,,/’ ’ 

THE A NEYGENERAL 

OFTEXAS 

AUSTIN, TEXAS 

Ootober 18, 194s~ 

Hon. Sen 9. Fuller 

Criminal District Attorney -~~ 

Jefferson County 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 

Dear Qb: faata submitted. 

The Dlstrlot; Clerk of Jefferson County 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.by law. Subsequently wlthia the 

time prescribed by law the Dlatrlot Clerk reported as 

delinquent fees for 1933 an amount in 8x0888 of $2,210. 

ii 

n 1934 the Dlrtrlct Clerk oollected the amount of $2,- 

10.99 in delinquent feea 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 subsequent years he has oolleoted addltlonal amounts for fees reported delinq~e~tln 1933 and la 

eeoh lnatanoe has been parrPitted to retain only onefourth of the amount aollected. On the basis of the 

foregoing feats, you hew requested ansplnlon on the 

following questions: 

'1. Is the two year ata,tutH of litaltaMona applloable to 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 beglanlag Rowmber 10, 1910, 

and ending Aowmber 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) - _ 

“AS to the last questlon prsaented, we 

are of the opinion that the statute of llmltatlon would preclude a reoovery~for any amount 

further than for oommlsalons aocrulng 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 presented his olalm to the oolllplaslonora1 oourt, In the sum sued for, on Howmbep 

25, 1914, and on the 27th thereafter It waa 

by sald court rejeoted. Appellant urges that 

the statute of llmitatlon did 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.til6as the 

clalmupon whloh auoh suit is ~fowided @hall 

hew first been presented to the ootitj 0010- 

mlaalonera~ oourt for allowance, aQd such 

court shall have negleoted or refused to audit aud allow the aama or any gaz+t thereof.' 

" The statute was ev%db&ily enaated.io; ihe benefit of the a6w; that 

It might have the opportunity to heve paaaed on by Its representatives aanaglng body 

all olalma against it before it oould be 

subjected to the expense and wxatlon of 

suit. It aertalnly never 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 plalntlffla right'df action depends.upon aoaie sot to be performed by hlm 

preliminary to ooasaenalng suit, a&I he la under no restraint or disability in the parfomanoe of auoh aat, he oannot suepend lndefinitely the running of the statute of 

llmltatioua by d8hTing the performance of 

the prellmlnary sot; If the time for auoh 

performanoe Is not definitely fixed, 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 wher a ) although the cauao of a&Ion 

Itself has aoorued, some prelltulna~ step la 

required before a resort oan be had to the 

remedy, the condition referring merely to 

the remedy and not to the right, the oause 

will be barred If not brought within the 

statutory period; therefore the prellmlnary 

step must be taken within that period.'" 

In view of the foregoing case it Is our oplnion that the two year statute of llmltationa applies to 

the fact situation presented by you In your request and 

begins to run when the right to retain delinquent fees 

oolleoted aooruea. Stegall ~.~PloLeiiiMi GOtit+, 144 S.W. 

26 1111 (Tex.Clv.App~40, error dlsm.). 

In arriving at the follegolng ooncluslon we are 

not unmindful of 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 llmltationa applied 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 llmltatlons applied beoauise the county treasurer In question~had been appointed by the Commlaslonera~ 

Court to fill an unexpired term 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 applicable to 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 appointed officer, 

116s In the difference in method and p'3*0- 

aedure preaorlbed for seleoting these'offlaera. The elected officer la chosen and 

authorized by the lndlvlduel voters at the 

ballot box, and the duty required of the 

Commlasloners~ Court In aaaertalnlng and 

ennounolng the result Is not oontraotnel 
Hon. Jeep 9. Fuller, page 4 (v-936) 

In natun, but puraly mlnlaterlal; whareaa, 

In apPOlntiQg an offla6r to a vaeanoy, the 

oourt exer6laed Its own dlaoretlon, rakaa 

the aeleotlon and authorlees tha aeleotee 

to a&, and la required to keep a reaord 

In Its rlautea of aush prooeedlnga." 

Artlole 389, Vernon48 Clvll Statutes provides: 

'Any officer mentioned In this Chapter 

who does not oolleat tha raxlmum amount af 

his fees for any flaoal year and who reporta 

delinquent fees for that yea*, shell be entitled to rataln, when collected, auah pa& 

of suah delinquent faea as la sufficient to 

aoaglete the maximum compensation euthorlxed 

by Art10168 3883, 3883-A, and 3886 for the 

year In whlah delinquent fees were aharged, 

and also retain the amount of exoeaa fees 

authorlsed by law, and the remainder of the 

dellnqueat fees for that fiaaal year shall 

ba paid aa herein provided for when oolleotcdl provided, the provlaloua of this Artlole 

shell not apply to any offioer after one year 

fraa the date he oaaaea to hold the offloe to 

whloh any delinquent fee la due, and in the 

event the officer earning the fees that are 

delinquent has not aolleoted the 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 preoludes the 

payment of ex-offloio fees Zn aooordanoe with 

Title 61 of the Revised Civil Statutes of 

;zi?8, 1925, as part of the maximum oompenaa- 

. Provided, that any ohange made In this 

Artiola by this Act shall not apply to fees 

heretofore e-d." 

In view of the' fo=golng Artlole It Is ou? 

opinion that the olalm of the Dietriot Clerk under the 

faots submitted aoorued on the dete he oollected dellnquent fees reported for the fleas1 year 1933, and llmltatlon began to run from that date. 

The two year statute of ll.mltatlona la 

applicable to reoovery of the balanoe of 
Bon. Jep 3. Fuller, page 5, (v-936) 

delinquent fees 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 colleoted delinquent fees 

reported for a prevloua year. 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