Honorable H. D. Glover

County Attorney Reeves County Pecos, Texas

Dear Mr. Glover: Opinion No. ~~-675
Re: Disposition of fees received by County Tax' Assessor-Collector for performing assigned duties and for assessing and collecting taxes for Independent School District.
Your letter of May 22,,1959, requesting an opinion on the above.subject,reads in.part as follows:

"Pleaseadviseme whether or not the L. Tax Assessor-Collector in a countywith a population of less than 20,000 who is compensated on a salary basis in the amount of $6,215.00 and who acts,as Tax Assessor-Collector for two Independent SchoolDistricts within the County is allowed to retain as fees of office an additional amount of 15 of currentcollections, l$ of<assessments , and 5% of redemptions.from.the Independent School Districts. Also whether or not the. Tax Assessor and Collectorwould be allowed' to retain either $1.00 per line or 109 whichever is lesser, from the State and 'County redemptionpayments. "The facts briefly are as follows: The Tax Assessor and Collector is a separate office in this county and handles the assessment and collection of taxes for two separate Independent School Districts within the county. She deposits all of the taxmoney for the two Inde- jI pendent School Districts and the State and County in one bank account and then periodically takes from the cash drawer, in cash, whatever the above figures or percentage would amount to,making rioentry at any~place as .tothe money that she takes.
"It ismy opinion that she is not entitled to retain any of the above-mentionedmoneys but.

Honorable H. D. Glover,page 2 OpinionNo. w-675 :

that they shouldall be reported and turned over to the County.
. . .' On June 18, 1959,we received an additional letter from you, as foi:ows:

"This is a supplementalrequest to the above numbered~file. Please advlseme whether or not the Tax-Assessorand Collector can retain as her own personal funds the $1.00 that is charged for issu-ing Taw Certificates. %y opinion is that she cannotbased upon the reasons as stated inmy letter of May 22nd and under your file number abovementioned." The fees whichmay be,collectedby a County, Tax Assessor-Collector inperformance of his duties are set ,forth in variousArticles of Vernon's Civil Statutes, among which are the foilowing~whichwe assume to be those you inquire about: (1) Article 7258, as amended, reading in part as follows:"Section1. On and after October 1, 1953,'the

Tax Collector or his deputy of any county in this State, or any city or political subdivision or tax assessingdistrictwithin any such county shall,upon request, issue a certificate showing the.~amount

of taxes, interest,penalty and costs' due, if any, on the property described in said certificate. A charge of not to exceed One Dollar ($1)may be made for each such certificate issued." (2) Article 7331, as amended, reading as follows:
"For calculatingand preparing redemption certificatesand receipts, reporting and creditingredemptions,posting Comptroller's ' redemptionnumbers on the delinquent tax record or annual delinquent list', mailing certificates of redemption to taxpayersafter approval by the Comptroller,and for issuingreceipts or certificates of redemption for property.shown on the annual delinquent list, the tax collector shall be entitled to a fee of One Dollar ($1) for each correctassessmentof Land to be sold, except that if the total amount of said costs so per-Honorable H. D. Glover, page 3 Opinion No. ~~-675

mitted exceeds ten per cent (10%) of the total amount of the taxes, interest and penalties due before assessing any such costs, then the total cost allowable shall be limited to ten per cent (10%) of such total amount.o~f

the taxes,,interest and penalties, or One Dollar ($1)whichever is the larger, said fee to be taxed as costs against the delinquent.

. .' Article 2792,V.C.S., as amended in 1945, provides that the Board of Trustees of an Independent School District, by majority vote,may require the County Tax Assessor-Collector to assess and collect, or to collect, only, its taxes. It also states "When the county assessor and collector is required to assess and collect the taxes on independent school districts they shall respectively rece.ive ona (1) per cent f;r assessing.andone (1)per cent for collecting same;. . . This is the only compensation currentlypro,- vided a CountyAssessor-Collectorwho aqsesses and collects independent schooldistrict taxes.

We are enclosing a copy of ,AttorneyGeneral's Opinion No..s-76, holding that the fees collectedby the Tax Assessor-Collector,who is on a salary basis, for the issuance of tax certificatesunder Article 7258a, V.C.S., should be deposited in the Officers'Salary Fund.

.

