OFFICEOFTHEA'TTORNEY GENERALOFTEXAS
AUSTIN

Etinorable Fred Blundell Distrlat Attorney fan bfarcos, Texas

Dear sir; Attentions Hon. TomG. Oliver, Tr? Oplnlon NO.O-4034 Ret County Clarke - ex-offlolo canpensaticn - esoese 

### fe4e

Your rewest for opinion has boon reooived and aarefully cone&dared by this &apartment, V?aquote from satd request ee iollovmr

%on. L. 19.Bopkins, County Clerk of &ye County, ha8 raquorted meto ~8eourefrom you a ruling with reforenos to excess fess of his office, ‘whLuhquestion ie, andarieoe, ae rollower

“HayrrCounty is on the isa basis; the county olerk reoeivse an ex 0rriOio compensation, wMc.his paid to himquarterly, bywarrant on the general fund, and also reoeivae fees of ofilae. Thegeneral fund of Hays County has been on adefioit bash for aooeral yaare, and in order for the oounty olsrk ati other offloere, whoreoeive salary payabia out of t>e general fund, to oash said warranta, it becomeeneceeaary to take a 8ubstantial tliecount, such as, say, lC$.’ DrAer article 3803, the oountg clerk of Rays County raceives snd retains 6x otflcio andfoes until iii8 oompensation for tho year, in addition to saleriot! of ds2utles and expenses of conduct of the office, has amounted to $8400.00, and than, under art&ale X+91, he rotabE l/33 of th 6208ss until hla tote1 cor;ponsetiosi amounts to ~3,000.00Honorable Fred Blundell, Page 2

“Article 5a91 provides: earned and colle~cted- - - In ‘All current
excess OXthe

... . . maximumandexcesf~ allowed by cnls ~0%- - shall be ,~aid into the County Treasurer in county where the excess accrued.’ fees

-- the

"Do:?8this meanthat such county clerk must pay said BXOBBB fees to the treasurer in the form of cash, or mayhe pay semein the form in which he reoeived the pay from the county, namely, the uncashed general fund warrant issued to him, r:nUendorsed by Nm baok to the county?

“01 course, by the time the last quarterly paymentis due himby the crounty, he has completed the year and then know8whether or not hewill have an exoess andhowmuoh, and,
as to this last payment he aanreZra1.n from taking camefrom the county, andhenoe show that muohless inoome to the offloe, 

### end that muchlees exoees fee to be paid by himbask to the county. Notrouble is ‘hadwith this last payment, since eaoh he and.the county has a olaim ~agalnsf the other, and the aocounts are simply baladoed by Ne refraining from aooppting his salary for the last querter,. It’ie **believed** that the priaoiple or thia eort of adjuetment or eettlement is sanctioned by the SupremeCourt in the ease of Felts ve. Bell County, 132 S. W. 123.

“But the annual tee report, apart irom the foregoing paragraph, yet shows en exoess of fees to be paid baok to the county, and the alerk has in poesession the oounty warrant
on the goneral fund oovering his salary for the third quarter, the months of July, August and September, whioh warrant he has not discounted and cashed 6 can he tender said warrant to the county and require the county to accept same, as paymentupon the claim the oounty has a;::ainst Nm for exoeaa fees of office? Fromthe standpoint or commoneanse, reason and natural justice, it occurrs to the wrjter that the clerk should be legallyHonorable Fred Blundell, Page 3

authorized to pay the county In the same mediumin ahia:! the county pays him, an&~ hence I aminclined to answer the foregoing qucstlon in the affirmative, However I have not found any authority preeisaly
on the point, although the reasoning of the above case supports this oonolusion.w

Thepopulation of Hays County, Texes, is leas than 20,000 inhabitants aocordlng to the 1940 Federal Census, and its county offlcials are compensated on a fee basis.

Article 3895, Vernon’s Annotated Texas civil Statutes, 

### made as follows;

The Commissioners’ Court la hereby debarred rrom allowing oompensation for ex-offioio servloes to oounty o.ffiaiale whenthe compensation and exoess fess whioh they are allowed to retain ehall reaah the maximumprovided for in this ohapter. In
oases where the compensation and exaess leea wbioh the oftioers are allowed to retain shall not reaah the maximumprovided for in this ohapter, the Commiesioner,rrr* Court ehall allow compensation Sor 81:offioio eervloea when, in their jud compensaticin is neoeesary ITent, auoh prov de&, euoh compensation for ex ofiioio serviaee allowed shall not increase the oompensation of the offioial beyond the maximumof compensation and exoess fees allowed to be retained by himunder this ohapter. Provided, however, the ex officio herein authorized shall be


### aumea only after an opportunity for a public! hearing and only upon the affirmative vote of at least three membersof the Commlseioners* Court.”

