GROVER SELLERS

Honorable Roscoe Runge District Attorney 33rd Judicial District Mason, Texas

Dear Sir: .OpinionNo. O-6736 Re: Under the provisions of Senate Bill No. 123, Regular Session, Forty-ninth Legislature, is the Commissioners~ Court of Gillgspie County authoriied,to allow thedssessor-Collector to retain kn increase inhis salary? Andrelated question.

We acknowledge receipt of'your request for an opinion onthe above questions, said request reading as.follows: "Kindly giveme your opinion on questions pertaining to recently enacted Senate BillNo.,l23; which reads in part, as followsi

"'BE IT EXACTED BY TRE LEGISLATURE OF THE STATE OF TEEAS:
nrSection 1. That Artiole 3891, Revised civil Statutes ofTexas, 1925, as emended, be and the same ishereby amended by adding thereto the following:

"r(a) The Commissioners Court ishereby authorized when in their judgment the financial condition of~the cquntg and theneeds of the officers justify the increase, to enter an order increasing the compensation of the preoinct, county and ,districtofficers in an additional amount not to exceed twenty-five (25%)per cent of the sum allowed under the law for the fiscal year of 1944, provided the total compensation authorized under the law~for the fisoal year of 1944 didnot exaeed the sum of Thirty-six Bundred ($3600.00) Dollars.*
"The questions are:
"(a) Is the Commissioners*'Court of Gillespie County authorized under S. B, #123, to allow the Assessor and Collector of Texas to retain an increase, up to 25% ofhis1, ‘-; I =

Hon. Rosooe Runge, page 2,0-6736

salary for 1944, which was $3,000, from the excess fees of office which remain upon oompiletion ofhis annual fee report andwhich up to this timewere paid into theCounty Treasury as excess fees of office?

"@I Since Gillespie County remunerates its officials on the feebasis, will itbepermissible for theCommissioners' Court to order the increase of salary es of May 9, 1945, the effective date of S. B. #123?"

In connection with saidrequest, we alsohave a letter from Honorable Wm. M. Petmeoky, President ofthe TaxAssessors and Collectors Association ofTexas, as well as Assessor and Collector ofTaxes of Gillespie County, from which we quote as follows:

"The first question is inregard to paying the increase out of excess fees. In other words for illustration, last year aftermaking my annual fee report my oompensetion permitted me totaled 963,000. I~thenhad about @202.00 excess fees remaining whichwere paid into the County Treasury. My question iswhether the Court may allowme to retain up to 25$,which would be $750, out of these excess fees? It ismy opinion that the Court could do this as S. B.#123 directs the total compensation maybe increased and Iwould think this themost ,feasible way to do itfor officials on the feebasis.

"Inregard to the second question, as to the date the Courtmight order the increase effective for officials
on the feebasis, Iwould think the order could date to May 9, 1945. My reason for this is that offi~oielson the feebasis donot actually know until the end of the gear what their feeswill be and they oennot figure their remuneration until then. For that reason Iwould hold that the increase couldbe declared effective as ofMay 9, 1945, sinoe thiswould not be beck peg for officials on a fee basis. In your opinion to officials of counties on salary basis youheld that Seotion 44, Article 3 of the State Constitution didnot permit inareese of compensation formonths passed. Woulclnvtthe fee arrangement be entirely different fromthet of a definite set seleryTv
Article 3883, Vernon's inotated Civil Statutes, subdivision 1,provides inpart as follows:

."Incounties containing twenty five (25,000) thousand or less inhabitants: County Judge, District or Criminal District Attorney, Sheriff, County Clerk, County Attorney, District Clerk, Tax Collector, Tax'Assessor, or the Assessor and Collector ofTaxes, Twenty-four HundredHon. Roscoe Runge, page 3, O-6736

(qb2400.00)Dollars each;

. . .a
Artiole 3891 of said statutes is inpert es follows2

"In counties containing twenty-five thousand '(25,000)
or less inhabitants, District and County officers named herein shall retain one-third of such excess fees until such one-third, together with the amounts specified in Artiole,,38839amounts to Three Thousand Dollars ($3,000)

. . . . Senate BillNo. 123 is inpart es follows:
"Section 1. ThatArticle 3891, Revised Civil Statutes of Texas, 1925, asamended, be and the same ishereby amended by adding thereto the following:
"*(a) The Commissioners Court ishereby authorlied, when in their judgment the financial condition ofthe county and theneeds of theofficers justify the increase, to enter an order increasing the compensation of the precinct, county and district officers in an additional amount not to exceed twenty-five (25%)per cent of the sum allowed under the law for the fiscal year of 1944,~ provided the total compensation authorized under the law for the fiscal year of 1944 didnot exceed the sum of Thirty-six Hundred (Qb3600.00)Dollers.cs

The above quoted provision of Article 3883 authorizes the Assessor and Collector ofTaxes ' of Gillespie County to retain from the fees collected by him the sum of $2,400.00 es his annual compensation. The quoted provision ofArticle ~3891 authorizes him to retain from one-third of the excess fees collected byhim an additional sum until such sum, added to the amount specified inArticle 5883, would be the aum of $600.00. amounts to $3,000.00, which The quoted amendment of said Article 3891 by Senate BillNo. 123 authorizes the Cotnmissionersr Court, in their distiretionandwhen~in their judgment the financial condition of the county end theneeds of theAssessor and Collector of Taxes justify the increase, to enter an order 'koreasing his annual compensation inan additional amount not to exceed 25% of the sum allowed under the law for the fiscal year 1944, provided the total compensation authorized under the law for the fiscal year of 1944 didnot exceed the sum of #3,600.00. This increase, however, if authorized by the Commissioners' court and required tobe paid from fees ofoffice only,would have to bepaid from one-third of the excess fees over and above the excess fees necessary toauthorize a compensation of $3,000.00. In other words, thebase pay of the Assessor and Collector ofTaxes of Gillespie County is $2,400.00.. .

Hon. Roscoe Bunge, page 4, O-6736

Ifhe we8 paid $3;000.00 in 1944, the Commissionersr court is
now authorized to allow him asmuch es $3,750.00 under the provisions of Senate Bill No. 123; but, if all ofthen compensation over and above $2,400.00 is to be paid from exo6ss fees only, itmust be paid from one-third of the'excess fees asno change has beenmade in the original provisions of Articles 3883 and 3891.

Mr. Petmecky is in error in the contention made by him that, if Senate Bill No. 123had been inforce andhad applied to his salary for 1944 and hehad had $1,202.00 in excess fees remaining after having deducted from such excess fees an amount sufficient for him tobe paid compensation of $3,000.00, the Commissioners* Court couldhave authorized him toretain an additional sum of $750.00 from said $1,202.00 in order tomake up the total sum of $3,750.00 authorized by Senate Bill No. 123. He had already retained the one-third of said excess fees required to raise his compensation to $3,000.00, and the remaining two-thirds of said excess feesbelonged to the county. In order forhim tohave been paid the additional~sumauthorized by Senate Bill No. 123 from fees of office only, he would'have had tohave collected additional excess fees over and above remaining .$1,200.00and from theseadditional excess fees hethe

could have retained only one-third until he had retained the additional sum of $750.00, ifauthorized by the Commissioners~ Court, or such part thereof es the Commissioners' Court might have authorized. In other words, if such increase in campensationwas tohave been paid from fees ofoffice only, before he couldhave retained the additional sum of 96750.00authorized by Senate BillNo. 123,he would have had tohave colleoted an additional $2,250.00 in excess fees overand.ebove the amount hehad to collect in order tobe paid the $3,000.00 oomp&setion from fees of office only.
This rule will apply, however, only to oompensetion for 8 full year andwhere all of said offioiel~s compensation ispaid from fees of office. If any part of said compensation is'not paid from fees of office, but ispaid es ex officio oompensation, then.you are referred to the rules of law set out in our OpinionNo. O-6749, a copy of~which is enclosed herewith.

gx officio compensation isneither e fee of offiae nor an excess fee. Every service a county officer is required by law toperform,,for which no fee or charge is specified; is an ex officio servioe, for which theCommissionersf.Court, in its discretion, may allow ex officio oompensation, payable out of the General Pund of the county.
Byway of illustration of therules of law above announced, we refer you to the following examples:

If the fees collected in one year are sufficient to pay only. _

Hon. Roscoe Runge, page 5, O-6736

thebase compensation of $2,4OO.OO~allowed under Article3883, together with the salaries of assistants and deputies and all authorized expenses, the Commissioners* Court, under. saidrules of law,has authority toallow ex offioio compensation In an amount sufficient tomake up themaximum amount that could be paid under Senate BillNo. 123 $3,750.00, or an ex officio compensation ofb to-wit, 19350.00, or such part thereof as said courtmay determine.

If the fees collected inoneyear are sufficient to pay the base compensation of $2,400.00 allowed under Article 3883, together with the salaries of assistants and deputies and all authorized expenses, and there remains $1,800.00 additional in
excess fees, said official would be entitled to retain onethird, or $600.00, of said excess fees in addition to the base compensation of $2,400.00, making a total of $3,000.00 retainedby him from fees of office. The Commissioners' Court would thenbe authorized to allow him ex officio compensation in an amount sufficient tomake up themaximum amount that could bepaid under Senate BillNo. 123, to-wit, #3,750.00, or an ex officio compensation of $750.00, or suchpart thereof as said courtmay .detsrmine.

If the fees collected in one year are sufficient to pay the base compensation of $2,400.00 allowed under Article 3883, together with the salaries of assistants and deputies end all authorized expenses, and there remains #4,050.00 additional in excess fees4 said official would be entitled toretain one-third, or 1,350.00, of said excess fees in addition to the base compensation of #2,400.00, making a,total of $3,750, 00 retained by him from fees of office. In this event the CommissionersP Court could not allow .My ex offioio oompensetion and, if ex officio compensation had been allowed end paid inany amount, the official receiving same would be liable to the county for repayment thereof. See Taylor et al
vs. Brewster County, 144 S.W. (2d) 314,writ dismissed.
Article 3, Section 53 of the Constitution of Texas, is es follows:
"The Legislature shallhave no power to grant, or to authorize any county ormunicipal authority to grant, s;,;;;ra oompensetion, fee or allowance to e public

agent, servant or contractor, after service hasbee; 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."

Inview of this provision of the Constitution, it is our opinion that, if the Commissioners1Court ofGillespie CountyHon. Roscoe Runge, page 6,O-6736

decides that the compensation of theAssessor and Colleotor ofTaxes of saLd county should be increased under the rules of law above set forth, any increase thereof for the year 1945must be in the proportion as thebalanoe of the year 1945 relates to the total annual increase thatmay be allowed under Senate BillNo. 123. If theannual increase of $750.00 shouldbe allowed and the order ismade onAugust 1, 1945, then the increase would be 5/12ths of the $750.00, as the compensation for the months already passed cannot be increased.

JWB:LJ/cg encl. Yours very truly,

ATTORNEY GWERAL OFTEXAS
s/ Jas.W. Bassett

BY Jas. W. Bassett

Assistant

APPROVED AUGUST 13, 1946 s/ Carlos C. Ashley FIRST ASSISTANT ATTORNEY GENERAL

Approved opinion committee By BWB,Chairmsn