### THEA~TORNEY GENERAL OF I’EXAS
Aus'xmu11.'I.RxAS BVILL WILSON

~‘rroxwSRY GENERAX.

September 9, 

### 1960

Hon. R. L. Lattimore Criminal Mstrlct Attorney Hidalgo County Edlnburg,Texas

Dear Mr. Lattlmore: OpinionNo.

### w-938
Re: Whether, under the provisions of Article 

### 3933, Vernon's Civil Statutes, the Sheriff Is entitled to the fees thereinprovided where the judgment creditor bids in property on which his liens have been foreclosed,making his purchase bid by tendering a credit on his judgment.
This will refer to your letter requestingan opinion on the following question:

"Whether the commissionson salesprovided the Sheriff under Artie~le3933, Vernon's Civil Statutes, are a proper element of the costs to be paid by a purchaser at a sale held on an order of sale,where the judgment creditorbids In property on which his liens have been foreclosed,making his purchase bid by tenderinga credit on his judgment." Article 3933, V.A.C,S.,provides in part as follows: "Sheriffsand Constables shall receive the following fees: II

. . . "Collectingmoney on an executionor an order of sale,when the same ismade by a sale, for the first One Hundred Dollars ($100)or less, four er cent (4%); for the second One Hundred Dollars ( $loo), three per cent 

### (3%); for all sums over Two,Hundred Dollars ($200)and not exceedingOne Thousand DollarsHon. R. L. mttimore, page 2 (m-938)
($l,OOO),two per cent (2s); for all sums over One Thousand Dollars Thousand Dollars [t:,E{ "~~,"~~~~~~~"t;~~~'~~r all sums over Five &ousaAd Dollars ($5,000 , onehalf (*) of one per cent (l$)." The determinationof the question as to whether the sheriff is entitled to the fees provided In Article 3933, where the judgment creditorbids In property on which his liens have been foreclosed,making his purchase bid by tenderinga credit on his judgment,depends upon whether the tenderingby the judgment creditor at the sherlffPs sale9 of a credit on his judgment, comeswithin the meaning of the words expressed In Article 3933:

,I *

. . collectingmoney on an executionor an order of sale,when the same ismade by a sale." Generally speaking, "costs are the expenses of a suit or action which ma be recoveredby law from the losingparty." State,v. Dyches, 2g Tex 536 (1866). Inmaking a return of execution, or holding a sale under an order of sale, the sheriff is carrying out an order of the Court in a civil case and the sheriff"s fees for same are properly assessed as Court costs.

As a general rule, parties to the proceedingmay purchase at a sale under execution. This Includes the creditor or plaintiff In execution. 10 Ruling Case Law 1308. Further, the rule requiring sales under execution to be for cash is not intended to preclude the right of an execution creditor to apply the amount of his bid as a eredit on the judgment. It is a well settled rule that,where the judgment creditorbecomes the ourchaser at an execution sale. the officer should.at his .~ direction, credit the amount of the bid upon the execution, if the costs are paid in cash. Needham v. Cooney (Civ.App.),173 S.W. 979, error ref. (1915).

The Supreme Court of Texas in Rlum, et al v. Rogers, et al, 71 Tex. 668, 9 S.W. 595 (l888),held thatwhere the judg- -oreditor at a sheriffts sale under executfon,becomes the purchaser, "the offfcer ought not to exactpayment in coin from him when he is clearly entitled ta,the proceeds of the sale. It would be 

### an idle ceremony if theplaintiff, on buying at a sale for his benefit, shouldbe required to actually hand over to the sheriff, themoney to be returnedat once, The receipt of the plaintiff acquits the sheriff equallywith his bringing Into Court the'proceedsof the salewith the executionunder whiah they are made.' InRaker v. West, et al, 120 Tex, 123, 36 S.W. 2d 

### 695 (1931),where the judgment creditorw8s the purchaserHon. R. L. Lattlmore,page 

### 3 (w-938)

at a sheriff's sale under execution,and credited the amount of the bid at the sherlffts sale 

### on the judCfnent, the Court held that the judgment creditor "paidvalue by crediting the amount of the bid at the sheriff's sale, on the judgment.

A previous Attorne dated July 

### 31, 1945,onpage t General's opinion, No. 

### O-6719, stated that in applying the rule laid doyivFoLee v. Broocks, et al, 131 S.W. 1195 (Clv.App. 

### 1910): fflcer can be allowed a commission only upon money actually collected by him."' In that opinion, however, the questionwas whether,underArticle 3933 the sheriff Is entitled to one-half of the commission or rates set forth thereinwherein he collects the amount of the executionand Court costs,

withoutmaking levy upon any specificproperty. In that opinion the facts showed that an executionhad been placed in the hands of the sheriffand that he had actually collected the amount of the executionand Court costswithout making levy upon any specificproperty; The opinion held that the sheriff is entitled to one-half of the commissions allowed by Article 3933 under the provision authorizing such commlsslons whenmoney is collected without a sale. The question presented covering the facts as set forth In Opinion No.O-6719, is distinguishablefrom the Instant case and the holding in that opinion does not apply here.

The case of Lee v. Broocks, et al, supra, In which the Court Indicated that the officerwas only allowed a commission upon money collected by him,is not applicable In this instancebecause in that case no salewas held by the officer under the order of sale issued upon the judgment therein. Prior to the date set for the sale, the judgment debtor paid to the judgment creditor the amount of the judgment, interest, and costs of suit, and the judgment creditor thereupondirected the order of sale to be returnedunexecuted.

According to the facts presented here the judgment creditorprocured judgment foreclosinga lien or liens upon certain real estateand therewas issueda writ of execution on the Court's foreclosureand order of sale. Notice of sale was duly published and an actual salewas held by the sheriff, and the sheriff executeda deed to the property.

The judgment creditor at the sheriffus salewas the high bidder by virtue of bidding in the property at a certain amount "inmoney." Because the sherfffdid not require the judgment creditor to pay themoney to hfm and then repay the judgment creditorupon his crediting the judgment, in our oplnlon,doesnot result in the sheriffnot "collectingmoney on an executionor an order of sale,when the same Ismade by a sale."Hon. R. L. Lattimore,page 

### 4 (ww-938 )

The law does not require the "Idle ceremony" of requiring that themoney be collected In cashwhen the bldder is clearly entitled to the proceeds of the sale.,M, et al v. Rogers, et al, supra.

It is therefore the opinion of this office that under the facts stated, the sheriff is entitled to the fees prescribed in Article 3933 for "collectingmoney on an execution or an order of sale,when the ssme ismade by a sale."

SUMMARY
The fees provided the sheriffunder Article 3933, Vernon's Civil Statutes,are a part of the costs to be paid by a purchaser at a sale held on an order of sale,where the judgment creditorbids in property on which his liens have been foreclosed, making his purchase bid by tenderinga credit on his judgment. Very truly yours, WILL WILSON Attorney Qeneral of Texas

By Ben M. Harrison Assistant

APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Houghton Brownlee,Jr. James F'arrls Tom I. McFarllng ElmerMcVey
REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore