Untitled Texas Attorney General Opinion

Hoti.Tom C. Kla State.Audltijrand Efficiency Expert Austin, Texas Dear Sir: Opinion No. o-1036 Re: 1. Does the statute of llm1tatlon bar recovery of understated fees of office of a tax.collector? 2. Does limitation begin as of the : date incorrect fee report'swere made to the county or as of the date the error was discovered ln the auditing of the acoounts of the county? Your request for an opinion on the above stated questions has been received by this office. Your Letter reads in part as follows: "It Is .discovered in 1939 that the Tax Collector has understated his fees of office in his annual fee reports for the years 1932 and 1934, and 1s therefore due the county for such understated fees. “(a) Does the statute of 1lmLtatlon bar recovery by the county? "lb) Does limitation begin'as .of the date incorrect fee reports were made to then, county, or as of the date the error was dls- covered ln the auditing of the accounts of the county?" We quote from Texas Jurisprudence, Vol. 28, page 99 as follows: "It seems to be a settled rule that counties are not exempt from the operation of statutes of 1lmltatlon~:inmatters arising out of ordinary

Hon. Tom C. King, Page 2

county business.. r0.. Limitations run against a cause of action in favor of a county for the recovery of money which belongs to its general fund. The bar of the statute may be availed of as a defense to an action for the recovery of Interest upon deposits made by a tax collec- tor's bond of excess delinquent tax fees due a county, for the recovery of overpayments made to an assessor, for the recovery for hire of a county convict',"-and for,relmbu'?sementfbr money expended In making repairs to a bridge.. However, the defense of llmltatlons Is not available as to causes of action accruing to a county In Its public or governmental capacity, or while acting forkai as an instrumentality of the state. Ni+wll,l llm~ltatlon~runagainst a county as trusiteeof:a public school fund, or bar the right to recover money belonging to jury, school, road or bridge funds; or funds of like character& such a~s'those.of a school or road district. Also see'~thecsSes of Bitter vs. Bexar County, 11 SW 2nd 163; Llnz vs. Eastland County, 39 SW 2nd 599~;N&varro County vs. Corslcana Nat. Bank, 287 SW 501; Steusoff vs, Liberty County, 34 SW 2nd 643; McKenzie vs. Hill county, 263 SW 1073. .~ Articles 5526, 5527 and 5529, Revlsed~Clvll .~~, Statutes, read as follows,: "Art. 5526. There 'shalXbe commenced and prosecuted within two years after ,the cause of action shall have acc~rued,and not'afterward, all actions or suits In court of the following description: "1 D Actions of trespass for injury done to the estate or the property .~of another. "2 * Actions fop detaining the persona1 property of another;and for conv&?tlng such property to one's ,own use.' .~ “3 D Actions for taking or carrying away the good and chattels of another, “4 a Actions for debt where the lndebtedness~ fs not evidenced by a contract In writing.

"5 . Actions iipon~ stated or'upon accounts other than such mutual and'current accounts as

1 ,_ .

Eon. Tom C. King, Page 3

.~..of merchandise between merchant concern the .trade and merchant, tnelr factors or‘agents. 1~ all accounts, except those between merohant and mer- chant, as aforesaid, their factors and agents, the respective times or dates of the delivery of the several articles charged shall be partlcu- larly specified, and limitation shall run against each Item from ttiedate of such delivery, unless otherwise speo.lallycontracted. "6. Action for Injury done to the person of another. “7 . Actlon'LforInjury dorieto the person of another where death ensued'from such Injury; and the cause of action shall be oonsider6d~as having accrued Ft the death of the party Injured. "Art. 5527. There shall be commenced and prosecuted within four year@ after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following des- cription: "1. Actions for debt where the Indebtedness la evidence by or founded upon any contract In wrltlng. N2. Actlons'for the penalty orfor damages on the penal olauae of a bond . to convey real estate. “3 . Aotlona by one partner against his co- p.&tner for a settlement of,the partnership ac- counts, or upon mutual and current,aMounta con- cerning the trade of merchandise between merchant and merchant, their factors or agents; tid the caube of action shall be consider&d as having accrued on a cessation of the dealims in which they were interested.~~ together. "Art. 5529.Every action~other than for the recovery of real eatate;for which no llmlta- tlon Is otherwise prescribed, shall be brought within four years next after the right to brln$ the same shall have accrued and not .afterward. We quote from the case of McKenzie et al vs. Hill County, supra, as follows:

