OFFICE OF THE AlTORNEY GENERAL OF TEXAS AUSTIN



### Honorable 

## PatBeeke 

### County**Attormq** 

### Andrewacounty 

### Andrew6,%xaa
Dear Sir:

9the **vatlua.tlo,a** 

### WMalittle over

rifS or Andrsws GQtultyta being pria I, endhie fees run over the nmlmua. report 

### ior the year o? me he nhmmd a6RaFedlt ta himself an Item of $600.00, which he lr elalring auear expenser but ha failed to makeaonthl9 axpemc reports ar previded b9 tit%- cle Ho. 3899, andfurther even in hlrrfee repart he doen not 

### attempt to 

### itmnlce or explain the bec%uotionsther thm oar expenee. "Queetiont CM the Oommierionere Court

### Honorable **Pat** 

### Beene, **page 2** 



### legally allow **this** 

### Item of $600.00, under the above set out alroumetenoee; to the Dherlff? *Theshe!%fr or AndrewaCounty la aleo the Collector an&**Atmeasor.**

### of Taxem; andthe benk, whloh 1s the County Depoaltory, lr looated **In** 

### Midland, Texae, and the only plaoe provided ?or his keeping the money, which he colleots, other than In the depo<ory ie 8 vault in the Court house; In April or la&t yenr thlr 

### vault W&II broken Into by thlevem, whohave never been apprehended, **and** 

### (407.64 In oash use taken. "QuestIon' 1s the Colleotor responslble ror this loaa, and should It be 

### returnedto the County?
"Aaabove noted for the year of 1938 Andrew Countyhad avaluation of between S and6mIllIon, thereZore the orjuntr oommisaioaera salemlee wae figured on a per diem bar5.e~oi @LOOper day, ror the ydar of 1939. EaohUommlasloner, during it& year of 1939, tyrned in his time at eaoh CommIraionc~re"Court meeting, andIt wa.apalreed upon;@d the **Clerk** 

### Issued 

### a warrant ror ruoh 

### tlpte turned in; ead at the md of the year eaah of the aommlssloners hadnot drawnall or the maxImum provPded under Artlole 2360, but theyypaared an order oommand**Ine** 

### the olerk~to Ietue awarrant to eaoh oom-



### ‘mIns4oner In amountof the dtfrerenae between smount reoelred 

### during l[eap and the ILuImum, vhich In th16 Inetence I&~l~2OO.W. "'Question GanthIe be legfilly done?
SeoUon (a) of Artiole 3899, Vernon's ¬ated Civil Statutes, reads 

### Inpart a.8followa:

**“ At**  

### the close or each monthor his tenure of offloe eaoh offloer namedhereIn whoIs compensated oni fee basle shall makeas part of the **report now** 

### required bp law, nnItemized and

### morn statement of all the ootual antineoeseary expensea

### Honorable Pat Beene, page 3

Inaurred byhimIn the oonduct of Me ofrice, such as etatloncry, stampa, telephone, premIumsonorrlolale~ bonda, InoludIng the ooet of surety bonds for hIe Deputior, pramIumon flre,,~ burglary, theft, robbery Ineurance proteotlng public funda, traveling expenses and other neoesaary expenses.

. . Ii suoh expenees be InourreU In eonne tlon uIth anypartioular caee, such etatcment ahall namesuch aaGe. Suohexpense acoount shall be aubjeot to the audit of the County Auditor, If any. otherwise by the Commieelonera’ Court; an&ii It 

### appears that anyItem of suoh expense wasnot Incurred by such orflcer or suah’ltem wasnot a neoeeeary expense of orfioe, suoh Item shall be by suoh auditor or oourt rejeoted, In which OBR~the collection6 of such Item maybe adjudloated In amyoourt of oompetent jurlsdlotlon. Theamount of salaries paid to Aeslstants andDeputlee ahall also be clearly shown**by** 

### ouch oIflOer, giving the name,poaltlon **and** 

### amountpaid e&oh; andIn no event 

### &all auy.offIcer showshy greater. .~ amountthan aotually pold any euoh

## hslettk# or Deputy. tie amountof suoh expenaee, together with 

## the amountef ralariea paid to Ae6Istants, Deputlee andClerke ahall be paid out of the fee8 **earned** 

### by such oftleer.

. .* -.. Theaaae of Pierson, Justlae of the Peaoe, et al.
**YE.** 

### Calves.ton County,’ lS1 8-U. (I?d) 97, holda, amongother things, that a Juetloe of the **peaoe ~a6**  

### not entitled to **re** 

### cover from the oountg oertaln Item8 of expenee claImed for postage, traveling expetmen, andmessenger eervloe during oertaIn years In orrIo@, 

### wherethe **juetloe** 

### bid not render monthly etrtements of euoh expenses aarequlred by etatute, but merely filed annual report@ eEtI.metIng the expense bn lumpcumemounta.

