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Honorable George H. Sheppard 

Comptroller of Public Accounts 

Austin, Texas 

Dear Sir: Opinion No. O-2290 

Re: Are earned fees by sheriff 

in criminal cases and un: 

collectible by reason of 

Article 1027, C. C.’ P., ‘delinquent fees” when collected 

more than a year after sheriff 

retires from office ? Applicability of Article 3892, Vernon’s Annotated Civil Statutes, modifying in 

part opinion MO. O-1679. 

We have your request for an opinion of this department under 

date of April 25, referring usto our opinion No. O-1679, which request 

reads as follows: 

“The Sheriff of Parker County, in 1938, earned certain 

fees in criminal cases that could not be 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 in this claim were not disposed of until 

1940, more than a year after the Sheriff had retired from 

office. 

“Are these fees to be defined as delinquent f&es ? 

“If they 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 of the last 

or fourth question contained and answered in opinion No. O-1679 and for the . 

purpose of clarifying this opinion, we deem it pertinent to set forth the relevant portions pertaining to such questions,. We quote from No. O-1679 as follows : 
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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 to final 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 the time he retires 

from office the case is dismissed or otherwise disposed of other 

than fine or jail sentence, and fee becomes payable. Should the 

officer who earned the fee file claim or should it be 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 not become 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 to the above question, we held: 

II 

. . . If such fees are collected within one year after the retiring officer has ceased to hold office, the officer to whose 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 to your request. We find that the question of “delinquency” of such fees was not considered in our answer to your fourth question, consequently, we will reconsider this portion of the rendered opinion in 

the light of and along with the above request. 

It is not necessary to restate or set forth all of the 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- 

“In all cases where a defendant is indicted for a felony but 

under the indictment he may be convicted 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 pay no fees to any officer, except where the defendant is indicted for the offense of murder, until the case has been 
Honorable George H., Sheppard, Page 3, O-2290 

finally disposed of in the trial court. Provided the provisions 

of this Article shall not be construed as affecting in any way 

the provisions of Article 1019, Code of Criminal Procedure, 

as amended by Chapter 205, General Laws, Regular Session, 

Forty-second Legislature; provided this shall not apply to examining trial fees to County Attorneys and/or Criminal District Attorneys.” 

Article 3892, Vernon’s Annotated Civil Statutes. in part provides: 

“Any officer mentioned in this Chapter who does not collect the maximum amount of his fees for any fiscal year and 

who reports delinquent fees for that year, shall be entitled to 

retain when collected, such part of such delinquent fees as is 

sufficient to complete the maximum compensation authorized 

by Articles 3883, 3883-A. and 3886 for the year in which delinquent fees were charged, and also retain the amount of excess fees authorized by law, and the remainder of the delinquent fees for that fiscal year shall be paid as herein provided 

for when collected; provided, the provisions of this Article 

shall not apply to any officer after one year from the date he 

ceases to hold the office to which any delinquent fee is due, 

and in the event the officer earning the fees that are delinquent 

has not collected the same within twelve months after he ceases 

to hold the office, the amount of fees collected shall be paid into 

the county treasury. . . .* 

According to the proviso portion of Article 3892, supra, if the 

delinquent fees are not collected by the officer earning them within twelve 

months after he ceases to hold office to which the delinquent fees are due, 

the amount of fees 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 to holdthe office, such fees may be applied 

to making up the officer’s maximum according to the preceding provisions 

of the statutes. 

The provisions of Article 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 in which earned and has not 

collected the maximum amount of his fees for any fiscal year, by reason 

of the termination of his term of office, from receiving such fees earned 

which could not be collected by him because of the provisions of Article 
Honorable George H. Sheppard. Page 4, O-2290 

1027, C. C. P., before he went out of office. The prohibitlon section of the 

statutes goes primarily to the collection of those fees earned and due and 

payable yhere collection depends on the efforts of the officer and he is not 

prevented therefrom by operation of the law. 

The word “delinquent’ as used in connection with the fee statutes, 

refers to fees that are due and uncollected, but carries with it the idea of 

a previous opportunity to collect on the part of the 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 in enacting Article 1027, C. C. P., supra, certainly 

did not contemplate or attempt to make any change in the operation of our fee 

statutes with refere,nce to the dispos,ition of those fees earned and ,payable upon 

presentation to the Comptroller by the methods prescribed.. The purpose of 

such amendment was clearly to eliminate such excess work and bookkeeping 

required by paying the fee,s earned prior to the disposal of the case and having 

same refunded in cases where the offense resulted in a conviction for a misdemeanor. This article, precluding payment of such fees until final disposition 

of the case was not meant to penalize an officer and deprive him of such fees 

merely because his term of office had expired prior to the final disposition of 

the case in which his fees are earned and until such time, by operation of the 

statute, he is prevented from making a coIlection. 

It is therefore the opinion of this department that in criminal cases 

to which 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 

of during the term of his successor who makes the collecti.on, such fees are 

to be classified as delinquent fees, subject to Article 3892, Vernon’s Annotated 

Civil Statutes, and may be received by the ex-officer provided he reported them 

for the year in which 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 to the fourth question in Opinio~n No. O-1679 is accordingly modified in keeping with the above. 

WMK:LM 

Yours very truly 

ATT OF TEXAS 

By 

Approved 

Opinion Committee 

BY 

Assistant 

Chairman