Harris County v. Schoenbacher

• Decision Date: 08 November 1979
• Docket Number: No. 17487,17487
• Citation: 594 S.W.2d 106
• Parties: HARRIS COUNTY et al., Appellants, v. R. O. D. SCHOENBACHER, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 106

594 S.W.2d 106

HARRIS COUNTY et al., Appellants, v. R. O. D. SCHOENBACHER, Appellee.

No. 17487.

Court of Civil Appeals of Texas, Houston (1st Dist.).

Nov. 8, 1979.

Rehearing Denied Jan. 10, 1980.

Edward J. Landry, Sr. Asst. County Atty., Houston, for appellants.

Kronzer, Abraham & Watkins, Frank Abraham, Houston, for appellee.

Before PEDEN, EVANS and WALLACE, JJ.

PEDEN, Justice.

Harris County and its County Attorney appeal from the granting of a summary judgment in favor of R. O. D. Schoenbacher, the chief juvenile probation officer of Harris County, and from the denial of their motion for partial summary judgment. The appellants maintain that Schoenbacher is liable to Harris County as a matter of law because he has neglected to pay to the county treasurer fees that he has earned, both those he has collected and those he has not collected. As to the granting of the appellee's motion concerning fees collected but not retained, we reverse and remand. Otherwise, we affirm.

The position of chief juvenile probation officer of Harris County was created by Article 5139VV, Section 6, V.A.C.S. Section 10 of that statute was amended in 1975 by the addition of subsection (e), which provides:

If the juvenile board directs the chief juvenile probation officer to receive support payments, a fee, not to exceed One Dollar ($1.00) per month, may be assessed for each individual transaction of receiving and disbursing each individual payment of support moneys. Such fee may be assessed, subject to the approval of the Commissioners Court, upon a determination of the juvenile board that additional funds are necessary to assist in the maintenance of a support office by the chief juvenile probation officer. The fee shall be collected by the chief juvenile probation officer from the payor annually in advance and shall be paid to the County Treasurer to be kept in a separate fund. This fund shall be administered by the juvenile board, subject to the approval of the Commissioners Court, for the purpose of assisting in the payment of the operating expenses of the support office in the juvenile probation office.

In September of 1975, the juvenile board of Harris County passed an order calling for "the collection of $12.00 per year from the payor to reimburse the county for the cost of collecting child support payments." Commissioners Court approved this order.

In November of 1976, the juvenile board ordered Schoenbacher to collect for 1977 and for each year thereafter an annual assessment of $12 from each payor of support monies through the juvenile probation department and "to collect such annual amount in advance in January of 1977 and each year thereafter while this order is in effect." Commissioners Court also approved this order.

Mr. Van Rheen, director of the child support section of the juvenile probation department, testified by deposition that pursuant to the initial orders of the juvenile board and the Commissioners Court, Schoenbacher and those under his supervision began collecting the fee in question on January 2, 1976. A large number of the payors sent in only their support payments and failed to include the $12 fee. In those instances, Schoenbacher's employees began deducting the fee from the amount of money received and forwarding the balance to the intended recipient. Assistant County Attorney Mr. Billy Lee pointed out that this resulted in the payees', in effect, paying the fees. Mr. Lee related that because of this collection procedure, Schoenbacher and others were named as defendants in a federal suit in which a payee sought to enjoin Schoenbacher from deducting the fee from the support payment. Mr. Van Rheen testified that with the institution of the federal suit, the juvenile board directed that Schoenbacher cease the practice of deducting undesignated $12 fees from the monies received for the support payments. Thereafter, Schoenbacher made no effort to collect it, other than to notify the payors by a mailed notice that the $12 fee was due, and "pretty much left it up to the payor whether to pay this fee or not."

It should be noted that Schoenbacher was not authorized to withhold the assessed fee from a child support payment unless it was specifically designated by the payor as a fee. The juvenile board has pointed out that he was given no authorization to enforce payment of the fee. The County Attorney declined to sue those who did not pay it. County Judge Jon Lindsay, who is also chairman of the juvenile board, reported in a letter to the county attorney in February of 1978 that the amount of the uncollected fees had reached an amount in excess of $1,000,000.

