                     A            NEY         GE         IA




                            July 11, 1967

Hon. Richard E. Rudeloff                Opinion No. M-105
County Attorney
Bee County                              Re:    Whether the County
Beevllle, Texas                                Attorney of Bee
                                               County, and the
                                               DistrictaAttorney
                                               serving said county
                                               are required to sub-
                                               mit the reports con-
                                               templated by Arts.
                                               1001-1005, C.C.P.,
                                               Arts. 390-391, P.C.
                                               and Art. 1620, V.C.S.
Dear Mr. Rudeloff:
          In your request for an opinion from this office
you present the following question:
              "Is the County Attorney of Bee County,
         and the District Attorney of the 36th Jud-
         icial District who serves Bee County, re-
         quired to make the reports contemplated by
         Articles 1001-1005, Code of Criminal Procedure
         of 1965, Articles 390 and 391, Penal Code{,
         and Article 1620, Revised Civil Statutes?
          Articles 1001-1005, Vernon's Code of Criminal
Procedure (renumbered from Arts. 944-948, C.C.P. 1925)
read as follows:
         Article 1001:
              "All officers charged by law with collect-
         ing money in the name or for the use of the
         State shall report In writing under oath to
         the respective district courts of their several
         counties, on the first day of each term, the
         amounts of money that have come to their hands
         since the last term of their respective courts
         aforesaid."
                         -475
Hon. Richard E. Rudeloff, page 2 (M-105)


         Article 1002:
               "Such reports shall state:
                1. The amount collected.
                    When and from whom collected.
                i: By virtue of what process collected.
                  . The disposition that has been made
                    of the money.
                5.  If no money has been cwllected, the
                    report shall so state.
         Article 1003:
              "A report, such as is required by the two
         preceding articles, shall also be made of all
         moneys collected for the county, which report
         shall be made to each regular te;m of the com-
         issioners court for each county.
         Article 1004:
              "The officers charged by law with the col-
         lection of money, within the meaning qf the
         three preceding articles,and who are required
         to make.the reports theiein mentioned, are:
         District and County attorneys, clerks of the
         district and county courts7 sheriffs, constables,
         and justices of the peace.'
         Article 1005:
              "The moneys required to be reported embrace
         all moneys collected for the State or county
         other than taxes."
          Article 1620, Vernon's Civil Statutes, 1925
reads as follows:
              "The district attorney of each district
         shall, at each term of the district court for
         each county in his district, make a report
         to the county clerk, of all moneys received by
         him since the last term of the district court
         for such county for the use of such county.
         Each county attorney shall make a similar
         report to the said clerk at the end of each
         month."
                         -476-
Hon. Richard E. Rudeloff, page 3 (M- 105)


          Penalties for failure to report collections for
the State and counties are provided in Articles 390 and
391, Penal Code, which reads as follows:
          Article 390:
               "Any district attorney, sheriff, deputy
          sheriff, constable, or other officer, whose
          duty it may be to collect money other than
          taxes for the use of the State, who shall
          fail to report to the district court of his
          county, in writing and under oath, on the
          first day of each term thereof, the amount
          of money that may come into his hands for
          the use of the State since the last term
          of said court, from whom collected, and by
          virtue of what process, shall be fined not
          less than twenty nor more than two hundred
          dollars."
          Article 391:
               "Any officer, such as is named in the prey
          ceding.article, whose duty it may be to collect
          money, other than taxes, for the use of any
          county, who shall fail to report in writing,
          and renderoath, to the commissioner? r?urt of
          such county at each regular term thereof, the
          amount of money that may have come into his
          hands for the use of such county since the
          last term of said court, from whom the same
          was received, and by virtue of what process,
          shall be fined not less than twenty nor more
          than two hundred dollars."
          We are of the opinion that the county attorney
of Bee County and the district attorney serving such district
should report to the proper officers as provided in the
above articles. In support thereof we cite Reed v. State,
55 S.W.2d 232, 234 (Tex. Civ. App., 1932, no writ hist.),
wherein the Court stated as follows:
               'In Articles 944, 945, and 946, of the
          same Code E.C.P. 1925, now Articles 1001,
          1002, and 1003 C.C.P. 1965/, are found pro-
          visions requiring all officers charged by
          law with collecting money in the name or for
          the use of the state to make sworn written
          reports to the district courts of their sev-
          eral counties on the first day of each term,
                          -47:-
                                                  .       -




