Untitled Texas Attorney General Opinion

The Attony General of Texas
JIM MAlTOX .Jnly11, 1986
Attorney General
Supreme Court Building Honorable Mike Dri:%:oll Opinion No. JM-517
P. 0. Box 12548
Harris County Attmney
Austin, TX. 7871% 2548
512f4752501
1001 Preston, Suit':634 Re: Whether a justice of the peace
Telex 9101874.1367 Houston, Texas 7 7002 may be relieved of liability for
Telecopier 51Z4750266 cash shortages in his account
714 Jackson, Suite 700
Dear Mr. Driscoll:
Dallas, TX. 752024509
214,742.0944 You ask the f,YLlowingquestions:
1. 'An the commissioners court and county
4824 Alberta Ave., Suite 160
auditor relieve a justice of the peace of
El Paso, TX. 799052793
915/533-3484 liability for cash shortages in his account?
2. IE so, what is the procedure ~to be
“31 Texas, Suite 700 followed, in relieving him of this liability,
aston, TX. 77002-3111
other tiim by cash payment?
713l2255SSS
3. Can the statute of limitations bar the
806 Broadway, Suite 312 county's claim against the justice of the peace?
Lubbock, TX. 79401.3479 If so, tinatis the applicable period of time?
SDS/747-5239
In answer to your first two questions, we conclude that a justice
4309 N. Tenth, Suite 6 of the peace is strictly liable for the money that actually is
McAllen, TX. 78501-1685 collected by him. To the extent that cash shortages in the account of
51218824547 a justice of the j)saceconstitute shortages of public money actually
received by the :ustice of the peace, the commissioners court and
200 Main Plaza, Suite 400 county auditor may not relieve him of that liability. It also is our
San Antonio, TX. 79205.2797 opinion that the statute of limitations does not bar a county's claim
512f225-4191 against the justice of the peace for such funds.
It is settled Law of this state that the conmissioners courts and
An Equal Opportunity/
Affirmative Action Employer
public officers OE the counties possess only the powers and duties
that ars expressl!r
_ conferred on them by law or that are necessarily
implied from the Express powers. See C&ales V. Laughlin, 214 S.W.2d
451, 453 (Tex. 19+8); Fort Worth Cavalry Club V. Sheppard, 83 S.W.2d
660, 663 (Tex. 1935).
Article XVI, section 61. of the Texas Constitution, requires all
fees earned by district, county, and precinct officers to be paid into
the cdunty treasury where earned. The statutes provide that all fees,
commissions, funds, and money belonging to the county shall be turned
over to the count)'treasurer by the officer who collected it. In the
p. 2369
Honorable Mike Driscoll - P,sSe2 (JM-517)
manner specified by article L709a, V.T.C.S., the county treasurer
shall receive all money be:tongingto the county from whatever source
it may be derived. See V.'P.C.S.arts. 1709, 1709a; Code Grim. Proc. .
arts. 53.08(e), 53.09.
Texas statutes also direct county and precinct officers to keep a
record of and account for the money received by them. In a county
having a county auditor, the county auditor has a duty to examine the
records.
Article 3896, V.T.C.S., provides:
Each district, (countyand precinct officer shall
keep a correct st,atementof all fees earned by him
and all sums coming into his hands as deposits for
costs, together k,ith all trust funds placed in the
registry of the court, fees of office and com-
missions in a book or in books to be provided him
for that purpose, ,Lnwhich the officer, at the time
when such depostts are made or such fees and
commissions are earned and when any or all of such
funds shall'come into his hands, shall enter the
same; and it shall be the duty of the county
auditpr in counties having a county auditor to
annually examine the books and accounts of such
officers. . . .
Article 1651, V.T.C.S., states:
The Auditor shall have ~a general oversight of
all the books and records of all the officers of
the county, distr,ictor state, who may be author-
ized or required by law to receive or collect any
money, funds, fets, or other property for the use
of. or belonging to, the county; and he shall see
to the strict enforcement of the law governing
county finances.