%ierrIng 

### toArtIale 3899, aupra, wequote from the above mentioned aaee a6folloua:

“The **m8nifeet** 

### purpoee 

## 0rthle **statute was**  

### to provide amean8

## 0r eeaertalnlng the oorreotneaa of expense Items eaah monthas they are incurred. Thes.ctuel exTense6 pald or inaurred oonstltute the mea&ureof the oi’fiolalfe right

### S$onorebla Pat 

### kene, wage 4

to reaoupment. 

### rhe monthly ltaslratlon la for the proteatlon of the aounty by

### ef~ordinga meane

### ofarasrt~lnlng the faat (mdamountOS euohclaimed item o? expense 

### andwhether it 

### WBSproperly ahaxgeablc aa such. It la aanlfeet from the annusl reports andaonflrmed 

### bye the eridenae that **th464** 

### expenrer were mere1 estimated end alumptauro glren eaah **year.** 

### hhe statute would be of novalue ii lts aslutory 

## provlsioneoould be evaded in this manner. We hold the ltens nroptrly dlrallowed by the Commleaionere~ Court, and the trial aourt's judgmentoorreat in denying reaovery therefor.* Therefore, your irkret question Is answered,in the negative.

p. 10, In 

### theoar6 of Boggy-~.ys. The Btato, 46 Tax. Rep.



### the defendants filed a%rpealal aneuer, averring that Boggs, as 

### Tu Callmtor, having oolleotecl the 

### tuoa, and being about to 6t&rt to AuatLa 

### dth the rone~, hrd #lSOO.OO of It 

### stolen iron him, without hls raolf, (atstlng thc'eiroumstanaer of it8 

### loam.1 fhe plaintiff fllod exaeptUm8 to this answer, whlohwas surtbined, whloh 18aerlgnsd as error.

We**quote** 

### rrf3N)pD

the **8bave**

### mentlaneb oas+-as r0nowr:

‘It was oontended by the counsel for 

### the e~pellante that Boggs, being an

### orrloer,oe**ouplscl** 

### tovard the state the position 

### oia ballee ror hire, In the business of oolleotlng, preserving, andaaoountlng for the taxsa of RuskCountr, 

### andthet as he took oare of the moneyin hla hands, as aprudent manwould ordlnarlly have done, in refermoe to Ns own property, neither henor hirr suretlea were responsible ior it6 loee,.
'Ye donot understand suoh to be the legal poaitlon **and** 

### repponalUl.ity or tht pub110 offlosr whoaeduty It is to colleat andaooount for the moneyof the atate aa a tax aallaotor, 

### nor is it in aaoondanoa with the terms of hle bond, algnti by hlmad Me sureitles as praaorlbed bylew.
'h la bound to amount for andpay over th? amountof moneywhloh he oolleata lera NsHzn~-rublePat Scene, page 5

oommiesIons, or his sureties must do It for him. ”
Ne quote from Corpus Jurls 61,‘p.l023,~as follows:

‘A collector of taxes 1s not regarded aa absllee of the money collected by him end remaining In hIe hands, but he Is an 

### insurer of its safety agaInet loss by any means whatever. Be Is therefore responsible for the taxee colleoted, although he is robbed.of the money or It Is ttolen from him.M
The case of American Indemnity Company, et al. vs. State, 104 S.U. (2d) 68, .waEa suit instituted by the atate In the distriot court of Bldalgo County for two dlstknat purposes, first, to set aelae the Judgment in @museNo. B-3697, styled The State of Texas v. Brown Land and 

### Cattle Company, et al., and eecona, to recover from 0~.Em.Jonee, former tax collector of HIdalgo county, ae prlnolpal, and the American Indemnity Company, ae surety on his official bonds as tax collector, the sumof *16,379.11, together with Interest, alleged to have been 

### paid out by Jones from funde In hls hands as tax oollector, in oonrorslity dth and under color of the Judgment in aause No. B-3597.

Wequote from the above mentIoned caee_.as followe:
*It was said in the ease of Town of Cameron v. Hicks, 65 W. Va. 484, 64 S.E. 832, 835, 17 Ann. Gas. 926; ‘*y ,the great weight of

. authority, the custodian of $ublIc money Is not e ballee, bound only to the exerolse of high degree of care, prudence, and dlllgencefbr lte eafety, and exeueable 

### forthe loss thereof by fire, robbery, theft, or bank failure, when such 1013sIs not in any senee due to negligence or mfsconduct oil hi8 part, but a debtor and lnsurer to the extent of the amount received, excueable for no losses except those resulting from acts of God or the pub110 enemy.’

