GROVER SELLRRS AUSTIN PI. TEXAS

This Opinion Overrules Opinion #o-834 and Overrules o-1447 In part.

Honorable R. C

.Neaves CountyAuditor, Grayson County Sherman, Texas

Dear Sir: OpfnionNo. O-5951 Re: Salaries of various deputies of the County Tax-Assessor Collector.

Your letter of April 7, 1944, requestingthe opinion of this department on the questions stated therein, is, in part, as follows:

“1o May the County Auditor approve’warrants drawn on the Grayson County OffLcers’ Salary Fund, payable to the deputy or deputies working in the branch office of’theAssessor and Collector of Taxes in excess of an aggregate total of $1,200.00 for any one calendaryear?

“Foryour consideration I submit the following lnf ormation:

“‘TheAssessor and Collector of Taxes ofGrayson County, Texas,with the consent and approval of the Commissioners’Court, maintains a branch office in Denison, a city in Grayson County other than the county seat. The city ofDenlson is located about ten miles from Sherman, the county seat, and a great volume of business is handledby the deputies stationed in the branch office there. Theirwork consists of collectingand issuing receipts for property taxes, issuing poll tax receipts, registeringmotor vehicles and issuing licenseplates therefor. According to the last Federal census,Grayson County had a~ population of 69,499 inhabitants,and the city of Denison had a population of 15,581 inhabitantsa’

“At the January 1944 Term of the Commissioners’ Court, the Assessor and Collector of Taxes of Gragson County, Texas, submitted his application for deputy hlre for the operation of the above mentioned branch office for the year 1944, same being approved as presentedby the Commissioners’Court as follows: ‘.Honorable R.C. Neaves, page 2 o-5951

"One full time deputy at an annual salary of $1,440.00 "Onedeputy for four months @ $85.00per month 340.00 "Onedeputy for month of January 150.00 "Onedeputy for half of month of January 782 $E "Onepollwriter for month of January "Onepoll writer for halfmonth of January 41:25

"Totaldeputy hire approved for the branch office for the year $2,128.75

"In otherwords, would it be mandatoryupon the CountyAuditor to refuse to sign a countywarrant drawn
on the County Officers' Salary Fund, in payment of com-
$ensation to the above'mentioneddeputies, after the 1,200.OO has been exhausted, regardless of what portion of the year is left?

"2

. May the CountyAuditor approve a countywarrant inpayment of daily travel expense for a deputy tax assessor and collectorgoing from Sherman, the county seat, to Denison and return,while working in saidbranch office? * * *'

Article 7256, Vernon'sAnnotated Civil Statutes, among other things,provides, in effect, that in all counties containing a city or town, other than the county seat,which has in
excess of 7,000 inhabitantsaccording to the last Federal Census, the assessor and collector of taxes, withthe consent and approval of the commissioners'court,may appoint a deputy assistant collector of taxes in such town or city,"who shall have the right to collect taxes from all persons who desire to pay their taxes to him, and to issue a valid receipt therefor, and that such deputy is authorized to receive a fee of not exceeding twenty-five centswhen receipt issued covers property taxes, and that such deputy shall receive no other compensation for his services,and that suchdeputy shallnot retain more than $1,200 for any one calendaryear, and the balance, if any, shallbe deposited to the credit of the General Fund of the county.

Section 61, Article 16 of the State Constitution,provides:

"Alldistrict officers of the State of Texas and all county officers in counties having a population of twenty thousand or more, according to the then last preceding Federal Census, shall from the firstday of January and thereafter subsequent to the first regular or special sessi~on of the Legislature after the adoption of this resolution,be compensated on a salarybasis. In all counti~es inHonorable R. C.Neaves, page 3 o-5951

this State, the commissioners court shall be authorized to determinewhether precinct officers shall be compensated on a fee basl.sor on a salarybasis; but in counties having a populati,,on of less than twenty thousand, according to the then last precedingFederal Census, the commissioners’Court shall also have the authority to determine whether county officials shallbe compensated on a fee basis or on a salary basis.

“All fees earnedby district, county and precinct officers shallbe paid i.nto the county treasury where earned for the a,ccountof the proper fund, provided that fees incurredby the State, county and any municipality, or in casewhere a pauper’s oath is filed, shall be paid into the county treasurywhen collected and provided that where any officer is compensa,ted wholly on a fee basis such fees may be retainedby such officer or paid into the treasury of the county
as the Commissioners’Courtmay direct. All Notarles Public, county surveyorsand public weighers shall continue to be compensated on a fee basis.”

