,OFFlCE     OF    THE   ATTORNEY     GENERAL    OF   TEXAS
                            AUSTIN




                                                April 28, lQS9


Honorabla E. 0. Garvay
Cottut Awlltor
Bexar County
San Antonio, Texas



                                                 IS an
                                                    lb2      Inins
                                                8herlfr or olalmed
                                                t him on aoeouut
                                                18tratlon 0r hir,
                                                dauthorlamthe
                                               tor to rorwa to
                                            hi8 salary warrant*

                                                  addrosaod to the
                                                    an oplnlon upon
                                                  Ire& and oaro-
                                                  lotter a oom-
                                      Bexor Ueunt;r, aQdre68edto
                                       0osuiQore~'in eonneotlon

                             'a lettmrim too lengthr to%o
                             i It 6oal rith tbeorotloalquestions
                           *sue8 ai Saot. Eonror, wo hare given
                           o.him lottor and from It and hour
                           ~084 tha subataaoo of the oontromr-
                           d tho 0herirr.   We quote TOPT latter

               *The dmrltf oi Bexar Ceunty ha8 requested that
          I write you r0r an opinion ooororlng
                                             a oortaln matter.
          8iYiOahia roqUeBt noem t0 explain the Patter rexy
          thorot@ly X~am enolo8lng herewith oopy or him ro-
          qtmet.
               *In oompllanoswlth hi8 raqnemt, I an asking an
          opinion rrom you oorerlng the r0iimi~ quastlons:
                 Qst.   Are the    type   of olalm mentioned in his
Hon. E. C. Carvey, April 28, 1939, I'age2




     request under (a), (b), (o), and (A), suoh types of
     olalm that would oome under Artiolo 3912e, Section
     19, Paragraph m, that would make It wmdstory for
     me to refuse to oounterslgu his salary oheok drawn
     against the Offlaers Salary Fund?
     '2nd. xr only a part of these olaims are types 0r
     a-8    that would oomo under Artiolo 39120, Seotlon
     19, Faregraph m, state rhether they are olalms that
     would OOPS under (a), (b), (o), or (A), ot the
     sherirr*s roquest.
     "3rd. Ii any or all of the olelms above mentioned
     znot    a typo of olalm ooming under Artlolo 39lZ8,
     Seotlon 19, Paragraph P, are thoy olalms or llebil-
     lty thet would bo held against the Shsrltr or Oon-
     stable under any other statute? If so, stat0 tho
     Art1010.
     "4th. 8lnoo these are an aooumulatlon of olaims
     oovorlug a period rrom JBL 1. 1931, to Dooember 31,
     1938, against tho Oonetablo and Sheriff, whloh havo
     been reported by me each year to ths Crlmlnal Dle-
     trlot Attorney, are any of these olalms, whothor
     under Artlole 39X%, Seotlon 10, Patsgraph a, or a
     olalm ooming under any other part of tho Btatutee,
     barred by llmltatlon?W
          In oonhleratlon of the questions propounded br
you and of tho propsr answers to be mods theroto by this
department,ws think that we should first Alreot your at-
tention to ths llmltatlons plaooa upon the Attornoy Oenorsl
by Artlolo -9,   Revised Civil Btatutos of lQZ8, wheroln It
Is provided insorer as oounty auditors ars oonoornoa, that
tho Attorney General "shall give them wrltton adrice upon
any question . . . touohlng their orflolal duties.* It Is
not proper that this department  shall abvlso oonoluslvely
upon 00ntiovereial matters 0r raot, or as to what testimony
should be oonsldered b;la court in the trial of a oause, or
as to what judgment should be rendered by a oourt  In the
trial of a oauee, for to do so would be to InvaAe the funo-
tlons or the jualolary.
           We shall, therefore, oonrlne this opinion to the
 lnterpretatlon of ths pertinent statutes bearing upon the
 eubstanoe or your lotter so as to advise you with regard to
Hon. 5..C. Harvey, April 28, 1939, Pwe   3




your offloial duties with respsot to the mntters dlscusaed
in this oplnlon. In oonneotlon with paragraph (m) of Article
3912e, WB quote 80 much of thls Artiole and Sections as are
deemed pertinent!
          "(m) All moneys drawn from said Offioers* Salary
     Funds shall be paid out only on warrants approved by
     the oounty auditor. No warrants shall be drawn on
     seld fund In favor of any person indebted to the State,
     oounty, or to said fund or in favor of his agent or
     asslgneo until suoh Aobt la paid, when notloe of auoh
     indebtedness has beon filed with the oounty auditor..."
          "(n) Eaoh Alstrfot, oounty and precinot offl-
     oer shall keep a oorreot detailed statement of all
     amounts earned by him and of sums ooalng Into his
     hands as fees, oosts, ah& oomlsslons, in a book to
     be provided for hlm by the proper authorities of
     the oounty for that purpose In whloh the orrioer at
     the time when foes or moneys are earned or shall
     come into his hands shall enter the same in suoh
     form as may be lawfully requixeA.W
          It Is provided in paragraph (q) of Seotlon 19 of
the stated article of the statute, that a statement at the
alose of eaoh fiscal year shall be made by eaoh orrloer
theroln mentioned whloh shall be alreoted to the Dletrlot
Judge of the property oounty, and shall be submitted on
forms AeslgnoA and approved by the stato auditor; that a
oopy of suoh statenont shall bo fomardea to the state audl-
tor by the olerk of tho Alstrlot oourt within a given tlma
and that one oopy shall bo filed with the oounty auditor.
This seotlon also provldss in substanos that the statement
shall show the amount of the rees, oommlsslons and oompon-
satlons earned by tha orrloer aurlnp the rlsoal year ana the
amount of fees, oommlsslons and oompensatlons oolleoted by
him during suoh year and their Alsposal, and it shall oon-
taln an ltemlted statement of all rees. oonnsisslo~ and
oompensatlons during the rleoal year whloh were not oolleotsd,
toaether with the style of the oase. the name of the party
owln~ euoh fees, oo~lsalons an4 o&pensstlons, and the -
nature of the saourlty for ooAt.8,and the reason for non-
oolleotlon. The balanoo of this paragraph and seotlon Is
here quoted oerbatlm, to-wit!
         "For failure to file said report said offloer
    shall be subjeot to removal from orfloe. The oounty
    auditor shall audit euoh report and file his report
Hon. E. C. Cm-my,   kprfl 26, 1939, Page 4