Seation 1 of Article 3883, 8. A. T. C. S., reads
aa roilore:

“Except a0 otnerwise provided in tNe Act, the annual fees that maybe retained by precinct, county and distriot offioers mentioned In this Article shall be as follows:Honorable Fred Blundell, Page 4

(23,Oi%j thousand or less inhabftantsr County

In counties oontaining twenty five Judge, Distriot or Criminal Distrfot Attorney, Yherifr, County Clerk, CountyAttorney, Distriot %rk, TaxColleotor, TaxAssessor,
or the A:zaessor and Collector of Taxes, Twentyfour Hundred ($2400.00) Dollars each; Justiae of the Peace and Constable, Twelve Hundred ($1200.00) Dollar8 eaoh.“

. Article 3891, v. A. T. C. S., reads in part as follows:

“Paoh offiaer namedin th5.aChapter shall firet out of the current fees of Ns office pay or be Paid the amount allowed himunder the provisions or Article 3883, together with the salaries of Ns assistants and deputies, andauthorizad expenses under hrtlals 3889, andthe amountnsaeesary to cover costs of premiumonwhatever surety bond maybe required by law. IX the current fees of such offioe collected in anyyear be more than the amount needed to pay the amounts above speoifled,
sameshall be deemedexoess f ’eos, and shall be disposed of In the mannerhereinafter provlded.

“In counties containing twenty-five thousand (26,000) or less inhabitants, Distriot and County officers namedherein shall retain onethird of such excess fees until suah onepthfrd, touether with the amounts aneoified in Article. Z&33, amounts to Three Thousand Dollars (Q3,OOO).

. . .” Opinion No. O-3896 of this department contains a pertinent disauesion relative to 8x088s fees and ex-offioio compensation. r;equote from said 

### opinion as follows:

“In answer to your inquiry, you cre aavie,ed that it is the opinion of ’ tNs department that the ex-officio compensation oi the county clerk must be considered and aoaounted for in arriving at the maximumannual corn-penaatlon of said clerk. Thealerk shall first out of the current Sees of his office pay or be paid the ..,:.(,.

>*s, Honorable Fred Blundell, Page 5

amountallowed himundar the 2rovlsions of Article 3883, together with the salaries of hisassistants and deputies, andauthorized ex2ansn.e under Article 3299, andthe amountnecessary to cover the cost of premium
onwhatever surety bond day be reqllired hy 

### law. If the ourront fees of such office collectea in anyyear be more than the amount, needed to pay the amounts above speoified the sameshall be deemed excess fees and the clerk is permitted to retain one-third of nuch excees fees until suoh one-thlrd, together with the amounts spooifled ln.Arti

### cle 3883, arcounts to $3,000.00) In other words, the county olerk is sntitlod to retain all the cozpeneation 

### allowed by Article 3883, together with the one-third oxuess fees allowed by Article 3891, until euoh onethird together with the amountspeaified in Article .3883, amounts to $3,000.00 

### per annum. If the compensation 

### allowed undar Article :
3333and the 8x088s fees allowed under Artlale 3891 do not reach the maximumof $3,OOO,OO per annum,the Commissioners* Court is authorized to pay the clerk an ox-officio compensation, Provided such oompen&+ation,together with the fees retained by himunder Articles 3883 and 3891, doe8 not amountto
more than $3,000.00. Thare~aan be no excess fees until the amount of $2,400.00 is reached and the deductions which are allowed by laware made. To illustrate, the county olerk oarnot take $1,400.00 as fee8 **under**Article 3883and then add the $l,OOO.OO ex-officio compensation to makea total of $~2,400.00 and then say rll fees coming into the office as are authorized by law are exoass fees, and that he ia entitled to one-third of the same. In short, before the clerk is entitled to 

### any excess fees under Article 3891 hemust first receive as fees the amount of $2 400.00 not inaluding any part of the ax-ofi&io co?rqenaatlon after making the 

### legaldedmtlons a8 allowed by law and after this amounthas been reached then the alerk is entdtled to one-thirdBonombla Fred Blundell, Pago 6

of such emess fees as provi4ed by &?tiola 3891 andas above stated if this does not reach the totalmaxLmun of $3,000.00 per annum,the Covuuissionersl Court mayin its discretion legally allow an 

### ax OffiOio compensation provided such com@csation, together with the fees retained under the above mentioned artioles, door not exoeed #3,000.00per annum.”