In addition, section :!7.001of the Government Code requires each
justice of the peace to give a bond payable to the county judge and
conditioned that the justicme of the peace will discharge the duties
required by law and "promptly pay to the entitled party all money that
comes into the justice's hand during the term of office."
We find no provision in the statutes of this state that
authorizes a county commisf;ionerscourt and county auditor to relieve
a justice of the peace of liability for any public money that comes
into the justice's hands. Further, article III, section 55, of the
Texas Constitution, denies to the legislature the power to authorize
the release or extinguis'lment of any part of the indebtedness,
liability, or obligation of anyone to a county, except certain
p. 2370
Honorable Mike Driscoll - Eage 3 (JM-517)
delinquent taxes. An agreszmentof the county to accept a lesser sum
than actually is due it is unconstitutional and invalid. --See Rowan
Oil Co. .v. Texas Employmr_nt Commission, 263~ S.W.2d 140, 144 (Tex.
1953); Bland v. Orr, 39 SW. 558, 559 (Tex. 1897); Ashburn Bros. v.
Edwards Co., 58 S.W.2d :'I.,72 (Tex. Comm'n App. 1933, judgment
adopted).
Historically, Texas courts have strictly enforced the obligation
of a public officer to account for and pay over to the proper
custodian the public money that he receives. In Coe v. Force. 50 S.W.
616 (Tex. Civ. App. 1899, ,sritref'd), the court held that in Texas a
public officer is not a bsilee who is not responsible for funds lost
without fault or negligenc:s. It was no defense, to an action on a
public officer's bond for Eailure to account for public money that
came into his possession. that the money had been stolen by robbers.
In Poole v. Burnet Co., 76 S.W. 425, 427 (Tex. 1903), the court stated
that the "obligation to ke,ep safely the public money is absolute,
without any condition, expr'essor implied" and "public policy requires
that every depositary of the public money should be held to strict
accountability" for the money that comes into h~is hands. The fact
that the bank in which the officer made the deposit failed did not
constitute a defense to his;liability. In American Idemnity v. State,
LO4 S.W.2d 68, 70 (Tex. Civ. App. - San Antonio 1937, writ dism'd).
the court approved language -from another jurisdiction that the
custodian of nublic monev i.sa debtor and insurer to the extent of the
amount received and excusable for no losses except those resulting
from acts of God or the pcblic enemy. See also Bexar Co. v. Linden,
220 S.W. 761 (Tex. 1920); @nham v. Dies, 98 S.W. 897 (Tex. Civ. App.
1906, no writ); Attorney General Opinion O-6929 (1945):
We conclude that the commissioners court and the county auditor
may not relieve a justice of the peace of liability for shortages of
public money that actually is collected and received by the justice.
It is our opinion, however, that the law is different as to funds that
are not collected by a justice of the peace who has used due diligence
to collect the money.
Article 1619. V.T.C.S., provides:
Fines imposed and judgments rendered by
justices of the LNeaceshall be charged against the
justice imposing or rendering the same. He may
discharge said @debtedness by filing with the
county clerk tL.e treasurer's receipt for the
amount thereof, or by showing to the satisfaction
of the commissioners court that he has used due
diligence to coliect the same without avail, or
that the same ha& been satisfied by imprisonment
or labor. (Emphasis added).
p. 2371
IionorableMike Driscoll - PnSe 4 (JM-517)
The courts have discussed the obligation of officers to pay into
the county treasury fees coL:Lectedand fees uncollected by an officer.
In State v. Glass;167 S.W.2d 296, 299 (Tex. Civ. App. - Galveston
1942, writ ref'd), the collrt affirmed the trial court's conclusion
that
the sentence in Sec. 61, Art. 16, of the'Stat=
Constitution, Vel:non's Ann. St., reading: 'All
fees earned by district, county and precinct
officers shall b? paid into the county treasury
where earned for t:heaccount of the proper fund,'
indicates an int.ention that all fees of every
character collected by a county officer officially
. . . shall becor;; fees of office . . . and any
fees collected by 'himofficially must be paid into
the county depository as directed by the constitu-
tional provision. (Emphasis added).