. . Hon. Tom C. King, PagQ 4

"'The question as to'whether:~sultsfor etches recoirergof excess fees.r'&talned.by.county;officers are ~gdvernedby ,the statute of ~llmitatlonInvolves primarily the'questbotias to wh'ether.the.co.unty,ln the collksztionof said excess fees and&the use there- of is engaged In Its governmental functions. The direct question, so far as .we.have-been able .to ascertain;\has..tiot~beenbefore the courts. Where the county acts purely ln'.its~gorernmentalcapacity, llmltatlon will not run, but in all other respects, counties ar'egoverned by the,statute of llmltatlon c. as fully and to the same extent as lndlvlduals, "It has been held that the statute of llmlta- t'lons,runs'against the county 1i1an action on a b0nd:'t.orecover hirB of a co~nvlct. 2:'SW13. In H. & T. C; Ry. Cb. vs. Travls"County,.62 Tex. 1.6, It was held that llmltatlon would run against a county for damages which ‘It sought to recover from the railway, occasioned b;ythe mariner In .~, which the':railwaycompany cohstructed~Its crossing over a public highway-~ In Wardvs, Marion Cokty, 26 Tex. 361, 62 SW 557, on re-htiai+ing63 SW 155;lt was held that the statute of llmltatlon would run against the county In a suit against,the tax collec- tor and his ~bondsmenfor taxes-he had ~colledted for which he had not accounted, unless he had fraudulently concealed the collection thereof, and.wrlt of e'rrorwas denied. In Johnson vs. Llan6'County, 15 Tex. <Clv. Appi) 421,'~39SW"995, It was held that limltatlofiwbuld ruriagainst the "a '~J countg to'recover landi except that used for roads, streets and'publ.1~highways. I~7Illlmaiivs. Gallager, 103 Tex. 427, 128,SW 899;~~ltwas.held that limitation wotild:.run~agalnstthe county on a suit bg'the:county on a liquor bond.' ,In Lane vs.'DeltaICounty; '(Tex.Clv. App.) lOg~SW.'866, it was'held that In a suit~agalnst the~couiity judge to recover fees Ualawfully dolleoted by him In crlmlnal cases the four year statute of limitations would apply against the,countF.i In Jeff Davis County vs. Davis, (Tex:ClV. App.) 192 SW 291, and which wrltlof error was denied, th,e'-courtheld that the two'year statute of limlta- tions woul+run as against the county for the recovery from I the sheriff and his bondsmen of motiey'that had been'lllegally paid the sheriff-by the COIMI~S- slonerts court. To the same:;effectls,the holding of the court In GrtiysonCounty vs, Cooper (Tex. Clv. App.) 211 SW 249, where it,waa held that the two

Hon. Tom C. King, Pee 5

year statute of llmltation would run against the county to recover money from the tax assessor which the county commissioners had paid the assessor In excess of the maximum fee allowed by law. In Rockwell County vs. Roberts County, 103 TX. 406, 128 SW 369, It was held that the statute of llmltatlon would run against the county In suit for Interest due on bonds which had been issued by one county and held by another." Articles 3896 and 3897, R. C. S. read as follows: "Art. 3896. Each district, county and pre- cinct officer shall keep a correct statement of all fees earned by him and al! sums coming Into his hands as deposits for costs, together with all trust funds placed In the registry of the court, fees of office and commissions In a book or In books to be provided him for that purpose, In which the officer, at the time when such deposits are made or such fees and commlsslons are earned and when any or all of such funds shall come Into his hands, ahala enter the same; and It shall be the duty of the county auditor In counties having a county auditor to annually examlne::thb.,bbok$. and accounts of such officers and to report his findings to the next succeeding grand jury or district court. In oountles having no county auditor, It shall be the.duty of the commissioners' court to make the examination of said books and accounts'or have the same made and to make report to the grand jury as hereinabove provided. "Art. 3897. Each district, courityand precinct officer, at the close of each fiscal year (December 31st) shall make to the district court of the county in which he resides a sworn statement In triplicate (on forinsdesigned and approved by the State Auditor) a copy of which statement shall be forwarded to the State Auditor by the clerk of the district court of said county within thirty (30) days after the same has been filed In his office, and one,copy to be filed with the county auditor, if any; otherwise said copy shail be filed with the commissioners' Court. Said report shall show the amount of all fees, commlsslons and compensations whatever earned by said officer during the fiscal year; and secondly, shall show the amount of fees, COmmiS- slons and compensations collected by him during

Hon. Tom C. King; Page 6

the fltieal~y&r; 'thlrdlg,:sald report shail c,ontaln an ltemlaed statement of all~fees, oommlsslons and compensatlo~,~earned during the flscal,year which were not c~oIlected,together wlth.the name of the party owing 'saidfees, commlsslons and compensations. Said repbrt shall be filed not later than February 1st following the close of the fiscal year and for each day after said date that said report remains . hotfiled, said officer shall be liable to a penalty ~, o'fTwenty Five ($25.00) Dollars, which may be recovered by the county In a suit brought for such purposes,,and in addition said tfflcer shall be subject to removal from office. .'Under A&l&les~ 3896 and ~3897, supra, the Legls- .iature'has~ln orderto protect the Interests of~the county passedlaws requlrliig the officers to flle~thelr reports ..ln,orb.eP.,ttiatj'~ame.,~a~ be'.atthe time properly checked, understood and explained. ', .In:,vlew of the foregoing authorities, you are re- spec~tfuliy'advised~that it la the ,oplnlon.ofthis department ' that~~the~btatiite~of~Ilmltatlon bars recovery of under$,tated fees'of 'offlc.e:of"a .t~ax collector. You are further a&vised 'thatllmltatlon begins as'of the.date Incorrect fee reports were made to the,county. 'Trusting that the foregoing answers your Inquiry, we are.' Yours very truly .A'ITORREYGEWKRAL .~ OF TEXAS By S/ArdelI Wllllams . ~Ardell Wllll~s Asslstant~ AW:AW:bjb APPROVED JVL 14, 1939 . S/ W.;F. Moore ~,: 'FIRST':ASSISTANT ATTORREYGEKERAL APPROVED OPINION C OMMITTER 'By-~W.R.K Chairman