?.’ ., * ,, ,.;.,. . ‘. ., ‘, i ,’ .” 

### TEEA~TORNEY GENE

OF TEXAS

May 19, .195q’:, ‘::i

.~ Hoderhbls Robert 9, Cdlvert Comptroller of public Accounts ‘I , ‘, . ’ ’ Capitol St&ion 3 Austin, Texas Cpln’lon NON. 

### .W-628 Re: Payment ‘of fees or commiaWmi3 earned ln ,olvll’ proceedings Dear Mr. Calvert: ” :. In which the State Is a party. Your request for an. .oplnlon reads as follows:

“Under the provlslons of ’ Article 39120 R.C.S.,~9e0tioh:li. Section 

### 3, Section 

### 5 and Sectlonl9, Subsection (j) ls’it legal ‘for thiadepartment to issue a warrant to a county or district officer for fees or commlsslons earned by thea~ln’clv~l proceedings in which the State .I6 a Party to the ault? Or, should all fee? tifid’~commlsslons be paid only to the clerk ‘6n a.aost bll’l for all such fees: and commissions earned, by the officers In’ the case? In the event you rule that~‘only the cost .blll should be paid, ,should. the warranVbe made payable jointly to.the ,clerk and the county treasurer? :. ‘!In. ‘the: event you ruJb< ‘that,. the ‘fees in aiyll +aaes *here. t@e: .State -is :a party ’ to the’ suit .bhould. be ,pald directly, to the offlders~~who earned. them, would, it. begneceesa’ey .for +hls departmint,, to~determine \ ’ that the off,lcer has been conmii~sloned~under ,the pro.vlsldns ,of htlcie 

### 3882' R~, C.S. 1 Undeithe bamti,,

aondltl,ons would ,it be necessary ?a the. ofiioer: to, make: the ‘loya&ty .oath pro- ‘VI ed :?or by Art,lole’ 

### 6,232-r R. 12;s. and; file 1; *’., :

..,, :

:.
.Y .;

:

..‘,

. ‘
.

.’

‘
.

:

:. : .L.. 1.

. . I~ ~;,::

. .

: .,,

. Honoralbe Robert S. Calvert, page 2 

### (~~-628) . . . i;;‘.;.,: . . ~~, “-,.,’ ;: ~. .;, ,, ,: ,( ,, ,_ “, i

.’ .,

.-

with thle department before he could paid his fees.by this department?

“Is It necessary for the loyalty *--- - oath, provided f,or by ArtiOle 6252-i’ R.C.S., be made by an officer In a fee oounty and filed with this department ’ before he oould be paid by this d&part- ment for any fee .earned by him In a fel+Xy, case?’ Section 

### 61 of Article XVI, Constitution of Texas*, provides ln,part as follows:

“All fees earned by district, county and prealnct offloers shall be paid Into. the county treasury where earned for the account of the proper fund, provided that ‘fees lncurrsd by the State, county and any munlalpality, or in case where a pauper’s~ * oath Is filed, shall be paid Into the’county . treasury when colledted and provided that where any officer Is compensated wholly on a fee basis such fees may be retained by such.offlcer orepaid Into the ~treasury of the oounty as the Commissioners Couct may dfrect. i. . . ‘I. I,
. I This section not only requ$ires that certain county,offl+qs be compensated on a, salary basisi ,but. requires that all feee earned by such oFf.lcer be paid Into the county treaeury for the acoount of the proper fund. Wichita County v. Robi-neon, 

### 155 Tax. 

### 1, 276 S;W.2d’,509 (1955).

Sect.lons l’,&d~ 

### '3of Artke 3912e’, Vernon’s cl&l StCltutes, as ametided.bp Chapter 23, Acts 

### 56th ,Legle’J,&ture, Regular Sesslon,~.l959, effective Mar+ 1~0,~1959, provide as follows:

“Sectlon~ 1. No d&rlat offfce&&hkll

be paid by the State of Texas an$<fees or , ’ commlsslons for any service performed by, him; nor shall the State or any county pay ‘, iI to any oouqty officer in any county containlng a ,.populatlon of twenty .thousand (29,000) .~’ inhabitants or more adcordlng .to the last ” preceding Federal Census ‘any fee’ or, cqtilr-, slon for-‘any service by him ‘performed ,+s. euoh

. .

‘.,.

