.- .

Honorable W.P. Herms, Jr. County Auditor Waller County Hempstead, Texas

Dear Sir: Opinion No. O-3127 Re: Whether under circumstances set forth County Treasury should refund to the county amount deducted by the Treasurer as part of the premium paid on surety bonds. Other related questions.

Yours letter of February 4, requesting an opinion of this department, treats of two separate matters, expense authorized as a reduction by your County Treasurer and the matter of appointing an Assistant to the County Treasurer. We will discuss your request in the order in which your questions are set forth.

We Quote from your letter as follows:

"I find that our County Treasurers' report for 1939 includes payment on Surety Bond as an expense. Total fees of office without this deduction was $2068.98. After deduction of $90. 00 premium paid of Surety Bond, fees retained showed $1978.98
"Had this premium on Surety Bond not been shown as an authorized deduction, than and in that event, County Treasurer would have refunded $68.98 to the County, since Treasurers' commissions collected in 1939 were $2068.98 and $2000.00 were maximum fees.
"Despite this error, annual report of County Treasurer for 1939 was approved by Commissioners' Court.- .

Honorable W.P. Herms, Jr., Page 2

"Under these circumstances, should or should not County Treasure refund to County $68.98 which amount would show as due the County if report
were correct?

"Also should correct report be filed in lieu of erroneous report of 1939, the individual being the same person who now occupies office?"

Article 3897, Vernon's Annotated Civil Statutes, provides:
"Each district, county and precinct officer, at the close of each fiscal year (December 31st) shall make to the district court of the county in which he resides a sworn statement i triplicate (on forms designed and approved by the State Auditor) a copy of which statement shall be forwarded to the State Auditor by the clerk of the district court of said county within thirty (30) days after the same has been filed in his office, and one copy to be filed with the county auditor, if any: otherwise said copy shall be filed with the commissioners'court. Said report shall show the amount of all fees, commissions and compensations whatever earned by said officer during the fiscal year: and secondly, shall show the amount of fees, commissions and compensations collected by him during the fiscal year; thirdly, said report shall contain an itemized statement of all fees, commissions and compensations earned during the fiscal year which were not collected, together with the name of the party owing said fees, commissions and compensations. Said report shall be filed not later than February 1st following the close of the fiscal year and for each day after said date that said report remains not filed, said officer shall be liable to a penalty of Twenty Five ($25.00) Dollars, which may be recovered by the county in a suit brought for such purposes, and in addition said officer shall be subject to removal from office."

In regard to your first question, we have repeatedly held that the County Treasurer is not authorized to deduct the premium paid on Surety Bonds from commissions of that office.Honorable W.P. Herms, Jr., Page 3

Our Opinion O-597, a copy of which is attached, specifically
so rules. See also O-204, O-252, O-318, O-902, O-1193 Annual Report of the Attorney General for 1939, pages 48, 61,77,237 and 320 respectively.

It is therefore the opinion of this department that a County Treasurer should refund to the county any unauthorized sums deducted from commissions of the office. As the statutes do not prescribe the forms or procedure whereby
a refund is to be made, such procedure or methods prescribed by the Auditor, consistent with the provisions of Article 3897, Vernon's Annotated Civil Statutes, as a corrected final report, should be followed in correcting an error made in the Annual Report.
We find that Wailer County contain a population of 10,280 inhabitants according to the 1940 Federal Census and according to your letter, has a valuation of $5,991,000.

Accompanying your request is a copy of an Order taken from the minutes of the commissioners' court of Waller County, setting forth the application of the County Treasurer for the employment of an office assistant with compensation to be fixed at an amount not to exceed $600.00 within any one year, nor the amount of $50.00 within any one month. Following the application described therein, the following order appears:

"It is ordered by the Court that the foregoing application of L.E. Stinson Hill, County Treasurer, be and the same is hereby allowed for the year 1941. That such fees are payable out of her fees of office and deductible in her annual settlement with the County."

