.- . 

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 disproportionate vlth 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 8ssist8ntts time 18 devoted to abstract buslness. Therefore, my ssoond question Is whether 

or not it Is neoessary ror County Auditor to 

approve the expense deduetlon allovsnce order 

of Gommissloners~ Oourt b&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'S Annotated Civil Statutes,oontrol aud 

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 ocsmisslons allowed 8ny oounty Tressurer shell not exoeed $2,000.00 anmmlly; . .." 

Our Opinion O-318, round ln the AnmaX Report or the 

Attorney General r0r 1939, page r7, holds th8t suah oounty 

treasurer oan only be allowed and may not rstalu as his oosmts81~ 012 snnua;l 8tmwy eny SUID in 0~0888 0r $2,000.00 anwslly. 

Artlole 3902, Vernon'@ Annotated Civil Ststutes, In 

part, provides : 

"Whenever say dlstrlot, oounty or pro¬ 

orrlcer shall mqulre the aervloes of deputies, 

assistants or clerks In the performance oi hls 

duties he sh8ll 8pp1y to the County CGSUSI~~~~~~~~ 

Court 0r his 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 shall be aocompanled by 8 ststement shoving 

the probable reoelpts rrom rt388, ooml8rlont3 8ad 

oompensation to be oolleoted by 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 shall nmke it8 order 

authorizing the appointslent or swh deputies, 

8sslstants and olsrks and fix the aompensattoA 

to be paid them wlthln the Zimitatlons herein &+%?ascribed and determine the number to be appo%i%~ed 
Honorable U. P. Hems, Jr., psg~ 5 

8a in the disoretlon of said court may be proper; 

provided that in no 88se shell the Commlssloners~ 

Court or any member thereor attempt to lnflusnoe 

the a pointment 0r any person as dsptity, 8ssist8at 

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

order the orricers applying ror su0h 8ssist88t8, 

deputies or olerks sh8l.l be authorlsed to appoint 

themj provided that said sanpensatlon shall not 

exoeed the maximum 8mount herelndter set out. 

The ooispensatlon vhleh m8y be alloved to the 

deputies, asslst8uts OF olerks above'namsd for 

their servloes shall be a reasonable one, not to 

exceed the iollowlng smount.8~ 

"1. In oouutles h8vlng a po 

p" 

8iti0a 0r 

tventy-rive thousand (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 treeing the history of titlole 3902, supra, we 

find that this Art1016 underwent 9 spparate amendments subsequent to the Revised Civil Statutes of 192 

ensatment of' Senate Bill 5, A&s of 1935, 9 

and prior to the 

4th ~glslature, 

2nd Called Besslon, Chspter 465, oommonly knovn 811 the orriaers* 

salary Lor. Beginning with the $925 Revised Olvll Statutes, 

8nd ln esch of the suooeedlng 9 mendments, oertaln county and 

distrlot orrloers vere expressly n8med therein to vhcas the 

applloablllty or the subject was limited. All suoh ofricers 

mmed vere deslgn8ted in Artlole 3883, et seq., known 8s the 

llaxlmum Fee statutes, tith ths ofrloe or OouDty Treasurer 

oonsplcuously absent. 

With the eneotment of Senate Bill 5, aforesaid, the 

present vordlng of the llrst sentanoe In Artlole 3902, aupra, 

~8s ohsnged from designating 8ud mm&g the p8rtlcules orrioers to its present Ungusge, to-wltr 

nUhenever any 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%saionerst court 0r 

hla oounty. . . . 
Honorable W. P. Herma, Jr.,.Page 6 

Thus in the enactment of the Offlaeraf Sslarg Lav, 

the question is raised as to vhether the Legislature, ln 

adopting the broad language quoted and nov present in the 

statute, intended to lnalude all aountg olflcera, v&I.ah of 

Qouree include8 the County Treasurer. 

The partioular change in the atatute along with 

itr re-enacted provision8 muet be conetrued vlth other provialonr of Senate Bill 5, including oertain re-enaated and un- 

&anged provlrlona of the Nm Fee Lov with vh%oh it 

stands in pari materia, In determining this question. 

