Hoti. Tom C. Kla State.Audltijr

and Efficiency Expert Austin, Texas

Dear Sir: OpinionNo. o-1036

Re: 1. Does the statute of llm1tatlonbar

recovery of understated fees of office of a tax.collector? 2. Does limitationbegin as of the : date incorrect fee report's were made to the county or as of the date the errorwas 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.

YourLetter reads in part as follows:

"It Is .discoveredin 1939 that the Tax Collector has understated his fees of office in his annual fee reports for the years 1932 and 1934, and 1s thereforedue the county for such understated fees.

“(a) Does the statute of 1lmLtatlonbar recovery by the county? "lb) Does limitationbegin'as .ofthe date incorrect fee reportswere made to then, county, or as of the date the errorwas 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 ordinaryHon. Tom C. King, Page 2

county business..r0

.. Limitations run against a cause of action in favor of a county for the recovery ofmoney which belongs to itsgeneral fund. The bar of the statutemay be availed of as a defense to an action for the recovery of Interestupon depositsmade by a tax collector'sbond 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 Inmaking 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.ofa 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; Steusoffvs, 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 prosecutedwithin two years after ,thecause of action shall have acc~rued, and not'afterward, all actions or suits In court of the following description:
"1D 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 ,ownuse.' .~

“3D Actions for taking or carrying away the good and chattels of another,

“4a Actions for debt where the lndebtedness~ fs not evidencedby a contract In writing.

"5

. Actions iipon~ stated or'upon accounts other than suchmutual and'current accounts as1 ,_ .

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 thedelivery of the several articles charged shallbe partlcularly specified, and limitation shall run against each Item from ttie date of such delivery,unless otherwise speo.lally contracted.
"6. Action for Injurydone to the person of another.

“7

. Actlon'LforInjurydorieto the person of anotherwhere death ensued'from such Injury; and the cause of action shallbe oonsider6d~ as having accrued Ft the death of the party Injured.

"Art. 5527. There shall be commenced and prosecutedwithin four year@ after the cause of action shall have accrued, and not afterward,all actions or suits in court of the followingdescription:
"1

. Actions for debt where the Indebtedness la evidenceby 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 partnershipaccounts, or upon mutual and current,aMounta concerning the trade of merchandise betweenmerchant and merchant, their factors or agents; tid the caube of action shallbe consider&d as having accrued on a cessation of the dealims inwhich they were interested together. .~~ "Art. 5529. Every action~other than for the recovery of real eatate;for which no llmltatlon Is otherwise prescribed, shallbe 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 betweenmerchant. .

Hon. Tom C. King, PagQ 4

"'Thequestion as to'whether:~sults foretches recoirergof excess fees.r'&talned.by .county;

officers are ~gdvernedby ,thestatute of ~llmitatlonInvolves 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, llmltatlonwill 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,

"Ithas 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:'SW13. InH. & T. C; Ry.Cb. vs. Travls"County,. 62 Tex. 1.6, It was held that llmltatlonwould run against a county for damages which **‘ It**  sought to recover from the railway, occasionedb;ythemarinerIn .~, 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 SW155;lt was held that the statute of llmltatlonwould run against the county In a suit against, the tax collector and his ~bondsmenfor taxes-hehad~colledted for which he had not accounted,unless he had fraudulentlyconcealed 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 limitationwotild:.run ~agalnstthe county on a suit bg'the:county on a liquor bond.' ,InLane 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 limitationswould apply against the,countF.i In Jeff Davis County vs. Davis, (Tex:ClV. App.) 192 SW 291, and which wrltlof errorwas denied, th,e'-court

held that the two'year statute of limltations woul+run as against the county for the recovery fromIthe sheriff and his bondsmen of motiey'that had been'lllegallypaid the sheriff-by the COIMI~Sslonerts court. To the same:;effect ls,the holding of the court In GrtiysonCounty vs, Cooper (Tex.Clv. App.) 211 SW 249, where it,waa held that the twoHon. Tom C. King, Pee 5

year statute of llmltationwould run against the county to recovermoney 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, 103TX. 406, 128 SW 369, It was held that the statute of llmltatlonwould run against the county In suit for Interestdue on bonds which had been issuedby 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, togetherwith 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, Inwhich 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 shallbe 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 succeedinggrand jury or district court. In oountles havingno county auditor, It shall be the.duty of the commissioners' court to make the examination of saidbooks and accounts'orhave the same made and tomake report to the grand jury as hereinaboveprovided.

"Art. 3897. Each district, courity and precinct officer, at the close of each fiscal year (December31st) shallmake to the district court of the county in which he resides a sworn statement In triplicate (on forins designed and approvedby the State Auditor) a copy of which statement shallbe forwarded to the StateAuditor 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 compensationswhatever earned by said officer during the fiscalyear; and secondly,shall show the amount of fees, COmmiSslons and compensations collected by him duringHon. Tom C. King; Page 6

the fltieal~y&r;'thlrdlg,:saldreport shail c,ontaln an ltemlaed statementof all~fees, oommlsslons and compensatlo~,~earnedduring the flscal,yearwhich were not c~oIlected, togetherwlth.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 fiscalyear 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 suitbrought 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~lnorderto protect the Interests of~the county passedlaws requlrliigthe officers to flle~thelrreports ..ln,orb.eP.,ttiatj'~ame.,~a~ be'.atthe time properly checked, understood and explained. ', .In:,vlew

of the foregoing authorities,you are respec~tfuliy'advised ~thatit 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.

we are.' 'Trustingthat the foregoing answersyour Inquiry,

Yours very truly

AW:AW:bjb .A'ITORREYGEWKRALOF TEXAS .~ By S/ArdelIWllllams

. ~ArdellWllll~s Asslstant~

APPROVED JVL 14, 1939 S/ W.;F. Moore

. ~,: 'FIRST':ASSISTANT ATTORREYGEKERAL APPROVED OPINION COMMITTER 'By-~ W.R.K Chairman