Honorable Robert S. Ca lvert, page 3 (w-628 

### 1

; : offloer; provided, however, that the assessor and collector of taxes shall continue to c’ol~leat and retain for the benefit of the Offlc+rs’ ,Salary Fund. or Funds hereinafter pr6vlded .ior~, all feds ‘, and counniorlons which he Is authdrizad )’ under law to collebt; “and it shall be hle duty ,to account. for and to.pay .a11 such,. moneys received by him into the fund.or funds created and provided for uhder,the provlslonn of this Aat; provided .?e%her, that the provisions of this Seatlon shall not affect the payment of ooets..ln 01~11 cases or eminent domain proceedings by, the State, bu% all such costmao paid shall be aocountbd for by the officers ooi-- lectlng the seme, as they are require&under the provisions of~this Aat, to account.for fees, commissions and costs collected from private parties; provided further, that ,the provisions of this Section shall not affect the, payment of .feep and commlsalons by the State or County for services rendered.by County Offlcecs In connection with the’acquirltlon of

’ rights ,of way for public roads or highways, and provided that such fees :and’ aonu&lsslonr ehall be deposited Into ,.the OffI; cers’ Salary i?und of the County by t:tj.e Cdunty Officer oollectlng such fee. ”

3,. :

, “Sea. 3. In all cases where the Commlrsloners Court shall have.determlned that ootinty offfcers or precinot officers In suoh county shall be compensated for their setiices:by the payment of an annual salary, neither thd State of Texas nor any county shall be charged:with or pay to any of the officers so compensated,, any fee or acmnleeion for the performance bf any or all o? the dutiee OS their offloes,but puch,oSfloers shall receive said salary in lieu of all other fees, commleslons or compensdtion whioh they would otherwise be authorized to retain; ‘provlded, however, that the assessor and colleotor of taxes shall oontlnue to collect and retain for the benefit of the Officers’ Salary Fund or funds hereinafter provided for ’ all fees and oouunisslons whloh he Is authorized under law to oollect; and ‘it shal,l be his duty.

:

.

. 8..

:.

!, ,: 1

Honorable f;obert S. Calvert, page 4 

### (w-628)

to account for and to pay all such moneys received by him into the fund created and provided for under the provisions of this Act; provided further,, that the provlslonS of this Section shall not affect the payment of costs In. civil cases or eminent domain proceedlngs’by the State but all, costs so paid shall be acoounted for by the officers collecting the same, as they are required under the provisions of this Act to account for fees, commissions and costs collected.from private parties, providing further that the provisions of this Section shall not affect the payment of fees and commissions by the State or County for servlces rendered by County Officers in oonnectlon with the acquisition of right8 of way for public roads or highways, and provided that such fees and commissions shall be deposited into the Officers’ Salary Fund of the County by the County Officer collecting such fee. ” The emergency clause of Chapter 23, Acts of the 

### 56th Legislature, states:

“The fact that under ,exldtlng laws the, County Officers are prohibited from-colleotz’ ing fees and commitisiona from the.State or County for services rendered,ln connection . with the acquisition of rights of way for ‘ publlo,roads and highways, other than 8s~ ayment of

’cost In civil actions and ther t th t the accelerated highway program h:i plazed an undue burden on the Officers’ Salary Fund of the.Counties due ,to the lncreased work required to be performed by the ‘County @ticerr, for uhlch no tee or oommlasion Ia oolleoted.creataa an embrgency, . . . etc. ” (Bnphasls ours) Prior to the enactment of Chapter 23i,the prohl- ” bltlons contained In Sections 1 and 3.of Article 3912e prohibited the payment of any fee or commia~slon by thq State to.any County offloer for any service performed by him as ,ruch officer unless the fees constituted (1) fees colleoted by the Assessor-Collector of, Taxes and, .(2) payment pf oortb’ln 01vU oaeee. See Attorney OeneraP8 dpinlon. 

### ~1-508 holding that. thu,..Comptr#Jer. 0. ‘. ._ ,

‘
. Honorable Robert S. CalGert, page, 5 ~-628)

of Public Accounta Is not authorized to Issue a warrant In payment of a reoording fee for reoordlng an agrlaultural lease on lands purohased by the Veterans Land Board.

Chapter 23, Aats of the 

### 56tb Leglhlature, recognized that the prohibition contained In Sections 1 and 3 contained only the exceptions mentioned above and beoause the aocelerated highway program had placed an undue burden on the Offloersl Salary Fund of the Counties added an addltional exception to the prohibition so as. to permit the State to pay fee8 and commissions for service rendered by county offlcera In connection with the acquisition of rights of way for publla roads or highways,

It lr noted that the prohibitions oontained in Sections 1 and 3 of Article 3912e, Vernon’s Civil Stautes, concerning the payment of fees or commissions by the State do not apply to the payment of costa In clVI1 cases by the State where the feea earned constitute a part of the coat aseessed against the State in a particular case. Therefore, such ooat must be paid by the State as provided by law rather than as a fee to the Individual officer.