Hon. Richard E. Rudeloff, page 4 (M-105 )


         and similar reports to the commissioners'
         court for each county at each regular
         term of all moneys collected for the county.
              "The officers coming within the pro-
         visions of those articles are declared by
         Article 947 fiow Article 1004 C.C.P. 19657
         to be district and countv attornevs. clerks
         of the district and county courts; eheriffs,
         constables, and justices of the peace.
              "In Mciennan County v. Eoggess et al.,
         104 Tex. 311, 137 S.W. 346, 347, the Supreme
         Court said: 'With regard to the collection
         of fines, forfeitures, or money due the
         state or count   While Article 1013 (now
                       Article 1004 C.C.P. 19657, Code
         Article 947) 7'
         of Criminal Procedure charges justices of the
         peace with the duty of collecting money with-
         in the meaning of Articles 1010, 1011, and 1012
         (now Articles 944, 945, and 946')firticles
         1001, 1002, and 1003 C.C.P. 1965/ of the Code
         of Criminal Procedure, which relate to the
         collection of money in the name of the state,
         and the report thereof to the respective
         district courts of their several counties, and
         of money collected for the county to t!?e
         commissioners' court for each county, and
         prescribing the nature of such report, it
         is clear that the exercise of such duty of
         collection means only their authority to
         receive the money from the person adjudged
         to pay, or from the o??icer by whom it is in
         fact collected, and pay over to the proper
         source. '
               "From the above statutes and holding, it
          appears that a county attorney is authorized
          to receive payment of judgments such as are
          here involved,and is charged with the duty
          of making reports as to such collections and
          paying same over to the proper OTB-
               (The emphasis and information within
          brackets have been added.)
          Article 3697, Vernon's Civil Statutes requires
annual reporting of each district, county and precinct of-
ficer the amount of all fees, commissfong, and compensations
earned by each such officer during the fiscal year, to-
gether with thoAe collected,,and those earned but&
collect'ed.                -478-
  r    .




Hon. Richard E. Rudeloff, page 5 (M-105 )


          Sec. 2, Acts 1965, 59th Leg., p. 610, ch. 302,
amends Article 3897 as follows:
                "Sec. 2. Article 3897 of    the Revised
           Civil Statutes of Texas, 1925,   insofar as
           said provisions are applicable   to counties
           whose officers are compenatted   on a salary
           basis, is hereby repealed.
          The obvious intent of the Legislature was to
render unneceeeary such reporting by officers who are
compensated on a salary basis and thereby are not en-
titled to any fees or commiesione by virtue of their of-
fices.
          The reports now required of officers not com-
peneated on a ealary basis, under Article 3897, are re-
stricted to fees, commissions and compensation earned
while the cited articles of the Penal Code, Code of Crim-
inal Procedure, and Civil Statutes refer to the report-
ing of all moneys collected for the use of the state and
county, other than taxes, and the legislature hae not
made a like provision relative thereto.
          While it may be true that many county and dia-
trict attorneys collect no money due the state or county,
they are so authorized and it is their duty to do so when-
ever the occasion arises. Reed v. State, 55 S.W. 2d 232,
234 (Tex. Civ. App., 1932, no writ. hist.).
          If no monev has been collected bv such officers.
this fact should be reported aa provided in Section 5,
Article 1002, which reads as follows:

                "5.   If no money has been collected, the
                      report shall so state.'
          We are not unmindful of Addison v. State, 41
Tex. 462 ( 1874' in which an indictment was held faulty
for failure boocharge that the defendant was authorized
to collect money, other than taxes, for the use of the
county. However, this case merely determines the proue-
allegations to be contained in such an indictment and ie
no authority that such an officer (a justice of the &ace)
is not authorized to collect money, other than taxes, for
the use of the county.

                             -479-
                                                       .   .




Hon. Richard E. Rudeloff, page 6 (M-105 )


                     SUMMARY
                     -------                    _.,.~~...
                                                      ~~..
                                                        \
                 The county attorney of Bee County,
            and the District attorney of the 36th
            Judicial District eerving Bee County,
            are required to submit the reporte con-
            templated by Articles 1001, 1002, 1003,
            1004, and 1005, Vernon's Code of Criminal     i
            Procedure, 1965, Articles 390 and 391,
            Vernon's Penal Code and Article 1620,        I
            Vernon's Civil Statutes.
      i

                                         very truly,




Prepared by Monroe Clayton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Philljpe, Chairman
Kerns Taylor, Co-Chairman
Robert Owen
James McCoy
W. 0. Shultz
Mario Obledo
STAFF LEGAL ASSISTANT
A. J. Carubbi, Jr.




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