Honorable Doug Crouch

DistrictAttorney Tarrant Countv Fort OpinionNo. 

### Ww-1469 Re: Whether a fee aaid to a deoutv

Dear gardWorth, Tkxas county clerk for signing an ikventory and appraisement in a probatematter, as an appraiser, is a fee of office thatmust be paid into the county treasury as Mr.Crouch: a fee of office. You have requested an opinion from this office in reto the question ofwhether: II

. . . the fee paid to the deputy clerk for signingan inventoryand appraisementas an appraiser in probatematters a fee of office such as must be paid into the county treasuryand accounted for as a fee of office?" You have mentioned in connectionwith the above-quoted question that:

"Here in Tarrant County as in many other counties in the state, the practicehas developed over quite a period of timewhereby in probate matters, attorneyswill take into the office of the county clerk an inventoryand appraisement to be filed in connectionwith the probate proceedings. The attorneywill then ask one or more deputy clerks to sign the inventory and appraisementfor them before it is filed. This is done, I am sure, as a matter of convenience to the attorneys. For signing these instruments the deputy clerk is usually paid some fee, and I am informed this fee is usually about j610.00

each.'l Article XVI, Section 61, of the Texas Constitution,provides in part that:

"All district officers in the State of Texas and all county officers in countieshaving a population of twenty thousand (20,000)ormore, according to the then last precedingFederal Census, shall beHon. Doug Crouch, page 2 

### (WW-1469)

compensated on a salary basis

. . . All fees earned by
. . . county . . . officers shall be paid into the county treasury. . . .I' In State v Glasg,,

### 167 S.W.2d 

### 296 (Civ.Ap 

### 1943, error ref., State v.'Glass 141 Tex. 

### 83,170 S.W.2d 70), it Is* was held in Section 

### 61 of Article XVI of the Texas Constitution that: 11

. . . all fees earned by district county and precinct officers shallbe pa!d into the county treasury . . . indicatesan intention that all fees of every character collectedby a county officer officiallv in countieshaving a population of twenty thousand or more shall become fees of office, and that the officer is limited to his salaryas compensation,and any fees collectedby him official& must be paid into the county depositoryas directed by the constitutional provisi0n.l' (Emphasisadded) In addition? the Supreme Court of Texas in the case of Wichita Countvv. Robinson, 155' Tex. 1, 

### 276 S.W.2d 

### 509,in commenting upon Statev. Glass, su-ora, states that: ,I

. . . Section 

### 61 of Article XVI, Constitution of Texas, required that the collectionbe limited to his salary as compensationand any fees collectedby him offi Depository.

. . .

+&d&a;;d',:'o the County
The language of the courts in the cases cited above makes it readily apparent that the fees or compensationreceived by county officers towhich Section 

### 61 of ArticleXVI of the Texas Constitutionapplies are those feeswhich are received by the county officer in his capacity as a county officerand which are considereda fee of the county officewhich he holds. Such being the case, it is necessary to determine in the instant case whether the fee received by the deputy county clerk for signing an inventory and appraisementas an appraiser in a probatematter is a fee of the county officehe holds or ismerely remunerationwhich he has received in a capacity other than in his official capacity as a county officer.

Section 

### 248 of the Probate Code,Vernon's Civil Statutes, provides that:

"Whenletters testamentary,or of administration or guardianship,are granted, the court, in theHon. Doug Crouch, page 

### 3 (W-1469)

order granting such letters, shall appoint three or more disinterestedpersons. citizens of t& gountv, a majority ofwhom may act, to appraise the property of the estate to be administered.

. . .‘I (Emphasisadded) Section 250 of the Pro’bate Code,Vernon’s Civil Statutes, provides that:

“It shall ‘bethe duty of every personalrepresentative of an estate. as soon as he has collected the estate, andwithin sixty days after he has qualifiedand received letters,with the assistance of a majority of the appraisers appointed by the court, tomake or cause to Abe made a full and correct inventory and appraisement of the property . . . and such appraisement shall be duly sworn to and subscribedby the appraisers.” Section 253 of the Probate Code,Vernon’s Civil Statutes, provides that:

“Eachappraiser appointed by the court,as herein authorized, shallbe entitled to receive a minimum compensation of Five Dollars ($5)per day, payable out of the estate, for each day that he actually serves in performanceof his duties as such.” A study of the above-quotedprovisi,ons of the Probate Code reveals that the courtmay appoint as an appraiser in a probatematter any disinterested personwho is a citizen of the county. There is no requirement that any of the appraisers appointed by the court be a deputy county clerk. In turn, there is no requirement set forth by statute that the County Clerk or any of his deputies serve as appraisers in probatematters.

The fees earned or collectedby deputy county clerks which must be paid into the county treasurypursuant to Section 61 of ArticleXVI of the Texas Constitutionare those fees earned or collectedby the deputy county clerks in their official capacity as deputy county clerksand in performing their functions as deputy county clerks. As there are no statutoryrequirements placed upon a deputy county clerk, in carrying out his official functions, to act as an appraiser in probatematters; and as the duties of an appraiser in probatematters can be fulfilled by any disinterested personwho is a citizen of the county,we are of the opinion that any remuneration paid to a deputy county clerk by virtue of his having been appointed an appraiser in a probateHon. Doug Crouch,page 4 (WW-1469)

matter is not a fee of office as contemplatedby Section 61 of Article XVI of the Texas Constitution,and itwould not be necessary for such compensationreceived by a deputy county clerk to be paid into the county treasury. SUMMARY Remuneration received by a deputy county clerk in acting as an appraiser in a probatematter is not a fee of office as contemplatedby Section 61 of Article XVI of the Texas Constitutionand would not have to be paid into the county treasury.

Yours very truly, WILL WILSON Attorney General of Texas

PB:wb APPROVED: OPINIONCOMMITTEE W. V. Geppert, Chairman Frank Booth San.Stone Paul Phy L. P. Lollar Pat Bailey Assistant

REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore