Case Information

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OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

Honorable O. Lyne Miller County Attorney
Bee County
Beeville, Texas

Dear Sir!

Opinion No. 0-5233 Re: Is the sheriff entitled to any compensation where he has levied an execution for the sale of real estate pursuant to a judgment and has published notices of sale but thereafter, without sale, the judgment debtor pays the amount of the judgment directly to the judgment creditor?

Your letter of April 14, 1943, requesting the opinion of this department on the above stated question is as follows: "I would appropriate your giving me an opinion on the following: "Where the sheriff has levied an execution for the sale of real estate pursuant to a judgment and has published notices and thereafter, without sale, the judgment debtor pays the amount of the judgment directly to the judgment creditor in settlement of the judgment and preserves a release thereof, is the sheriff entitled to any compensation under the provisions of Art. 3933, R. C. S., of 1925, as amended by Acts of 1937, reading: "Where money is collected by the sheriff or constable without a sale, one-half of the above rates should be allowed to him." "It would seem that the sheriff would not be entitled to any fee since he did not collect the

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Honorable G. Lyme Miller, Page 2

moner as contomplated in the atatute, but I would approsiate your giving mo an opinion on this question."

Artie1e 3933, Vernon's Annotated Civil Statuten, reads in pert as follows: "Sheriffo and Conotables ahall receive the following foes: "Gollesting money on an oxeoution or an order of aale, when the seme is made by a sale, for the first One Hundred Dollars ( $\$100$ ) or less, four (4) per cent; for the seocod One Hundred Dollars ( $\$100$ ), three ( 3 ) per cent; for all oums over Two Hundred Dollars ( $\$200$ ) and not oxceeding One Thousand Dollars ( $\$1000$ ), two (2) per cent; for all oums over One Thousand Dollars ( $\$1000$ ) and not oxceeding Five Thousand Dollars ( $\$5000$ ), one (1) per cent; for all oums over five Thousand Dollars ( $\$5000$ ), one-half of one pereent. "When the money is eollested by the Sheriff or Constable without a sale, one-half of the above rates ahall be allowed him. "・. . ." It is atated in Torms Jurisprudence, Yolume 34, page 508: "Statutes presoribing foes for public offieers are strictly construed; and hence a right to foes may not reat in implication. Where this right is left to construction, the language of the law must be oonstrued in favor of the government. Where a atatute is capable of two constructions, one of which would give an offieer compensation for his sorvices in addition to his salary and the other not, the latter construction should be adopted. It is no ounern of an offieer that the Logislatere may have been toward other offieers more liberal than toward him in the matter

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Honorable O. Lyne Miller, Page 3

of compensation for services; nor does this fact justify the courts in upholding his claim for compensation for services as against a fair and reasonable interpretation of the statute. . . ." (McCalla v. City of Rockdale, 246 S. W. 654; Eastland County v. Hazel, 288 S. W. 518; Burke v. Bexar County, 271 S. W. 132; Madden v. Hardy, 50 S. W. 926 .)

The case of Lee v. Brooks at al., 131 S. W. 1195, in construing Article 2460, Revised Statutes of 1895, holds in effect that where the statute provides that the sheriff may have compensation at a certain rate, where he himself has collected the debt without sale of property as ordered by the court, where a party holding a vendor's 11en collected his money after foreclosure without a sale, the sheriff soule not recover his compensation. We quote from this case as follows: "Appellant having recovered a judgment in the court below against appolise Brooks for the sum of $317,316.88$ , with foreclosure of a vendor's 11en upon a survey of land in Liberty county, procured the issuance of an order of sale upon said judgment on June 5, 1909, and the same was placed in the hands of appolise J. R. Thornton, constable of precinet No. 1 of said county, for execution. Thornton levied upon the land and advertised it to be sold on July 6, 1909. On June 24, 1909, appolise Brooks paid the amount of the judgment, interest, and costs of suit to appellant Lee, who thereupon directed the order of sale to be returned unexecuted. Appolise Thornton made the return as directed on June 29th and in said return claimed, in addition to the fees allowed by law for the levy, advertisement, and return, a commission of 858.59 upon the amount collected by appellant in satisfaction of the principal and interest due on said judgment. Upon the refusal of appellant to pay this commission, Thornton filled in the court below a motion to tax said commission as costs in the original suit. From an order of the court granting said motion and adjugging appellant liable for said commission, this appeal is prosecuted.

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Honorable C. Lyne Miller, Page 4

"Articie 2460 of the Revisod Statutes of 1895 provides as followg: "Shariffs shall receive the following rees: * * * Collecting money on an exgoution or order of sale, when the same is made by a sale, for the first one hundred dollars or less, four per cent; for the second one hundred dollars, three per cent; for all sume over two hundred dollars, two per cent. When the money is collected by the sheriff without a sale, one-half of the above rates shall be allowed him." The act of 1897 (Ep. Laws 1897, 0. 5) changes the amount of commisalons allowed sheriffs for collecting money on an order of sale when a sale is made, but makes no change in the former law as to the commissions allowed when the money is collected without sale.

• "ie think it eleay, under the provisions of the statute before quoted, that appoilee Thornton was not entitled to a commission upon the money paid to appellant by Brooks. He was only allowed a comnission upon money oolleated by him. The statute fixes the fees allowed the offloar for services in the execution of the writ prior to the sale, and if the sale is not made and the money due on the judgment is not collected by him, he is entitled to no comnission.

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Under the faste stated the sheriff did not oollect the money due on the judgment. Therefore, in view of the foregoing authorities, it is our opinion that the sheriff is not entitled to any comnisaion upon the money paid by the judgment debtor to the judgment creditor. However, the sheriff would be entitled to the fees allowed by Article 3933, supra, for levying the oxeoution and the return of the execution and the posting of the advertisements for sale under the execution if the sheriff posted the advertisements for sale under the execution. In other words the sheriff would not be entitled to any comnisaion on the money paid by the judgment debtor to the judgment creditor in settlement of the judgment where he did not oollect the money

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without sale, but the sheriff would be entitled to the foes allowed by Article 3933, supra, for the services performed in connection therewith as heretofore mentioned.

Yours very truly

ATTORNEY GENBRAL OF TEILS

Ruellel willion

Ardall william Assistant

ANIMB

AITORNEY GENBRAL OF TEXAS