Honorable W. A. Johnson

CountyAttorney Tbm Green Count? San Angelo, Texas

Dear Sir:

Your request for an opinion of this department upon the above questions reads as follows: OpLnionNo. o-6810 Re: Maximum salary for the County Treasurer oft

Tom Green County for 1944 and 19'15; employment of an assistantwhois the treasurer's niece, and payment of salary to her.

'Duringthe year 1943 our county treasurer, Mr. 0. M. Bennett,was ailing some, and was off from hiswork some, and procured the services of Mrs. Elizabeth Casey,who is his niece as an assistant. Later on his illnessbecame extended to the extent that Mr. Bennettwas confined, and it seemed that no one elsewas 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 stillpay her
as an assistant to Mr. Bennett, as he stillneeds
an assistant?
"(1940) The Federal Census ga;;eT;;tz;ez;- County, a population of 39,302. sessed valuation of property inTom Green County, for the year 1944was $25,239,425.00.

"Thetotal assessed valuation of 811 property in Tom Green County, for the year 1945 is about $300,000.00more than in 1944.

"Whatwas Mr. Bennett's maximum salary for the year 1944? What isMr. Bennett'smaximum 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 countieshavinga population of 20,000 or more and less than 190,000 according to the last precedingFederal Census, shall fix the salaries of the officersnamed therein, includingthe Cdunty Treasurer. It also provides that each of said dfficers shallbe paid s.Salary of "not less than the total sum earned as compensationby him in his official capacity for the fiscalyear 1935, and not
more than the maximum amount allowed to officersunder laws existing on August 24, 1935." It further provides that-in, countieshaving a population of 37,500 and less than 60,000 according to the last precedingFederal Census, and having an assessed valuation in excess of $20,000,000.00according to the last preceding approved tax roll of such county, the maximum amount allowed to officers as salarymay be increasedoneper cent for each $1,000,000.00valuation, or fractionalpart thereof, in excess of said $20,000,000.00valuation over and above the maximum amount allowed to officersunder laws existing August 24, 1935.

Article 3941 of said statutes,provides that the County Treasurermay receive commissions on the monies received and paid out by him, said commissions to be fixedby 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 statutesprovides inpart that the commissions allowed to the County Treasurer shallnot exceed $2,000.00annually. There are some exceptions ,tothis salary set out in saidArticle, but they do not apply to Tom Green County.

Under the above provisions ofArticle 3943,which were in effect on the dates material hereto, the County Treasurer of Tom Green County could have earned as commissionsnot exceeding the sum of $2,000,00 for the fiscal year 1935, and thiswas also themaximum amount that could have been allowed to him under laws existing on August 24, 1935. The Federal Census of 1940,which was the last precedingFederal Censusprior to the years inquiredabout 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, themaximum salary that the said CountyTreasurer could have been paid for the years 1944 and 1945 is the sum of $2,000.00plus one per cent for each $1,000,000.00valuation, or fractionalpart thereof, in excess of $20,000,000.00,which would be six per cent
or $120.00per annum, making suchmaximum salary that could have been allowed under the laws above referred to the sum ofHon. W.A. Johnson, page 3 O-6810

$2,120.00per 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 isnow in effect and such increase couldbe allowed for the balance of this year if a proper order therefor is enteredby the Commissioners'Court. Our OpinionNo. 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 informationa CODV of OUP OpinionNo. 0-6646 which deals with .the applicability of Senate Bill No. 123 to the salary of the treasurer of Galveston County.
Article 3902 ofV,A.C.S. authorizes the appointment of
a deputy, assistant or clerk by the County Treasurer to assist in the performance of his dutieswhen the provisions of said ArtFcle are compliedwith, as held in our OpinionNo, O-4454,
a copy ofwhich is enclosed herewith. Therefore, it is our opinion that the County Treasurer of Tom Green County is entitled to a deputy, assistant or clerkwhen the provisions of saidArticle are compliedwith.

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, schooldistrict, or othermunicipal subdivision of this State,
or any officer or member of any State, district, county, city, school alstrict or othermunicipal board, or judge of any couPt, createdby 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 relatedwithin the secondaegree by affinity orwithin the third degree of consanguinit-r

to the person so appointing or so voting, or toany othermember of any suchboard, the Legislature, or court ofwhich suchperson so appointing OP voting may be a member, when the salary, fees, OP compensationof such appointee is to be paid for, directly or IndiPectly,out of
or frompubllc funds or fees of office of any kind
or characterwhatsoever."

The method of computing the degPee Of COnSangUinityand of affinity IS fully discussed in our Opinion No. O-2383, aHon. W.A. Johnson, page 4 O-6810

copy of which is enclosed herewith. In view of this opinion and the authoritiesmentioned therein, there is no question but that the niece of the County Treasurer of Tom Green County is within the prohibiteddegree, and that the CountyTreasurer cannot legally appoint her as his deputy, assistant OP clerk,
as such appointmentwould be inviolation 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 saidniece for her services,neither can they authorize payments for her services in the future as such deputy, assistant or clerk.

We think such paymentwould also be inviolation of Article 3, Section 53, of the Constitution of Texas, which is
as follows:

"TheLegislature shallhave no power to grant, or to authorize any county ormunicipal 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 inwhole or inpart; 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

ATTORNEYGENERAL OF TEXAS

By s/Jas.W. Bassett Jas. W. Bassett Assistant

J-WB:fb:wc Enc.

APPROVED SEP 18, 1945 s/GroverSellers ATTORNEY GENERAL OF TEXAS
Approved Opinion CommitteeBy s/BWB Chairman