Honorable Robert S. Calvert OpinionNO. M-37

Comptrollers

of PublicAccounts Austin, Texas Re: Whether the Comptroller of PublicAccounts can includeKing County in the apportionmentpayment 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:

"KingCounty is a County under 20,000 population and for severalyears the Commissioners Court has elected to place all of the County officers on a salarybasis.

. . .

1,

. . . "ThisCounty 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 appreciateyour opinion
as towhether this department can include King County in the apportionmentpayment 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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pay the District Clerk any fees of office. There is no litigationperiding which would have a bearing inthis'matter."

In order to clearly"set out the facts, in regard to this particularquestion,we are quoting the pertinent portions of the order of the Commissioners Court of King County, Texas, made January 11, 1967:

"SALARIESAED FEES OF CODRTY ELECTED OFFICIALS

A motion was made by J. C. Moorhouse and duly~secondedby Louis Burfiend to place Sybil Z.'Hensley, County and District Clerk of King County, Texas, on feebasis 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."

Thereafterunder date of February 13, 1967, the Commissioners Court of King County, Texas, passed the following order:

"AMENDMENTTO ORDER PASSEDJANUARY 11, 1967

A motion was made by J. C. Moorhouse and duly secondedby 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

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counties,havinga population of twenty thousand (20,000)or more, according to the then last precedingFederal Census, shall be compensated on a'salarybasis. In all counties in this State, the CommissionersCourts shall be authorized to determinewhether precinct officers shallbe compensated on a feebasis
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 countieshaving a,population of less than twenty thousand (20,000),according to the then last precedingFederal Census, the Commissioners Courts shall also have the authority to ~determine

whether county officers shallbe compensated on a feebasis oreon a salarvbasis, with the exception that it shall be mandatory upon the CommissionersCourts,to compensate all sheriffs, deputy sheriffs, county law enforcement officers including sheriffswho also perform the duties of assessor and collector of taxes, and theirdeputies, on a salary basis beginning January 1, 1949.

“All fees earnedby district, county and precinct officers shallbe paid into the county treasurywhere earned for the account of the proper fund, provided that fees incurredby the State, county and **any** municipality, or in case where a pauper's oath is filed, shall be paid into the county treasurywhen collected and provided thatwhere any officer is compensated wholly on a feebasis such fees may be retained by such officer or paid into the treasury of the county as the CommissionersCourt may direct. All Notaries Public, county surveyors and public weighers shall continue tobe compensated on a feebasis." Added Aug. 24, 1935, as amended Nov. 2, 1948. (Emphasisadded.)

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The Judiciary Section - Comptroller'sDepartment Appropriation (H.B.12, Acts 59th Legislature,p. 1690) provides the following on pages 1690-91:

For theyears Ending August August 31, 1966 31, '1967

"9. Apportionment to counties where county.officersare paid salaries.

. . . Should any county by election of the Commissioners Court, change from
a salary to a'feebasis during thisbiennium, the Comptroller shall~make adjustments in the appropriationsby transferring the correct amount from this appropriation to the appropriationmade 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 trialswhere indictmentsare 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 salarybasis. The apportionment is to be made by Sec. 6(a) ofArticle 3912e which provides:

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"In countieswherein the county officials
are on a salarybasis, in addition to the monies deposited in said Officers' Salary,Fund or funds under the provisions of Sections 1, 3, and 5 of thisAct there shallbe deposited therein

. . . such sums as may be apportioned to such county under the provisions of thisAct, out of the available appropriationsmade by the Legislature for such purposes, provided,however, that in countieswhere the Commissioners'Court is authorized to determinewhether county,officers shallbe compensated on a salary basis, no apportionment shallbe made to such county until the Comptroller of PublicAccounts 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 fiscalyear, and in that case the first quarterly payment of such apportionment shallbe 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 PublicAccounts to annually apportion to all counties inwhich 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 thebenefit of its Officers' Salary Fund or funds its proportionatepart of the appropriationwhich shall be distributed among the several counties entitled to participate therein, on thebasis of the per capita population of each county according to the last preceding Federal Census."
Section 2 ofArticle 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 precedingFederal

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Census, it shall likewisebe the duty of the Commissioners1Court, by its order duly made and entered of record at its fir& regular meeting in January of each calendaryear, to determinewhether county officers of such county~(excludingcounty surveyors, registrars of vital statistics and notaries public) shallbe compensated for the fiscalYear on thebasis of an annual salarv or whether thev shallbe compensated on thebasis of fees earnedbv 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 PublicAccounts of the State of Texas, on orbefore the 31st day of January, a certified copy of said order of said Commissioners' Court." (Emphasisadded.)

Section 3 ofArticle 3912e,V.C.S., provides, in part, as follows:

"Sec. 3. In all caseswhere the Commissioners Court shallhave determined that county officers
or precinct officers in such county shall be compensated for their servicesby the payment of an annual salary, neither the State of Texas
nor any countv shallbe charsedwith 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 officesbut such officers shall receive said salary in lieu of all other fees, commissions or compensation which theywould otherwisebe authorized to retain:

. . .ll (Emphasisadded.)

In the case ofWichita 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 anAct (Art. 1436-1, Section 57,Vernon's Penal Code) passedby the Legislature to allow additional compensation in the form of fees of office for a County TaxAssessor-Collectorwho was paid on

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a salary basis was unconstitutional.

In conformitywith 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 includeKing County, Texas, in the apportionment payment for~theyear 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 PublicAccounts is authorized to include King County in the apportionment payment under Section 6(a), Article 3912e,V.C.S.

The Comptroller of PublicAccounts 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. trulyyours,

tT22zFrney General of Texas Prepared by John H. Banks Assistant Attorney General

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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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