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Honorable George H. Sheppard Comptroller ofPublic Accounts Austin, Texas Dear Sir: Opinion No. O-2290 Re: Are earned fees by sheriff incriminal cases and un: collectible by reason of Article 1027, C. C.’P., ‘delinquent fees” when collected more than ayear after sheriff retires from office ? Applicability ofArticle 3892, Vernon’s Annotated Civil Statutes, modifying in part opinion MO. O-1679. We have your request for an opinion ofthis department under date ofApril 25, referring usto our opinion No. O-1679, which request reads as follows:

“The Sheriff ofParker County, in 1938, earned certain fees incriminal cases that could notbe colledted because Article 1027, C. C. P., provides that, ‘

. . .such fees shall not be paid until the case is finally disposed of.’ The cases governing the fees inthis claim were not disposed ofuntil 1940, **more** than ayear after the Sheriff had retired from office. “Are these fees to be defined as delinquent f&es? “Ifthey are not defined as delinquent fees, then is the ex-Sheriff now entitled to receive from the present Sheriff such fee when paid by the State of Texas?” The above request is by reference, a fact interpretation ofthe last or fourth question contained and answered in opinion No. O-1679 and for the

. purpose ofclarifying this opinion, we deem itpertinent to set forth the relevant portions pertaining to such questions,. We quote from No. O-1679 as follows :- -

Honorable George H. Sheppard, **Page** 2, o-2290

“In felony cases where punishment may be assessed as fine or jail sentence, the State pays no fees to any officer prior tofinal disposition. A sheriff performs certain service in such case, but the case is pending and therefore fee is not payable prior to the time he retires from effiner~,.Subsequent to thetime he retires from office the case is dismissed or otherwise disposed of other than fine orjail sentence, and fee becomes payable. Should the officer who earned the fee file claim or should itbe collected by his 

### successor 7

“‘Suppose the above mentioned case was continued for more than twelve months from the time the sheriff retired and was then dismissed --the fee was earned but did notbecome payable-- would article 3892, R. C. S. preclude payment to the sheriff and require that the present sheriff collect from the State and deposit with the county treasurer 1” In **answer** tothe above question, we held: II

. . .If such fees are collected within 

### oneyear after the 

### retiring officer has ceased tohold office, the officer towhose office the fees accrued shall collect them from the State and deposit such fees with the county treasurer.* We have reviewed opi.nion No. O-1679, particularly the above quoted ruling as relating toyour request. We find that the question of “delinquency” ofsuch fees was not considered in **our** answer toyour fourth question, consequently, we will reconsider this portion ofthe rendered opinion in the light ofand along with the above request.

It is not necessary to restate or set forth all ofthe pertinent statutes or authorities whkh are found in opinion No. O-1679, and only such additional authorities as deemed necessary, will be discussed herein.

vides: Article 1027, Vernon’s Annotated Code of Criminal Procedure, pro-

“Inall cases where a defendant is indicted for a felony but under the indictment he may be convicted ofa misdemeanor or a felony, and the punishment which may be assessed is a fine, jail sentence or both such fine and imprisonment injail, the State shall pay no fees to any officer, except where the defendant is indicted for the offense of murder, until the case has beenHonorable George H.,Sheppard, Page 3, O-2290

finally disposed of inthe trial court. Provided the provisions ofthis Article shall notbe construed as affecting in any way the provisions ofArticle 1019, Code ofCriminal Procedure, as amended by Chapter 205, General Laws, Regular Session, Forty-second Legislature; provided this shall not apply toexamining trial fees to County Attorneys and/or Criminal District **Attorneys. ”**  **Article** 3892, Vernon’s Annotated Civil **Statutes.** inpart provides: “Any officer mentioned in this Chapter who does notcollect the maximum amount ofhis fees for any fiscal year and who reports delinquent fees for that year, shall be entitled to retain when collected, such part ofsuch delinquent fees as is sufficient tocomplete the maximum compensation authorized by Articles 3883, 3883-A. and 3886 for the year inwhich delinquent fees were charged, and also retain the amount ofexcess fees authorized by law, and the remainder ofthe delinquent fees for that fiscal year shall be paid as herein provided for when collected; provided, the provisions ofthis Article shall not apply toany officer after one year from the date he ceases tohold the office towhich any delinquent fee is due, and inthe event the officer earning the fees that are delinquent has not collected the **same** within twelve months after he ceases tohold the office, the amount offees collected shall be paid into the county treasury.
. . .* According to the proviso portion ofArticle 3892, supra, ifthe delinquent fees are not collected by the officer earning them within twelve months after he ceases tohold office towhich the delinquent fees are due, the amount offees collected shall be paid into the county tre~wry:. Conversely, if such fees are collected by the officer earning them within the twelve months after he ceases toholdthe office, such fees may be applied to making upthe officer’s maximum according tothe preceding provisions ofthe statutes.

The provisions ofArticle 3892, particularly the latter portion, were not intended to operate to prevent an officer where he has reported such fees in his fiscal report for the year inwhich earned and has not collected the maximum amount ofhis fees for any fiscal year, by reason ofthe termination ofhis term of office, from receiving such fees earned which could notbe collected by him because ofthe provisions ofArticleHonorable George H. Sheppard. Page 4, O-2290

1027, C. C. P., before he went out ofoffice. The prohibitlon section ofthe statutes goes primarily tothe collection ofthose fees earned and due and payable yhere collection depends onthe efforts ofthe officer and he is not prevented therefrom by operation ofthe law.

The word “delinquent’ as used inconnection with the fee statutes, refers tofees that are due and uncollected, but carries with itthe idea of a previous opportunity tocollect onthe part ofthe officer earning same. Under Article 3894, Revised Civil Statutes of 1925. before 

### its repeal by the Acts of 1930, Forty-fourth Legislature, Fourth Called Session, all fees due and not collected as shown in the report required by the officers were considered ‘;:#elinquent fees.”

The Legislature inenacting Article 1027, C. C. P., supra, certainly did not contemplate or attempt to make any change inthe operation of our fee statutes with refere,nce to the dispos,ition ofthose fees earned and,payable upon presentation tothe Comptroller by the methods prescribed.. The purpose of such amendment was clearly toeliminate such excess work and bookkeeping required by paying the fee,s earned prior to the disposal ofthe case and having same refunded in cases where the offense resulted ina conviction for a misdemeanor. This article, precluding payment ofsuch fees until final disposition ofthe case was not meant topenalize an officer and deprive him ofsuch fees merely because his term of office had expired prior tothe final disposition of the case inwhich his fees are earned and until such time, by operation ofthe statute, he is prevented from making a coIlection.

It is therefore the opinion ofthis department that in criminal cases towhich Article 1027, Vernon’s Code af Criminal Procedure, is applicable, where the sheriff earns certain fees which are not collected until more than twelve months after he retires from office when the case is finally disposed ofduring the term ofhis successor who makes the collecti.on, such fees are tobe classified as delinquent fees, subject toArticle 3892, Vernon’s Annotated Civil Statutes, and may be received by the ex-officer provided he reported them for the year inwhich they were charged and the retention of same will not increase his compensation for that year beyond the maximum and excess fees authorized by law. Our answer tothe fourth question in Opinio~nNo. O-1679 is accordingly modified inkeeping with the above.
WMK:LM Yours very truly ATT OF TEXAS By Approved Opinion Committee BY Assistant

Chairman