Hon. Harrell Moore 

AUSTIN. XB 

February 159 1963 

Opinion NO. c-18 

County Attorney 

Midland County Re : Whether the County Clerk of Midland 

Mldland, Texas County should charge as part of the 

costs in a probate case the commission provided ~for in Article 3926 

Dear Mr. Moore: of Vernon’s Civil Statutes. 

You have requested the opinion of this office as to 

whether the County Clerk of Midland County should charge as a 

part of the costs in a probate case I@ commission provided for 

in Section 1 of Article 3926 of Vernon’s Civil Statutes. 

Section 1 of Article 3926 of Vernon’s Civil Statutes 

provides as follows: 

“The county judge shall also receive the 

following fees: 

“1 * A commission of one-half of one per 

cent upon the actual cash receipts of each 

executors administrator or guardian, upon the 

approval of the exhibits and the final settlement of the account of such executor, administrator,or guardian, but no more than one such 

commission shall be charged on any amount received by any such executor, administrator or 

guardian.” 

Section 16 of the Probate Code reads as follows: 

“The county clerk shall keep a record book 

styled ‘Probate Fee Book, t and shall enter 

therein each item of costs which accrues to the 

officers of the court, together with witness 

fees, if any, showing the party to whom the 

costs or fees are due the date of the accrual 

of the same, the estate or ‘party liable therefor, and the date on which any such costs or 

fees are paid,” 

Since Midland County has a population of 67,717 inhabitants according to the last preceding Federal Census, the 

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Hon. Harrell Moore, page 2 (c-18) 

provisions of Section 61 of Article XVI of the Texas Constitution, and Section 1 of Article 3912e of Vernon's Civil Statutes, 

make it mandatory that all the county officials in that county 

be compensated on a salary basis. In this connection, we invite 

your attention to the pertinent part of Section 61 of Article 

XVI of the Texas Constitution, which provides as follows: :, ~ 

"All district officers in the State of Texas 

and all county officers in counties having a population of twenty thousand (20,000) or more, according to the then last preceding Federal Census, 

shall be compensated on a salary basis. . o . and 

in counties'having a population of less than twenty 

thousand (20,000), according to the then last preceding Federal Census, the Commissioners Courts 

shall also have the authority to determine whether 

county officers shall be compensated on a fee basis 

or on a salary basis, with the exception that it 

shall be mandatory upon the Commissioners Courts 

to compensate all sheriffs, deputy sheriffs, county 

law enforcement officers including sheriffs who 

also perform the duties of assessor and collector 

of taxes, and their deputies, 

ginning January 1, 1949. 

on a salary basis be- 

"All fees earned by district, county, and precinct officers shall be paid into the county treasury where earned for the account of the proper fund, 

provided that fees incurred by the State, county, 

and any municipality, or in case where a pauper's 

oath is filed, shall be paid into the county treasury 

when collected and provided that where any officer 

is compensated wholly on a fee basis such fees may 

be retained by such officer or paid into the treasury of the county as the Commissioners Court may 

direct. m . .I1 

Section 1 of Article 3912e of Vernon's Civil Statutes 

pzuvides in part as follows: 

-:, 

"No district officer shall be paid by the State 

of Texas any fees or commissions for any service performed by him; nor shall the State or any county pay 

to any county officer in any county containing a 

population of twenty thousand (20,000) inhabitants 

or more according to the last preceding Federal Census any fee or commission for any service by him 

performed as such officer; D + e provided further, 

that the provisions of this Section shall not affect 

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Hon. Harrell Moore, page 3 (c-18) 

the payment of costs in civil cases or eminent 

domain proceedings by the State but all such 

costs so paid shall be accounted for by the officers collecting the same, as they are required 

under the provisions of this Act, to account for 

fees, commissions and costs collected from private parties; provided further, that the provisions 

of this Section shall not affect the payment of 

fees and commissions by the State or County for 

services rendered by County Officers in connection 

with the acquisition of rights of way for public 

roads or highways, and provided that such fees and 

commissions shall be deposited into the Officers' 

Salary Fund of the County by the County Officer 

collecting such fee." 

Article 3926 of Vernon's Civil Statutes provides that 

the County Judge shall receive a commission of one-half of one 

per cent upon the actual cash receipts of each executor administrator or guardian. Attorney General's Opinion wW-1036 (1961),, 

Since Section 61 of Article XVI of the Texas Constitution, and 

Section 1 of Article 3912e of Vernon's Civil Statutes make it 

mandatory that the County Judge of Midland County be compensated 

on a salary basis, it is mandatory that the County Judge collect 

the commission provided for in Article 3926 but, at the same 

time, Section 61 of Article XVI, and Section 1 of Article 3912e 

make it mandatory that the County Judge place such fees with 

the County Treasurer to be deposited in the Officers' Salary 

Fund of the county. 

Section 1 of Article 3912e prohibits the County Judge 

of Midland County from collecting fees or commissions from the 

county and the State of Texas, but at the same time there is 

nothing in this Article or any subsequent Article that would 

repeal Article 3926 insofar as it requires the County Judge of 

Midland County to collect a comrdission of one-half of one per 

cent upon the actual cash receipts of each executor administrator or guardian but, as above pointed out, Section &L of Article 

XVI of the Texas Constitution, and Section 1 of Article 3912e 

make it mandatory that the Judge deliver these fees to the County 

Treasurer to be deposited in the Officers' Salary Fund. 

Under your specific fact situation the County Clerk of 

Midland County will continue to record the commission upon the 

actual cash receipts allowed under Section 1 of Article 3926 of 

Vernon's Civil Statutes, and after the fees are collected by the 

County Judge of Midland County they should be paid into the 

County Treasury for deposit to the Officers' Salary Fund. 
. - 

Hon. Harrell Moore, page 4 (c-18) 

Since Section 61 of Article XVI of the Texas Constitution makes it mandatory that all county officials in counties 

of 20.000 inhabitants or more be compensated on a salary basis, 

the principles of law announced in this opinion are applicable 

to all counties in the State of Texas having a population of 

20,000 inhabitants or more, and also applicable to all counties 

of under 20,000 inhabitants where the Commissioners Courts have 

elected to compensate all the county officials on a salary basis 

pursuant to the provisions of Section 61 of Article XVI of the 

Texas Constitution. 

SUMMARY 

The County Judge of Midland County is entitled 

to receive a commission of one-half of one per cent 

upon the actual cash receipts of each executor, administrator or guardian as prwided in Section 1 of 

Article 3926 of Vernon's Civil Statutes, and Section 

16 of the Probate Code makes it mandatory that the 

County Clerk record said commissions as a part of the 

costs, and when said commissions are collected they 

should be paid into the County Treasury and deposited 

into the Officers' Salary Fund. 

The principles of law announced in this opinion 

are applicable to all counties in the State of Texas 

having a population of 20,000 inhabitants or more, 

and to those counties of less than 20,000 where the 

Commissioners Court has elected to compensate all 

the county officers on a salary basis.. Section 61, 

Art. XVI, Tex, Const. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

BM:wb 

APPROVED 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Brady Coleman 

Ernest Fortenberrv 

Bill Morse, Jr. 

Assistant 

J. C. Bracewell - 

Paul Phy 

APPROVED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

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