Hoti.Tom C. Kla
State.Audltijrand Efficiency Expert
Austin, Texas
Dear Sir:
                  Opinion No. o-1036
                  Re: 1. Does the statute of llm1tatlon bar
                          recovery of understated fees of
                          office of a tax.collector?
                      2.  Does limitation begin as of the
                      :   date incorrect fee report'swere
                          made to the county or as of the
                          date the error was discovered
                          ln the auditing of the acoounts
                          of the county?
          Your request for an opinion on the above stated
questions has been received by this office.
            Your Letter reads in part as follows:
          "It Is .discovered in 1939 that the Tax
     Collector has understated his fees of office
     in his annual fee reports for the years 1932
     and 1934, and 1s therefore due the county for
     such understated fees.
          “(a)  Does the statute of 1lmLtatlon bar
     recovery by the county?
          "lb) Does limitation begin'as .of the
     date incorrect fee reports were made to then,
     county, or as of the date the error was dls-
     covered ln the auditing of the accounts of
     the county?"
          We quote from Texas Jurisprudence, Vol. 28,   page
99 as follows:
          "It seems to be a settled rule that counties
     are not exempt from the operation of statutes of
     1lmltatlon~:inmatters arising out of ordinary
Hon. Tom C. King, Page 2


     county business.. r0.. Limitations run against a
     cause of action in favor of a county for the
     recovery of money which belongs to its general
     fund. The bar of the statute may be availed
     of as a defense to an action for the recovery
     of Interest upon deposits made by a tax collec-
     tor's bond of excess delinquent tax fees due
     a county, for the recovery of overpayments
     made to an assessor, for the recovery for hire
     of a county convict',"-and
                              for,relmbu'?sementfbr
     money expended In making repairs to a bridge..
     However, the defense of llmltatlons Is not
     available as to causes of action accruing to
     a county In Its public or governmental capacity,
     or while acting forkai as an instrumentality
     of the state. Ni+wll,l llm~ltatlon~runagainst
     a county as trusiteeof:a public school fund, or
     bar the right to recover money belonging to jury,
     school, road or bridge funds; or funds of like
     character& such a~s'those.of a school or road
     district.   Also see'~thecsSes of Bitter vs.
     Bexar County, 11 SW 2nd 163; Llnz vs. Eastland
     County, 39 SW 2nd 599~;N&varro County vs.
     Corslcana Nat. Bank, 287 SW 501; Steusoff vs,
     Liberty County, 34 SW 2nd 643; McKenzie vs. Hill
     county, 263 SW 1073.     .~
          Articles 5526, 5527 and 5529,  Revlsed~Clvll
                                      .~~,
Statutes, read as follows,:
          "Art. 5526. There 'shalXbe commenced and
     prosecuted within two years after ,the cause of
     action shall have acc~rued,and not'afterward,
     all actions or suits In court of the following
     description:
          "1 D Actions of trespass for injury done to
     the estate or the property
                              .~of another.
          "2 * Actions fop detaining the persona1
     property of another;and for conv&?tlng such
     property to one's ,own use.'
                             .~
          “3 D Actions for taking or carrying away the
     good and chattels of another,
          “4 a Actions for debt where the lndebtedness~
     fs not evidenced by a contract In writing.

          "5 . Actions iipon~
                            stated or'upon accounts
     other than such mutual and'current accounts as
1   ,_   .