In connection with the foregoing, you raise the following questions:
"First, with valuation of approximately 5,991,000, outstanding bonded indebtedness being approximately $65,000 and the probable commissions in treasurers office not being more than maximum allowed, does the Commissioners, Court have authority to allow such an assistant, the expenses of which are to be deducted from the fees of office? Such expense allowance is equivalent to allowing maximum fees of $2600.00.Honorable u. P. lierms, Jr., P8ge 4

%oond, the appointment 

### 0r such assistant Is clsa~ly disproportionatevlth the 

### vork neonssary to oonduot our county **Trersurers ’**  

### 0rri00. Said County Treasurer runs an Abstwat orrloe 8u& is housed In the sfuse buildlug as Treasurers~ Orfloe 8nd 8 greet deal or the treasurers' 8ud the 8ssist8nttstime 18 devoted to abstractbuslness. **Therefore,** my ssoond question Is whether
or not it Is neoessary ror CountyAuditor to approve the expensededuetlon allovsnce order of Gommissloners~Oourtb&ore it oau be legally alloved?"

Slnoe the county 

### orrloers or Yeller aounty 8re ocmpensated on a fee basis rather th8n ualery lmsis, Artloles 3941, 3942, Vsrnon'SAnnotated Civil Statutes,oontrolaud provide **ror** the **manner** and rate won vhloh the oommisslons alloved the County Treasurer ars based. Artiole 3943 of ssid statute,be$ng applloable,provides:

"The ocsmisslonsallowed 8ny oounty Tress

### urer shellnot exoeed $2,000.00anmmlly;

..."

Our Opinion O-318, round ln theAnmaX Report or the AttorneyGeneral 

### r0r 1939, page r7, holds th8t suah oounty treasurer oan only be allowed andmay not rstalu as his oosmts81~ 012snnua;l8tmwy eny SUID in 0~0888 0r 

### $2,000.00 anwslly.

Artlole 3902,

### Vernon'@Annotated Civil Ststutes, In part,provides:

"Wheneversay dlstrlot, oounty **or** pro¬ orrlcer shallmqulre the **aervloes** of deputies, assistants or clerks In the performance oi hls duties he sh8ll 

### 8pp1yto the County CGSUSI~~~~~~~~ Court 

### 0rhis oounty 

### r0r authority to appoint rush deputies, 8ssist8nts, or olerke, stating **by** 

### SVoPn applioatlon ths number needed, the posit&n to be filled aad the mount to be p8ld. Ssid applioaWon shallbe aocompanledby 8 ststement shoving theprobable reoelpts rrom 

### rt388, ooml8rlont38ad oompensation to be oolleotedby said off'lee 

### during the flsoal year md the probable disbut?ssments whlsh sh8ll lnolude all salaries and expenses Of said QrrieS; and said court shallnmke it8 order authorizing the appointslent or swh deputies, 8sslstants and olsrks and fix the aompensattoA to be paid them wlthln the Zimitatlonsherein &+%?ascribed and determine the number to be appo%i%~edHonorableU. P. Hems, 

### Jr., psg~ 5

8a in the disoretlon of said courtmay be proper; provided that inno 88se shell the Commlssloners~ Court **or** anymember **thereor** attempt to lnflusnoe the a pointment 

### 0r any person as dsptity,8ssist8at
or 

### o&k in any offiae. Upon the entry of suoh 

### orderthe orricers applying ror su0h 8ssist88t8, deputies or olerks sh8l.l be authorlsed to appoint themj provided that said sanpensatlon shallnot exoeed themaximum 8mount 

### herelndter set out. The 

### ooispensatlon

vhleh m8y be alloved to the deputies, asslst8uts OF olerks 

### above'namsdfor their servloes shallbe 

### a reasonable one,not to exceed the iollowlng smount.8~

"1. In oouutlesh8vlng a 

### po p" 8iti0a

### 0r tventy-rivethousand (25,000) or ens lnhabltrrnts, first attsistant

or ohlef deputy not to 

### exoeed Eighteen Hundred ($1800.00)Dollscs 

### per annum; other aaslstants,deputlss or oletiks not to exoeed FlfteenXundred ($1500.00)Dollars per annum eaoh.
I *

. . . .


