OFFICE OFTHEA'TTORNEY GENERALOFTEXAS 

AUSTIN 

Etinorable Fred Blundell 

Distrlat Attorney 

fan bfarcos, Texas 

Dear sir; Attentions Hon. Tom G. 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?a quote from satd 

request ee iollovmr 

%on. L. 19. Bopkins, County Clerk of &ye 

County, ha8 raquorted me to ~8eoure from you a 

ruling with reforenos to excess fess of his 

office, ‘whLuh question ie, and arieoe, ae rollower 

“Hayrr County is on the isa basis; the 

county olerk reoeivse an ex 0rriOio compensation, wMc.h is paid to him quarterly, by warrant on the general fund, and also reoeivae 

fees of ofilae. The general fund of Hays 

County has been on a defioit bash for aooeral 

yaare, and in order for the oounty olsrk ati 

other offloere, who reoeive 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 and foes 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 ~3,000.00 
Honorable Fred Blundell, Page 2 

“Article 5a91 provides: 

earned and colle~cted- - - In 

‘All current 

excess OX the 

. . . . . maximum and excesf~ allowed by cnls ~0% - - 

shall be ,~aid into the County Treasurer in 

county where the excess accrued.’ 

fees 

-- 

the 

"Do:?8 this mean that such county clerk 

must pay said BXOBBB fees to the treasurer in 

the form of cash, or may he pay seme in the 

form in which he reoeived the pay from the 

county, namely, the uncashed general fund warrant issued to him, r:nU endorsed by Nm baok 

to the county? 

“01 course, by the time the last quarterly payment is due him by the crounty, he has 

completed the year and then know8 whether or 

not he will have an exoess and how muoh, and, 

as to this last payment he aan reZra1.n from 

taking came from the county, and henoe show 

that muoh less inoome to the offloe, end that 

much lees exoees fee to be paid by him bask 

to the county. No trouble is ‘had with 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 Supreme Court 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 payment upon the claim the 

oounty has a;::ainst Nm for exoeaa fees of 

office? From the standpoint or common eanse, 

reason and natural justice, it occurrs to 

the wrjter that the clerk should be legally 
Honorable Fred Blundell, Page 3 

authorized to pay the county In the same 

medium in ahia:! the county pays him, an&~ 

hence I am inclined 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 

The population 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 

when the compensation and exoess fess whioh 

they are allowed to retain ehall reaah the 

maximum provided for in this ohapter. In 

oases where the compensation and exaess 

leea wbioh the oftioers are allowed to retain shall not reaah the maximum provided 

for in this ohapter, the Commiesioner,rrr* 

Court ehall allow compensation Sor 81: offioio eervloea when, in their jud 

compensaticin is neoeesary IT 

ent, auoh 

prov de&, euoh 

compensation for ex ofiioio serviaee allowed 

shall not increase the oompensation of the 

offioial beyond the maximum of compensation 

and exoess fees allowed to be retained by 

him under 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 members of 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 may be 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, County Attorney, 

Distriot %rk, Tax Colleotor, Tax Assessor, 

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 named in th5.a Chapter shall 

firet out of the current fees of Ns office 

pay or be Paid the amount allowed him under 

the provisions or Article 3883, together with 

the salaries of Ns assistants and deputies, 

and authorizad expenses under hrtlals 3889, 

and the amount nsaeesary to cover costs of 

premium on whatever surety bond may be required 

by law. IX the current fees of such offioe 

collected in any year be more than the amount 

needed to pay the amounts above speoifled, 

same shall be deemed exoess f’eos, and shall 

be disposed of In the manner hereinafter provlded. 

“In counties containing twenty-five thousand 

(26,000) or less inhabitants, Distriot and 

County officers named herein 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;e quote 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 maximum annual corn-penaatlon of 

said clerk. The alerk shall first out of the 

current Sees of his office pay or be paid the 

..,: 
.(,. 

>* s, Honorable Fred Blundell, Page 5 

amount allowed him undar the 2rovlsions 

of Article 3883, together with the salaries 

of hisassistants and deputies, and authorized ex2ansn.e under Article 3299, and the 

amount necessary to cover the cost of premium 

on whatever surety bond day be reqllired hy 

law. If the ourront fees of such office 

collectea in any year be more than the amount, 

needed to pay the amounts above speoified 

the same shall 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.Article 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 amount speaified in 

Article .3883, amounts to $3,000.00 per annum. 

If the compensation allowed undar Article 

: 

3333 and the 8x088s fees allowed under Artlale 3891 do not reach the maximum of $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 him under 

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 

law are made. To illustrate, the county olerk 

oarnot take $1,400.00 as fee8 under Article 

3883 and then add the $l,OOO.OO ex-officio 

compensation to make a 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 he must 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 amount has been 

reached then the alerk is entdtled to one-third 
Bonombla Fred Blundell, Pago 6 

of such emess fees as provi4ed by &?tiola 

3891 and as above stated if this does not 

reach the totalmaxLmun of $3,000.00 per 

annum, the Covuuissionersl Court may in 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 

#3,000.00 per annum.” 

We enolose herewith a copy of said opinion for 

your lnfonaation. 

There oan be ‘no ox~oss fees for the oou5ty clerk 

of Eays Gounty until the amount or $2,400.00 is reaohed and, 

I the deduotione which are allowedd by law are made. And using 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 and then add’s $1,000.&I sx-offioio compensation 

to make a total of i;2,400~00 an&.thrJn eay that all fees 

coming Into the. offioe aro exooss fees and say 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, he must ffr~et reaelve aa fees the amount 

or b2,roo.oo arteq, making the legal arduotiona allowed by 

law and not lnoludying any part of his ex-officio ocmpeni” satfon and artar 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 

$3,000.00 por anhum, the Commleaionerst Court may in It8 

disoretion legally allow an ex-officio oomponsation provided such eom eneation 

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, (Supreme Court of Texas), aited by you, hold8 

that where a county judge, by purehaaing property at a 

aheriffte sale, 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 same effeot as 

if the money was 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 ~a aonveyanou frolc Belts (the 
County Judga)~, but alrote& to raoeirs from 

him the prioe of the land whlah he paid in 

settlement by whioh the oounty got aredit 

On a debt dur to Felts iOr tho sum bid for 

the lend, ~,A oredit on the county*8 debt was 

(I paymant and had the same eifaot as fi. the 

money had been paid by Felta." (Bracket 

insertion ourrr) 

"'; 

. . The colIlmlesi0nsre* court had 

jurisdiction over the finanolal~aifairs of 

I the ooupty and had the 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 had paid the amount of his 

bid to %ll County and the oounty had then 

paid the aama money to Felts, We therefore 

hold that tha settlament batween Bell County 

and Felts was valid and binding upon the 

aouuty. It le not sought in thie aotion to 

sot the settlement aside, nor ia there any 

svidenoe to justify ouch aetlonrW 

You do 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, he would bs mtltled-to retain 

fiT3fX.00 and would 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 he would be aut&oriead to 

return them to 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 he wou i d be entitled to retain ~2,500.00 and would owe the oounty $800.00 

exoess fees. If the county had allowed him, say #200,00 

ex-officio conpensetlon and paid him with general fund 

warrants we think 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 owed the aounty for OXOOE~ teem under the authority or 

Felta, et al v. Bell county, 6tip-8. 

quiry, 

Truatlng that this satlsfaotorily answer8 your inand with bs8t regards, we are