             Eon.   Tom C. King, Page 3



                                   .~..of merchandise between merchant
                    concern the .trade
                    and merchant, tnelr factors or‘agents. 1~ all
                    accounts, except those between merohant and mer-
                    chant, as aforesaid, their factors and agents,
                    the respective times or dates of the delivery
                    of the several articles charged shall be partlcu-
                    larly specified, and limitation shall run against
                    each Item from ttiedate of such delivery, unless
                    otherwise speo.lallycontracted.
                         "6. Action for Injury done to the person
                    of another.
                         “7 . Actlon'LforInjury dorieto the person of
                    another where death ensued'from such Injury; and
                    the cause of action shall be oonsider6d~as having
                    accrued Ft the death of the party Injured.
                         "Art. 5527. There shall be commenced and
                    prosecuted within four year@ after the cause of
                    action shall have accrued, and not afterward, all
                    actions or suits in court of the following des-
                    cription:
                         "1. Actions for debt where the Indebtedness
                    la evidence by or founded upon any contract In
                    wrltlng.
                         N2. Actlons'for the penalty orfor damages
                    on the penal olauae of a bond
                                              .   to convey real estate.
                         “3 . Aotlona by one partner against his co-
                    p.&tner for a settlement of,the partnership ac-
                    counts, or upon mutual and current,aMounta con-
                    cerning the trade of merchandise between merchant
                    and merchant, their factors or agents; tid the
                    caube of action shall be consider&d as having
                    accrued on a cessation of the dealims in which
                    they were interested.~~
                                         together.
                         "Art.   5529.Every action~other than for
                    the recovery of real eatate;for which no llmlta-
                    tlon Is otherwise prescribed, shall be brought
                    within four years next after the right to brln$
                    the same shall have accrued and not .afterward.
                       We quote from the case of McKenzie et al vs.
             Hill County, supra, as follows:
                                                                  . .




Hon. Tom C. King, PagQ 4


          "'The question as to'whether:~sultsfor etches
     recoirergof excess fees.r'&talned.by.county;officers
     are ~gdvernedby ,the statute of ~llmitatlonInvolves
     primarily the'questbotias to wh'ether.the.co.unty,ln
     the collksztionof said excess fees and&the use there-
     of is engaged In Its governmental functions. The
     direct question, so far as .we.have-been able .to
     ascertain;\has..tiot~beenbefore the courts. Where
     the county acts purely ln'.its~gorernmentalcapacity,
     llmltatlon will not run, but in all other respects,
     counties ar'egoverned by the,statute of llmltatlon c.
     as fully and to the same extent as lndlvlduals,
          "It has been held that the statute of llmlta-
    t'lons,runs'against the county 1i1an action on a
    b0nd:'t.orecover hirB of a co~nvlct. 2:'SW13.
    In H. & T. C; Ry. Cb. vs. Travls"County,.62 Tex.
    1.6, It was held that llmltatlon would run against
    a county for damages which ‘It sought to recover
    from the railway, occasioned b;ythe mariner In .~,
    which the':railwaycompany cohstructed~Its crossing
    over a public highway-~ In Wardvs, Marion Cokty,
    26 Tex. 361, 62 SW 557, on re-htiai+ing63 SW 155;lt
    was held that the statute of llmltatlon would run
    against the county In a suit against,the tax collec-
    tor and his ~bondsmenfor taxes-he had ~colledted
    for which he had not accounted, unless he had
    fraudulently concealed the collection thereof,
    and.wrlt of e'rrorwas denied. In Johnson vs.
    Llan6'County, 15 Tex. <Clv. Appi) 421,'~39SW"995,
    It was held that limltatlofiwbuld ruriagainst the    "a '~J
    countg to'recover landi except that used for roads,
    streets and'publ.1~highways. I~7Illlmaiivs.
    Gallager, 103 Tex. 427, 128,SW 899;~~ltwas.held
    that limitation wotild:.run~agalnstthe county on
    a suit bg'the:county on a liquor bond.' ,In Lane
    vs.'DeltaICounty; '(Tex.Clv. App.) lOg~SW.'866,
    it was'held that In a suit~agalnst the~couiity
    judge to recover fees Ualawfully dolleoted by
    him In crlmlnal cases the four year statute of
    limitations would apply against the,countF.i In
    Jeff Davis County vs. Davis, (Tex:ClV. App.)
    192 SW 291, and which wrltlof error was denied,
    th,e'-courtheld that the two'year statute of limlta-
    tions woul+run as against the county for the recovery
    from I the sheriff and his bondsmen of motiey'that
    had been'lllegally paid the sheriff-by the COIMI~S-
    slonerts court. To the same:;effectls,the holding
    of the court In GrtiysonCounty vs, Cooper (Tex. Clv.
    App.) 211 SW 249, where it,waa held that the two
Hon. Tom C.   King,   Pee   5



