Hoti. Tom C. Kla 

State.Audltijr and 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's were 

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 dlscovered 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~:in matters arising out of ordinary 
Hon. Tom C. King, Page 2 

county business.. r 0 . . 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 collector'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 fork ai as an instrumentality 

of the state. Ni+wll,l llm~ltatlon~run against 

a county as trusitee of: 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'~the csSes 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 

concern the trade . .~. . and merchant, tnelr factors or‘ agents. 1~ all 

accounts, except those between merohant and merchant, as aforesaid, their factors and agents, 

the respective times or dates of the delivery 

of the several articles charged shall be partlcularly specified, and limitation shall run against 

each Item from ttie date of such delivery, unless 

otherwise speo.lally contracted. 

"6. Action for Injury done to the person 

of another. 

“7 . Actlon'Lfor Injury dorie to 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 description: 

"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 cop.&tner for a settlement of,the partnership accounts, or upon mutual and current,aMounta concerning 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 llmltatlon Is otherwise prescribed, shall be brought 

within four years next after the right to brln$ 

the same shall have accrued and not .afterward. 

Hill 

We quote from the case of McKenzie et al vs. 

County, supra, as follows: 

3 

of merchandise between merchant 
. . 

Hon. Tom C. King, PagQ 4 

"'The question as to'whether:~sults for etches 

recoirerg of excess fees.r'&talned.by .county; officers 

are ~gdverned by ,the statute of ~llmitatlon Involves 

primarily the'questboti as to wh'ether .the.co.unty ,ln 

the collksztion of said excess fees and&the use thereof is engaged In Its governmental functions. The 

direct question, so far as .we .have- been able .to 

ascertain;\ has..tiot~been before the courts. Where 

the county acts purely ln'.its ~gorernmental capacity, 

llmltatlon will not run, but in all other respects, 

counties ar'e governed by the,statute of llmltatlon c. 

as fully and to the same extent as lndlvlduals, 

"It has been held that the statute of llmltat'lons, runs'against the county 1i1 an action on a 

b0nd:'t.o recover hirB of a co~nvlct. 2:'SW 13. 

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;y the mariner In .~, 

which the':railway company cohstructed~ Its crossing 

over a public highway-~ In Wardvs, Marion Cokty, 

26 Tex. 361, 62 SW 557, on re-htiai+ing 63 SW 155;lt 

was held that the statute of llmltatlon would run 

against the county In a suit against, the tax collector and his ~bondsmen for taxes-he had ~colledted 

for which he had not accounted, unless he had 

fraudulently concealed the collection thereof, 

and.wrlt of e'rror was denied. In Johnson vs. 

Llan6'County, 15 Tex. <Clv. Appi) 421,'~39 SW"995, 

It was held that limltatlofi wbuld ruri against 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;~~lt was.held 

that limitation wotild:.run ~agalnst the 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'-court held that the two'year statute of limltations 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~Sslonerts court. To the same:;effect ls,the holding 

of the court In Grtiyson County 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 precinct 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, courity and 

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 forins designed 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, COmmiSslons 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 'said fees, 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'f Twenty 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'.at the time properly checked, 

understood and explained. 

', .In:,vlew of the foregoing authorities, you are respec~tfuliy'advised ~that it la the ,oplnlon.of this 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 

'that llmltatlon begins as' of the.date Incorrect fee reports 

were made to the,county. 

we are.' 

'Trusting that the foregoing answers your Inquiry, 

Yours very truly 

AW:AW:bjb 

.A'ITORREYGEWKRAL OF TEXAS .~ 

By S/ArdelI Wllllams . 

~Ardell Wllll~s 

Asslstant~ 

APPROVED JVL 14, 1939 

S/ W.; F. Moore . 

~,: 'FIRST':ASSISTANT 

ATTORREYGEKERAL APPROVED 

OPINION 

C OMMITTER 

'By-~ W.R.K 

Chairman