                             NE




                           ltbo The right or the Count;l
                                Judge to a oommlasloa on
                                lrtual olsh reorlpts of I
                                &uarUm when ha requlrd
                                u **p o rort* looountlmg
                                es lrk reooipts duriy
                                tro.(uaralaA8blp.
DOas aim
          ZWomo    ir m&e     tQ your reornt rrque8t whloh
rbAaA iA pwt wa f*llbwat
          *Tko @m8tlon h88 lrlsor wkothar or not
     t&o county Ju@o 18 wtithd to $ or l$ oom-
                A tly lotugl a88k rrorlpt8 0r the
              c tkb S6llbwUtg raat sitmtloa:
          *Cvb tbn
                 q     oar8 lg q th euarilianwa s
     lppbl0tbd wbr io 8ln0r Oh11fran by the
                      3
    0ouAty cburt~0r myat. C@uJltp,Toxao, and
     thb guardian 4uly qwririd at amil tlm
    .aWillb4    L&o' lwutory a&d a,#pr8iromrat,
    rklol~ma 8ppr**d atead& t$mb.       :Sinro
     that tlm ao'uurul geohmtly2       ar any-
     thing whatooivbr waa'~4om in 8816 guardlaa-
     8kl)'kiatlltko guardira on Pooubrr    0, 1946,
     rim   l   briei report 8Wuli1~ thot~ klr   ward8
    hd abw roe&h& tkolr rifoMtf, fikatko had
    lolioeril a21 pro lrtlr8 to tkrm to whloh
    tnw  wore WtlJ     to UC ruaakd    to sala
    riw   report a rrlrare rrhm uid w&r    (Lull
    lokwml*d*rd bf thei ia wkioi~they too 8t8to
    tkat thy &vb rwbbd tP*Lr ,Wjority *ad
     &av* m&a 5 sr)loh      oattlanbnt   witk their
     oafa gtrrwa,      arl 8p0bfr20aip release
     hia horr all furthor ll*billty    bp vlrtuo
     ti Wu 4*r4$ana&lpe        I8 thl8 ihal   report
     bt t&o &a,' lu ~~thiu rhataorvor 18 sham
     a* to wh$ ?a a rot&      oar& reorip%8 oi suoh
Han, J.     P. Hart,    Page 2    (V-786)



        guardian were during such guardianship,
        I am herewith       enclosing   a copy of such
        final    report   of said guardian,      to which
        was attaohed      the release    of the former
        wards 0 The Court acted on this final              re-
        port and release        of the wards thereto       at-
        tached,     and closed     the guardianship,      and
        fully    discharged     the guardian,     All   Court
        costs    incident    to this closing     of the guard-
        ianship     have been paid by the guardian with
        the exception       that the question     has arisen
        as to whether or not the County Judge fs
        entitled     to 1 of 1% of the actual         cash re-
        ceipts     of such guardian during such guard-
        ianship D Even though such final            report     of
        the guardian does not show it,           the guard-
        ian actually      did have some cash receipts
        during said’ guardianship,”

               The pertinent     portion       of    Article   ~3926, V,   C.
S “,   is   as follows:

              “The county judge        shall        also   reaeive
        the following   fees:,

              “1.     A commission     of one-half    of one
        per oent upon the actual          cash receipts    of
        each executor,      administrator     ore guardian,
        upon the approval        of the exhibits     and the
        final   settlement’of       the account    of such
        executbr,     administrator      or guardian,    but
        no more than one such aommission            shall be
        charged on any amount received           by any such
        executor,     administrator      or guardian,”

             The case of Grice L Cooley,        179 S, W, 1098,
1s authority     for the proposition    that the word “ex-
hibit”    as used in the above article      includes  annual
accounts.     It is also stated     in the above cited case
that:

              “0 0 0 By article     4186, R. S. 1911,
        guardians’ are required     to present an annual
        account   under oath showing,     among other
        things s ga aomplets aoeount 0r receipt8
        and disbursements     since the last annual
        aooount 0 s Upon presentation      of suoh annu-
        al account,    it is by subsequent    provisions
        or the statutes     made the duty of the then
Hon.    J.   P. Hart,    Page 3      (V-786)


       presiding   county judge to conduct a hear-
       ing thereon,    and, if he is autiafied        that
       the account    ie correct,   it is his duty to
       approv s oame.    Waving made it the duty of
       the county judge to approve such accounts,
       and having allowed a ree or one-half           or 1
       par oent upon the ‘actual        cash receipts’
       shown thereby,    it surely    follows,    it seems
       to us, that the oommissions         are payable
       upon such approval,      for the reason that
       they were aloarly     intended    for the benerlt
       OS the offleer    perfoning      the duty,    e D O n

               In h.    0, Opinion    Wo, 2692,   dated   May 19,   1927,
the    $UOOtiOB   was     asked:
              ”      where a Guardian oclleate     money
       rrom 162    io Deaember 31, 1926, during the
       Ex-County Judge’s    administration,    and makes
       no report   to the County Judge until the pre-
       sent County Judge took office,       January 1,
       1927, which one or the two judges is en-
       titled   to the one-half   of one per cent?

              “Is the former Judge who looked     after
       all the approval     of orders  cohvering  deal8
       during the collection      or i8 the Judge in
       office    who has approved the exhibit8    en-
       titled    to the one-half   of one per cent,
       Ho report was made during 1924, 1925,
       1926 as required     by law, and none made
       until   the present   County Judge took office
       and required    ft.”

             It wao held that the County Judge who required
the annual asoounto     to be filed  end then approved them
was entitled    to the fee.   In this opinion  it la further
stated  that:

              vWe are aon8blous      that the effect     or
        thi8  holding   is’ to deprive the %x-County
       Judge of compensation       for a certain    amount
       of labor perfonasd       by him, but wo are less
       troubled    by this when we take into oonslder-
       atlon the faot that had ho enforced           the
       provirlon8     of Chapter 9, Title     69 of the
       Bevisod Civil     Statutes,    he would have re-
       oeived    this compensation.      We realize     also
Eon.   J.   P. Harf , Page 4     (V-786)



       that the erreat   ,of this holding    1s to grant
       to the present County Judge oompensatlon
       for a certain   amount of l.abor which he did
       not perform,  but we ar8 less concerned      with
       this because’ it appears that the present
       offlola   did oompel the guardian      to oomply
       with Chapter 9 aforesaid,     and file   the re-
       ports thereby required.”

           There we8 no annual account      riled  as required
by law nor were any’ caeh ‘reiieipts shown in the final
acoount.   Zn view of the forego1       it la our opinion
that the County Judge 18 not enti Y led to the one-halr
of. one per oent doiumi88~lon under Article     3926.



            ,Where no annual dcaount’wa8   filed,   and no
aash reoelpt8    were ehown in the Sinai settlement      of a
guerdlenahip,    the County Judge 18 not entitled      to the
one-half   or one per oent commlesion    under Article     3926,
v. c. 5.; Grlae v, Cooley,,l79     9. W. 1098; A. G. Opln-
ion Wo. 2692.

                                   Youra    very   truly,

                               ATTOBWR GENBRALGF TEXAS




                                    ADOiOtant




                           APPROVED




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