Honorable W. A. Johnson 

County Attorney 

Tbm Green Count? 

San Angelo, Texas 

Dear Sir: 

Your request for an opinion of this department upon 

the above questions reads as follows: 

OpLnion No. o-6810 

Re: Maximum salary for the County 

Treasurer oft Tom Green County for 

1944 and 19'15; employment of an 

assistant whois the treasurer's 

niece, and payment of salary to 

her. 

'During the year 1943 our county treasurer, 

Mr. 0. M. Bennett, was ailing some, and was off 

from his work some, and procured the services of 

Mrs. Elizabeth Casey, who is his niece as an assistant. Later on his illness became extended to 

the extent that Mr. Bennett was confined, and it 

seemed that no one else was qualifiedto carry on 

the duties of his office, so Mrs. Casey continued 

to serve in the office. All this time Mr. Bennett 

paid Mrs, Casey for her services from his own funds. 

"Can the Commissioners' Court authorize a refund to Mr. Bennett for the amount paid to Mrs. 

Casey for her services, and can they still pay her 

as an assistant to Mr. Bennett, as he still needs 

an assistant? 

"(1940) The Federal Census ga;;eT;;tz;ez;- 

County, a population of 39,302. 

sessed valuation of property in Tom Green County, 

for the year 1944 was $25,239,425.00. 

"The total assessed valuation of 811 property 

in Tom Green County, for the year 1945 is about 

$300,000.00 more than in 1944. 

"What was Mr. Bennett's maximum salary for 

the year 1944? What is Mr. Bennett's maximum 

salary for the year 1945?" 
Hon. W-A. Johnson, page 2 O-6810 

Article 3912e, Section 13, Vernon's Annotated Civil 

Statutes, provides that Commissioners' Courts in counties having a population of 20,000 or more and less than 190,000 according to the last preceding Federal Census, shall fix the salaries 

of the officers named therein, including the Cdunty Treasurer. 

It also provides that each of said dfficers shall be paid s. Salary of "not less than the total sum earned as compensation by 

him in his official capacity for the fiscal year 1935, and not 

more than the maximum amount allowed to officers under laws 

existing on August 24, 1935." It further provides that-in, 

counties having a population of 37,500 and less than 60,000 

according to the last preceding Federal Census, and having an 

assessed valuation in excess of $20,000,000.00 according to the 

last preceding approved tax roll of such county, the maximum 

amount allowed to officers as salary may be increased one per 

cent for each $1,000,000.00 valuation, or fractional part thereof, in excess of said $20,000,000.00 valuation over and above 

the maximum amount allowed to officers under laws existing 

August 24, 1935. 

Article 3941 of said statutes, provides that the County 

Treasurer may receive commissions on the monies received and 

paid out by him, said commissions to be fixed by order of the 

Commissioners' Court, and to be not exceeding 2 l/2 per cent 

for receiving all monies for the county other than school funds 

and not exceeding 2 l/2 per cent for paying out the same. 

Article 3943 of said statutes provides inpart that the 

commissions allowed to the County Treasurer shall not exceed 

$2,000.00 annually. There are some exceptions ,to this salary 

set out in said Article, but they do not apply to Tom Green 

County. 

Under the above provisions of Article 3943, which were 

in effect on the dates material hereto, the County Treasurer of 

Tom Green County could have earned as commissions not exceeding 

the sum of $2,000,00 for the fiscal year 1935, and this was 

also the maximum amount that could have been allowed to him 

under laws existing on August 24, 1935. The Federal Census 

of 1940, which was the last preceding Federal Census prior 

to the years inquired about by you, showed the population of 

Tom Green County to be 39,302. The approved tax roll of Tom 

Green County for 1943 showed the assessed valuation to be 

$25,214,915.00, and such roll for 1944 showed said valuation 

of that year to be $25,239,425.00 Therefore, the maximum 

salary that the said County Treasurer could have been paid for 

the years 1944 and 1945 is the sum of $2,000.00 plus one per 

cent for each $1,000,000.00 valuation, or fractional part thereof, in excess of $20,000,000.00, which would be six per cent 

or $120.00 per annum, making such maximum salary that could 

have been allowed under the laws above referred to the sum of 
Hon. W.A. Johnson, page 3 O-6810 

$2,120.00 per annum. 

Your attention is directed to the fact, however, that 

the last Legislature passed Senate Bill No. 123 which authorizes the Commissioners' Court to increas- the salary of the 

County Treasurer of Tom Green County as much as 25 per cent. 

This law is now in effect and such increase could be allowed 

for the balance of this year if a proper order therefor is 

entered by the Commissioners' Court. Our Opinion No. O-6677, 

a copy of which is enclosed herewith, contains a full discussion of this law and how and when it can be applied to the 

salary of the County Treasurer of your county. We also hand 

you for your information a CODV of OUP Opinion No. 0-6646 

which deals with .the applicability of Senate Bill No. 123 to 

the salary of the treasurer of Galveston County. 

Article 3902 of V,A.C.S. authorizes the appointment of 

a deputy, assistant or clerk by the County Treasurer to assist 

in the performance of his duties when the provisions of said 

ArtFcle are complied with, as held in our Opinion No, O-4454, 

a copy of which is enclosed herewith. Therefore, it is our 

opinion that the County Treasurer of Tom Green County is entitled to a deputy, assistant or clerk when the provisions of 

said Article are complied with. 

Article 432 of the Penal Code of Texas is as follows: 

"No officer of this State or any officer of 

any district, county, city, precinct, school district, or other municipal subdivision of this State, 

or any officer or member of any State, district, 

county, city, school alstrict or other municipal 

board, or judge of any couPt, created by or" under 

authority of any general or special law of this 

State, or any member of the Legislature, shall 

appoint, or vote for, or confirm the appointment 

to any office, position clePkship, employment or 

duty, of any person related within the second aegree by affinity or within the third degree of 

consanguinit-r to the person so appointing or so 

voting, or to any other member of any such board, 

the Legislature, or court of which such person so 

appointing OP voting may be a member, when the 

salary, fees, OP compensation of such appointee 

is to be paid for, directly or IndiPectly, out of 

or from publlc funds or fees of office of any kind 

or character whatsoever." 

The method of computing the degPee Of COnSangUinity and 

of affinity IS fully discussed in our Opinion No. O-2383, a 
Hon. W.A. Johnson, page 4 O-6810 

copy of which is enclosed herewith. In view of this opinion 

and the authorities mentioned therein, there is no question but 

that the niece of the County Treasurer of Tom Green County is 

within the prohibited degree, and that the County Treasurer 

cannot legally appoint her as his deputy, assistant OP clerk, 

as such appointment would be in violation of the above article 

of the Penal Code. This being true, the Commissioners' Court 

of Tom Green County cannot legally authorize a refund to the 

County Treasurer for the amount paid by him to said niece for 

her services, neither can they authorize payments for her services in the future as such deputy, assistant or clerk. 

We think such payment would also be in violation of 

Article 3, Section 53, of the Constitution of Texas, which is 

as follows: 

"The Legislature shall have no power to grant, or 

to authorize any county or municipal authority to grant, 

any extra compensation, fee OP allowance to a public officer, agent, servant or contractor, after service has 

been rendered, or a contract has been entered into, and 

performed in whole or in part; nor pay, nor authorize 

the payment of, any claim created against any county or 

municipality of the State? under any agreement or contract, made without authority of law." 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/Jas. W. Bassett 

Jas. W. Bassett 

Assistant 

J-WB:fb:wc 

Enc. 

APPROVED SEP 18, 1945 

s/Grover Sellers 

ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee By s/BWB Chairman