Since this controversy arose, action has been taken by the Harris County family district courts to solve this problem. A new Rule 16 has been adopted which provides, in part, that in child support cases where payments are ordered, the decree shall contain this provision:

It is further ordered that the party shall, in addition thereto, pay an annual fee of $12.00 in advance with the first (1st) payment in January of each year or a sum equal to $1.00 per month for the remainder of the year, as provided for in Article 5139VV, Section 10(e) V.A.T.S.

This suit was filed on May 23, 1979, by the county and the county attorney seeking (1) a mandatory injunction to compel Schoenbacher to comply with Article 5139VV, Section 10(e), and the orders of the juvenile board and Commissioners Court with regard to the collection of the fees in question; (2) an independent audit of the accounts of Schoenbacher to ascertain the exact amount of the fees which he had permitted to go uncollected as well as those fees which he had in fact received but which he may simply have passed on with support payments to their recipients; and (3) a recovery of such amounts as an independent audit would show to be due to the county. It is not suggested that he has been dishonest or that he has benefited from any of the matters complained about.

Schoenbacher's motion for summary judgment stated that the uncontradicted summary judgment evidence shows that he has paid into the county treasury all of the fees he has collected and that as a matter of law he is not liable for fees he has earned but not collected. As to the prayer for mandatory injunction, Schoenbacher asserts that he is by statute wholly under supervision of the juvenile board in conducting his duties and that the plaintiffs may not usurp its duties by asking the court to enjoin him to act in accordance with their views rather than those of the juvenile board. He alleges that the appointment of an auditor is not needed since the evidence shows as a matter of law he owes nothing and, further, that his records are public records which can be examined at any time.

In an answer filed by the appellants to Schoenbacher's motion for summary judgment, they expressly presented each of the issues which they now urge as grounds for reversal.

The trial court granted Schoenbacher's motion for summary judgment and denied the plaintiffs' motion for partial summary judgment based on their seeking 1) a mandatory injunction to require him to collect the fees in advance and 2) appointment of an auditor.

The appellants' first point of error is that the trial court erred in granting the appellee's motion for summary judgment. In subdivision A under this point, they assert that Schoenbacher is liable to Harris County as a matter of law for fees of his office which he has earned but failed to collect. The county argues that once the fees authorized by Section 10(e) of Article 5139VV were ordered collected by the juvenile board and the order approved by the Commissioners Court, they became fees of office and Schoenbacher was bound by law to pay them to the county treasurer when earned, not just when collected. To support this position, the county relies on Article 16, Section 61 of the Texas Constitution.

Prior to 1935, some officers were paid on the basis of the fees they collected, but upon the adoption of Article 16, Section 61, of the Texas Constitution, many began to be paid by salaries. Section 61 includes this provision:

All fees earned by district, county and precinct officers shall be paid into the county treasury where earned for the account of the proper fund, provided that fees incurred by the State, county and any municipality, or in case where a pauper's oath is filed, shall be paid into the county treasury when collected and provided that where any officer is compensated wholly on a fee basis such fees may be retained by such officer or paid into the treasury of the county as the Commissioners Court may direct . . .

Mr. Schoenbacher asserts that the phrase "all fees earned" means that "all fees collected by a county officer" must be paid into the county treasury, citing State v. Glass, 167 S.W.2d 296 (Tex.Civ.App.1942, writ ref., 141 Tex. 83, 170 S.W.2d 470). In that case, the question arose as to whether the state or county was entitled to certain fees collected by the tax assessor-collector. The trial judge's findings of fact and conclusions of law were quoted by the court of civil appeals. His fourth conclusion of law stated in part:

I further conclude that the sentence of Sec. 61, Art. 16 of the State Constitution, Vernon's Annotated Statutes, reading: All fees earned by district, county, and precinct officers shall be paid into the county treasury where earned for the account of the proper fund, indicates an intention that all fees of every character collected by a county officer officially . . . shall become fees of office, and that the officer is limited to his salary as compensation, and any fees collected by him officially must be paid into the county depository as directed by the constitutional provision. (emphasis added)

We note, however, that in State v. Glass the fees in question had been collected, while in our case most of them have not. We do not agree with Schoenbacher that the Glass case...