Primarily, ve are reeded that Senate Bill 5 V&E 

enaated pursuant to a constitutional emendment making it mandatory that oonstltutlonal aount 

T 

offioere In oountiecr havine, 

a population of tventy thousand 20,000) Inhabitanta or more, 

according to the last preaeding Federal Census be o.@npeneated 

oolely on a salar 

19%. (Se&ion 2 l , 

basis from and after the let day of January, 

Senate Bill 5, 44th l;e,lslature, 2nd 

~$l~l~eealon.) See Artlale 16, Seatlon f 1, Oonatltution 

The caption of Senate Bill 5, pursu+nt to this 

mandate,'ln part, provides: 

"AN ACT reletinn to the oolltDeneatlon of dietrlat, oertain desl&ated oountywand preainot offioera and providing the method and meana for 

wauoh offlcere shall be 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 shall be ormniLatlve of all lava nojz In 

oonfllot therevith; further deolaring it to be the intention 

of the Leglelature that the 'oompensatlon, limitations and 

marlmums fixed in thla Act for the named officers. their deputies, assistants and employees aontrol over any other provisions oontalned In all law. neneral and speolal." (Underaooring ouraJ 

Senate Bill 5 blaausred, very definitely, ae to the 

intent of the Legislature, dlatlngulehea betveen 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 the Act, relating to the 

%ppointment and payment of deputies, aarlrtants, clerks and 

employeer," Artlole 3902, aupra, ve are definitely of the 

viewthatthe ohange in thelsngus(5enovreadlng "anydirtrlot, aounty or preolnct offloer, vaa not intended to In- 

.elude the County Treasurer, but only thoae "eertein" or "named" 

aounty,offlaera or thoae generally Inoluded within the various 

proVlalona of the Haxlmum Fee atatutea previous to the time of 

their rs-enaatment in the Salary Lw, oxeeptlng where apeolfioally "named' and/or exaepted from the aoope of Senate Bill 

5 ad a whole. Th.e faot that the County Tresaurer la expreaaly 

named in Seat&on 13 of the Bill atrongly l upporta the viev 

that the Leglnlature purposely oonaldered the Oounty Treaatwer aa not lnoluded within its provlalone appllaable to the 

oountlea of population lesa than 20,000 Inhabitanta. The 

oourta of thla State have had m oooaaionr to oonrtros Artiolea 3941-3, Yernonfa Civil Statutes, relating to the oompenaatlon of the County Treasurer and no deolaion has ever referred 

to auah offloer aa oampenaated "on a fee baala." In thla eonneation Sootion 16 of Senate Bill 5 provider, and ve quotes 

"In oountlea hav 

-7 

a population af leas than 

twenty thouaand (20,000 inhabitanta awordIng to 

the lut preeedlng Federal Cenaua, all oounty offloera 8halJ oontlnue to-be ocnpeluated for their aerrioea on a -!fee beair' until the oamnlralonerr~ oourt 

ahall have dete&eU othermise, in aaoordanae pith 

the provlaiona of Se&Ion 2 of this Aot.' 

We fall to find any authority* statutory OF othervIne, 

authorlting the oommlsalonera,~ court in oountlea vlth a papulatlon of 108s than 20,000 inhabitant8 to appoint an aaaiatant, 

olerk, deputy or employee to the oounty treasurer to be paId 

from oounty funda. Because "oounty .+nd preoinot offIoera,a 

mentioned In the aeoond phrase of the oe.ptIon to Senate gill 

5 eforementloned la qualified by the preoedlng phrsrre "oertaln 

dealgnated oounty and preainot offloera," 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 Senate Bill 5 aa 

applicable to oountlea vlth a population of lea8 thur 20,000 

inhsbltante, for thin department to hold Artlol;e 3902, aupra, 

applicable to 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 ‘ 

gonorable W. P, Hems, Jr., Page 8 

Aneverlng the eeoond part of your request, it la 

the oplnlon of thlr department that the oommieslonera~ court 

3f a oounty‘tith a 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 end Artlole 3902, 

fern&r Apnotated GlvIl Statutes, Is not applloable to euoh 

~fSla~q*;~ 

"'The iwdec.of -the eommIstilon&~l co&t eubmltted 

ti~'vdld'~@$er ;&.foregoln& authorities, a dleauarlon 

>f the quertl6n'i!alaed ln the last paragraph quoted from 

your letter Is rendered unneoeaearg. 

Yours very truly