Untitled Texas Attorney General Opinion ( 1949 )

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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
C212
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
FEU-MSXSTAWT
ATTORl0EYGRERRAL