Subdivision (J) of Section 19, Artlole 3912e, applicable to counties having a population In exoess of 190,000

,. Inhabitants, provides as follows:

:

. * “ (3) Enoh dlstrlct, county, and preelnct

officer rho shall be compensated ,on a salary banlr ehall continue to oharge for the benefit of the Offloers~ Salary Fund of his offloe provided ?or In this Section, all fees and oommls- I slonr which he Is now or hereafter may be authorized to charge against and collect.from the State of Texas for services performed by him In clvll proceedings and to file claims for the fees or commlsslons due for such services in the manner now or hereafter provided by law; and It shall be the duty of said oS?laer to acaount for and catme to be paid to the adlary fund created for such officer all such commlasfons and.fees when paid by the State In like manner as for aouts aolleoted from private parltee; provided further, ,that such warrant0 Issued by the State Comptroller of Publlo Aooounte shall be made payable jointly to the ofiloer in office at the d.ati CJ~

PameW A& to the’ oouzity treasurer, and that upon endorsement thereof such warrants

. ..-. . ..I

‘.. .

: ,, .a.” .

Honorable Robert S. Calvert, page 

### 6 (ww-62k.)

.~. shall be deposited ‘forthwith treasurer in 

### tne salary fund officer; ” :’ by, said &&t.y ..,‘., created for s.u’fh ,.

,.: ., .~ Subdlvls1o.n ($) of, Section. ‘,lg above, ’ q$oted, ;spe,-. clflcally provides how’ dasts in civil &Ssbs- ‘a.$$‘,tO:,t+ paid by the State,. The Comptroller 38, ’ spic.lfl~al~~y dlrected: to ,make warrant,8 ‘pa’yable, to., th’e~,offlcer-:ln. Office at the date of the payment. ,and to the Co@$y ‘T~eaeur+?i~ Therefore, you are, advised tha’t ,ln’ c.ountle.9, .gf ~.IgO., ‘OOC Inhabitants ,or more, .fees or commlsslonsearned .by officers in. Civil. proceedings lh~which’ the Statd;::fs ‘a~party,, assess’ed as $?osts, shouldbe paid joln,t$y to, %he’Clerk ., and to the .County Treasu.reti, in,,paymen,t o,f the. opst blXl, unless the fln,a$’ ju’d&nent’ directs otherwlse;~ Iii other countless the’~

warrant should. be ,made’payable. to. the Clerk or as directed by the final, judgment. ,:. , ” , .1.

Artlcle..6252-7, &rnonls: Civil Statutes, -providing for loyalty oaths, 1s .appllcable to, the paymen,t:iby the State of Texas .of saiarles. or.. ‘other c.ompe:nsatlon~:for. ‘personal services rendered the ‘St.ate, “:,.nd,.~ ls, therefore, not applloable,,to ?yment. of, costs by. ,the:State. :, . ‘, ,, S~MY In counties cont’alnlng ,a po@atlon , ‘~ : ,: In ,excess . ‘of ~lgO,OCO inhabitants,: ., ~fees ?r’ cpmm$gt3ic?n,s;‘+3~~s,s~d.:,p’ cg,St ” against the, State in; a; ‘clvll-,p,rqq’eed- ~ ’ Ing In whlqh~theSt,at~e ,$a’ a party ‘, . ’ ,.. should’ be ,,pal.d by’ .war.rant Issued ‘:’ jointly’
. to the; ,Clerk..and County Tressurer unl,esa a final (judgmentdirects :, otherwise. In. other ., ‘ciumtles’, such; ’ : ‘warrant should ~:bemade ‘$ayab,.ble. to. ’ the, ,, Clerk or, as ~dlrected’by’Yt,h+ final jw&inenD. ; : i ‘i ,,,;, ” :

Yqurg pebj: .trul$;: ‘i. ~~ ;.~ : ,~‘
. ;;., I. WILL~~WILSCN

‘
. ,.;. . : .Attorney General of ..,Teza,s. . ; ‘: ‘,. ,’
. . . . . . . .

Honorable Robert S. Celvcrt, page 7 (~-628) ! APPROVED: i OPINIONCOMMITl'EE Oeo. P. Blaakburn, CheirUin *
. Raymond V. Loftin, Jr. Cherlea Oebenies C. K. Fliaherds REVIEWED

FOR THEATTORNEY

OENERAL BY: W. V. Geppert

’
.

.

. .

.