In Rarris Co. v. Schoenbac:h,er,594 S.W.2d 106. 109, 111 (Tex. Civ.
APP. - Houston [Lst DistTr1979, writ ref'd n.r.e.), the court
determined that the person in question was an employee and not a
public officer, but citing .theGlass case, disagreed with the theory
that an officer cannot be liable for fees earned but not collected.
The ~court stated that
Article 3912e. V.A.C.S. is a corollary to
article 16, section 61. It provides in pertinent
part:
. . . .
Sec. 5. It shall be the duty of all officers
to charge and co:il.ect in the manner authorized by
law all fees and conrmissicnswhich are permitted
by law to be sssessed and collected for all
official service performed by them. As and when
such fees are collected
-- they shall be deposited in
the Officers' Salary Fund, or funds provided in
this Act. In event ;he Commissioners' Court finds
that the failure 1:ocollect any fee or commission
was due to neglect on the part of the officer
charged with tt.e responsibility of collecting
same, the amount of such fee or commission shall
be deducted from the salary of such officer.
Before any such deduction is made, the Commis-
sioners' Court shall furnish such officer with an
itemized statement of the uncollected fees with
which his accountz is to be charged, and shall
notify such officer of the time and place for a
hearing on same, to determine whether such officer
was guilty of nc,gligence,which time for hearing
p. 2372
Honorable Mike Driscoll - P@e 5 (JM-517)
shall be at least ten days subsequent to the date
of notice. Unleris;~an officer is charged by law
with the responslbility'of, collecting fees, the
Commissioners' Court shall not in any event make
any deductions from the authorized salary of such
officer. (Emphasis added in original by court).
The court further stated that section 5 provides that if the
commissioners court finds that the failure to collect a fee or
commission was due to negligence on the part of the officer charged
with the responsibility for collecting such funds, the commissioners
court can recover the uncollected fees from the officer's salary. For
the officer to be liable for earned but uncollected fees, it must be
found, after a hearing, thi$tthe officer was guilty of negligence in
failing to collect the funds.
Eguia v. Tompkins, 7% F.2d 1130 (5th Cir. 1985), involved a
Texas justice of the peace with a duty to collect and record fees due
for his services and a duty to deposit them in the county treasury.
The county auditor withheld the justice's final paycheck due to
alleged deficiencies in his .accounts. Subsequently, the commissioners
court found that the jus.::iceof the peace negligently failed to
collect fees that he should have collected. The federal court
determined that section 5 of article 3912e sets forth the notice and
hearing requirements of the state of Texas but, in addition, a justice
of the peace is entitled tc the guarantee of due process of law under
the federal constitution. For instance. the commissioner's hearing
must be timely.
This office discussed e'heliability of a justice of the peace for
uncollected fines in Attcrney General Opinion O-6740 (1945). As
pointed out, article 1619, V.T.C.S., provides that a justice of the
peace may discharge his indebtedness by showing to the satisfaction of
the commissioners court that he has used due diligence to collect
fines and judgments w1thor.t avail. This office stated in Attorney
General Opinion O-6740:
The duty of a .Justiceof the Peace to issue a
certified copy of a judgment of conviction, a
capias, or an exc:cution,as the case might be, is
certainly one en:joinedupon him by law before he
could escape the onus of having failed to use due
diligence in casc:swhere he had failed to collect
the fines etc.
. . . .
If the Just:tce of the Peace refuses or
negligently fails to issue any and all writs
allowed by law to enforce collection of a judgment
entered by him in a criminal case, and as a result
p. 2373
,
Honorable Mike Driscoll - P;bge6 (JM-517)
thereof same wa3 not collected, he and his
bondsmen would be liable therefor.
See also Attorney General OpLnion MW-37 (1979) (JP's liability can be
discharged under article 161.9,V.T.C.S., if he exercises due diligence
to collect fine).
