,OFFlCE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

April 28, lQS9 

Honorabla E. 0. Garvay 

Cottut Awlltor 

Bexar County 

San Antonio, Texas 

lb2 IS an Inins 

8herlfr or olalmed 

t him on aoeouut 

18tratlon 0r hir, 

dauthorlamthe 

tor to rorwa to 

hi8 salary warrant* 

addrosaod to the 

an oplnlon upon 

Ire& and oarolotter a oomBexor Ueunt;r, aQdre68ed to 

0osuiQore~ 'in eonneotlon 

'a lettmr im too lengthr to%o 

i It 6oal rith tbeorotloal questions 

*sue8 ai Saot. Eonror, wo hare given 

o. him lottor and from It and hour 

~084 tha subataaoo of the oontromrd tho 0herirr. We quote TOPT latter 

*The dmrltf oi Bexar Ceunty ha8 requested that 

I write you r0r an opinion ooororlng a oortaln matter. 

8iYiOa hia roqUeBt noem t0 explain the Patter rexy 

thorot@ly X~am enolo8lng herewith oopy or him roqtmet. 

*In oompllanos wlth hi8 raqnemt, I an asking an 

opinion rrom you oorerlng the r0iimi~ quastlons: 

Qst. Are the type of olalm mentioned in his 
Hon. E. C. Carvey, April 28, 1939, I'age 2 

request under (a), (b), (o), and (A), suoh types of 

olalm that would oome under Artiolo 3912e, Section 

19, Paragraph m, that would make It wmdstory for 

me to refuse to oounterslgu his salary oheok drawn 

against the Offlaers Salary Fund? 

'2nd. xr only a part of these olaims are types 0r 

a-8 that would oomo under Artiolo 39120, Seotlon 

19, Faregraph m, state rhether they are olalms that 

would OOPS under (a), (b), (o), or (A), ot the 

sherirr*s roquest. 

"3rd. 

znot 

Ii any or all of the olelms above mentioned 

a typo of olalm ooming under Artlolo 39lZ8, 

Seotlon 19, Paragraph P, are thoy olalms or llebillty thet would bo held against the Shsrltr or Oonstable under any other statute? If so, stat0 tho 

Art1010. 

"4th. 8lnoo these are an aooumulatlon of olaims 

oovorlug a period rrom JBL 1. 1931, to Dooember 31, 

1938, against tho Oonetablo and Sheriff, whloh havo 

been reported by me each year to ths Crlmlnal Dletrlot Attorney, are any of these olalms, whothor 

under Artlole 39X%, Seotlon 10, Patsgraph a, or a 

olalm ooming under any other part of tho Btatutee, 

barred by llmltatlon?W 

In oonhleratlon of the questions propounded br 

you and of tho propsr answers to be mods theroto by this 

department, ws think that we should first Alreot your attention to ths llmltatlons plaooa upon the Attornoy Oenorsl 

by Artlolo -9, Revised Civil Btatutos of lQZ8, wheroln It 

Is provided insorer as oounty auditors ars oonoornoa, that 

tho Attorney General "shall give them wrltton adrice upon 

any question . . . touohlng their orflolal duties.* It Is 

not proper that this department shall abvlso oonoluslvely 

upon 00ntiovereial matters 0r raot, or as to what testimony 

should be oonsldered b;l a court in the trial of a oause, or 

as to what judgment should be rendered by a oourt In the 

trial of a oauee, for to do so would be to InvaAe the funotlons or the jualolary. 

We shall, therefore, oonrlne this opinion to the 

lnterpretatlon of ths pertinent statutes bearing upon the 

eubstanoe or your lotter so as to advise you with regard to 
Hon. 5.. C. Harvey, April 28, 1939, Pwe 3 

your offloial duties with respsot to the mntters dlscusaed 

in this oplnlon. In oonneotlon with paragraph (m) of Article 

3912e, WB quote 80 much of thls Artiole and Sections as are 

deemed pertinent! 

"(m) All moneys drawn from said Offioers* Salary 

Funds shall be paid out only on warrants approved by 

the oounty auditor. No warrants shall be drawn on 

seld fund In favor of any person indebted to the State, 

oounty, or to said fund or in favor of his agent or 

asslgneo until suoh Aobt la paid, when notloe of auoh 

indebtedness has beon filed with the oounty auditor..." 

"(n) Eaoh Alstrfot, oounty and precinot offloer shall keep a oorreot detailed statement of all 

amounts earned by him and of sums ooalng Into his 

hands as fees, oosts, ah& oomlsslons, in a book to 

be provided for hlm by the proper authorities of 

the oounty for that purpose In whloh the orrioer at 

the time when foes or moneys are earned or shall 

come into his hands shall enter the same in suoh 

form as may be lawfully requixeA.W 

It Is provided in paragraph (q) of Seotlon 19 of 

the stated article of the statute, that a statement at the 

alose of eaoh fiscal year shall be made by eaoh orrloer 

theroln mentioned whloh shall be alreoted to the Dletrlot 

Judge of the property oounty, and shall be submitted on 

forms AeslgnoA and approved by the stato auditor; that a 

oopy of suoh statenont shall bo fomardea to the state audltor by the olerk of tho Alstrlot oourt within a given tlma 

and that one oopy shall bo filed with the oounty auditor. 

