OFFICE OF THE AlTORNEY GENERAL OF TEXAS 

AUSTIN 

Honorable Pat Beeke 

County Attormq 

Andrewa county 

Andrew6, %xaa 

Dear Sir: 

9 the vatlua.tlo,a WM a little over 

rifS or Andrsws GQtulty ta being pria 

I, end hie fees run over the nmlmua. 

report ior the year o? me he nhmmd 

a6 R aFedlt ta himself an Item of $600.00, which 

he lr elalring au ear expenser but ha failed to 

make aonthl9 axpemc reports ar previded b9 tit%- 

cle Ho. 3899, and further even in hlrr fee repart 

he doen not attempt to itmnlce or explain the bec%uotion sther 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? 

*The she!%fr or Andrewa County la aleo 

the Collector an& Atmeasor. of Taxem; and the 

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, 

who have never been apprehended, and (407.64 

In oash use taken. 

"QuestIon' 1s the Colleotor responslble 

ror this loaa, and should It be returned to 

the County? 

"Aa above noted for the year of 1938 

Andrew County had a valuation of between S 

and 6 mIllIon, thereZore the orjuntr oommisaioaera salemlee wae figured on a per diem bar5.e~oi 

@LOO per day, ror the ydar of 1939. Eaoh Uommlasloner, during it& year of 1939, tyrned in 

his time at eaoh CommIraionc~re" Court meeting, 

and It wa.a palreed upon ;@d the Clerk Issued a 

warrant ror ruoh tlpte turned in; ead at the md 

of the year eaah of the aommlssloners had not 

drawn all or the maxImum provPded under 

Artlole 2360, but theyypaared an order oommandIne the olerk~to Ietue a warrant to eaoh oom- 

‘mIns4oner In amount of the dtfrerenae between 

smount reoelred during l[eap and the ILuImum, 

vhich In th16 Inetence I& ~l~2OO.W. 

"'Question Gan thIe be legfilly done? 

SeoUon (a) of Artiole 3899, Vernon's ¬ated 

Civil Statutes, reads In part a.8 followa: 

“At the close or each month or his tenure of 

offloe eaoh offloer named hereIn who Is compensated on i fee basle shall make as part of the 

report now required bp law, nn Itemized and morn 

statement of all the ootual anti neoeseary expensea 
Honorable Pat Beene, page 3 

Inaurred by him In the oonduct of Me ofrice, 

such as etatloncry, stampa, telephone, premIums on orrlolale~ bonda, InoludIng the ooet 

of surety bonds for hIe Deputior, pramIum on 

flre,,~ burglary, theft, robbery Ineurance proteotlng public funda, traveling expenses and 

other neoesaary expenses. . . Ii suoh expenees 

be InourreU In eonne tlon uIth any partioular 

caee, such etatcment ahall name such aaGe. 

Suoh expense acoount shall be aubjeot to the 

audit of the County Auditor, If any. otherwise 

by the Commieelonera’ Court; an& ii It appears 

that any Item of suoh expense was not Incurred 

by such orflcer or suah’ltem was not a neoeeeary 

expense of orfioe, suoh Item shall be by suoh 

auditor or oourt rejeoted, In which OBR~ the 

collection6 of such Item may be adjudloated In 

amy oourt of oompetent jurlsdlotlon. The amount 

of salaries paid to Aeslstants and Deputlee ahall 

also be clearly shown by ouch oIflOer, giving 

the name, poaltlon and amount paid e&oh; and In 

no event &all auy.offIcer show shy greater. .~ 

amount than aotually pold any euoh hslettk# or 

Deputy. tie amount of suoh expenaee, together 

with the amount ef ralariea paid to Ae6Istants, 

Deputlee and Clerke ahall be paid out of the 

fee8 earned by such oftleer. . . * -.. 

The aaae of Pierson, Justlae of the Peaoe, et al. 