“Thcugh Jones mayhave paid this money out in good faith and under the belief that It wae his **duty to**  **e0 60,**  es a result of the Judgment In cause No. B-3597, neverthelese, he was an insurer of these funds and his failure to properly account for them to the State of Texas renders him and the surety on’his offialal bona liable to the State to thet extent.

. .*,Han->rhble Pat Beene, Page 6

Your second question is answered in the affirmative.
Article 2360, Vernon’s Annotated Clvll Statutea, reads In part a6 followe:

‘In oountles having the following assessed valuations, reepectlrely, as shown by the total aeseseed valuatlone of all propertlee certified by the county aseee6or andgproved by the Commissioners Courts, for county mrposes, for the previous yeer, from time to tlme, the County Commissionera of auoh counties ehall each receive annual ealarles not to exoeed the amounts herein epeoified. eaid salaries to be paid In equal monthly lnetallments, at leaet one-half; and not excfedlng three-fourths, out of the hoad and Zrid e und and the remainder out of the General ‘utid of the County; said asseeeed valuations and salariee applloeble thereto being a8 

### rol.lows:
"

. . . *In countiee havln~ as&eesed Valuation Of more than Four Million B ive Hundred Thousand- and One Dolhrs ($4 500,001) and lees than 2io Mlllion uollars (f6,000,000) eeoh oommleeloner shall receive Five Dollars ($6) per day for eaoh day

. ‘served a6 oommle&ner, end a like amount when actPng’a6 ex-officlo road euperlntendent in hle Commiesioners Precinct, provided in no event shall his total compensation exoeed Twelve Hundred Dollars ($1200) In any one year. a Ae above stated, Andrew6 County had aaE:essed valuatlons of all properties 

### ofbetween Five Dollar6 ($5) per day for eaoh day served ae commissioner for the year of 1939 and each commissloner turned in hia time at e&h commlssinners court meeting, and it wa8passed upon and the clerk issued Bws~rrant for suoh time turned in. At the end of the ye&r each of the commissioner6 had not dim all Of the maximumprovided under Artiole 2350, supa, but theHonorable P6t Srene, pge 7

oommlsei~3-iere~

oourt passed en order oommandlng the clerk to 166ue a wsrrant to e6oh oommlasloner in amopnt of the differenoe between the amount reoelved during the year qnd the maximum, which in this lnstanoe wee Twelve Hundred Dollar6 ( Dollars ($1200). Eadh oommI66ioner la entitled to **Five**

5) per day for each day'actually nerved a6 commIesI.:ne
, a6 provided In Artlole 2360, 6upr6, and 16 not entltled to the maximumunlees he has aotu6lly 6erVed a6 oommissl-:ner for a 6UffIOient length of time at $5. per day whloh would emount to the maximumof $1200. In thle oonneotion we **interpret** the word6 'eaoh day served a6 commIseioner* to meanrach day or the time aotually served by eeoh commleoioner in performing the duties **of** aommlesloner a6 lmpoeed by law and doe6 not Include any time which wa6 not actually served In the performing of thenduties a6 oommiesioner.
Wequote from Texas Jurls. Vol 34, p. S29 a6 

## r0ii0w6:

*An orrloer 16 entitled to compensation et the rate presorlbsd by the etatutewhIoh 16 in foroe when hle eervloes are rendered. Ordlnarlly statutes and orders **making** ohangee In the compen6atIon of offlOer6 speak prospeotiv;:;, and will not be given a retroaotlve **effeot.** may a commlesioners' court make a changed r&e of oompensatlon apply to eervloes already rindered.

. .*
Statute6 prescribing feee for public offloere 

### are striotly oonstrued; hence a right to fee6 maynot rest in ImplIoetlon. Where thI6 right is left to construotlon. the language **of** the law **must** be oonstrued in 

### favorof the government. Where a statute 

## 16ceoable of two conatruotions one of whloh would give an orrlckr comDen6atIon for hi.6 ee&Ioe6 in addition to hi6 salery end the bther not, the later oonstruotlon should be adopted. See the oe6e Of McCall6 v6. City of Rookdale, 245 S.W. 684.; Eastland County v6. Hazel, 288 S.W. 518; Madden v6. Hardy, 50 S.W. 926.

In view of the foregolng suthorltleg, your third question Is answered In the neg6tive.
qulries, Trueting that the foregoing fully answer6 your lnwe remain

Pours very truly
ATTOPXEYGENERAL OFTEXAS

BY /d

Ardell Wlllltu116 Resistant