Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GERALD C. MANN
March 31, 1939
Mr. C. W. Talbot County Attorney Bastrop County Bastrop, Texas
Dear Sir:
Opinion No. 0-511 Re: Fees of sheriff for posting advertisements of Sale.
Your request for an opinion upon the following question:
"Under Article 2935 is an officer entitled to 1.00 for all notices, regardless of number?"
has been received by this Department.
Your letter reads in part as follows:
"On date September 25, 1938, The Federal Lead Bank of Houston, plaintiff, recovered judgment in Harris County, Texas, against Jim Anderson, et al., in the sum of $5035.97 and for force/posure of lead mortgage as against certain defendants in such suit.
"On date November 3, 1938, said Bank mailed to E. D. Cartwright, Sheriff of Bastrop County, Texas, an Order of Sale on lands located in said Bastrop County, with instructions to levy on advertise and sell same. In paragraph 3 of said instructions they state — "It is necessary that each of these defendants receive a copy of the Notice of Sale. Therefore, after you have filled in the date of levy, please mail a copy to each defendant at his respective address." Here they set out the names and addresses of
*2 Mr. C. W. Talbot, March 31, 1939, Page 2
thirty-nine defendants.
"These instructions were carried out by said sheriff, and as customary, he included in his fee-bill the sum of 1.00 and, 'Posting any other notice required by law and not otherwise provided for—$1.00, 'means that said sheriff is entitled to the sum of one Dollar only for posting said notices, irrespective of number.
"In view of the above, I ask your opinion on the following:
"Is an officer entitled to the sum of 1.00 only for posting such notices regardless of number?"
Article 3933, Revised Civil Statutes of Texas, provides as follows:
"Sheriffs and Constables shall receive the following fees:
Serving each original citation in a civil suit...................................$1.00 Summoning each witness.......................... 50 Levying and returning each writ of attachment or sequestration.............. 2.00 Copy of attachment writ and return for recording........................................ 1.00 Levying each execution........................ 1.00 Return of execution........................ 1.00 Serving each writ of garnishment or other process not otherwise provided for 1.00 Serving each writ of injunction........... 1.50 Taking and approving each bond, and returning same to the proper Court when necessary.................................... 1.00 Endorsing the forfeiture of any bond required to be endorsed by him.............. 50
*3 Mr. C. W. Talbot, March 31, 1939, Page 3
Executing and returning each writ of possession or restitution.........................$5.00 Posting the advertisements for sale under the execution or any order of sale........................................ 1.00 Posting other notices required by law and not otherwise provided for... 1.00 Executing a deed to each purchaser of real estate under execution or order of sale........................................ 2.00 Executing a bill of sale to each purchaser of personal property under an execution or order of sale, when demanded by purchaser........................ 2.00 For each case tried in the District or County Court, a jury fee shall be taxed for the sheriff of................... 50 For services in designating a home- stead........................................ 2.00
For traveling in the service of any civil process, sheriffs and Constables shall re- ceive seven and one-half (7%) cents for each mile going and coming; if two or more persons are mentioned in the writ, he shall charge for the distance actually and necessarily traveled in the service of same.
"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 (4) per cent; for the second one Hundred Dollars ($200), three (3) per cent; for all sums over two Hundred Dollars ($200) and not exceeding one Thousand Dollars ($100), two (2) per cent; for all sums over One Thou- sand Dollars ($1000), two (2) per cent; for all sums over One Thousand Dollars ($1000) and not exceeding five Thousand Dollars ($5000), one (1) per cent; for all sums over five Thou- sand Dollars ($5000), one-half of one per cent.
"When the money is collected by the sheriff or Constable without a sale, one-half of the above rates shall be allowed him.
"For every day the sheriff or his deputy shall attend the District or County Court, he
*4 Mr. C. W. Talbot, March 31, 1939, Page 4 shall receive Four Dollars ( ) a day to be paid by the county for each day that the Sheriff by himself or a deputy shall attend said court."
You will note that the following language is used in said Article, to-wit: "Posting the advertisements for sale under the execution or any order of sale.
You will further note that the teras "eash", "a" and "any" are used in other portions of the article.
You will further note that there is no provision made for the payment of a fee for "mailing noticea."
The following language in the case of Bigham vs. State, 275 SW 149, is used: "A sheriff is entitled to such fees as the statutes authorize, and for that reason the fact that the fees allowed may seem large in some instances or small in other instancea cannot enter into a decision construing the statutes authorizing them. The Legislature has enacted the Peafbill, and has fixed a maximum sum which a sheriff is entitled to receive in fees, requiring that the exoess be paid into the county treasury. The Legislature has also enacted laws regulating and limiting the fees of officers from time to time. The wisdom or unwisdom of these acts is a matter for the courts to determine." (This case was reversed on other grounds in 230 SW 1062)
Therefore, you are respectfully advised that it is the opinion of this Department that the sheriff of Bastrop County would be entitled to the sum of as his fee for posting the notices of sale described in your letter.
*5 Mr. C. W. Talboe, March 31, 1939, Page 5
It is the further opinion of this Department that the sheriff would not be entitled to any fee for mailing the notices described in your letter.
Very truly yours
ATTORNEY GENERAL OF TEZAS
By
Wm. J. Fanning
Assistant
WJFIAW
APPROYED:
FIRST ASSISTANT ATTORNEY GENERAL