YE. Calves.ton County,’ lS1 8-U. (I?d) 97, holda, among other 

things, that a Juetloe of the peaoe ~a6 not entitled to recover from the oountg oertaln Item8 of expenee claImed for 

postage, traveling expetmen, and messenger eervloe during 

oertaIn years In orrIo@, where the juetloe bid not render 

monthly etrtements of euoh expenses aa requlred by etatute, 

but merely filed annual report@ eEtI.metIng the expense bn 

lump cum emounta. 

%ierrIng to ArtIale 3899, aupra, we quote from 

the above mentioned aaee a6 folloua: 

“The m8nifeet purpoee 0r thle statute was 

to provide a mean8 0r eeaertalnlng the oorreotneaa of expense Items eaah month as they are 

incurred. The s.ctuel exTense6 pald or inaurred 

oonstltute the mea&ure of the oi’fiolalfe right 
S$onorebla Pat kene, wage 4 

to reaoupment. rhe monthly ltaslratlon la for 

the proteatlon of the aounty by ef~ording a 

meane of arasrt~lnlng the faat (md amount OS 

euoh claimed item o? expense and whether it 

WBS properly ahaxgeablc aa such. It la aanlfeet from the annusl reports and aonflrmed bye 

the eridenae that th464 expenrer were mere1 

estimated end a lump tauro glren eaah year. hhe 

statute would be of no value ii lts aslutory 

provlsione oould be evaded in this manner. We 

hold the ltens nroptrly dlrallowed by the Commleaionere~ Court, and the trial aourt's judgment oorreat in denying reaovery therefor.* 

Therefore, your irkret question Is answered, in 

the negative. 

p. 10, 

In the oar6 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, whloh was surtbined, whloh 18 aerlgnsd 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, oeouplscl tovard the state the position oi a 

ballee ror hire, In the business of oolleotlng, 

preserving, and aaoountlng for the taxsa of 

Rusk Countr, and thet as he took oare of the 

money in hla hands, as a prudent man would 

ordlnarlly have done, in refermoe to Ns own 

property, neither he nor hirr suretlea were 

responsible ior it6 loee,. 

'Ye do not understand suoh to be the legal 

poaitlon and repponalUl.ity or tht pub110 offlosr whoae duty It is to colleat and aooount 

for the money of the atate aa a tax aallaotor, 

nor is it in aaoondanoa with the terms of hle 

bond, algnti by hlm ad Me sureitles as praaorlbed by lew. 

'h la bound to amount for and pay over 

th? amount of money whloh he oolleata lera Ns 
Hzn~-ruble Pat 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 

a bsllee 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, .waE a suit instituted by the atate 

In the distriot court of Bldalgo County for two dlstknat purposes, first, to set aelae the Judgment in @muse No. 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 sum of *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. 

We quote 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 for the loss thereof by 

fire, robbery, theft, or bank failure, when such 

1013s Is 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 may have 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 of between 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 wa8 passed upon and the 

clerk issued B ws~rrant for suoh time turned in. At the end 

of the ye&r each of the commissioner6 had not dim all Of 

the maximum provided under Artiole 2350, supa, but the 
Honorable 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 maximum unlees he has aotu6lly 6erVed a6 

oommissl-:ner for a 6UffIOient length of time at $5. per day 

whloh would emount to the maximum of $1200. In thle oonneotion we interpret the word6 'eaoh day served a6 commIseioner* to mean rach 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 then duties a6 oommiesioner. 

We quote from Texas Jurls. Vol 34, p. S29 a6 

r0ii0w6: 

*An orrloer 16 entitled to compensation 

et the rate presorlbsd by the etatute whIoh 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 may not rest in 

ImplIoetlon. Where thI6 right is left to construotlon. the 

language of the law must be oonstrued in favor of the government. Where a statute 16 ceoable 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 

ATTOPXEY GENERAL OF TEXAS 

BY /d 

Ardell Wlllltu116 

Resistant