GROVER SELLERS 

Honorable Roscoe Runge 

District Attorney 

33rd Judicial District 

Mason, Texas 

Dear Sir: .Opinion No. 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 the dssessor-Collector to 

retain kn increase in his salary? 

And related question. 

We acknowledge receipt of'your request for an opinion on the 

above questions, said request reading as.follows: 

"Kindly give me your opinion on questions pertaining to 

recently enacted Senate Bill No.,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 

of Texas, 1925, as emended, be and the same is hereby 

amended by adding thereto the following: 

"r (a) The Commissioners Court is hereby authorized when 

in their judgment the financial condition of~the cquntg 

and the needs of the officers justify the increase, to 

enter an order increasing the compensation of the preoinct, 

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 fisoal 

year of 1944 did not 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% of his 
1, ‘-; 

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 of his 

annual fee report and which up to this time were paid 

into the County Treasury as excess fees of office? 

"@I Since Gillespie County remunerates its officials 

on the fee basis, will it be permissible for the Commissioners' Court to order the increase of salary es of 

May 9, 1945, the effective date of S. B. #123?" 

In connection with said request, we also have a 

letter from Honorable Wm. M. Petmeoky, President of the TaxAssessors and Collectors Association of Texas, as well as 

Assessor and Collector of Taxes of Gillespie County, from 

which we quote as follows: 

"The first question is in regard to paying the increase 

out of excess fees. In other words for illustration, 

last year after making my annual fee report my oompensetion permitted me totaled 963,000. I ~then had about 

@202.00 excess fees remaining whichwere paid into the 

County Treasury. My question is whether the Court may 

allow me to retain up to 25$, which would be $750, out 

of these excess fees? It is my opinion that the Court 

could do this as S. B. #123 directs the total compensation 

may be increased and I would think this the most ,feasible 

way to do it for officials on the fee basis. 

"In regard to the second question, as to the date the 

Court might order the increase effective for officials 

on the fee basis, I would think the order could date to 

May 9, 1945. My reason for this is that offi~oiels on 

the fee basis do not actually know until the end of the 

gear what their fees will be and they oennot figure 

their remuneration until then. For that reason I would 

hold that the increase could be declared effective as 

of May 9, 1945, sinoe this would not be beck peg for 

officials on a fee basis. In your opinion to officials 

of counties on salary basis you held that Seotion 44, 

Article 3 of the State Constitution did not permit inareese of compensation for months passed. Woulclnvt the 

fee arrangement be entirely different fromthet of a 

definite set seleryTv 

Article 3883, Vernon's inotated Civil Statutes, subdivision 

1, provides in part as follows: 

."In counties 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 of Taxes, Twenty-four Hundred 
Hon. Roscoe Runge, page 3, O-6736 

(qb2400.00) Dollars each; . . .a 

Artiole 3891 of said statutes is in pert 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,,38839 amounts to Three Thousand Dollars ($3,000) 

. . . . 

Senate Bill No. 123 is in part es follows: 

"Section 1. That Article 3891, Revised Civil Statutes 

of Texas, 1925, as amended, be and the same is hereby 

amended by adding thereto the following: 

"*(a) The Commissioners Court is hereby authorlied, 

when in their judgment the financial condition of the 

county and the needs of the officers 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 did not exceed the sum of 

Thirty-six Hundred (Qb3600.00) Dollers.cs 

The above quoted provision of Article 3883 authorizes the 

Assessor and Collector of Taxes ' of Gillespie County to 

retain from the fees collected by him the sum of $2,400.00 es 

his annual compensation. The quoted provision of Article ~3891 

authorizes him to retain from one-third of the excess fees 

collected by him an additional sum until such sum, added to the 

amount specified in Article 5883, 

would be the aum of $600.00. 

amounts to $3,000.00, which 

The quoted amendment of said 

Article 3891 by Senate Bill No. 123 authorizes the Cotnmissionersr 

Court, in their distiretion and when~ in their judgment the 

financial condition of the county end the needs of the Assessor 

and Collector of Taxes justify the increase, to enter an order 

'koreasing his annual compensation in an 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 did not exceed the sum of 

#3,600.00. This increase, however, if authorized by the Commissioners' court and required to be paid from fees of office 

only, would have to be paid from one-third of the excess fees 

over and above the excess fees necessary to authorize a compensation of $3,000.00. In other words, the base pay of the 

Assessor and Collector of Taxes of Gillespie County is $2,400.00. 
. . 