Section 1 of Article 3912e,Vernon’s Annotated Civil Statutes, prov:,des :

“Nodistrict officer shall be paid by the State of Texas any fees or commission for any service performedby him; nor shall the State or any county pay to any county officer in any county containing a population of twenty thousand (20,000) inhabitants or more according to the last preceding Federal Census any fee or commission for any service by him performed as such officer;provided, however, that the assessor and collector of taxes shall continue to collect and retain for the benefit of the Officers’ Salary Fund or funds hereinafterprovided for, all fees and commissionswhich he is authorizedunder law to collect; and it shall be his duty to account for an to pay all suchmonies receivedby him into the fund or funds createdand provided for under the provisions of this Act; provid,ed further, that the provisions of this Section shall not affect the payment of costs In civil cases by the State, but all such costs so paid shallbe accounted for by the officers collecting the same, as they are requ.ired under the provisions of this Act to account for fees, commissions and costs collected fromprivate parties.”

Section 5 of Article 3912e,Vernon’sAnnotated Civil Statutes, reads, in part, as follows:. --

Honorable R.C, Neaves, page 4 o-5951

"It shall be the duty of all officers to charge and collect in the manner authorizedby law all fees and commissionswhich are permittedby law to be assessed and collected for all official serviceperformed by them. As and when such fees are collected they shall be deposited in the Officers' Salary Fund, or fundsprovided in thisAct, * + *'

Article 3902,Vernon's Annotated Civil Statutes, is a general statute~regardingthe appointment of deputies, assistants or clerks of any district,county or precinct office, and applies to all countieswithin the populationbracket therein contained. This statute sets out the przedure to be followed whenever a district, county or precinct officer shall require the services of deputies, assistants or clerks in the performance of his duties, and Section 4 of thisArticle reads as follows:

"In counties having a population of sixty thousand and one hundred thousand I 60,001) and not more than one 100,000) inhabitants,first assistant OP chief deputy not to exceed Twenty-four Hundred ($2400,00)Dollars per annum; other assistants, deputies or clerks not to exceed Twenty-one Hundred ($2100,00)Dollars per annum each."

In view of the foregoing statutoryand constitutional provisions, it is the opinlon of this department, that the deputy assessor and collector of taxes in the branch office mentioned in your inquiry,mst pay in all fees collectedunder Article 7256 to the Officers' Salary Fund. The deputy in the branch office must be paid out of the Officers' Salary Fund of said county, and the maximum amount of his compensation cannot exceed $2,100per annum.

It is our further opinion, in view of the foregoing statutoryprovisionsand Section 61, Article 16 of the Constitution, that Article 3902 supersedesArticle 7256 insofaras the salary of the deputy in the branch office is concerned.

The full time deputy in the branch office can receive any compensation for his servicesas set by the commissioners' court$ provided, of course, that his compensationdoes not exceed 2,100 per annum. The CountyAuditor would have no legal right to refuse to sign a countywarran,t drawn on the Officers' Salary Fund in the payment of compensation to such deputy whose salary or compensationhas been fixed by the commissioners' court at $1440per annum.

Article 2971, Vernon's Annotated Civil Statutes, provides:Honorable R.C. Neaves, page 5 0-5951

"Inall counties containing a city of ten thousand inhabitantsor more, other then the county seat, such collector shall have a duly authorized and sworndeputy to represent him for the purpose of acceptingpoll taxes and giving receipts therefor, who shall keep his office for such purpose at some convenientplace in such city during the entire month of January of each year, and he shall publish fourweeks notice of the authority of such deputy and the location of the office."

The foregoing statuteauthorizes the county tax assessor and collector to have duly authorized and Sworndeputy to represent him for theourpose of acceptingpoll taxes and giving receipts therefor in a city of ten thousand inhabitantsor more, who shall keep his office for suchpurpose at some convenient place in said city during the entiremonth of January. With reference to the compensation of this deputy, or deputies; it is our opinion that suchdeputy or deputies, actingunder the provisions ofArticle 2971,would. be compensatedunder the applicable provisions of Article 3902,Vernon'3Annotated Civil Statutes. The compensation of these deputies for the month of Januarywould be payable out of the Officers' Salary Fund.

In answer to your question regarding the traveling expenses of the deputy assessor and collector of taxes in the branch officementioned in your letter,who travels daily between Sherman and Denison, you are advised that it insour opinion that the county is not legallyauthorized to pay such traveling expenses. Stated anotherway, we have failed to find such statute authorizing such expenses to be paid out of county funds.

All other expenditureof county funds for the compensation of various deputies employed in the branch office az set forth in the order of the commissidners'court are unauthorized and the CountyAuditor has no legal authority to approve such claims. In otherwords, the deputy in the branch office and the deputy or deputies performing the duties mentioned in Article 2971 can be paid from the Officers'Salary Fund. The other deputies in the branch office cannot legallybe paid.

Our OpinionNo. O-834 is hereby expressly overruled and
our OpinionNo. O-1447 is overruled insofar as it conflictswith this oplnion.Honorable R.C. Neavas, page 6 o-5951

Yours very truly

ATTORNEY GENERAL OF TEXAS

AW:EP:wc By s/ArdellWilliams Ardell Williams Assistant

APPROVED APR'25, 1944 s/Gee. P. Blackburn (Acting)ATTORNEY GENERAL OF TEXAS
Approved Opinion CommitteeBy s/BwB Chairman