### In treeingthehistoryof titlole3902,supra,we find that this Art1016 underwent 9 spparate amendments subsequent to the Revised Civil Statutes of 192 ensatmentof'SenateBill 5, A&s of 1935, 9 and prior to the 4th~glslature, 2nd Called Besslon, Chspter 465, oommonly knovn 811the orriaers* salary Lor. Beginningwith the $925 Revised Olvll Statutes, 8nd ln esch of the suooeedlng 9 mendments, oertaln county and distrlot 

### orrloersvere 

### expresslyn8med therein to vhcasthe applloabllltyor the subjectwas limited. All suoh 

### ofricers mmed vere deslgn8ted in Artlole 3883, et **seq.,** known 8s the llaxlmum

**Fee** statutes,tith ths ofrloe or OouDty Treasurer oonsplcuouslyabsent.

With the eneotment of Senate Bill 5, 

### aforesaid,the presentvordlng of the llrst sentanoe In Artlole 3902, aupra, ~8s ohsnged from designating 8ud mm&g the p8rtlcules orrioers to its present Ungusge, to-wltr



### nUheneverany distrlot, 0ounty or 

### preainst officers shall requlP6 the servioes of deputies, 8SsiSt8UtS 

### or clerks in the perr0rmanoe~0r hie dutlee he shall 8pp1{ to 

### the oomm%saionerstcourt0r hla oounty.

. . .HonorableW. P. Herma, Jr.,.Page6

Thus in the enactmentof the Offlaeraf Sslarg Lav, the question is raised as tovhether the Legislature, ln adoptingthe broad languagequoted and nov present in the statute,intended to lnaludeall aountg olflcera, v&I.ahof Qouree include8 the CountyTreasurer.

The partioularchange in the atatute along with itr re-enactedprovision8muet be conetruedvlth **other** provialonr of Senate Bill 5, including oertain re-enaated and un- &anged provlrlona of theNm **Fee** Lov with vh%oh it stands in pari materia, In determining this question.

Primarily,ve are reeded that SenateBill 5 V&E enaatedpursuant to a constitutionalemendmentmaking itmandatory that oonstltutlonalaount T offioere In oountiecr havine, 

### apopulation of tventy thousand 20,000) Inhabitanta or **more,** accordingto the lastpreaedingFederal Censusbe o.@npeneated oolelyon a salar 19%. (Se&ion 2 ,

l basis from and after the let day of January, SenateBill 5, 44th l;e,lslature, 2nd ~$l~l~eealon.) SeeArtlale 16, Seatlon f1, Oonatltution

The caption of Senate Bill 5, pursu+nt to this mandate,'lnpart, provides:

"ANACT reletinn to the oolltDeneatlon of dietrlat, oertain desl&ated oountywandpreainot offioera andproviding themethod andmeana for wauoh offlcere shallbe oompeneated for their aerviaee;providing for the appo-titment and payment of deputiee,aaslstante, clerka and employees in dietriot, county end preolnct offloes;

. . ."
By Seatlon 22 of the Bill, it vaa provided that,the provleions of the Aat shallbe ormniLatlve of all lavanojzIn oonfllot therevith; further deolaring it to be the intention of the Leglelature that the 'oompensatlon,limitationsand marlmums fixed in thlaAct for the named officers. their deputies, assistantsand employeesaontrol over any otherprovisions oontalned In all law. neneral and speolal." (Underaooring ouraJ

SenateBill 5 blaausred,very definitely, ae to the intent of the Legislature,dlatlnguleheabetveen counties of population less than 20,000 Inhabitants and those with population of 20,000 inhabitante or more, but leee than 190,000 lnhabitents.-orable W. P. Berms, Jr., Page i'

