                THE    ATI-ORNEY    GENERAL
i ;h’                     OF  TEXAS
                               AUSTIN.   TEXAS




                                     June 15, 1948

        Hon. J. H. Kldd, Jr.               Opinion No. V-602
        County Attorney
        Kleberg County                     Re: Maximum compensation
        Klngsville, Texas                      of County Treasurer
                                               of Kleberg County.
        Dear Sir:
                 Your request for our opinion on the above sub-
        ject matter Is, In part, aa follows:
                  "A question has arisen ln this coun-
             ty concerningthe maximum amount of com-
             missions which may be retained by the Coun-
             ty Treasureras compensationfor his ser-
             vices.
                  'The County Treasurer Is compensated
             by commlsslonsonly. The rate Is estab-
             lished by order of the Commlssloners'
             Court at $0.0075 per $1.00 paid in or
             paid out by thetieasurer,all transfers
             excepted. The treasurer handles only
             the usual county general funds.
                  'The present treasurer assumed the
             duties of the office May 1, 1946 upon the
             resignation of his predecessor,and was
             duly appointedby order of the Commls-
             sioners' CoUpt on May 3, 1946. The fol-
             lowing informationIs taken from his an-
             nual reports for the calendar years 1946
             and 1947:
             "Total commissionscollected $3,824.87
                 Premium on.Surety
                 bond (less
             Maximum COnmlE
                  under Art. 3943
             Excess due county
Hon. J. H. Kldd, Jr., page 2   (V-602)


     Total comissions    collected $5,278.32
          Premium on Surety
          bona (less)
                    &#J Ret       3$53%
              commissionsallowed
     M~X~IIIUIS
          under Art. 3943           3.750.00
     Excess due county            $i3wF
          (the $1,403.32vas refunded
           in January, 1948)
          "The County Treasurer Is of the
     opinion that he IS permitted a maxl-
     mum of $3,750.00  commi33lonsfor com-
     pensation. It Is our opinion that the
     maximum compensationhe may be allowed
     IS $2,000 annually and that he is wrong-
     fully withholding  $1,750.00 collected
     during the year 1947, and $2,366.54 col-
     lected during the year 1946 . e e
          "We would appreciateyour office
     advising us whether or not the Maxi-
     mum commissionsallowed the County
     Treasurer of Kleberg County Is $2,000
     or $3,750.annually,and whether or not
     the treasurerIs entitled to the full
     maximum amount for the year 1946."
          You have Informed this office In ansver to our
request for aaaltlonalInformationthat Kleberg County
does not have any navigation or drainage districtsand,
therefore, the County Treasurerdoes not receive any
compensationunder Artkles 8148 and 8221, V. C. 9.
          Kleberg County has a population aocoralng to
the 1940 Federal Census of 13,334 Inhabitants. Its tax
valuations according to the 1 45, 1946 and 1947 tax
rolLa are as follows: 1945 - s                 - 813,-
486,690; 1947 - $15,gl7.690. 10'5g3'030'1g46
          Its county officialshave been compensatedfor
the yeam1946, 1947 and 1948 on a "fee" basis. There-
fore, the compensationof the county treasurerfor the
years 1946, 1947 and 1948 has been governed by the pro-
visions of Article 3943, V. C. 9. we quote that portion
of Article 3943 applicableto Kleberg County:
          "(a) The commlssionaallowed to
Hon. J. H. Kiaa,   Jr., page 3   (V-602)


     any county treasurer shall not exceed
     Two Thousand Dollars ($2,000)annual-
     ly; . . .
         '(b) The CommissionersCourt Is
     hereby authorized,vhen ln their judg-
     ment the financial conditionof the coun-
     ty and the needs of the county treasurer
     justify the Increase, to enter an order
     Increasing the compensationof the coun-
     ty treasurer In an additionalamount not
     to exceed twenty-fiveper cent (25%) of
     the sum allowed under the lau for the
     fiscal year of 1944, provided the total
     compensationauthorizedunder the law for
     the fiscal year 1944 did not exceed the
     sum of Three Thousand, Six Hundred Dol-
     lars ($3,600)."
           Subalvl8lon (b) above quoted was enacted by
H. B; 258, Act8 of the 50th Legislature 1947, p. 52,
and became effective September 5, 1947 t90 day8 after
date of adjournment of the 50th Legislature].Attor-
ney General's Opinions Nos. V-231 and V-277.
therefore, only that portion of 8ubaivlslon (a
icle 3943 above quoted was applicable to Klebe
ty and It Is our opinion that the maximum compensation
of the county treasurer of Kleberg County for 1946 was
82,000.   See Attorney General'8 Opinion Ko. V-13, a copy
of which Is enclosed.
          In construing subdivision(b) of Article 3943
above quoted, this office held In Opinion No. V-231:
           'In construing S. B. 123, Acts of
      the 49th Legislature, (an act vhlch con-
      tains practically the Identicalprovl-
      slon8 of H. B. 258, Acts of the 50th Leg-
      islature, but applicable to different of-
      ficials) this Departmenthas conslstent-
      ly held that where S. B. 123 Is applicable,
      the Commissioners1Court Is authorized
      when In their judgmentthe financial con-
      dition of the county and the needs of the
      officers justify the increase, to enter
      an order raising the maximum compensation
      allowed by law to an amount not exceeding
      tventy-five (25%) per cent of the sum al-
Hon. J. H. Klaa, Jr., page 4   (V-602)


