                        THEA~TORNEY                   GENERAL
                                      OF   I’EXAS
                                      Aus'xmu 11.'I.RxAS
  BVILL WILSON
~‘rroxwSRY       GENERAX.




                                      September 9,    1960


         Hon. R. L. Lattimore                        Opinion No.   w-938
         Criminal Mstrlct Attorney
         Hidalgo County                              Re:   Whether, under the pro-
         Edlnburg, Texas                                   visions of Article 3933,
                                                           Vernon's Civil Statutes,
                                                           the Sheriff Is entitled
                                                           to the fees therein pro-
                                                           vided where the judgment
                                                           creditor bids in property
                                                           on which his liens have
                                                           been foreclosed, making
                                                           his purchase bid by ten-
                                                           dering a credit on his
             Dear Mr. Lattlmore:                           judgment.

                       This will refer to your letter requesting an opinion
             on the following question:
                      "Whether the commissions on sales provided the
                 Sheriff under Artie~le3933, Vernon's Civil Statutes,
                 are a proper element of the costs to be paid by a
                 purchaser at a sale held on an order of sale, where
                 the judgment creditor bids In property on which his
                 liens have been foreclosed, making his purchase bid
                 by tendering a credit on his judgment."
                        Article 3933, V.A.C,S., provides in part as follows:
                       "Sheriffs and Constables shall receive the fol-
                  lowing fees:
                            II. . .

                       "Collecting money on an execution or an order
                  of sale, when the same is made by a sale, for the
                  first One Hundred Dollars ($100) or less, four er
                  cent (4%); for the second One Hundred Dollars ($ loo),
                  three per cent (3%);for all sums over Two,Hundred
                  Dollars ($200) and not exceeding One Thousand Dollars
Hon. R. L. mttimore, page 2 (m-938)

     ($l,OOO), two per cent (2s); for all sums over One
     Thousand Dollars
     Thousand Dollars [t:,E{   "~~,"~~~~~~~"t;~~~'~~r
     all sums over Five &ousaAd Dollars ($5,000 , one-
     half (*) of one per cent (l$)."

          The determination of the question as to whether the
sheriff is entitled to the fees provided In Article 3933, where
the judgment creditor bids In property on which his liens have
been foreclosed, making his purchase bid by tendering a credit
on his judgment, depends upon whether the tendering by the
judgment creditor at the sherlffPs sale9 of a credit on his
judgment, comes within the meaning of the words expressed In
Article 3933:
          ,I* . . collecting money on an execution or
     an order of sale, when the same is made by a
     sale."
          Generally speaking, "costs are the expenses of a suit
or action which ma be recovered by law from the losing party."
State,v. Dyches, 2g Tex 536 (1866). In making a return of exe-
cution, or holding a sale under an order of sale, the sheriff
is carrying out an order of the Court in a civil case and the
sheriff"s fees for same are properly assessed as Court costs.
          As a general rule, parties to the proceeding may pur-
chase at a sale under execution. This Includes the creditor
or plaintiff In execution. 10 Ruling Case Law 1308. Further,
the rule requiring sales under execution to be for cash is not
intended to preclude the right of an execution creditor to ap-
ply the amount of his bid as a eredit on the judgment. It is
a well settled rule that, where the judgment creditor becomes
the .~
    ourchaser at an execution sale. the officer should. at his
direction, credit the amount of the bid upon the execution, if
the costs are paid in cash. Needham v. Cooney (Civ.App.), 173
S.W. 979, error ref. (1915).
          The Supreme Court of Texas in Rlum, et al v. Rogers,
et al, 71 Tex. 668, 9 S.W. 595 (l888), held that where the judg-
-oreditor     at a sheriffts sale under executfon, becomes the
purchaser, "the offfcer ought not to exact payment in coin from
him when he is clearly entitled ta,the proceeds of the sale. It
would be an idle ceremony if the plaintiff, on buying at a sale
for his benefit, should be required to actually hand over to
the sheriff, the money to be returned at once, The receipt of
the plaintiff acquits the sheriff equally with his bringing Into
Court the'proceeds of the sale with the execution under whiah
they are made.' InRaker v. West, et al, 120 Tex, 123, 36 S.W.
2d 695 (1931), where the judgment creditor w8s the purchaser
Hon. R. L. Lattlmore, page 3 (w-938)

at a sheriff's sale under execution, and credited the amount
of the bid at the sherlffts sale on the judCfnent,the Court
held that the judgment creditor "paid value by crediting
the amount of the bid at the sheriff's sale, on the judgment.
          A previous Attorne General's opinion, No. O-6719,
dated July 31, 1945,on page t stated that in applying the rule
laid doyivFoLee v. Broocks, et al, 131 S.W. 1195 (Clv.App.
1910):       fflcer can be allowed a commission only upon
money actually collected by him."' In that opinion, however,
the question was whether,under Article 3933 the sheriff Is
entitled to one-half of the commission or rates set forth
therein wherein he collects the amount of the execution and
Court costs,without making levy upon any specific property.
In that opinion the facts showed that an execution had been
placed in the hands of the sheriff and that he had actually
collected the amount of the execution and Court costs without
making levy upon any specific property; The opinion held that
the sheriff is entitled to one-half of the commissions allowed
by Article 3933 under the provision authorizing such commls-
slons when money is collected without a sale. The question
presented covering the facts as set forth In Opinion No.O-6719,
is distinguishable from the Instant case and the holding in
that opinion does not apply here.
          The case of Lee v. Broocks, et al, supra, In which
the Court Indicated that the officerwas only allowed a com-
mission upon money collected by him,is not applicable In this
instance because in that case no sale was held by the officer
under the order of sale issued upon the judgment therein.
Prior to the date set for the sale, the judgment debtor paid
to the judgment creditor the amount of the judgment, interest,
and costs of suit, and the judgment creditor thereupon directed
the order of sale to be returned unexecuted.
          According to the facts presented here the judgment
creditor procured judgment foreclosing a lien or liens upon
certain real estate and there was issued a writ of execution
on the Court's foreclosure and order of sale. Notice of sale
was duly published and an actual sale was held by the sheriff,
and the sheriff executed a deed to the property.
          The judgment creditor at the sheriffus sale was the
high bidder by virtue of bidding in the property at a certain
amount "in money." Because the sherfff did not require the
judgment creditor to pay the money to hfm and then repay the
judgment creditor upon his crediting the judgment, in our
oplnlon,does not result in the sheriff not "collecting money
on an execution or an order of sale,when the same Is made by
a sale."
Hon. R. L. Lattimore, page   4 (ww-938
                                     )

          The law does not require the "Idle ceremony" of
requiring that the money be collected In cash when the bld-
der is clearly entitled to the proceeds of the sale., M,
et al v. Rogers, et al, supra.
          It is therefore the opinion of this office that
under the facts stated, the sheriff is entitled to the fees
prescribed in Article 3933 for "collecting money on an exe-
cution or an order of sale, when the ssme is made by a sale."

                             SUMMARY

          The fees provided the sheriff under Article
     3933, Vernon's Civil Statutes, are a part of the
     costs to be paid by a purchaser at a sale held on
     an order of sale, where the judgment creditor bids
     in property on which his liens have been foreclosed,
     making his purchase bid by tendering a credit on
     his judgment.
                                Very truly yours,
                               WILL WILSON
                               Attorney Qeneral of Texas


                             By Ben M. Harrison
                                Assistant


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Houghton Brownlee, Jr.
James F'arrls
Tom I. McFarllng
Elmer McVey
REVIEWED FOR THE ATTORNEY GENERAL
 BY: Leonard Passmore
