!y 

### Auwrq, TEXAS

PRICE DANIEL ATTORNEY

GENERAL

Ron. R. A. Barton CountyAttorney 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,

requestingan opinion from this on the above subjectmatter is as follows:
“I desire to request aa..oplnionregarding 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: “CaseNo. 1061, a criminal case, nherein execution was had ,onthe .9/26/44. Indictmsnt was returned 11&S/44 and the causes disposed of 11/18/46. “CaseNo. 1068, a criminal case wherein executionwas had on the 8/5/45, indictment returned U/21/45, final dispositionon the 12/3/46.
“Mr.George Sheppardhas 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 mortgagedproperty. Roth cases were disposed of by dismissal on motion of the DistrictAttorney. It is true that neither case was a reducible ‘case as providedby article 1027 V. C. C. P. However ,i~n

this county and districtthe District Judge has heretoforerefused to approve any fees until the case under indictment was disposed of. For that. ,,reason

It has been impossiblefor the sheriff’sdepartmentto submit to then

Comptroller

his statementof fees due within a year from the date ofEon. R. A. Barton, Page 2, V-151

indictmentor execution,unless the case was disposed of within that time. "Underthat state of facts.lt la Mjust to deny this claim for fees. I find no cases as to when a fee may become due. Certainlya 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 acknowledgereceipt 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 offensewas oft

a non-reducible

nature,

### and the claim should have been~presented to this officewithin twelve months from the end of that Term of Court. In Case No. 1068, the offensewas of a non-reducible nature and the claim shouldhave been presentedwLthin 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 attentionregardingthe above catlea,

'Article

X027, V.C.C.P. and Article 1035 V.C.C.P. If'any dates or terms of courts

submittedon the above oases are in error, do dot hesltate to notify me. "I, am encldsingWarrants Nos. 333910 for K5P&Oc~;~s3~3923 for $13.50 in payment ,ofthe

Article 1035, V. C. C. P., prior to being amended in 1931, provides:

"The Comptrollerupon the receipt of such claim, and said certified copy of.themlnutes

-i:.

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

of said court,.

shall closelyand 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 certificatein the'nameof the 'officer entitled to,the same, stating therein the amount of the claim and the eharaoter of the servicesperformed. All such claims .
or accountsnot sent to or plaoea on file in the office~ofthe'comptrollerwithintwelve months from~.

the.dateof the.finaldisljos~Ltton~ -- of the case in which the serviceswere rendered, shall forever barred." ours) ,(Underscorlng

'~ Article 1035,~V:C.~C. P., as amendedby Acts 1931, k&d legislature, p. 239,'provides: .~ .~ "The Comptrollerupon the receipt of such 'claim,and said ~oertified Oopy of the minutes of said Court, shall cloae.)y and carefullyexamine the same,'an@ If her deems the.samsto be correot,he shall draw his warrant on the State Treasurer for the amountfoundby him to be due, and in favor.of the officerentitled to the same. In the.appropriat$on for paying such-ac-' counts is exhausted, the Comptrollershall file the same away, if found to.be correct,and issue a .certiflcate

in the name of the officer entitled to the sams, statinghere the‘amount of the claim and the characterof the services performed..All suoh claims or accountsnot 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~butunder the indictment he may be convlktedof a misdemeanoror a felony, and the punishmentwhich may be assessed is a fine, jail sentenceor both such fine and .imprisonment in jail, 'theState shallRon. R. A. Barton, Page 4, v-151

pay no fee& to any officer except where the defendant Is indictedfor the offense of murders,

until the case has been flI$ally disposed of’

in the trial court.
. . . It will be noted that prior to the 1931 amendmentArticle 1035 provided that all olaims in “non-reducible”

oases not sent to or placed on file in the Comptroller’s officewithin twelve (12) months from the date.

of final dispositionof the case, would be forever barred. The 1931 amendment to Article 1035 changed this provisionto 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 (exceptmurder) no fees shall be pald by the State to any officer unt

11 the case has been flnally alsposed of in a trial court0 Said provision impliedthat 111 all other cases fees would becollle due and payableprior to the dispositionof the case. This lmpllcat Ion becomes strongerwhen 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 diepositionof 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 foreverbarred.

There is no indicationfrom your le,tter that the claims for fees were submlttedto the District Judge for his approvalprior to the final dispositionof the case. If the claims had been sublnitted to the District Judge and the DistriotJudge had refused to approve same, the sheriffwould 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 eonoffenses of a “non-reduclbleD nature, such claims shouldhave been presented to the Comptroller within twelve months from the da.te the same beoams due and payable

. me Comptroller has oonslstently

and unlformlyconstruedthe 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 theRon. R. A BaTton, Page 5, V-151 ~‘~ ’

sheriffhas 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’dtiyapproved,exce t as provided for in. subdivisions

7 and 8 of said articles,which shall be paid when. approvedby the judge,,under whoae order the ~writ

was issued.
We quote the followingfrom 39 Texas Jurisprudence,pp. 235-237:

.~~“The .courts will ordinarilyadopt and uphold- a’

‘construct

Ion, ,ljlaced upon a statute by an executive off leer or departmentcharged with its admlnlstratlon, if the statute is ambiguous~

or uncertain,and the cT;;t;;;iiOn so given it Is reasonable’

. . . above stated is .partlcnlarly applicableto an administrative cbtitruotion

of long standing e . . or vher& a flaw that has been uniformlyconstrue&by those’ chargedwith its enferceetithas. been reenactedwithout a change of lan&a&e. n In view of the foregoing,it is our opinion that the claims for fees by the sheriffmentioned In your request are foreverbarred by virtue of the maadatory provisionsof Article 1035, V. C. C. P.

SUMMARY

Fees of a sheriffbased upon claims for servicesrendered 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 ComptrollerwithinHon. R. A. Barton, Page 6, V-151

twelve (12) months from the date the claimsbecome due and payableare forever barred. Articles 1027, 1028 and 1035,v. c. c. P.
Yours very truly, ATTORNEYGENERAL OF !CEXAS

BY Bruce Allen

Assistant

By 45f5v* Assistant

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