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TEEATSORNEYGENERAL 

OF TEXAS 

Honorable Wayne Burns 

County Attorney 

Howard County 

Big Springe, Texas 

Dear Sir: 

Opinion No. C- 190 

Re: Whether a check department established by the 

sheriff and operated In 

the manner outlined is a 

legal or permissive operaMon. 

Your request for an opinion from this department has 

received our attention. We quote from your letter of 

October 18, 1963, is follows: 

"In Howard County. there has been established In the Sheriff's Office a department known as the 'Check Department'. The 

Check Department has employed two deputized 

,clerks to handle the procedure outlined below; 

the salaries of the two clerks are paid from 

county funds. The clerks are bonded slnoe 

they are required to handle money in their 

duties. This department Is supervised by 

the Sheriff. 

"This department deals with all questionable checks called to their attention by the 

merchants or payee8 of the checks. This neoessarily includes insufficient funds checks, unable to locate account, account closed, endoraement cancelled, forgeries, etc., of all amounts. 

"The department in Instances where It is 

deemed necessary, conducts an investigation in 

order to determine the name and whereabouts of 

a checkwriter. In certain cases where the intent to defraud on the part of the checkwrlter 

Is obvious, the check is immediately referred 

to either the District or County Attorney for 

filing of appropriate criminal charges. 

"In a typical case the following procedure 

Is followed. The merchant of payee of a worth-. 

less check brings the check to the check department for processing in the following manner. 

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Honorable Wayne Burne, Page 2 (C- 190) 

First, the Check Department encourages the 

merchant or payee of the check to make some 

effort, Insofar as it Is possible, to notify 

.or advise the checkwriter that the check was 

not 'pald. 

"At the time the merchant brings In a 

check, It Is Inquired as to whether or not 

the check was a hold or post-dated one, and 

if so, the check is, rejected -by the department. If not a hold or post-dated check, the 

merchant is asked to sign an affidavit to that 

effect, a oopy.of which is enclosed. At this 

time, the merchant is asked whether he wishes 

the department to mall a notice to the ch,eckwriter by certified ,mall with a return receipt 

and the.merchant is advised that should it become necessary to flle,chargee on the check 

that the.notlce muet be sentby certified, not 

ordinary mall. The merchant then la required 

to pay the department postage necessary to 

send certified mail. 

"The Check Department fills in some forms, 

copies attaohed,~at the time the cheek is" 

brought to the department. These forms consist 

of a,relmbursement cheok',(whlch 1s signed and 

mailed to the merchant should the check be paid 

later); a copy containing Information about 

the check which la placed in a master file and 

filed numerically, containing all the cheokwriters kept In the department (should a case 

be filed, this form 1s left, with the County or 

Dlstrlct Attorney for hle ~flles), and the next 

rtlon of the form 1s divided In two parts 

r one part 18 sent to the checkwrlter as a notice 

and the other part is given to the merchant as 

a receipt for the check turned in) and the last 

form Is one containing Information about the 

check, or checks, which Is filed with the actual 

check, alphabetically. 

"Specifioally, your opinion is desired as 

to whether or not a Check Department established 

by the Sheriff and operated In the manner outlined above is a legal or permissible operation." 

We quote from your letter of November 8, 1963, as follows: 

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Honorable ,Wayne Burns, Page 3 .(C; 190 ) 

'(At the Inception of the check department, both of the department clerks mentioned 

in my request for this opinion were authorized 

and'approved by the Commissioners Court. Furthere,, the check department makes no charge 

,whatsoever for checks that are collected, and 

the only,mon(ty paid by the merchant is the amount necessary to send.the notice to the check 

writer." 

Article 380a of Vernon's Penal Code provides: 

.~ ,".Any Justice of the Peace, -sheriff, constable or other peace'offlcer In this State, 

who shall,recelve~for collection or under-. 

take the collection of~~any claim for debt for 

others except under and by'virtue of the pro- 

.cesses of law prescribing the,duties of such 

.offlcers, or who shall receive compensation 

therefor except as prescribed by law, shall 

be guilty of a misdemeanor and upon conviction 

thereof shall be punished by a fine of not 

less than Two Hundred Dollars nor more than 

Mve Hundred.Dollars, and In addition to such 

-fine may be ~removed from office. Provided, 

however; that nothing herein shall be construed to prohibit any Justice of,the Peace 

who Is authorized by ,law to act for others in 

the collection of debts from undertaking such 

collecti~ons where the amount Is beyond the 

jurlsdlotlon of. the Justice Court. 

The case of Lombardlno v. Fireman's and Policemen's 

Civil Service Commlaslon of' the City of San Antonio, 310 S. 

. 651 (TexXlvtApp. 1X%, error ref. n.r.e.1 involved an 

appeal-f&m a judgm&Z of the~Dlstrict Court affirming an 

order of the Firemen's and Policemen's Civil Service Commission, dismissing a city detective from the San Antonio 

Police Department, on the ground that he violated Rule 48 

of, the rules and regulations of the police department. Such 

rule provided: 

"All officers ahall obey all the laws-of 

the United States, State of Texas, and ordlnances of the City of San Antonio." 

The Court stated that Article 380a of the Penal Code prohibits the collection of debts by any peace officer for compensation. The Court of Civil Appeals affirmed the judgment 

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Honorable Wayne Burns, Page 4 (C- Igo) 

of the lower court and held that the finding of,the Commission 

that appellant violated Artlole 380a was supported by substantial evidence, notwithstanding the fact that appellant 

caused to be filed fan assumed name certificate showing his 

wife as owner of the collection agency, which wae operated 

under the trade name of "San Antonio Creditor's Association". 

It 18 observed from your letter of November 8, 1963, 

that no compensation is being paid to the check department in 

the case before us; however, It should be noted that Article 

38Qa not only prohibits the collection of claims for debts for 

compensation but also the collection of claims of debts for 

others except under and by virtue of the processes of law prescribing the duties of such officers. No enactment exists 

which prescribes as one of the duties of a sheriff, the collecting of such claims for debts. 

We are therefore of the opinion that the procedure as 

set out in your letters of October 18, 1963, and November 8, 

1963, Is unauthorized. 

SUMMARY 

In light, of Article 38Oa of Vernon's Penal 

Code, It Is our opinion that the sheriff le not 

authorized to conduct the ,debt collecting procedure as outlined above. 

YouxG3 very truly, 

WAOGONER CARR 

Attorney General of Texas 

torney General 

JPB:cg:br 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Al10 B. Crow, Jr. 

Robert Flowers 

W. 0. Shultz 

APPROVED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

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