The fees collectedunder Article 7331 should likewise be paid into the Salary Fund. Article 3912e, V.C.S., Section 5, provides as follows:

"Sea.. 5. It shall be the duty of all officers to charge and collect in themanner ailfhorized

by law all fees and commissions which are permitted by law to be assessed, and collected for all official serviceperformed by them, As and when such fees are collected they shallbe deposited in the Officers' Salary Fund, or funds provided in this Act.
. .' Section 3 of that same Act provides,that, where county officers are compensatedon a salarybasis,

11 *
. "suchofficers shall receive said salary in lieu of all other fees, commissions or.compensationwhich they would otherwise be authorized to retain;provided, however, that the assessor and collector~oftaxes shall continue to collect and retain for the benefitHonorableH. D. Glover,page 4 OpinionNo. WW-675

provides of the Officers' Salary Fund or funds hereinafter provided for all fees and commissions which he is authorizedunder law to collect; and it shallbe his duty to account for and to pay all suchmonies receivedby him into the fund createdand provided for under the provisions of thisAct,.
. ." Article 3883(i)(Acts1955, 54th Leg.,p. 1137, ch.427) in Section 1 as follows:
"Ineach county in the State of Texas having the population of less than twenty thousand (20,000)inhabitantsaccording to the last precedingFederal Censuswhere all counwand district officialsare compensatedon a salary basis, the CommissionersCourts shall fix the salaries of the officialsnamed in this Act at not more than Six Thousand, Seven Hundred and Fifty Dollars ($6,750.00)per annum; provided,however, that no salary shall be set at a figure lower than that actually paid on the effectivedate of this Act." (Accordingto the 1950 Federal Census the population of. Reeves Countywas 11,745.)

The assessor and collectorof taxes is named in Section 6 as one of the officials to whom Section 1 applies.

Section 14 provides that, "Allof the fees and commissionsearned and collectedby the officialsnamed in thisAct shall be paid into the CountyTreasury in accordance with the provisions of Section 61 of Article XVI of the Constitutionof Texas."

The ci.ted

Section of the Constitutionprovides in. part that "all fees earned by district, county and precinct officers shall be paid into the county treasurywhere earned for the account of theproper fund,.

. .'

For earlier cases dealingwith the accountability of fees earnedunder this article, as fees of office under Maximum Fee Bill, (Tex seeBurke v. Bexar County 271 S.W. 132

1925) err ref'd. and Came&n County 42 S:t?zdA&' affld' Com:App v. Fox, Com.App., 64 S.W.2d 140. 61 ,S.W.2d483 Reh.Den., See'Also AttorneyGineralls Letter Opln~ion

on Request R2094, a copy of which is enclosed.
As to fees paid under Article 2792: In Nichols v. Galveston County, 111 Tex. 50, 228 S.W. 547 (1921),. . .

Honorable H. D. Glover, page 5 OpinionNo. ~-675

appellant County Assessor contended that feespaid him for assessing and collecting~independentschool district taxes were for ex officio service and as such not accountable as fees of office. said (p.549): In overruling this contention, the Court

"After the statuteswere enacted providing for drainage districts and independent school districts, and tb.at

wh.enordered to do so by the

. properly constitutedauthority the county assessor of taxes shall assess these taxes, the assessment of such taxes by him become the usual and general duties of his office;Andythe performance of these duties by him ismade mandatory." The same reasoningwould apply to the collection of these taxes. It was thereforeheld that such fees were accountable as fees of office. (We note in passing that officers receiving a salary are specificallyprohibited from receiving any ex officio compensationby Sec. 6(b) of Art. 3912e. Sec. 11 of Art. 38831 provides, however, three instances in which extra compensa,tion may be paid, none of which-are material here.)

The Nichols casewas cited by the court as controlling authority in Ta lor v. Brewster Count , 144 S.i#.2d314 (Tex. Civ. App., 194R+j+&r. 4 which held appellant County Tax Assessor-Collectorwas aA;ing-as an officer oftthe, County in collecting taxes for independent school districts under Art. 2792, and thereforehis fees for such service were accountableas official fees. The theory and intent of,a salarybasis of compensation for county officers, as opposed to a fee basis, are-well expressed in Attorney General's Opinion No. 0-3664,'fromwhich we quote:

"Ina salary county the fees to which the officer would be entitled personally if' he were on the fee system belong to the county. The officer must collect them for the county and place them in the Officer's Salary Fund. It was clearly contemplatedby the Legislature that the salaries of county officers should be paid largely from fees of office deposited in the Officers' Salary Fund."

SWMARY
A County Tax Assessor-Collectorwho is compensatedon a salarybasis must account. . .

Honorable H. D. Glover,page 6 OpinionNo. ~~-675

for and turn over to the County the fees collectedunder Articles 7258a and 7331, V.C.S., and also'the 15 of assessmentsand 1% of collectionsprovidedby Art. 2792, V.C.S., for assessingand collecting independent schooldistrict taxes.
Yours very truly,
WILL WILSON AttorneyGeneral of Texas

JRI:cm APPROVED: OPINION COMMITTEE: Geo. P. Blackburn, Chairman
W. R. Scruggs Gordon C. Cass Linward Shivers L. P. Lollar REVIEWEDFOR TRE ATTORNEYGENERAL By: LEONARD PASSMORE a.,,