Attorney General Opinions

The Honorable John R. Newhart

• • Sheriff for the City of Chesapeake
    
    Issue Presented
    
    You ask whether a sheriff is entitled to the five percent commission authorized under § 8.01-499 for serving a distress warrant on behalf of the treasurer for the collection of delinquent taxes pursuant to § 58.1-3934(B), which subsequently are paid to the treasurer’s office.
    
    Response
    
    It is my opinion that a sheriff is not entitled to the five percent commission authorized under § 8.01-499 for serving a distress warrant on behalf of the local treasurer for the collection of delinquent taxes, which subsequently are paid to the treasurer’s office.
    
    Applicable Law and Discussion
    
    Section 58.1-3919 requires a local treasurer to collect delinquent taxes "by distress or otherwise." § 58.1-3934(B) authorizes a county or city to place local taxes in the hands of the sheriff for collection and entitles the sheriff to the powers conferred by law upon the treasurer.

    Section 8.01-499 provides:

    • • • • An officer receiving money under [Chapter 18 of Title 8.01^[1]] shall make return thereof forthwith to the court or the clerk's office of the court in which the judgment is entered. For failing to do so, the officer shall be liable as if he had acted under an order of such court. After deducting from such money a commission of five per centum and his necessary expenses and costs, including reasonable fees to sheriff’s counsel, he shall pay the net proceeds, and he and his sureties and their representatives shall be liable therefor, in like manner as if the same had been made under a writ of fieri facias on the judgment. [Emphasis added.]
    It is well-settled that, "[I]f the language of a statute is plain and unambiguous, and its meaning perfectly clear and definite, effect must be given to it."² The plain language of § 8.01-499 provides for payment of a commission to the sheriff when he collects the amount due. In order to "make return thereof forthwith to the court," as required by § 8.01-499, the officer must have collected the amount due. A 1962 opinion of the Attorney General determined that no fee is payable to the sheriff when a garnishee makes payment directly to the court, because no collection is made by the officer.³ I find no authority rendering the rationale of the 1962 opinion incorrect.
    Conclusion
    Accordingly, it is my opinion that a sheriff is not entitled to the five percent commission authorized under § 8.01-499 for serving a distress warrant on behalf of the local treasurer for the collection of delinquent taxes, which subsequently are paid to the treasurer’s office.
    
    
    
    ¹Chapter 18 of Title 8.01 encompasses the statutes governing executions and other means of recovery.
    ²Temple v. City of Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944), cited in 1995 Op. Va. Att’y Gen. 61, 62. Based on a 1995 opinion, concluding that the Commonwealth or locality represented by the sheriff is exempt from paying the sheriff’s fees, I question whether a sheriff may, in any circumstance, collect a fee from proceeds due to the Commonwealth or the locality he serves. See 1995 Op. Va. Att’y Gen., supra, at 62.
    ³1962-1963 Op. Va. Att’y Gen. 101, 102 (concluding that § 8-429, predecessor to § 8.01-499, applies only to instances where sheriff makes actual collection of amounts due); see also Va. Code Ann. § 15.2-1609.3(D) (LexisNexis Supp. 2002) ("When, after distraining or levying on tangible property the officer neither sells nor receives payment and either takes no forthcoming bond or takes one which is not forfeited, he shall … have … a fee of twelve dollars." Emphasis added.).