It has been suggestlrd that the Texas Constitution renders
unconstitutional the statutes which hold a justice of the peace not
liable for uncollected money where the commissioners court finds that
the justice of the peace used due diligence in his efforts to collect
that money. Article III, section 55, of the Texas Constitution
prohibits a release or extin$;uishmentof an existing indebtedness to a
county, but it.does not make a public official the guarantor of funds
that are uncollectible after using due diligence. It is our opinion
that a public official incurs no indebtedness to the county for such
uncollected funds.
Your last question inquires whether the statute of limitations
can bar the county's claim against a justice of the peace for public
money collected by the justice. We conclude that the county's claim
is not barred by limitation``..
Early Texas cases fotnd that certain claims by counties were
barred by the two-year ani. four-year statutes of limitations. See
Grimes v. Bosque County, 2~0 S.W.2d 511, 515 (Tex. Civ. App. - Wz
1951, writ ref'd n.r.e.) (county’s suit against sheriff and his
bondsmen governed by four-year statute of limitatidns instead of
two-year statute); Bexar County v. Maverick, 159 S;W.2d 140 (Tex. Civ.
APP. - San Antonio 1942, w& ref'd) (county's suit on official bond
of tax collector subject to the two-year statute of limitations);
Tarrant County v. Prichard, 89 S.W.2d 1028 (Tex. Civ. App. - Fort
Worth 19~35, writ dism'd) (two-year and not four-year statute of
limit,ationsapplicable to ~;nit against justice of the peace and his
surety for accounting to determine fees which justice of the peace
allegedly failed to turn over to county).
Prior to 1953, articll? 5517, V.T.C.S.. expressly exempted only
the state from the provisjons of Title 91, Revised Statutes, which
title relates to limitations. In 1953, the legislature amended
article 5517 to read as fol:lows:
The right of the State, all counties, incor-
porated cities and all school districts shall not
be barred by any of the provisions of this
Title. . . .
Subsequently, the Texas Supreme Court in a per curiam opinion stated
the following:
p. 2374
,
Honorable Mike Driscoll - I?age7 (JM-517)
The court o:i civil appeals has held that
Hemphill County's cause of action for damages for
conversion of county property, asserted in a suit
against the sheri.ff and a former sheriff of the
county and their bondsman. can be barred by a
statute of limitation and is barred by the
two-year statute. 406 S.W.Zd 267. The primary
holding is in conflict with our opinions in Brazes
River Authority v. City of Graham, 163 Tex. 167,
354 S.W.Zd 99 (:?161)and City of Port Arthur V.
'Tillman. Tex. Cpr. App.. 398 S.W.Zd 750 (1965) in
which we held that bv virtue of the orovisions of
article 5517, V.T.C.S., rights of action held by
the governmenta,L entities there named, which
includes counties, cannot be barred by any statute
of limitation.
Hemphill County V. Adams, 408 S.W.Zd 926 (Tex. 1966). By the 1953
amendment to article 5517, counties were placed on a parity with the
state insofar as immunity f,romlimitations is concerned. Lewis Cox 6
Son v. High Plains Underground Water Conservation District, 538 S.W.Zd
659, 660 (Tex. Civ. App. -Amarillo 1976, writ ref'd n.r.e.1.
The Civil Practice and Remedies Code, enacted in 1985, recodified
former article 5517, Revised Statutes, without substantive change.
Section 16.061 of that codt!now reads as follows:
516.061. Rights not Barred
A right of action of this state, a county, an
incorporated city or town, or a school district is
not barred by any of the following sections [of the
Civil Practice alld Remedies Code]: 16.001-16.007,
16.021-16.033, 16~035-16.037, 16.051, 16.062-16.071.
or 31.006.
SUMMARY
The commissioners.court and county auditor may
not relieve a justice of the peace of liability
for shortages of public money received by the
justice. The statute of limitations does not bar
a county's clain. against a justice of the peace
for such funds.
MATTOX
Attorney General of Texas
p. 2375
Ronorable Mike Driscoll - P;rf;e
8 (JM-517)
JACK RIGHTOWKR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorne:rGeneral
RICK GILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General
p. 2376