           THEATTORNEY                 GENERAL
                       OF      TEXAS

                      Ausnnr    11, TEXAS




                     November 18, 1960

Honorable S. B. Buchanan, Jr.
County Attorney
Yal Verde County
Del Rio, Texas           Opinion No.   \m-960
                         Re:    Whether a County Clerk who
                                is compensated on the sal-
                                ary basis, is entitled to
                                retain, in addition to his
                                salary, the fees authorized
                                to be collected under Article
                                5280, Vernon's civil Statutes,
                                where the county has no county
Dear Mr. Buchanan:              surveyor.
          You state in your letter requesting an opinion from
this office:
              "Val Verde County is a county of less than
         20,000 inhabitants according to the census of
         1950, and by order of the Commissioners Court
         county officials are compensated on the salary
         basis. The county surveyor who was compensated
         on the fee basis has resigned, and the county
         has no county surveyor. It is contended that
         since the county surveyor is compensated on the
         fee basis, the Clerk is entitled to retain fees
         authorized by Art. 5280, VTCS where the county
         has no county surveyor, in addition to the
         salary fixed by the Commissioners Court."

          Section 1, Article 5280, Vernon's Civil Statutes,
as amended by House Bill 61, Acts 48th Legislature, 1943,
ch. 133, p. 213, reads in part:
                     that in cases where a county has no
         County'S&eyor,   the County Clerk of the county
         shall be the legal custodian of the Surveyor's
         records and Is authorized to make all such certl-
         ficates and certify such copies as a legally
         authorized County Surveyor may make."
Mr. S. B. Buchanan, Page 2 (W-960)


               1,
                     the County Clerk shall be entitled
         to all'fkes for documents recorded by him and
         for all certificates and certified copies issued
         by him under the provisions of this law."
          Section 61, Article XVI of the Texas Constitution as
amended In 1948 provides in part:
               II
                 . . . in counties havin a population
          of I.ess than twenty thousand 20,000), accord-
          ing 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, . . .
              "All fees earned by . . . county . . .
         officers shall be paid into the county treasury
         where earned for the account of the proper fund
         . . . 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. . . .'
          Article 3912e, Vernon's Civil Statutes, as amended
by House Bill 113, Acts 56th Legislature, 1959, ch. 23, p. 35,
reads in part:
               "Sec. 3. In all cases where the Commission-
          ers Court shall have determined that county . . .
          officers in such county shall be compensated for
          their services by the payment of an annual salary,
          neither the State of Texas nor any county shall be
          charged with or pay to any of the officers so com-
          pensated, any fee or commission for the performance
          of any or all of the duties of their offices but
          such officers shall receive said salary in lieu of
          all other fees, commissions or compensation which
          they would otherwise be authorized to retain; . . .'
          The appropriate sections of Article 38831, Vernon's
Civil Statutes, read as follows:
               "Section 1. In each county In the State of
          Texas having a population of less than twenty
          thousand (20,000) inhabitants according to the
          last preceding Federal Census where all county
Mr. S. B. Buchanan, Page 3 (w-960)


          and district officials are compensated on a
          salary basis, the Commissioners Courts shall
          fix the salaries of the officials named in
          this Act at not more than Six Thousand, Seven
          Hundred and Fifty Dollars ($6,750) per annum;
          provided, however, that no salary shall be set
          at a figure lower than that actually paid on
          the effective date of this Act.
               11
                . . .
               "sec. 6. The provisions of Sections 1,
          . . . of this Act shall be applicable to . . .
          county clerks . . .
               "Sec. 14. All of the fees and commis-
          tions earned and collected by the officials
          named in th5.sAct shall be paid into the County
          Treasury in accordance with the provisions of
          Section 61 of Article XVI of the Constitution
          of Texas.
               'Sec. 15. The Commissioners Court shall
          not exercise the authority vested in said
          Court by virtue of this Act, exceptat regular
          meetings of said Court and after ten (10) days
          notice published in a paper of general circula-
          tion in the county to be affected thereby of
          the intended salaries to be raised and the
          amount of such proposed raise." Acts 1955, H.
          B. 427, 54th Leg., ch. 427, p. 1137.
           In State v. Glass, et al, 167 S.W. 2d 296 (C.C.A.,
19&2), it was held that Section bl, Article XVI of the Texas
Constitution "requiring all fees earned by district, county
and precinct officers to be paid into the county treasury in-
dicates an intention that all fees of every character collect-
ed by a county  officer . . . shall become 'fees of the office'
and that the county officer is limited to his salary as com-
pensation and any fees collected by him officially must be
paid into the county depository." This decision was upheld by
the Supreme Court of Texas In Wichita County v. Robinson, 155
Tex. 1, 276 S.W. 2d 509 (1954).
          It is the opinion of this office under the above
constitutional provision, statutes and cases cited that where
a County Clerk in a county under 20,000 is compensated on a
salary basis by the Commissioners Court, and the County has
Mr. s. B. Buchanan, Page 4 (WW-960)


no County Surveyor, the County Clerk is not entitled to re-
tain fees collected under the provisions of Article 5280,
Vernon's Civil Statutes.
          The Commissioners Court could raise the salary of
the County Clerk to an amount not to exceed the maximum as
set out in Section 1, Article 38831, governing counties of
less than 20,000 provided such authority Is exercised in
accordance with the provisions of Section 15, Article 38831.

                         SUMMARY
            Where a County Clerk is compensated on
            a salary basis in a county of less than
            20,000 and where the county has no coun-
            ty surveyor, the County Clerk is not en-
            titled to retain fees in addition to his
            salary but must pay all such fees into
            the county treasury.
            The Commissioners Court may raise the
            salary of the County Clerk in accordance
            with the provisions of Sections 1 and 15,
            Article 38831, Vernon's Civil Statutes.
                                Yours very truly,
                                WILL WILSON
                                Attorney General of Texas




                                    Assistant
MJS:mm
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
W. Ray Scruggs
Linward Shivers
Joe B. McMaster
Leon F. Pesek
REVIEWED FOR THE ATTORNEY GENERAL
BY:   Leonard Passmore
