THEA~TORNEY GENERAL 

OF I’EXAS 

Aus'xmu 11. 'I.RxAS 

BVILL WILSON 

~‘rroxwSRY GENERAX. 

September 9, 1960 

Hon. R. L. Lattimore 

Criminal Mstrlct Attorney 

Hidalgo County 

Edlnburg, Texas 

Dear Mr. Lattlmore: 

Opinion No. w-938 

Re: Whether, under the provisions of Article 3933, 

Vernon's Civil Statutes, 

the Sheriff Is entitled 

to the fees therein provided 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 requesting an opinion 

on the following question: 

"Whether the commissions on sales provided the 

Sheriff under Artie~le 3933, 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 creditor bids In property on which his 

liens have been foreclosed, making his purchase bid 

by tendering a credit on his judgment." 

Article 3933, V.A.C,S., provides in part as follows: 

"Sheriffs and Constables shall receive the following fees: 

II . . . 

"Collecting money on an execution or an order 

of sale, when the same is made 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 exceeding One Thousand Dollars 
Hon. 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 determination of the question as to whether the 

sheriff is entitled to the fees provided In Article 3933, 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, depends upon whether the tendering by the 

judgment creditor at the sherlffPs sale9 of a credit on his 

judgment, comes within the meaning of the words expressed In 

Article 3933: 

,I * . . collecting money on an execution or 

an order of sale, when the same is made by a 

sale." 

Generally speaking, "costs are the expenses of a suit 

or action which ma be recovered by law from the losing party." 

State,v. Dyches, 2 g Tex 536 (1866). In making 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 proceeding may 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 creditor becomes 

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 that where the judg- 

-oreditor at a sheriffts sale under executfon, becomes the 

purchaser, "the offfcer ought not to exact payment in coin from 

him when he is clearly entitled ta, the proceeds of the sale. It 

would be an idle ceremony if the plaintiff, on buying at a sale 

for his benefit, should be required to actually hand over to 

the sheriff, the money to be returned at once, The receipt of 

the plaintiff acquits the sheriff equally with his bringing Into 

Court the'proceeds of the sale with the execution under whiah 

they are made.' InRaker v. West, et al, 120 Tex, 123, 36 S.W. 

2d 695 (1931), where the judgment creditor w8s the purchaser 
Hon. 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 "paid value by crediting 

the amount of the bid at the sheriff's sale, on the judgment. 

A previous Attorne 

dated July 31, 1945,on page 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 question was whether,under Article 3933 the sheriff Is 

entitled to one-half of the commission or rates set forth 

therein wherein he collects the amount of the execution and 

Court costs, without making levy upon any specific property. 

In that opinion the facts showed that an execution had been 

placed in the hands of the sheriff and that he had actually 

collected the amount of the execution and Court costs without 

making levy upon any specific property; The opinion held that 

the sheriff is entitled to one-half of the commissions allowed 

by Article 3933 under the provision authorizing such commlsslons when money is collected without a sale. The question 

presented covering the facts as set forth In Opinion No.O-6719, 

is distinguishable from 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 

instance because in that case no sale was 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 thereupon directed 

the order of sale to be returned unexecuted. 

According to the facts presented here the judgment 

creditor procured judgment foreclosing a lien or liens upon 

certain real estate and there was issued a writ of execution 

on the Court's foreclosure and order of sale. Notice of sale 

was duly published and an actual sale was held by the sheriff, 

and the sheriff executed a deed to the property. 

The judgment creditor at the sheriffus sale was the 

high bidder by virtue of bidding in the property at a certain 

amount "in money." Because the sherfff did not require the 

judgment creditor to pay the money to hfm and then repay the 

judgment creditor upon his crediting the judgment, in our 

oplnlon,does not result in the sheriff not "collecting money 

on an execution or an order of sale,when the same Is made by 

a sale." 
Hon. R. L. Lattimore, page 4 (ww-938 ) 

The law does not require the "Idle ceremony" of 

requiring that the money be collected In cash when 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 "collecting money on an execution or an order of sale, when the ssme is made by a sale." 

SUMMARY 

The fees provided the sheriff under 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 creditor bids 

in property on which his liens have been foreclosed, 

making his purchase bid by tendering a 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 

Elmer McVey 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore