### THE NEY GENERAL TEXAS

PRICE DANIEL ATTORNEY

GENERAL September13, 1949

Hon. C. H. Cavnesa State Auditor Austin, Texas OpinionNo-V-901 Re: The duty of the Commlssioner of the General Land Office to collect accountsdue that office
Dear Sir:
Your requeet for an opinion reads as follows:

"In connection

with our current audit of the account8 of the Qeneral Land Office we respectfullyrequest that you refer to Attorney General'sOpinionNo, O-5332 (dated July 22nd, 1943) and advise us which Department or Offlbtal of,the State has the duty of taking action to recover to the State the remaininguncollectedaccountsdue the Qenera1 Land Office - accounts such aa are described In that opinion, "Followingthe ruling of the above opfnion the Land Office ceased extendingcredit to all customersand required funds to be on deposit In the General Land Office or the State Treasury before serviceswere rendered, etc. At that time therewere uncollected accountsdub the Land Office as follows:
"J. Ii, Walker Willfam Ii.

McDonald Bascom Glles Total "Beglnnlng~.at

that time collections were made on these accounts to the point where the entire amounts shown due by J. H. Walker and Bascom Glles have been satisfactorilyaccounted for, and a total of $69.25was collected on the WilliamH, McDonald accounts, This- 1 .-

.-~ . _

Hon. C, H, Cavness - Page 2 (V-901)

leaves a total balance due of $1,551.65 on said McDonaldaccotznts.It ueems to us steps should be taken to collect this balance but of course it is out of our province,and your advice in the matter will be greatly apprecfated,"
We have discussedthis letterwith Rr, Grady Starnes of your Department,and, a8 we understandhim, you are not inquiringas to whfch department01"offfclal has the duty of inftiatlnglegal actfon to collect the amounts due the State, but your questionsare as follows~ 1. Is it the duty of the Commfssionerof the General Land Office to make a written demand against the debtor for payment of delinquentsums due the State of Texas under Art, 3918,V,C.S.?

2. If the above question Is answered fn the negative, then which head of departmentor State Offfcial has the duty of making demand?

We answer your first question fn the afffrmative and hold that the Commissioner of the General Land Office has the duty of making demand for the payment of delfnquentaccounts incurredunder Art, 3918, V.C,S,

Generally.the Caamnfssfon has onlr those oowers. duties, and respon~~bflfties conferred State v, Post, 169 S.W. 401 (Tex, Cfv, other grounds, 106 Tex.500, 171 statute,given custody,and-control of all accounts in the General Land Office (AI%. 5262,v.c,s,) and the general control of the Land Office (Art. 5251, V.C,S.). He also has such implfedpowers as ape necessary to the fulfillment of his express 46 C.J,1032,Officers,Sec.287; 34 Tex. Jur. 44$~%cers, Sec. 68.

We believe the makfng of a demand for payment of sums due the Land Office rests upon the Colnfssfoner by virtue of the above cited authority.

In Attorney General$sOpinionV-791, dated March 24, 1949, It was held as follows:.c

Hon. C. H. Cavness - Page 3 (V-9011,

“It la the dwty of Land Commissioner to asoertalnwhen Interest Is due on dellnquent bonus, rentals and royalty and to make demand therefore ” (Emphaslls-) AttorneyQeneraltsOpinion O-5332, date& July 22, 1943, holds that the Commiaslonerla without authority to extend credit In respect to fees required lay Art,3918, v,c.s. The opinion also says:

“In your letteryou Inquireupon wbem rests the reaponulblllty to collect accounts for ,the

services of ~,the

CommissionerIn tiling documentsand for certifiedcopies, etc. under said Article 3918, Revised Civil Statutes. Since there la no authorityon the part of the official to create such accounts,there Is no statutoryprovisionwith respect to the collectionthereof. The officialbond of the officialprotects the rights of the State to receive the fees provided for In said Artlcle 3918,

” We Interpret

%he above quoted paragraph to hold that the Land CommlsaionerIs without statutoryauthorityto Initiate legal action for collection;and It does not, therefore,conflictwith our holding In the present opinion, The duty of making demand rests upon the present Coumissioner for Indebtednesscreatedduring the term of a predecessor. 46 C.J, 1035, Offfaers,Sec. 301 says:

“As a general rule, dutlas lmposed~ **by** law on public officersare functionsand a$trlbutes of the office; and they remain, although the incumbent dies or Is changed,and are to be performed by the Incumbent,although they MJ: have been left undone by the predecesror, See also 34 Tex, Jur. 449, Public Officers,SeC.~. Since the first question Is answered~~in the afflrmatlve, it will not be necessary to answer the second queltlon,Hon. C. P. Cavnea8 - Page 4 (V-901),

SUEMARY

The- Commlsalonsrof the General Land OffIce has the duty of makIng a demand against debtors for delfn uent accounts incurredunder Art, 8 391 ', V.C.S. YourB VepJrfruly ATTORNEYGERRRALOF TEXAS

,JW:bt

APPROVED