!y Auwrq, TEXAS 

PRICE DANIEL 

ATTORNEY GENERAL 

Ron. R. A. Barton 

County Attorney 

Calhoun County 

Port Lavaca, Texas 

Opi,nion No. v-151 

Re: Whether or not the Comptroller of Public Accounts 

Dear Sir: 

can pay sheriff fees under 

the facts presented. 

. . 

April 24, 1947 

Department 

Your .letter, requesting an opinion from this 

on the above subject matter is as follows: 

“I desire to request aa..oplnion regarding the right of the Calhoun County Sheriff, 

Mr. Leonard Fisher, to rece,ive payment from 

the State of Texas for fees due his office 

groniag out of twos cases: 

“Case No. 1061, a criminal case, nherein execution was had ,on the .9/26/44. Indictmsnt was returned 11&S/44 and the causes disposed of 11/18/46. 

“Case No. 1068, a criminal case wherein 

execution was had on the 8/5/45, indictment 

returned U/21/45, final disposition on the 

12/3/46. 

“Mr. George Sheppard has by letter attached of January 17th, 1947 denied payment 

of certain Items, .The. first case was the 

charge of passing a forged instrument; the 

second for the sale of mortgaged property. 

Roth cases were disposed of by dismissal 

on motion of the District Attorney. It is 

true that neither case was a reducible ‘case 

as provided by article 1027 V. C. C. P. However ,i~n this county and district the District 

Judge has heretofore refused to approve any 

fees until the case under indictment was 

disposed of. For that. ,,reason It has been 

impossible for the sheriff’s department to 

submit to then Comptroller his statement of 

fees due within a year from the date of 
Eon. R. A. Barton, Page 2, V-151 

indictment or execution, unless the case 

was disposed of within that time. 

"Under that state of facts.lt la Mjust to deny this claim for fees. I find 

no cases as to when a fee may become due. 

Certainly a fee that doe& not have the District Judge's approval certainly Is not 

due. There is no mandatoyy requirement 

upon the judge to; approve a fee in such 

causes until after final disposition. 

"Under those facts Is the sheriff of 

Calhoun County not entitled to his fees." 

We quote the following from a letter written 

to the sheriff' by Hon. George H. Sheppard, Comptroller: 

"I hereby acknowledge receipt of your 

District Court Account for the November 1945 

and November 1946 Terms of,Court submitted in 

the amount, of $161.20. 

"In Case No. 1061 I note that the service 

was performedSeptember 26, 1944, and as the 

offense was oft a non-reducible nature, and 

the claim should have been~presented to this 

office within twelve months from the end of 

that Term of Court. In Case No. 1068, the 

offense was of a non-reducible nature and 

the claim should have been presented wLthin 

one year from the end of ,the April, 1945, 

Term of Court. Your account will be redwed 

by $4.00 and $110.20 on the above cases. I 

wish to call to your attention regarding the 

above catlea, 'Article X027, V.C.C.P. and Article 1035 V.C.C.P. If'any dates or terms 

of courts submitted on the above oases are in 

error, do dot hesltate to notify me. 

"I, am encldsing Warrants Nos. 333910 for 

K5P&Oc~;~s3~3923 for $13.50 in payment ,of the 

Article 1035, V. C. C. P., prior to being 

amended in 1931, provides: 

"The Comptroller upon the receipt of such 

claim, and said certified copy of.the mlnutes 

- 
i:. 

Hon. R. A. Barton, Page 3, V-151 2sw 

of said court,. shall closely and carefully '.. 

examine the. same, and, if correot, draw.his 

warrant on the State Treasurer for 'the.amount 

due, and in favor of the officer entitled to 

the same. If~the appropriation for paying 

such accounts is exhausted,, the- Comptrol1e.r 

shall file t:he' same away, if correct; and 

Issue a certificate in the'name of the 'officer entitled to,the same, stating therein the amount of the claim and the eharaoter 

of the services performed. All such claims 

. 

or accounts not sent to or plaoea on file in 

the office ~of the'comptrollerwithin twelve 

months -- from~. the.date of the.final disljos~Ltton~ 

of the case in which the services were rendered, shall forever barred." 

ours) 

,(Underscorlng 

'~ Article 1035,~V:C.~ C. P., as amended by Acts 

1931, k&d legislature, p. 239,'provides: 

.~ .~ 

"The Comptroller upon the receipt of such 

'claim, and said ~oertified Oopy of the minutes 

of said Court, shall cloae.)y and carefully examine the same, 'an@ If her deems the.sams to be 

correot, he shall draw his warrant on the State 

Treasurer for the amountfoundby him to be due, 

and in favor.of the officer entitled to the 

same. In the.appropriat$on for paying such-ac-' 

counts is exhausted, the Comptroller shall file 

the same away, if found to.be correct, and issue a .certiflcate in the name of the officer 

entitled to the sams, stating here the‘amount 

of the claim and the character of the services 

performed.. All suoh claims or accounts not 

sentto or placed on file inthe office of the 

Comptroller,within twelve (12) months from m 

date the same becomes due and payabl; -1 be 

forever barred-derscoring ours 

Article lOZ7', V. C. C. P., provides: 