     loved for the fiscal year 1944.
         "Therefore,it Is the opinion df this
    Department that upon the effective date of
    Ii.B. 258, Acts of the 50th Legislature,
    (90 days after adjournment)the Commlsslon-
    ersI Court of Hutchinson County will be
    authorized to Increase the compensationof
    the County Treasurer of said County In an
    additional amount not to exceed tventy-
    five (25%) per cent of the maximum sum E&-
    :rd unaep the law for the fiscal yeap
      44; provided the total compensationauth-
    orized under the law fop the fiscal year
    1944 did not exceed $3600.00. In other
    words, It allovs the CommlsslonersQCourt
    to raise by tventy-five (25%) per cent the
    maximum amount of lawful commissionsthe
    county treasurer may retain. Any Increase
    In compensationfor the year 1947, hovever,
    must be in the same proportion as the bal-
    ance of theyea* relates to the total an-
    naul increase that may be made under II.B.
    258."
          Applying the principles announced In Oplnlon
No. V-231, the CommisslonersqCoUpt of Kleberg County
had the authority on September 5, 1947, to grant the
county treasurer an aaaitlonal increase In compensa-
tion not to exceed 25% of $2,000. Such increase,  how-
ever, must have been In the same proportionas the bal-
ance of the year relates to the total annual increase
that may be made under subdivision(b) of Article 3943.
(117/365thsof $500.00). Therefore, the maximum com-
pensation of the county treasurer for the year 194
was between $2,000.00 and $2,160.27, ($2,000 plus 160.-
27 - 117/365ths of $500) depending upon the order, if
any, passed by the Commissioners'Court under the pro-
visions of subdivision (b) of Article 3943, V, C, S.
         We quote the following from Harris County v.
Charlton, 243 S, W. 460, 464:
          "Plaintiffin error,  Harris county,
     insists that both the county and school
     funds should pay a part of the treasuPeP$s
     salary In commissions,and that therefore
     it IS entitled to recover and receive as
     its own these commissionswrongfully col-
                          ,:,   I




Hon. J. H. Kldd, Jr., page 5        (v-602)


     lected from the school fund.
         "The commlsslonsaccrued to the bene-
    fit of the county treasureras he handled
    the various funds Intrusted to his care.
    Under article 928 R, S. 1895, he was re-
    quired to make reports to the county com-
    mlsslonersl court at each regular term
    thereof, but he was handling both the
    funds of the county and of the available
    school fund from his induction into office,
    and he'was entitled to commissionsupon
    the funds so handled as they were receiv-
    ed and disbursed by him.
          %hen his limit of $2.000 was reach-
     ed In collecting and disbursing these
     funds, in whatever month, then his right
     to collect and retain further commission
     from either fund ceased."
          It was held in the case of Davenport v.
Eastland County, 94 Tex. 277, 60 S.W. 243, that the
amount of compensationof the County Treasurer where
he has served for a period short of one year Is to be
arrived at not by the amount of commissionsaccruing
during that period, but by apportionmentIn accordance
with the time of service.
          Referring to the Davenport Case, the Commls-
slon of Appeals stated in the case of Tom Green County
v. Harper, 118 S,W.(2d) 306:
          'To that question this Court made
     answer that Davenport was entitled to
     retain only that portion of the sum of
     $2,000 which the time he served after
     the expiration of his term bears to the
     vhole year. The constructionof the
     statutes there given and the reasoning
     there employed, when applied to the facts
     of the instant case, lead certainly to
     but one conclusion,and that is that
     Harper's estate was entitled to retain
     only that ortion of the annual compen-
     sation of 82,000 which he earned, and
     that such amount bears the same ratio to
     $2,009 that the timeserved bears to one
     yeare
Hon. J. H. Kldd, page 6   (V-602)


          Under the facts submitted and In view of the
foregoing authorities, the county treasurer of Kleberg
County was entitled to retain only 242/365ths of $2000
(by3 - December 31) or $1326.03 for the year 1946.
Since the County Treasurer served the entire year of
1947, he would be entitled to retain from $2,000 to
$2,160.27 depending upon the order, If any, passed by
the Commissioners' Court subsequent to the enactment
of H. B. 258, Acts of the 50th Legislature, authorlz-
lng the county treasurer to retain an additional amount
not to exceed twenty-five per cent of $2,000.
          Therefore, it is our opinion that Kleberg Coun-
ty Is entitled to recover from the county treasurer all
sums retained b him which were In excess of the maximum
for the yea-19 1 6 and 1947 as above set out.
                      SUMMARY
          The maximum compensation of the coun-
     ty treasurer of Kleberg County for 1946 was
     $2,000. Where the county treasurer was ap-
     pointed on Ma 3, 1946, he was entitled to
     retain only 292/363ths of $2,000 ($1326.03)
     during the year 1946.
          Subalvielon (b) of Article 3943, v. C.
     S. (effective September 5, 1947) authorized
     the Commlsslonersv Court to allow the county
     treasurer to retain an additional amount not
     to exceed twenty-five per cent of $2,000.
     Such increase must be, however, In the same
     proportion as the balance of the year relates
     to the total annual Increase ($160.27). The
     maximum compensation of the county treasurer
     of Kleberg County for 1947 was from $2,000 to
     $2160.27 depending on the order, if any, pass-
     ed by the Commissioners' Court.
          Kleberg County is entitled to recover
     all commissions of the county treasurer re-
     tained by him In excess of the above men-
     tioned maximums.
                                  Yours very truly,
APPROVED                      ATTORNEY GENERAL OF TEKAS
