.'
    Hon. Jep S. Fuller, page 3   (v-936)


              "In the same text, page 1198 [B), It la
         further stated:
              q ‘wh e r a ) although the cauao of a&Ion
         Itself has aoorued, some prelltulna~step la
         required before a resort oan be had to the
         remedy, the condition referringmerely to
         the remedy and not to the right, the oause
         will be barred If not brought within the
         statutory period; therefore the prellmlnary
         step must be taken within that period.'"
              In view of the foregoing case it Is our opln-
    ion that the two year statute of llmltationaapplies to
    the fact situation presented by you In your request and
    begins to run when the right to retain delinquent fees
    oolleoted aooruea. Stegall ~.~PloLeiiiMiGOtit+, 144 S.W.
    26 1111 (Tex.Clv.App~40, error dlsm.).
              In arriving at the follegolngooncluslon we are
    not unmindful of the oaae of Ke&~'ir.‘~Cbll'lti
                                                 C<tity, 212
    S.W.2d 494 (Tex.Clv.App.1948), whloh held that the four
C
    year statute of llmltationaapplied to the reoovery of.
    unpaid salary alelmed to be due for services a+oounty
    treasurer. In that case It was held that the four year
    statute of llmltatlonsapplied beoauisethe county treas-
    urer In question~hadbeen appointedby the Commlaslonera~
    Court to fill an unexpired term and the Court held that
    the appointmentby the Commissioners'Court oonstituted
    a contract In writing within the meaning of the four
    year statute of llmltatlons. We quote the following:
              '(weagree that a statute or ordlnanoe
         fixing salary or fees of office, standing
         alone, oannot be made the basis of a con-
         tract within the meaning of the four-year
         statute of limltatlona. However, we do not
         think that yule la applicableto the ln-
         stant 0888. With regard to this question
         of llmltatlon,we think the difference In
         the status before the aourt of an eleoted
         officer from that of an appointed officer,
         116s In the difference in method and p'3*0-
         aedure preaorlbed for seleoting these'of-
         flaera. The elected officer la chosen and
         authorizedby the lndlvlduel voters at the
         ballot box, and the duty required of the
         Commlasloners~Court In aaaertalnlngand
P        ennounolngthe result Is not oontraotnel
Hon. Jeep9. Fuller, page 4   (v-936)


     In natun, but puraly mlnlaterlal;whareaa,
     In apPOlntiQg an offla6r to a vaeanoy, the
     oourt exer6laed Its own dlaoretlon,rakaa
     the aeleotlon and authorleestha aeleotee
     to a&, and la required  to keep a reaord
     In Its rlautea of aush prooeedlnga."
          Artlole 389, Vernon48 Clvll Statutes provides:
          'Any officer mentioned In this Chapter
    who does not oolleat tha raxlmum amount af
    his fees for any flaoal year and who reporta
    delinquent fees for that yea*, shell be en-
    titled to rataln, when collected, auah pa&
    of suah delinquent faea as la sufficientto
    aoaglete the maximum compensationeuthorlxed
    by Art10168 3883, 3883-A, and 3886 for the
    year In whlah delinquentfees were aharged,
    and also retain the amount of exoeaa fees
    authorlsedby law, and the remainder of the
    dellnqueat  fees for that fiaaal year shall
    ba paid aa herein provided for when oolleot-
    cdl provided, the provlaloua of this Artlole
    shell not apply to any offioer after one year
    fraa the date he oaaaea to hold the offloe to
    whloh any delinquentfee la due, and in the
    event the officer earning the fees that are
    delinquenthas not aolleoted the same within
    twelve months after he oeaaea to hold the of-
    fice, the amount of fee8 oolleotad shall be
    paid Into the oounty treasury. Provided, how-
    ever, that nothing In this Act preoludes the
    payment of ex-offloiofees Zn aooordanoewith
    Title 61 of the Revised Civil Statutes of
    ;zi?8, 1925, as part of the maximum oompenaa-
          . Provided, that any ohange made In this
    Artiola by this Act shall not apply to fees
    heretofore e-d."
          In view of the'fo=golng Artlole  It Is ou?
opinion that the olalm of the Dietriot Clerk under the
faots submitted aoorued on the dete he oollected delln-
quent fees reported for the fleas1 year 1933, and llml-
tatlon began to run from that date.


         The two year statute of ll.mltatlonala
     applicableto reoovery of the balanoe of
Bon. Jep 3. Fuller, page 5, (v-936)


    delinquent fees due the P)latrictClerk in a
    suit against the oouuty, and the statute of
    llmltatlouawill begin to ruu on the date
    the District Clerk colleoted delinquent fees
    reported for a prevloua year. Smith v. Wise
    Couute, 187 9-W. 705 (Tex.Clv.App.l91b,er-
    ror ref.); SteRall v. MIoLsnnanCounty, 144
    S.W.2d 1111 (Tex.Clv.App.1940,ex-rordim.).
                                  Yours wry truly,
                             ATTOIWY OERRRAL OF TFZAS


JR:bh:mw                     BY




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