"In all cases where a defendant is indicted for a felong~but under the indictment 

he may be convlkted of a misdemeanor or a 

felony, and the punishment which may be assessed is a fine, jail sentence or both such 

fine and .imprisonment in jail, 'the State shall 
Ron. R. A. Barton, Page 4, v-151 

pay no fee& to any officer except where 

the defendant Is indicted for the offense 

of murders, until the case has been f lI$ally 

disposed of’ in the trial court. . . . 

It will be noted that prior to the 1931 

amendment Article 1035 provided that all olaims in 

“non-reducible” oases not sent to or placed on file 

in the Comptroller’s office within twelve (12) months 

from the date. of final disposition of the case, would 

be forever barred. The 1931 amendment to Article 1035 

changed this provision to provide that all claims or 

accounts In non-reducible oases not sent to or Dlaoea 

on file in the Comptroller ls office within twelbe 

months from the date ----- the same became due and payable 

EiG barred. 

Article 1027 provides that la “reducible” 

cases (except murder) no fees shall be pald by the State 

to any officer unt 11 the case has been f lnally alsposed 

of in a trial court 0 Said provision implied that 111 all 

other cases fees would becollle due and payable prior to 

the disposition of the case. This lmpllcat Ion becomes 

stronger when construed In the light of the 1931 amendment to Article 1035. The $eglslature, by said amendment, changed then date ‘from which llmltatlon. would begin to run In “non-reducible” cases to the date the 

claim became due and payable ‘instead of the date of 

the final dieposition of the case in which the services 

were rendered. Therefore, the Legislature has now made 

it mandatory that all claims In ~Rnon-reaucible” cases 

not filed with the Comptroller wlthti twelve month? 

from the date the same @oomes due and payable shall bs 

forever barred. 

There is no indication from your le,tter that 

the claims for fees were submltted to the District Judge 

for his approval prior to the final disposition of the 

case. If the claims had been sublnitted to the District 

Judge and the Distriot Judge had refused to approve 

same, the sheriff would have had his releedy in court as 

set out in Biafora vs. Robinson, 244 9. W. 807. 

Since the claims presented to the Comptroller 

were based eon offenses of a “non-reduclbleD nature, 

such claims should have been presented to the Comptroller 

within twelve months from the da.te the same beoams due 

and payable . me Comptroller has oonslstently and unlformly construed the ltnguage “from the date the same 

becomes due and payable In such cases as meaning the 

close of each term of court after the service by the 
Ron. R. A BaTton, Page 5, V-151 ~‘~ ’

sheriff has been. r&dere,d. ~,Thls~,coastruotion” is based 

on the provlsions’,of Article 1028;. V.%:C.P’;, .Qhich 

provides : 

“All fees accruing under the two succeeding article’& shall be due and payable 

at the close of each term,of the .distrlot 

oburt, after being’dtiy approved, exce t 

as provided for in. subdivisions 7 and 8 

of said articles, which shall be paid 

when. approved by the judge ,,under whoae 

order the ~writ was issued. 

We quote the following from 39 Texas Jurisprudence, pp. 235-237: 

.~~“The .courts will ordinarily adopt and 

uphold- a’ ‘construct Ion, ,ljlaced upon a statute 

by an executive off leer or department charged 

with its admlnlstratlon, if the statute is 

ambiguous~ or uncertain, and the cT;;t;;;iiOn 

so given it Is reasonable’ . . . 

above stated is .partlcnlarly applicable to 

an administrative cbtitruotion of long 

standing e . . or vher& a flaw that has been 

uniformly construe&by those’ charged with 

its enf erceetit has. been reenacted without 

a change of lan&a&e. n 

In view of the foregoing, it is our opinion 

that the claims for fees by the sheriff mentioned In 

your request are forever barred by virtue of the maadatory provisions of Article 1035, V. C. C. P. 

SUMMARY 

Fees of a sheriff based upon claims 

for services rendered in “non-reduoible” 

cases become due and payable at the end 

of the term of court in whioh the services were rendered, and all such claims 

not filed with the Comptroller within 
Hon. R. A. Barton, Page 6, V-151 

twelve (12) months from the date the 

claims become due and payable are forever barred. Articles 1027, 1028 and 

1035, v. c. c. P. 

Yours very truly, 

ATTORNEY GENERAL OF !CEXAS 

BY 

Bruce Allen 

Assistant 

By 45f5v* 

Assistant 

JR:ajm:mrj