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### THE 

## A NEYGENERAL

OFTEXAS

AUSTIN, TEXAS

Ootober 18, 194s~

Hon. Sen 9. Fuller

-~~ Criminal DistrictAttorney JeffersonCounty Re: Beaumont,Texas ApplZcability of two gear lrtrtute

of llmltet1,0tla to the recowry of the balanoe of deltnquent fees due the Dlatrlot Clerk under faata submitted. Dear Qb:

The Dlstrlot; Clerk of JeffersonCounty wee elected In 1932 and aaaumed the off&e January 1, 1933. In the pear 1933 he received $2,210, leas then the mexlmum amount provlded.bylaw. Subsequently wlthia the time prescribedby law the Dlatrlot Clerk reported as delinquent fees **for** 1933 an amount in 8x0888 of $2,210.

ii n 1934 the Dlrtrlct Clerk oollectedthe amount of $2,- 10.99 in delinquentfeea whloh WBFB oherged end rePorted in 1933. He retained only one-fourth of this amount upon IusUruotlona to that effeot by the County Auditor. In subsequentyears he has oolleoted addltlonal amounts for fees reporteddelinq~e~tln 1933 and la eeoh lnatanoehas been parrPitted to retain only onefourth of the amount aollected. On the basis of the foregoing feats,you hew requestedansplnlon on the followingquestions:

'1. Is the two year ata,tutH of litaltaMona applloableto reooverj of Zhe balance of the delinquent feea due tlae dl&rlot olerk?

“ 2. When did the right of &Ion of the distrlot clerk aeopue ao aa to ata& the running of the statute of llmlt~~&c+~?"

In the ease of lPmlth v. Vlae'CiYunt~.

187 3.W. 705 (Tex.Clv.App.1916, e& County for the balanoe due him as~~on@enostlon a8 oountg treasurerfor four yearn beglanlagRowmber 10, 1910, and endingAowmber 16, 1914. Wise Colmty pleaded the two year statute of llmltatlons. The oourt in dleauasing the questlon of whether the alalm wan barred by the two year statute of llmltetlons held:Eon. Jep S. Fuller,page 2 (v-936)

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_

“AS to the last questlonprsaented,we are of the opinion that the statute of llmltatlon would preclude a reoovery~forany amount further than for oommlsalonsaocrulng end due and payable under his second term of office, aud for the two years preoedlng.t&e date suit
wee filed, to Wit, De~embsr 2, 1914. dppellent presentedhis olalm to the oolllplaslonora1 oourt, In the sum sued for, on Howmbep 25, 1914, and on the 27th thereafterIt waa by sald court rejeoted. Appellanturges that the statute of llmitatlondid snot begin to
run until aueh disallowance by ~the aourt, and oltea, in support of this oonteti$lon, artlole 1366 of the Revised Civil Stetuter,which protides that:

'Wo oounty shall ba aueU.til6asthe clalmupon whloh auoh suit is ~fowided @hall hew first been presentedto the ootitj 0010- mlaalonera~oourt for allowance,aQd such court shall have negleotedor refused to audit aud allow the aama or any gaz+t thereof.'

" The statutewas ev%db&ilyenaated.io;ihe benefit of the a6w; that It might have the opportunity to heve paaaed on by Its representatives aanaglngbody all olalma against it before it oould be subjectedto the expense and wxatlon of suit. It aertalnlynever was aontemplated that one having a olalm against a aounty could delay its presentation to the commlaaionera* 00th lndefinltely, end thereby preclude the running of llmltatiop. As is well said ln 25 Cyo. 1198: '~

nWhere plalntlfflaright'df action depends.uponaoaie

sot to be performedby hlm preliminaryto ooasaenalng suit, a&I he la under no restraintor disabilityin the parfomanoe of auoh aat, he oannot suepend lndefinitelythe running of the statute of llmltatioua

by d8hTing the performanceof the prellmlnarysot; If the time for auoh performanoeIs not definitelyfixed, a raasonable time, but that only, will ba allowed therefor.'Hon. Jep S. Fuller,page 3 (v-936)

C

P "In the same text, page 1198 [B), It la

further stated:

q whe ra) althoughthe cauao of a&Ion Itself has aoorued, some prelltulna~step la requiredbefore a resort oan be had to the remedy, the conditionreferringmerely to the remedy and not to the right, the oause will be barred If not brought within the statutoryperiod; thereforethe prellmlnary step must be taken within that period.'"

