Bexar County v. Maverick

• Decision Date: 21 January 1942
• Docket Number: No. 11071.,11071.
• Citation: 159 S.W.2d 140
• Parties: BEXAR COUNTY v. MAVERICK et al.
• Court: Texas Court of Appeals

Page 140

159 S.W.2d 140

BEXAR COUNTY v. MAVERICK et al.

No. 11071.

Court of Civil Appeals of Texas. San Antonio.

January 21, 1942.

Appeal from District Court, Seventy-Third District, Bexar County; John F. Onion, Judge.

Suit by Bexar County against Maury Maverick and the Massachusetts Bonding & Insurance Company to recover several thousand dollars, alleged to have been collected by Maury Maverick, for the issuance of tax certificates during his tenure of office as Tax Collector of Bexar County. From a judgment in favor of the defendants, the plaintiff appeals.

Judgment affirmed.

John R. Shook, S. Benton Davies, and Leonard Brown, all of San Antonio, for appellant.

Johnson & Rogers and William N. Hensley, all of San Antonio, for appellee.

MURRAY, Justice.

This is a suit by Bexar County against Maury Maverick and Massachusetts Bonding and Insurance Company seeking to recover several thousand dollars, alleged to have been collected by Maury Maverick, for the issuance of tax certificates during his tenure of office, from January 1, 1931, to December 31, 1934, as Tax Collector of Bexar County; it being further alleged that such collections were fees of office and should have been accounted for by appellee Maverick, but that same were unaccounted for by him.

The trial was before the court without the intervention of a jury and at the close of the evidence the court held that all such alleged claims were barred by the two-year statute of limitation and rendered judgment that the plaintiff take nothing, from which judgment Bexar County has prosecuted this appeal.

Two questions are here presented: First, did the trial court err in holding that the two-year, Art. 5526, Vernon's Ann.Civ. Stats., and not the four-year, Art. 5527, Vernon's Ann.Civ.Stats., statute of limitation applies in this suit? And, Second, were such collections under the law fees of office? Inasmuch as we have concluded that the two-year statute of limitation, Art. 5526, Vernon's Ann.Civ.Stats., applies herein, it will not be necessary to pass upon the second question.

This suit was not filed until November 25, 1939. If these fees were fees of office they should have been reported on March 1st of the next year following their collection. When Maverick ceased to be tax collector of Bexar County, on December 31, 1934, he became a member of the Congress of the United States and was out of the State some two and one-half years between January 1, 1935, and November 25, 1939. Maverick was not called upon to report fees collected during the year 1933 until March 1, 1934, and those collected during the year 1934, until March 1, 1935. Thus it will be seen that if the four-year statute of limitation is applied, a suit for fees collected during the years 1933 and 1934 is not barred, but, upon the other hand, if the two-year statute of limitation is applied, such suit is barred.

Appellant, Bexar County, contends that this is a suit based upon and evidenced by a contract in writing, to-wit, the official bond of Maverick as Tax Collector of Bexar County, and, therefore, the four-year statute of limitation should be applied and not the two-year statute.

The bond of Maverick as such Tax Collector was conditioned as is required by the statutes, Art. 7247, and Art. 7249, Vernon's Ann.Civ.Stats., as follows, to-wit:

"The condition of the above obligation is such, that whereas, the above bounden Maury Maverick was, on the 8th day of November, 1932, duly elected to the office of Tax Collector in and for Bexar County, in the State of Texas.

"Now, therefore, If the said Maury Maverick shall faithfully perform and discharge all the duties required of him by law as Tax Collector aforesaid for and during the full term for which he is elected, then this obligation shall be void; otherwise to remain in full force and effect."

It will be noted that the bond does not, by its own terms, require Maverick to pay any money to the county, but simply is conditioned that he will "faithfully perform and discharge all the duties required of him by law as Tax Collector * * *."

One of the early cases passing upon this question is Phillips v. Hail, Tex.Civ.App., 118 S.W. 190, 191. That case was a suit on a constable's official bond to recover damages for negligently taking a defective claim bond to property. In holding that the suit was barred by the two-year statute of limitation, Justice Neill, speaking for this Court, had the following to say: "Unquestionably the two-year statute of limitation is applicable to a case of this character. Woods v. Huffman, 64 Tex. 98. This is founded on the principle that an official bond is simply a collateral security for performing the officer's duty, and, when suit is barred for breach of his duty, action is also barred on the bond. [Citing numerous cases]."

The Commission of Appeals, in Hatcher v. State, 125 Tex. 84, 81 S.W.2d 499, page 502, 98 A.L.R. 1213, in an opinion adopted by the Supreme Court, had the following to say:

"We have reached the conclusion, after careful consideration of all the authorities referred to by the Court of Civil Appeals, together with those cited in the briefs and all others that we have been able to find, that the question was correctly determined by the Court of Civil Appeals at San Antonio in Phillips v. Hail, 118 S.W. 190, 191. That was a suit against a constable and sureties on his official bond to recover damages for the negligent taking by the constable of a defective claim bond. The statute then in effect (article 4911, R.S.1895, [Vernon's Ann.Civ.St. art. 6881]), in language substantially the same as the article above referred to prescribing the conditions of the state treasurer's bond, required the execution by the constable of a bond `conditioned for the faithful performance of all the duties required of him by law.' The court, in a well-considered opinion by Judge Neill,...