In the general aoverege of theAct, relating to the %ppointment andpayment of deputies, aarlrtants, clerks and employeer," Artlole 3902, aupra, ve are definitely of the viewthatthe ohange in thelsngus(5enovreadlng "anydirtrlot, aounty orpreolnct offloer, vaa not intended to In- .eludethe County Treasurer,but only thoae "eertein"or "named" aounty,offlaeraor thoae generally Inoludedwithin the various proVlalona of theHaxlmum Fee atatutea previous to the time of their rs-enaatment in the Salary Lw, oxeeptlngwhereapeolfioally "named' and/or exaepted from the aoope of Senate Bill 5 ad a whole. Th.efaot that the County Tresaurer 

### la expreaaly **named** in Seat&on 13 of the Bill atrongly 

### l upporta the viev that the Leglnlaturepurposely oonaldered the Oounty 

### Treaatwer aa not lnoludedwithin its provlalone appllaable to the oountlea of population lesa than 20,000 Inhabitanta. The oourta of thla Statehave had m oooaaionr to oonrtrosArtiolea 3941-3,

### YernonfaCivil Statutes, relating to the oompenaa

### tlonof theCountyTreasurerandno deolaionhas everreferred to auah offloer aa oampenaated 

### "ona feebaala." In thlaeonneationSootion16 

### of SenateBill 5 provider, and ve quotes

"In oountleahav-7 a population af leas than twenty thouaand (20,000 inhabitanta awordIng to the lut preeedlngFederal Cenaua, all oounty offloera 8halJ oontlnue 

### to-beocnpeluatedfor theiraerrioea on 

### a -!fee

beair' until the 

### oamnlralonerr~ oourt ahallhave dete&eU othermise, in 

### aaoordanae pith the provlaiona of Se&Ion 2 of this Aot.'

We fall to 

### find any authority* statutoryOF othervIne, authorltingthe oommlsalonera,~ court in oountleavlth a papulatlon of 108s than 20,000 inhabitant8 to appoint an aaaiatant, olerk,deputy or employee to 

### the oounty treasurer to 

### bepaId fromoountyfunda. Because "oounty .+nd preoinot offIoera,a mentioned In the aeoondphrase of the oe.ptIon to Senate gill 5 eforementlonedla qualified by the preoedlngphrsrre"oertaln dealgnated oounty 

### andpreainotoffloera,"

### am) further that the county treaaurer la neither an offloer aompenaated on the baa18 of "feea earned”within the maximum fee atatute6,OhapCer 1, Title 61, **Vernon~s** CIvll Statutes,nor **a** "dealgnated oounty offloer'within the provlirlona**of** SenateBill 5 aa applicableto oountleavlth a population of lea8 thur 20,000 inhsbltante,for thin department to hold Artlol;e3902, aupra, applicableto such offiaers,w-d be over-riding the proviaiona of Seotion 35, Article Xff of the aonatitution of Texas vhiah holds 

### void 80

### RiUGh of the aubjeort

of en act not expreared In the title. See Opinion O-351, Annual Report of the Attorney @eneral for 1939, page 85.,i-P ‘

gonorableW. P, Hems, Jr., Page 8

Aneverlng the eeoondpart of your request, it la theoplnlon **of** thlr department that the oommieslonera~court 3fa oounty‘titha popu$atlon of lees than 20,000 lnhabltanta&%a no authority to appoint an asalatent to the county **bream-r** to **be** paid vlth oounty funds endArtlole 3902, fern&r Apnotated GlvIl Statutes, Is not applloableto euoh ~fSla~q*;~

"'The iwdec.of-theeommIstilon&~l co&t eubmltted ti~'vdld'~@$er ;&.foregoln& authorities, a dleauarlon >fthe quertl6n'i!alaed ln the last paragraph quoted from yourletter Is rendered unneoeaearg.

Yours **very** truly