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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 'CheckDepartment'. The CheckDepartment has employed two deputized ,clerksto handle the procedure outlinedbelow; the salaries of the two clerks are paid from county funds. The clerks are bonded slnoe they are required to handlemoney **in** their duties. This department Is supervisedby the Sheriff. "This departmentdeals with all questionable checks called to their attentionby 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 Instanceswhere 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 thepart 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 followingprocedure Is followed. The merchant of payee of a worth-. less check brings the check to the check department for processing in the followingmanner. -920-HonorableWayne Burne, Page 2 (C-190)

First, the Check Departmentencourages the merchant or payee of the check tomake some effort, Insofar as it Is possible, to notify .or advise the checkwriter that the checkwas not 'pald.
"At the time themerchant brings In a check, It Is Inquired as to whether or not the checkwas a hold or post-dated one, and if so, the check is, rejected-bythe department. If not a hold or post-dated check, the merchant is asked to sign an affidavit to that effect, a oopy.ofwhich is enclosed. At this time, themerchant is askedwhether he wishes the department to mall a notice to the ch,eckwriter by certified,mall with a returnreceipt and the.merchant is advised that should it become necessary to flle,chargeeon the check that the.notlcemuet be sentby certified,not ordinarymall. The merchant then la required to pay the departmentpostage necessary to send certifiedmail.
"The CheckDepartment fills in some forms, copies attaohed,~at the time the cheek is" brought to the department. These forms consist of a,relmbursementcheok',(whlch 1s signed and mailed to themerchant should the checkbe paid later); a copy containing Informationabout the checkwhich la placed in a master file and filed numerically, containing all the cheokwriters kept In the department (shoulda 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 rone part 18 sent to the checkwrlteras a notice and the other part is given to themerchant as a receipt for the check turned in) and the last form Is one containing Informationabout the check, or checks,which Is filed with the actual check, alphabetically. "Specifioally,your opinion is desired as to whether or not a Check Departmentestablished by the Sheriff and operated In themanner outlined above is a legal or permissible operation."
We quote from your letter of November

### 8,1963, as follows:

-921-Honorable,Wayne Burns, Page 3 .(C; 190 )

'(Atthe Inception of the check department, both of the department clerksmentioned in my request for this opinion were authorized and'approvedby the CommissionersCourt. Furthere,,

the check departmentmakes no charge ,whatsoeverfor checks that are collected, and the only,mon(ty

paid by the merchant is the amount necessary to send.thenotice to the check writer." Article 380a of Vernon's Penal Codeprovides:

.~,".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~~anyclaim for debt for others except under and by'virtue of the pro- .cessesof 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 normore than Mve Hundred.Dollars, and In addition to such -finemay be ~removedfrom office. Provided, however; that nothing herein shallbe construed to prohibit any Justice of,the Peace who Is authorized by ,lawto act for others in the collection of debts from undertaking such collecti~ons

where the amount Is beyond the jurlsdlotlonof.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~DlstrictCourt affirming an order of the Firemen's and Policemen's Civil Service Commission, dismissing a city detective from the San Antonio PoliceDepartment, on the ground that he violated Rule 48 of,the rules and regulations of the police department. Such ruleprovided:

"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 Codeprohibits the collection of debts by any peace officer for compensation. TheCourt of Civil Appealsaffirmed the judgment

-922-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 supportedby substantial evidence,notwithstandingthe fact that appellant caused to be filedfanassumed name certificate showinghis wife as owner of the collectionagency, which wae operated under the tradename of "San Antonio Creditor'sAssociation".
It 18 observed fromyour 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 compensationbut also the collectionof 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 thereforeof the opinion that the procedure as setout in your letters of October 18, 1963, and November 8, 1963, Is unauthorized.
SUMMARY

In light,

of Article38Oa of Vernon's Penal Code, It Is our opinion that the sheriff le not authorized to conduct the ,debtcollectingprocedure 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 APPROVEDFOR THE ATTORNEYGENERAL BY: Stanton Stone

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