Honorable Robert S. Calvert Opinion NO. M-37 

Comptrollers of Public Accounts 

Austin, Texas Re: Whether the Comptroller 

of Public Accounts can 

include King County in 

the apportionment payment 

under Article 3912e, V.C.S., 

when all County officers 

will be paid on a salary 

'basis and the County and 

District Clerk; in addition 

to the salary payment, will 

retain the fees of office 

Dear Mr. Calvert: ana related question. 

Your request for an opinion of this office reads, in 

part, as follows: 

"King County is a County under 20,000 

population and for several years the Commissioners Court has elected to place all 

of the County officers on a salary basis. 

. . . 

1, 

. . . 

"This County submitted an amended order 

placing the County and District Clerk on a 

salary basis of $340.00 per month and to retain the fees of office. 

I, 

. . . I shall appreciate your opinion 

as to whether this department can include 

King County in the apportionment payment for 

the year 1967 under these orders. In the 

event you hold that King County is entitled 

to the apportionment; could this department 

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Hon. Robert S. Calvert, page 2 (K-37) 

pay the District Clerk any fees of office. 

There is no litigation periding which would 

have a bearing in this'matter." 

In order to clearly"set out the facts, in regard 

to this particular question, we are quoting the pertinent 

portions of the order of the Commissioners Court of King 

County, Texas, made January 11, 1967: 

"SALARIES AED FEES OF CODRTY ELECTED OFFICIALS 

A motion was made by J. C. Moorhouse and 

duly~ seconded by Louis Burfiend to place Sybil 

Z.'Hensley, County and District Clerk of King 

County, Texas, on fee basis for the year 1967. 

All other County Officials of King County, 

Texas, to be retained on Salary Basis for calendar year 1967. A vote was called and all 

members voted in favor of said motion." 

Thereafter under date of February 13, 1967, the 

Commissioners Court of King County, Texas, passed the following order: 

"AMENDMENT TO ORDER PASSED JANUARY 11, 1967 

A motion was made by J. C. Moorhouse and 

duly seconded by Louis Burfiend to amend the 

Minutes of an Order passed January 11, 1967, 

which shall read as follows: All County 

Officials shall remain on a Salary Basis as 

set out in that order, with the exception of 

the County and District Clerk, who is hereby 

placed on a salary of $340.00 per month and 

retain the fees of office. A vote was called 

and all members voted in favor of said motion." 

Section 61 of Article XVI of the Texas Constitution 

provides as follows: 

"Sec. 61. All district officers in the 

State of Texas and all county officers in 

- 173 - 
Hon. Robert S. Calvert, page 3 (R-37) 

counties,having a population of twenty thousand (20,000) or more, according to the then 

last preceding Federal Census, shall be compensated on a'salary basis. In all counties 

in this State, the Commissioners Courts shall 

be authorized to determine whether precinct 

officers shall be compensated on a fee basis 

or on a salary basis, with the exception that 

it shall be mandatory upon the Commissioners 

Courts, to compensate all constables, deputy 

constables and precinct law enforcement officers 

on a salary basis beginning January 1, 1949; 

and in counties having a,population of less 

than twenty thousand (20,000), according to the 

then last preceding Federal Census, the Commissioners Courts shall also have the authority 

to ~determine whether county officers shall be 

compensated on a fee basis ore on a salarv basis, 

with the exception that it shall be mandatory 

upon the Commissioners Courts, to compensate 

all sheriffs, deputy sheriffs, county law enforcement officers including sheriffs who also 

perform the duties of assessor and collector 

of taxes, and theirdeputies, on a salary basis 

beginning January 1, 1949. 

“All fees earned by district, county and 

precinct officers shall be paid into the county 

treasury where earned for the account of the 

proper fund, provided that fees incurred by the 

State, county and any municipality, or in case 

where a pauper's oath is filed, shall be paid 

into the county treasury when collected and provided that where any officer is compensated 

wholly on a fee basis such fees may be retained 

by such officer or paid into the treasury of the 

county as the Commissioners Court may direct. 

All Notaries Public, county surveyors and public 

weighers shall continue to be compensated on a 

fee basis." Added Aug. 24, 1935, as amended Nov. 

2, 1948. (Emphasis added.) 

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Hon. Robert S. Calvert, page 4 (M-37) 

The Judiciary Section - Comptroller's Department 

Appropriation (H.B. 12, Acts 59th Legislature, p. 1690) provides the following on pages 1690-91: 

For the years 

Ending 

August August 

31, 1966 31, '1967 

"9. Apportionment to counties 

where county.officers are paid 

salaries. . . . Should any 

county by election of the Commissioners Court, change from 

a salary to a'fee basis during 

this biennium, the Comptroller 

shall~make adjustments in the 

appropriations by transferring 

the correct amount from this 

appropriation to the appropriation made for paying fees and 

costs of sheriffs and other 

county officials. 611,397 611,397 

"10. Fees and Costs paid to 

sheriffs, attorneys and clerks 

in felony cases, and fees of 

county judges, county,attorneysi 

justices of the peace, sheriffs 

and constables in examining 

trials where indictments are 

returned. . . . $ 15,000 $ 15,000" 

Since Section 10, above quoted, is appropriated 

for the purpose of paying fees, said section could not be 

used for payment of any salaries. Section 9, however, is 

appropriated for the purpose of apportionment to counties 

where the county officers are paid on a salary basis. The 

apportionment is to be made by Sec. 6(a) of Article 3912e 

which provides: 

- 175 - 
Hon. Robert S. Calvert, page 5 (M-37) 

"In counties wherein the county officials 

are on a salary basis, in addition to the monies 

deposited in said Officers' Salary,Fund or funds 

under the provisions of Sections 1, 3, and 5 of 

this Act there shall be deposited therein . . . 

such sums as may be apportioned to such county 

under the provisions of this Act, out of the 

available appropriations made by the Legislature 

for such purposes, provided, however, that in 

counties where the Commissioners' Court is 

authorized to determine whether county,officers 

shall be compensated on a salary basis, no 

apportionment shall be made to such county until 

the Comptroller of Public Accounts shall have 

been notified of the order of the Commissioners' 

Court that the county officers of such county 

shall be compensated on a salary basis for the 

fiscal year, and in that case the first quarterly 

payment of such apportionment shall be made in 

fifteen (15) days after receipt of such notice 

by the Comptroller, and the remaining payments 

on the dates hereinabove,prescribed. It shall 

be the duty of the Comptroller of Public Accounts 

to annually apportion to all counties in which 

the county officers are to be compensated on the 

basis of a salary any monies, appropriated for 

said year for such apportionment; each county 

entitled to participate in such apportionment 

shall receive for the benefit of its Officers' 

Salary Fund or funds its proportionate part of 

the appropriation which shall be distributed 

among the several counties entitled to participate therein, on the basis of the per capita 

population of each county according to the last 

preceding Federal Census." 

Section 2 of Article 3912e, V.C.S., provides, in 

part, as follows: 

II . . . In counties having a population 

of less than twenty thousand (20,000) inhabitants according to the last preceding Federal 

- 176 - 
Hon. Robert S. Calvert, page 6 (M-37) 

Census, it shall likewise be the duty of the 

Commissioners 1 Court, by its order duly made 

and entered of record at its fir& regular 

meeting in January of each calendar year, to 

determine whether county officers of such 

county~ (excluding county surveyors, registrars 

of vital statistics and notaries public) 

shall be compensated for the fiscal Year on 

the basis of an annual salarv or whether thev 

shall be compensated on the basis of fees 

earned bv them in the performance of their 

official auties, and it shall also be the 

duty of the county clerk to forward to the 

Comptroller of Public Accounts of the State 

of Texas, on or before the 31st day of January, 

a certified copy of said order of said Commissioners' Court." (Emphasis added.) 

Section 3 of Article 3912e, V.C.S., provides, in 

part, as follows: 

"Sec. 3. In all cases where the Commissioners 

Court shall have determined that county officers 

or precinct officers in such county shall be 

compensated for their services by the payment 

of an annual salary, neither the State of Texas 

nor any countv shall be charsed with or oav to 

any of the officers so compensated, any fees 

or commission for the performance of any or 

all of the duties of their offices but such 

officers shall receive said salary in lieu 

of all other fees, commissions or compensation 

which they would otherwise be authorized to 

retain: . . .ll (Emphasis added.) 

In the case of Wichita County v. Robinson, 155 Tex. 1, 

276 S.W.2d 509 (19541, the Court, in construing Section 61, 

Article XVI, Constitution of Texas, held that an Act (Art. 

1436-1, Section 57, Vernon's Penal Code) passed by the Legislature to allow additional compensation in the form of fees 

of office for a County Tax Assessor-Collector who was paid on 

- 177 - 
Hon. Robert S. Calvert, page 7 (M-37) 

a salary basis was unconstitutional. 

In conformity with the holding in the above case 

that portion of the Commissioners Court order, passed on 

February 13, 1967, whereby the C,ommissioners Court authorized the County and District Clerk to retain the fees of office as part of her compensation isvoid and unconstitutional 

and she is only authorized to receive the salary as authorised by such order. 

Therefore the King County officials are'on a salary 

basis and your department can include King County, Texas, 

in the apportionment payment for~the year of 1967. 

Your department is not authorized to pay the District Clerk any fees of office, by virtue of the provisions 

of Section 3 of Article 3912e. 

SUMMARY 

Under the facts submitted the Comptroller 

of Public Accounts is authorized to include 

King County in the apportionment payment under 

Section 6(a), Article 3912e, V.C.S. 

The Comptroller of Public Accounts is not 

authorized to pay the County'and District Clerk 

of King County, Texas, any fees of office, by 

virtue of the provisions of Section 3, Article 

3912e, V.C.S. 

truly yours, 

tT22zFrney General of Texas 

Prepared by John H. Banks 

Assistant Attorney General 

- 178 - 
Hon. Robert S. Celvert, page 8 (M-37) 

APPROVED: 

OPIIUION COMMITTEE 

Hawthorne~Phillips, Chair-n 

W. V. Geppert, Co-Chairman 

Bill Craig 

Neil Williams 

Houghton Brownlee 

Lewis Berry 

STAFF LEGAL ASSISTANT 

A. J. Carubbi, Jr. 

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