September 18, 

### 1952

Hon. Henry Wade District Attorney Records Building Dallas, Texas Dear Sir: Opinion No. 

### v-1522
Re: Compensation of the Co,unty Auditor for servicesrendered improvementdistricts.

You have requested an opinion on the following questions:"1.Can the'DallasCounty Auditor collect compensation for services to improvement districtsunder the provisions of Article 

### 1672 (V,R.C.S.)? "2, If so, must the amounts be paid into the general fund, or may they be retained by the County Addltor as compensationover and above his regular salary?" Article 1672, V.C.S., provides: "The county auditor shall receive for &is services In auditing the affairs of such districts,LImprovement Districts/ such comensation as the commissionerscourt may ~~~s~~i~;;,which shall be paid by the co,unty

egeneral fund and repaid to the county by such districtsby warrants drawn upon the proper funds of such district, In suoh countieswhich have or may have as many a8 five such distticts, the compensationallowed the county auditor for his services on behalf of such districts shall be not less than the sum of twelve hundred dollars per annum, to be prorated among the districts In such proportionas the commissionersco,urt may determine." (Emphasisours) Article 

### 1645,V.C,S., prescribing the compensation to be paid county auditors in countieshaving a population of 35,000 inhabitants or more or having a tax valuation of $15,000,000.00or over,specifically. .

Hon. Henry Wade, page 2 (V-1522)

states that its provisions shall not repeal or affect Article 

### 1672. S.B. 119 Acts 47th Leg.,R.S. 1941, ch. 

### 601,p. 

### 1331. Therefore, it Is clearly the Intention of the legislature that the county auditor should receive both the compensationprovided in Article 

### 1645 "forhis services to the county" and the compensation provided in Ar.tlcle

### 1672 "forhis service in auditing the affairs of such districts."

Section 

### 61~ofArticle XVI of the Constitution of Texas requires all district, county and precinct officers compensatedon a salary.basis to pay into the county treasury all fees collectedby those officers in the performance of their duties. 

### (1952). Att'y Gen. Op. v-1460

If the compensationprovided in Article 

### 1672 constitutesa fee or commissionwithin the meaning of Section 

### 61 of Article XVI of the Constitution of Texas, the county auditorwould be required to turn the money received into the county treasury.~However,we believe that the compensationconstitutes a salary rather than a fee of office for the following reason.

In Greer v. Hunt County 249 S.W. 

### 831 (Tex. Corn. App. 1923) the Court discus&d the distinction between salary and commissionsand stated: The controlling element in determinikg'whetherthe amount to be received is upon a commission or salary basis Is whether that amount, by whatever name it may be called, Is absolute and fixed regardless of what the lawful commissionsmay be, or Is made contingentupon earning that amount as commissions."
It is noted that the compensationprovided for in Artiole 

### 1672 is not dependentupon fees or commissions but is set by the commissioners'court at an absolute and fixed amount.

Therefore,you are advised that the commissioners'court Is authorized to pay the county auditor a salary for servicesrendered to improvementdistricts of Dallas County governed by Article 

### 1672. SUMMARP Commissioners' court of Dallas County is authorized to pay the county auditor aHon. Henry Wade, page 3 (V-1522)

salary pursuant to the.provislonsof Article 1672,V.C.S., for services rendered lmprovement districts, in'addltlon to the salaryhe realizes under the provisions of Article 1645, v.c.s., for services to the county. Yours very truly,
APPROVED: PRICE DANIEL Attorney ffeneral J. C. Davis, Jr. County Affairs Division
E. Jaoqbsoti Reviewing Assistant Charles D. Mathews First Assistant
JR:am