This seotlon also provldss in substanos that the statement 

shall show the amount of the rees, oommlsslons and oomponsatlons earned by tha orrloer aurlnp the rlsoal year ana the 

amount of fees, oommlsslons and oompensatlons oolleoted by 

him during suoh year and their Alsposal, and it shall oontaln an ltemlted statement of all rees. oonnsisslo~ and 

oompensatlons during the rleoal year whloh were not oolleotsd, 

toaether with the style of the oase. the name of the party 

owln~ euoh fees, oo~lsalons an4 o&pensstlons, and the - 

nature of the saourlty for ooAt.8, and the reason for nonoolleotlon. The balanoo of this paragraph and seotlon Is 

here quoted oerbatlm, to-wit! 

"For failure to file said report said offloer 

shall be subjeot to removal from orfloe. The oounty 

auditor shall audit euoh report and file his report 
Hon. E. C. Cm-my, kprfl 26, 1939, Page 4 

with the Commlsslonersl Court, and said oounty 

auditor also shall prepare and file with the Alstrlot or criminal dlstrlot attornoy a detailed 

report 0r all r0e8, oomm.lsalons, and oompansatlons 

unoolleoted which have been due and payable to any 

officer of the county ror a period of more than six 

(6) months; and a rrlmllar report or all re08, oomnieslons and oompeneatlons oollooted by MIA offloers and not reported by them and a list of oases 

filed alnoe January 1, 1936, in whloh any oounty or 

dletrlot olerk or justioe of the pesoe has not taken 

adequate seourlty ror ooats or requIreA a peuper's 

oath." 

You are advleed that the word wolalmW and the word 

"debt.* aro not necessarily synonymous, and that they are not 

believed to be so used in these statutes. This la made evldent by the pmvlslone of Paragraph (q) above referred to and 

quoted. It must be contemplated both rrom the language of the 

statute and In reason that ln the event of suit against the 

sherift, as provided for In euoh statuto, ha mlpht establish 

sufflolent reasons, wlthln the purview of tho law, why rees 

whloh had aoorued In oortaln oases had not been collected, 

or In other words, a valid defense to the suit. 

Tho bgislaturo did not mean that the oounty auditor 

should, merely beoause rm8 his at&It or tho shorirr*s aooount, 

he Is of the opinion that tho sheriff had been Aerellot in 

oolleotlng tees or that he had msdo oolleotlons whloh he had 

not aoootmted ror, ho, the auditor, should oxerolse tho authority of wlthholalng the lasuanoe or the shorlrr*s salary 

warrants. To give the auditor suoh unllmlted authority would 

be to deprive the sheriff of his day ln oourt and to inpose 

-upon him a penalty without a judicial hearing. 

The stntuto makes It the duty of the Dlstrlot Attorney 

upon the oondltlons and for the reasons named thoreln to lnstltute a suit to oolleot the teea ror whloh the aherlrr Is thought 

to be liable, with respect to any supposed derault upon his 

part, either to oolleot fees or for fees supposedly oolleoted 

and not aooounted ror. Until In suoh suit a judeplent has been 

rendered against the sheriff, the aseerted and unllquldeteA 

olaime against him by reason of thsae matters do not heve the 

absolute status of a “debt* within the purview of the law. 

Ordinarily, you will have discharged your full duty under the 
: - 

. - 

Hon. E. 0. Oarmy, April 28, 1939, Page 5 

law 91th raapeot to tha l harIff*e atatammt when you aball 

hatO 8uait8a the awe ana riha with the Dietriot Attommy 

the ~reportw praaorlbea in the last quoted l aotlon or the 

atatuta, l up r a . 

Itahouia further ba borne inrinathattha l hmrI.fr 

la raqulra6 to auouta an orrlolal bond In an oaount a& 

0ondltIonad am ra~uIra4 by law rot the ralthral parr0~1308 

o< hla oWlolal dutlaa, ana ordlnarll~ auoh'bpna noul4 k 

miilolant protaotlon t&the atate and awuty for rttan of 

odaalon and oomIaalon by the aharIff In the aiaohuga or 

him dutloa raquSrad uuaar the law. Only in maem where 

thara 0r8 LID augpakd ia8~aa or raot lmoivad; +hat 18 ti8n 

tha 'olair agalxfat an orrloar ham aoqulrad fhq'otatusof a: 

debt am herein dailnad, should the auditor 'u- the-p&~ 

rogatlwb oi ~ithbt~lding the orrloar*a salary w8rr~t. rrutk-ro, in aaalth tctha~othar raaaou a8algm6;'tkara 

la;,;? ~++ poliOy rhy tha$a+ion should aog~ba takan. '.. 

Is 0-t fib9w ttm.opini~n PO- a8rinit8 in W;W 

dthe’rbrurr in whloh the quaatlona arm mubilttatl to the 

Attohay 06naral*a Dapartmant. 

Thledapirtmnt ~daolinaa to anawr thk fourth 

~88tfonw8adn8a in m.l*tter r0rtb 7~4eri0i8nt 

raaa@.tbat whatbar or not tha l tatutaa ot-liritatIon.may 

k~&@@kariOly pluaaa .in. auy oaaa la 0rdlimHly a riud 

qua*tS&n of law a* iao&and It la aluayadmntte rm 

deturlrutian or th8 : 0oort.. 

Youra wary tlQly 

u. T. llhra 

hat Aaalatant