Hon. Harrell Moore AUSTIN. XB

February 

### 159 1963

Opinion NO. c-18 CountyAttorney 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~forin 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@ commissionprovidedfor in Section 1 of Article 3926 of Vernon’s Civil Statutes.

Section 1 of Article 3926 of Vernon’s Civil Statutes providesas follows:

“The county judge shall also receive the following fees:

“1* A commissionof one-half of one per cent upon the actual cash receipts of each executorsadministratoror guardian,upon the approval of the exhibits and the final settlement of the account of such executor,administrator,orguardian,but no more than one such commissionshall 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, togetherwith 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 ‘partyliable therefor, and the date on which any such costs or fees are paid,”

Since Midland County has a populationof 67,717 inhabitants according to the last precedingFederal Census, the

-15-Hon. Harrell Moore, page 2 (c-18)

provisionsof Section 61 of ArticleXVI of the Texas Constitution, and Section 1 of Article 3912e of Vernon's Civil Statutes, make it mandatory that all the county officialsin that county be compensatedon a salary basis. In this connection, we invite your attention to the pertinentpart of Section 61 of Article XVI of the Texas Constitution, which providesas follows: :, ~
"All district officersin the State of Texas and all county officers in countieshaving a population of twenty thousand (20,000)or more, according to the then last precedingFederal Census, shall be compensatedon a salary basis.

. o

. and in counties'having a populationof less than twenty thousand (20,000), according to the then last preceding Federal Census, the Commissioners Courts shall also have the authorityto determinewhether county officers shall be compensatedon a fee basis
or on a salary basis,with the exception that it shall be mandatoryupon the Commissioners Courts to compensateall sheriffs,deputy sheriffs, county law enforcementofficers including sheriffswho also perform the duties of assessorand 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 incurredby the State, county, and any municipality,or in case where a pauper's oath is filed, shall be paid into the county treasury when collectedand provided that where any officer is compensated

wholly on a fee basis such fees may be retainedby 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 commissionsfor any serviceperformed by him; nor shall the State or any county pay to any county officer in any county containinga populationof twenty thousand (20,000)inhabitants
or more according to the last precedingFederal Census any fee or commissionfor any serviceby him performedas such officer; D + e provided further, that the provisionsof this Section shall not affect
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the payment of costs in civil cases or eminent domain proceedings by the State but all such costs so paid shall be accountedfor by the officers collectingthe same, as they are required under the provisionsof this Act, to account for fees, commissions

and costs collectedfrom private parties;providedfurther, that the provisions of this Section shall not affect the payment of fees and commissions by the State or County for services renderedby County Officersin connection with the acquisitionof rights of way for public roads or highways,and provided that such fees and commissionsshall be deposited into the Officers' Salary Fund of the Countyby the County Officer collectingsuch fee."

Article 3926 of Vernon's Civil Statutesprovides that the County Judge shall receive a commissionof one-halfof one per cent upon the actual cash receipts of each executor administrator or guardian. Attorney General'sOpinionwW-1036 (1961),, Since Section 61 of Article XVI of the Texas Constitution, and Section 1 of Article 3912e of Vernon's Civil Statutesmake it mandatory that the County Judge of Midland County be compensated
on a salary basis, it is mandatory that the County Judge collect the commissionprovided for in Article 3926 but, at the same time, Section 61 of ArticleXVI, 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 Article3912e prohibitsthe County Judge of Midland County from collectingfees or commissionsfrom 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 collecta comrdission of one-half of one per cent upon the actual cash receipts of each executor administrator or guardianbut, 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 Treasurerto be depositedin the Officers' Salary Fund.

Under your specificfact situation the County Clerk of Midland Countywill continue to record the commissionupon the actual cash receiptsallowed under Section 1 of Article 3926 of Vernon's Civil Statutes,and after the fees are collectedby 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 inhabitantsor more be compensatedon a salary basis, the principlesof law announced in this opinion are applicable to all counties in the State of Texas having a populationof 20,000 inhabitantsor more, and also applicableto all counties of under 20,000 inhabitants where the CommissionersCourtshave elected to compensateall the county officialson a salary basis pursuant to the provisionsof Section 61 of ArticleXVI of the Texas Constitution.

SUMMARY

The County Judge of Midland County is entitled to receive a commission of one-halfof one per cent upon the actual cash receipts of each executor,administratoror 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 commissionsare collectedthey should be paid into the County Treasuryand deposited into the Officers' Salary Fund.

The principlesof law announced in this opinion
are applicable to all counties in the State of Texas having a populationof 20,000 inhabitantsor more, and to those counties of less than 20,000where the Commissioners

Court has elected to compensateall 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 OPINIONCOMMITTEE 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 -78-