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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. beg neceesa’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 1; ed :?or *’ by Art,lole’ 6,232-r R. 12;s. and; file 
., : 

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.Y .; 

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Honoralbe Robert S. Calvert, page 2 (~~-628) 

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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~ '3 of 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 

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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,. : 

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“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 
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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 
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‘. 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: 

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“(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 

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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 ,. 

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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 ~:be made ‘$ayab,.ble. to.’ the, ,, 

Clerk or, as ~dlrected’by’Yt,h+ final 

jw&inenD. ; : i ‘i ,,,;,” 

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Yqurg pebj: .trul$;:‘i. ~~ ;.~ : 

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WILL~~WILSCN ‘. ,.;. 

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.Attorney General of ..,Teza,s 
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Honorable Robert S. Celvcrt, page 7 (~-628) 

! 

APPROVED: i 

OPINION COMMITl'EE 

Oeo. P. Blaakburn, CheirUin * . 

Raymond V. Loftin, Jr. 

Cherlea Oebenies 

C. K. Fliaherds 

REVIEWED FOR THE ATTORNEY OENERAL 

BY: W. V. Geppert 

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