In view of the foregoingcase it Is our oplnion that the two year statute of llmltationaapplies to the fact situationpresentedby you In your request and begins to run when the right to retain delinquentfees oolleoted aooruea. Stegall ~.~PloLeiiiMi GOtit+, 144 S.W. 26 1111 (Tex.Clv.App~40, error dlsm.).

In arrivingat the follegolng ooncluslonwe are not unmindfulof the oaae of Ke&~'ir.‘~Cbll'lti C<tity, 212 S.W.2d 494 (Tex.Clv.App.1948), whloh held that the four year statute of llmltationaapplied to the reoovery of. unpaid salary alelmed to be due for services a+oounty treasurer. In that case It was held that the four year statute of llmltatlonsappliedbeoauise the county treasurer In question~had been appointedby the Commlaslonera~ Court to fill an unexpiredterm and the Court held that the appointment

by the Commissioners' Court oonstituted
a contract In writing within the meaning of the four year statute of llmltatlons. We quote the following:

'(we agree that a statute or ordlnanoe fixing salary or fees of office, standing alone, oannot be made the basis of a contract within the meaning of the four-year statute of limltatlona. However,we do not think that yule la applicableto the lnstant 0888. With regard to this question of llmltatlon,

we think the difference In the status before the aourt of an eleoted officer from that of an appointedofficer, 116s In the differencein method andp'3*0- aedure preaorlbed for seleotingthese'offlaera. The elected officer la chosen and authorizedby the lndlvlduelvoters at the ballot box, and the duty required of the Commlasloners~

Court In aaaertalnlng and ennounolngthe result Is not oontraotnelHon. Jeep 9. Fuller, page 4 (v-936)

In natun, but puraly mlnlaterlal; whareaa, In apPOlntiQgan offla6r to a vaeanoy,the oourt exer6laed Its own dlaoretlon, rakaa the aeleotlon and authorleestha aeleotee to a&, and la required to keep a reaord In Its rlautea of aush prooeedlnga."

Artlole 389, Vernon48Clvll Statutesprovides:

'Any officermentioned In this Chapter who does not oolleat tha raxlmum amount af his fees for any flaoalyear and who reporta delinquent fees for that yea*, shell be entitled to rataln,when collected,auah pa& of suah delinquentfaea as la sufficientto aoaglete the maximum compensationeuthorlxed by Art10168 3883, 3883-A, and 3886 for the year In whlah delinquentfees were aharged, and also retain the amount of exoeaa fees authorlsed

by law, and the remainderof the dellnqueat fees for that fiaaal year shall ba paid aa herein provided for when oolleotcdl provided,the provlalouaof this Artlole shell not apply to any offioer after one year fraa the date he oaaaea to hold the offloe to whloh any delinquentfee la due, and in the event the officer earning the fees that are delinquent

has not aolleotedthe same within twelve months after he oeaaea to hold the office, the amount of fee8 oolleotad shall be paid Into the oounty treasury. Provided,however, that nothing In this Act preoludesthe payment of ex-offloiofees Zn aooordanoe with Title 61 of the Revised Civil Statutes of ;zi?8, 1925, as part of the maximum oompenaa-

. Provided,that any ohangemade In this Artiolaby this Act shall not apply to fees heretoforee-d."

In view of the'

fo=golng Artlole It Is ou? opinion that the olalm of the Dietriot Clerk under the faots submittedaoorued on the dete he oollecteddellnquent fees reported for the fleas1 year 1933, and llmltatlon began to run from that date.

The two year statute of ll.mltatlona la applicableto reoovery of the balanoe ofBon. Jep 3. Fuller, page 5, (v-936)

delinquentfees due the P)latrict Clerk in a suit against the oouuty, and the statute of llmltatloua

will begin to ruu on the date the District Clerk colleoteddelinquentfees reported for a prevlouayear. Smith v. Wise Couute, 187 9-W. 705 (Tex.Clv.App.l91b,error ref.); SteRall v. MIoLsnnan County, 144 S.W.2d 1111 (Tex.Clv.App.1940, ex-ror dim.).

Yours wry truly,

ATTOIWY OERRRAL OF TFZAS

JR:bh:mw BY

**FEU-MSXSTAWT** ATTORl0EYGRERRAL