    year statute of llmltation would run against the
    county to recover money from the tax assessor
    which the county commissioners had paid the
    assessor In excess of the maximum fee allowed
    by law. In Rockwell County vs. Roberts County,
    103 TX. 406, 128 SW 369, It was held that the
    statute of llmltatlon would run against the
    county In suit for Interest due on bonds which
    had been issued by one county and held by another."
          Articles     3896 and 3897,   R. C. S. read as follows:
          "Art. 3896. Each district, county and pre-
     cinct officer shall keep a correct statement of all
     fees earned by him and al! sums coming Into his
     hands as deposits for costs, together with all
     trust funds placed In the registry of the court,
     fees of office and commissions In a book or In
     books to be provided him for that purpose, In which
     the officer, at the time when such deposits are
     made or such fees and commlsslons are earned and
     when any or all of such funds shall come Into his
     hands, ahala enter the same; and It shall be the
     duty of the county auditor In counties having a
     county auditor to annually examlne::thb.,bbok$.
     and accounts of such officers and to report his
     findings to the next succeeding grand jury or
     district court. In oountles having no county
     auditor, It shall be the.duty of the commissioners'
     court to make the examination of said books and
     accounts'or have the same made and to make report
     to the grand jury as hereinabove provided.
          "Art. 3897.  Each district, courityand
     precinct officer, at the close of each fiscal
     year (December 31st) shall make to the district
     court of the county in which he resides a sworn
     statement In triplicate (on forinsdesigned and
     approved by the State Auditor) a copy of which
     statement shall be forwarded to the State Auditor
     by the clerk of the district court of said county
     within thirty (30) days after the same has been
     filed In his office, and one,copy to be filed
     with the county auditor, if any; otherwise said
     copy shail be filed with the commissioners' Court.
     Said report shall show the amount of all fees,
     commlsslons and compensations whatever earned
     by said officer during the fiscal year; and
     secondly, shall show the amount of fees, COmmiS-
     slons and compensations collected by him during
   Hon. Tom C. King; Page 6


          the fltieal~y&r; 'thlrdlg,:sald report shail c,ontaln
         an ltemlaed statement of all~fees, oommlsslons and
          compensatlo~,~earned during the flscal,year which
         were not c~oIlected,together wlth.the name of the
          party owing 'saidfees, commlsslons and compensations.
          Said repbrt shall be filed not later than February
          1st following the close of the fiscal year and for
          each day after said date that said report remains
     .   hotfiled, said officer shall be liable to a penalty
         ~,
          o'fTwenty Five ($25.00) Dollars, which may be
          recovered by the county In a suit brought for such
          purposes,,and in addition said tfflcer shall be
          subject to removal from office.
           .'Under A&l&les~ 3896 and ~3897, supra, the Legls-
   .iature'has~ln orderto protect the Interests of~the county
   passedlaws requlrliig the officers to flle~thelr reports
   ..ln,orb.eP.,ttiatj'~ame.,~a~
                          be'.atthe time properly checked,
   understood and explained.
         ',   .In:,vlew
                      of the foregoing authorities, you are re-
   spec~tfuliy'advised~that it la the ,oplnlon.ofthis department
  ' that~~the~btatiite~of~Ilmltatlon
                                   bars recovery of under$,tated
    fees'of 'offlc.e:of"a
                        .t~ax
                            collector. You are further a&vised
    'thatllmltatlon begins as'of the.date Incorrect fee reports
    were made to the,county.
                'Trusting that the foregoing answers your Inquiry,
    we are.'
                                              Yours very truly
                                       .A'ITORREYGEWKRAL .~
                                                         OF TEXAS
                                       By S/ArdelI Wllllams
                                                        .
                                              ~Ardell Wllll~s
                                                    Asslstant~
    AW:AW:bjb
    APPROVED JVL 14, 1939
.   S/ W.;F. Moore
  ~,:
   'FIRST':ASSISTANT
    ATTORREYGEKERAL              APPROVED
                                 OPINION
                                 C OMMITTER
                                 'By-~W.R.K
                                 Chairman