     with the Commlsslonersl Court, and said oounty
     auditor also shall prepare and file with the Als-
     trlot or criminal dlstrlot attornoy a detailed
     report 0r all r0e8, oomm.lsalons,and oompansatlons
     unoolleoted which have been due and payable to any
     officer of the county ror a period of more than six
     (6) months; and a rrlmllarreport or all re08, oom-
     nieslons and oompeneatlons oollooted by MIA offl-
     oers and not reported by them and a list of oases
     filed alnoe January 1, 1936, in whloh any oounty or
     dletrlot olerk or justioe of the pesoe has not taken
     adequate seourlty ror ooats or requIreA a peuper's
     oath."
          You are advleed that the word wolalmW and the word
"debt.*aro not necessarily synonymous, and that they are not
believed to be so used in these statutes. This la made evl-
dent by the pmvlslone of Paragraph (q) above referred to and
quoted. It must be contemplated both rrom the language of the
statute and In reason that ln the event of suit against the
sherift, as provided for In euoh statuto, ha mlpht establish
sufflolent reasons, wlthln the purview of tho law, why rees
whloh had aoorued In oortaln oases had not been collected,
or In other words, a valid defense to the suit.
           Tho bgislaturo did not mean that the oounty auditor
 should, merely beoause rm8 his at&It or tho shorirr*saooount,
 he Is of the opinion that tho sheriff had been Aerellot in
 oolleotlng tees or that he had msdo oolleotlons whloh he had
 not aoootmted ror, ho, the auditor, should oxerolse tho au-
 thority of wlthholalng the lasuanoe or the shorlrr*s salary
 warrants. To give the auditor suoh unllmlted authority would
 be to deprive the sheriff of his day ln oourt and to inpose
-upon him a penalty without a judicial hearing.
          The stntuto makes It the duty of the Dlstrlot Attorney
upon the oondltlons and for the reasons named thoreln to lnstl-
tute a suit to oolleot the teea ror whloh the aherlrr Is thought
to be liable, with respect to any supposed derault upon his
part, either to oolleot fees or for fees supposedly oolleoted
and not aooounted ror. Until In suoh suit a judeplenthas been
rendered against the sheriff, the aseerted and unllquldeteA
olaime against him by reason of thsae matters do not heve the
absolute status of a “debt* within the purview of the law.
Ordinarily, you will have discharged your full duty under the
    :   -
.           -




            Hon. E. 0. Oarmy,             April 28, 1939, Page 5



            law 91th raapeotto tha lharIff*eatatammt when you aball
            hatO 8uait8a the awe ana  riha  with the Dietriot Attommy
            the ~reportw praaorlbea in the last quoted laotlon or the
            atatuta,lup r a .
                      Itahouia furtherba borne inrinathattha lhmrI.fr
            la raqulra6to auouta an orrlolalbond In an oaount a&
            0ondltIonadam ra~uIra4by law rot the ralthralparr0~1308
            o< hla oWlolal dutlaa,ana ordlnarll~auoh'bpnanoul4 k
            miilolant protaotlont&the atate and awuty for rttan     of
            odaalon and oomIaalon by the aharIff In the aiaohuga or
            him dutloa raquSraduuaar the law. Only in maem where
            thara     0r8   LID augpakd        ia8~aa    or   raot    lmoivad;       +hat   18    ti8n
            tha 'olairagalxfatan orrloarham aoqulradfhq'otatusof a:
            debt am herein dailnad, should the auditor'u-   the-p&~
            rogatlwboi ~ithbt~ldingthe orrloar*a salaryw8rr~t. rru-
            tk-ro,    in aaalth tctha~othar raaaou a8algm6;'tkara
            la;,;?
                 ~++ poliOy rhy tha$a+ion should aog~ba takan.
                                                       '..
                            Is   0-t       fib9w   ttm.opini~n        PO-     a8rinit8    in     W;W
            dthe’rbrurr    whloh the quaatlona
                                   in                                arm    mubilttatl   to    the
            Attohay 06naral*aDapartmant.
                                                  to anawr thk fourth
                            Thledapirtmnt ~daolinaa
            ~88tfonw8adn8a          in m.l*tter r0rtb 7~4eri0i8nt
            raaa@.tbat whatbar or not tha ltatutaa ot-liritatIon.may
            k~&@@kariOly    pluaaa .in.
                                      auy oaaa la 0rdlimHly a riud
            qua*tS&n of law a* iao&and It la aluayadmntte rm
            deturlrutian          or    th8:0oort..
                                                                 Youra wary tlQly




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                                                                        hat        Aaalatant