Weenolose herewith a copy **of** said opinion **for** your lnfonaation.

There oan be‘no ox~oss fees for the oou5ty clerk of Eays Gountyuntil the amount or $2,400.00 is reaohed and, I the deduotione which are allowedd **by law** aremade. **And us** 

ing the Illustration giv85 In opinion Ho, O-3896, eupra i:f~ / ‘,a the county olerk oannot take $1,400.00 as fees undar &iale 3883 andthen add’s $1,000.&I sx-offioio compensation to makea total of i;2,400~00 an&.thrJneay that all fees coming Into the. offioe aro exooss fees andsay that he ir entitled to one-third of the same. Ae pointed out in 6ald opinion, before the olezk ie entltleU to any axeesr fees undsr~drticla 3291, hemust ffr~et reaelve aa fees the amount
or b2,roo.oo arteq, making the legal arduotiona allowed by law andnot lnoludying anypart of his ex-officio ocmpeni” satfon andartar this amount has been reaoh6d, then the \, alerk is eutitled to one-tNra of auoh exoess foes as provided by Artial3 3891 and that if this does not reach $3,000.00por anhum,the 

### Commleaionerst Court mayin It8 disoretion legally allow an ex-officio oomponsation provided such eomeneation do not omeod P tol;ether~with the ieas retained

3,000.OO.

‘The case 

### 0s l%lts, ‘et al v;~Bell County, 132 3. W. 123, (SupremeCourt of Texas), aited by you, hold8 that where a county judge, by purehaaing property at a aherifftesale, was acoountable to the county for the purohase price, the oountyts crediting itself 05 e dobt owing him to the extent of tho ptiohaso ha&the sameeffeot as if the moneywas paid him, and that the settlenunt aas a valid 0n0. ‘Jye

quote from said ease as r0n0m I Cbt evlaanao shows that the oounty declined to aocept ~aaonveyanou frolc Belts (theCounty Judga)~, 

### but alrote& to raoeirs from

himthe prioe of the land whlah he paid in settlement bywhioh the oounty got aredit

On a debt dur to Felts iOr tho sumbid for the lend, ~,Aoredit on the county*8 debt was (Ipaymantandhad the same eifaot as fi. the money hadbeen paid by Felta." (Bracket insertion ourrr) "';

. . ThecolIlmlesi0nsre* court had jurisdiction over the finanolal~aifairs of I the ooupty and hadthe authority to make an adjustmept between it and any person where there' W&s mutual alai-o; Lt is the same thlog'as.lS Beltr hadpaid the amount of his bid to %ll County and the oounty had then paid the aamamoneyto Felts, 

### Wetherefore hold that tha settlament batween Bell County andFelts was valid andbinding upon the aouuty. It le not sought in thie aotion to sot the settlement aside, nor ia there 

### any svidenoe to justify ouch aetlonrW

Youdo not state the amount of fsaa earned and oollacted by the clerk. If, for 

### example, the olark earned and **oollected** tees aiaountLng to $4,S!O0.00 after deduotfng the expenses allowed by law and exclusive of any ox-oifioio compensation, hewould bs mtltled-to retain fiT3fX.00 andwould hava to yay the county #1,200.00 axeaas

. If he had been paid any ex-offioio oompen$;to&k r0u.M have to return all of it to the county. oashed or sold hismrrants for said ex-officio 

### oompenaation, he

### would hzve to pay the County in money, but it ha had not oashed or sold his warrants hewould be aut&oriead to return themto the oountg la settlement or his obligation under the authority or Felts, et al V. Bell County, 

### euprar

If the clerk earned and oollected $2 700.00 

### in fees after deducting his letgal expeneee hewou dbe eni titled to retain ~2,500.00 and would owethe oounty $800.00
exoess fees. If the county had allowed him, say #200,00 

### ex-officio conpensetlon andpaid himwith general 

### fund warrants wethink thet he awld return the warrant8 (if

### Eonorable rSrd BlUrtdoll, we 8

he still had 

### th-1 to the aounty in 8ottlemnt oi the $800.00 ha owedthe aounty for OXOOE~ teem

### under the authority or Felta, et al v. Bell county, 6tip-8.

quiry, Truatlng that this satlsfaotorily 

### answer8 yourinandwith bs8t regards, we

### are