Hon. Roscoe Bunge, page 4, O-6736 

If he we8 paid $3;000.00 in 1944, the Commissionersr court is 

now authorized to allow him as much es $3,750.00 under the 

provisions of Senate Bill No. 123; but, if all of then 

compensation over and above $2,400.00 is to be paid from 

exo6ss fees only, it must be paid from one-third of the'excess 

fees as no change has been made 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. 123 had been in force and had applied to 

his salary for 1944 and he had had $1,202.00 in excess fees 

remaining after having deducted from such excess fees an 

amount sufficient for him to be paid compensation of $3,000.00, 

the Commissioners* Court could have authorized him to retain an 

additional sum of $750.00 from said $1,202.00 in order to make 

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 fees belonged to the county. In 

order for him to have been paid the additional~ sum authorized 

by Senate Bill No. 123 from fees of office only, he would'have 

had to have collected additional excess fees over and above 

remaining .$1,200.00 and from these additional excess fees he 

the 

could have retained only one-third until he had retained the 

additional sum of $750.00, if authorized by the Commissioners~ 

Court, or such part thereof es the Commissioners' Court might 

have authorized. In other words, if such increase in campensation was to have been paid from fees of office only, before he 

could have retained the additional sum of 96750.00 authorized 

by Senate Bill No. 123, he would have had to have colleoted an 

additional $2,250.00 in excess fees over and.ebove the amount 

he had to collect in order to be paid the $3,000.00 oomp&setion 

from fees of office only. 

This rule will apply, however, only to oompensetion for 8 full 

year and where all of said offioiel~s compensation is paid from 

fees of office. If any part of said compensation is'not paid 

from fees of office, but is paid es ex officio oompensation, 

then.you are referred to the rules of law set out in our 

Opinion No. O-6749, a copy of~which is enclosed herewith. 

gx officio compensation is neither e fee of offiae nor an 

excess fee. Every service a county officer is required by law 

to perform,,for which no fee or charge is specified; is an ex 

officio servioe, for which the Commissionersf.Court, in its 

discretion, may allow ex officio oompensation, payable out of 

the General Pund of the county. 

By way of illustration of the rules 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 

the base compensation of $2,4OO.OO~allowed under Article3883, together with the salaries of assistants and deputies 

and all authorized expenses, the Commissioners* Court, under. 

said rules of law, has authority to allow ex offioio compensation In an amount sufficient to make up the maximum amount 

that could be paid under Senate Bill No. 123 

$3,750.00, or an ex officio compensation of b 

to-wit, 

19350.00, or such 

part thereof as said court may determine. 

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 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 retained by him from fees of office. The Commissioners' Court would 

then be authorized to allow him ex officio compensation in an 

amount sufficient to make up the maximum amount that could 

be paid under Senate Bill No. 123, to-wit, #3,750.00, or an 

ex officio compensation of $750.00, or such part thereof as 

said court may .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 fees 

4 

said official would be entitled to retain 

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 in any 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 shall have no power to grant, or to 

authorize any county or municipal authority to grant, 

s;,;;;ra oompensetion, fee or allowance to e public 

agent, servant or contractor, after service 

has bee; rendered, or a contract has been entered into, 

and performed in whole or in part; 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." 

In view of this provision of the Constitution, it is our 

opinion that, if the Commissioners 1 Court of Gillespie County 
Hon. Roscoe Runge, page 6, O-6736 

decides that the compensation of the Assessor and Colleotor 

of Taxes of saLd county should be increased under the rules 

of law above set forth, any increase thereof for the year 

1945 must be in the proportion as the balanoe of the year 

1945 relates to the total annual increase that may be allowed 

under Senate Bill No. 123. If the annual increase of $750.00 

should be allowed and the order is made on August 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 OF TEXAS 

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