?.’   .,   *     ,,   ,.;.,.                         .     ‘.   .,        ‘,          i
                                                                     ,’        .”




                               TEEA~TORNEY                                     GENE
                                               OF        TEXAS




                                                         May 19, .195q’:,‘::i

           .~ Hoderhbls Robert 9, Cdlvert
              Comptroller of public Accounts ‘I ,‘,   .’ ’
              Capitol St&ion                    3
              Austin, Texas
                                              Cpln’lon NON..W-628
                                                                Re:             Payment ‘of fees or
                                                                                commiaWmi3 earned
                                                                                ln ,olvll’ proceedings
                                                                                In which the State
               Dear Mr. Calvert:”               :.                              Is a party.
                          Your request   for    an. .oplnlon               reads as follows:
                                 “Under the provlslons     of’ Article
                         39120 R.C.S.,~9e0tioh:li.      Section 3,
                         Section 5 and Sectlonl9,         Subsection
                         (j) ls’it     legal ‘for thiadepartment       to
                         issue a warrant to a county or district
                         officer    for fees or commlsslons earned
                         by thea~ln’clv~l      proceedings    in which
                         the State .I6 a Party to the ault?           Or,
                         should all fee? tifid’~commlsslons be paid
                         only to the clerk ‘6n a.aost bll’l for all
                         such fees: and commissions earned, by the
                         officers     In’ the case?   In the event you
                         rule that~‘only the cost .blll should be
                         paid, ,should. the warranVbe made payable
                         jointly    to.the ,clerk and the county
                         treasurer?
                               :.‘!In.‘the: event you ruJb< ‘that,. the ‘fees
                         in aiyll +aaes *here. t@e: .State -is :a party
                      ’ to the’ suit .bhould. be ,pald directly, to the
                         offlders~~who earned. them, would, it. beg nec-
                         eesa’ey .for +hls departmint,, to~determine                                     \
                         that the off,lcer has been conmii~sloned~under                              ’
                        ,the pro.vlsldns ,of htlcie       3882'R~,C.S. 1 Undei-
                         the bamti,,aondltl,ons would ,it be necessary
                         ?a the. ofiioer: to, make: the ‘loya&ty .oath pro-
                       ‘VI 1; ed :?or
                                    *’ by Art,lole’ 6,232-r R. 12;s.  and;  file
                                                                                                              .;,   ,,   ,:   ,(   ,,          ,_        “,
                                                             .   . .   i;;‘.;.,:   . . ~~, “-,.,’   ;:   ~.                                                                i
                                                                                                              .’                                    .,



                                                                       .-




                                       Honoralbe     Robert S. Calvert,                    page 2 (~~-628)


                                                     with thle department before he could
                                                     paid his fees.by this department?
                                                         “Is It necessary for the loyalty
                                                                                  *--- -
                                                  oath, provided f,or by ArtiOle 6252-i’
                                                  R.C.S., be made by an officer   In a fee
                                                  oounty and filed with this department
                                                  before he oould be paid by this d&part-                                                                         ’
                                                  ment for any fee .earned by him In a fel+Xy,
                                                  case?’
                                                  Section 61 of Article                    XVI, Constitution                                 of Texas*,
                                       provides     ln,part as follows:
                                                      “All fees earned by district,    county
                                               and prealnct offloers     shall be paid Into.
                                               the county treasury where earned for the
                                               account of the proper fund, provided that
                                              ‘fees lncurrsd by the State, county and any
       .,                      :
     ..,,
                      :
                                               munlalpality,    or in case where a pauper’s~
:.
                                            * oath Is filed,      shall be paid Into the’county                                                     .
                                               treasury when colledted     and provided that
                                               where any officer     Is compensated wholly on
                                               a fee basis such fees may be retained by
    .Y                    .;


                                               such.offlcer    orepaid Into the ~treasury of
                                               the oounty as the Commissioners      Couct may
                  :                            dfrect. i. . .‘I.                           I, .                                                               I
..‘,                                   This section not only requ$ires that certain county,offl+qs
.                ‘.                    be compensated on a, salary basisi ,but. requires that all feee
                                       earned by such oFf.lcer be paid Into the county treaeury for
                                                                           Wichita County v. Robi-neon,
                           .’
                                       the acoount of the proper fund.
                                       155 Tax. 1, 276 S;W.2d’,509 (1955).
        ‘.

                                                Sect.lons l’,&d~ '3 of Artke  3912e’, Vernon’s cl&l
                                       StCltutes, as ametided.bp Chapter 23, Acts 56th ,Legle’J,&ture,
                                       Regular Sesslon,~.l959,    effective  Mar+ 1~0, ~1959, provide as
                                       follows:
             :
                                                        “Sectlon~ 1. No d&rlat     offfce&&hkll
                                                  be paid by the State of Texas an$<fees or         ,’
                                                  commlsslons for any service performed by,
        :.                         :
                                                  him; nor shall the State or any county pay        ‘,                                                                iI
                                                  to any oouqty officer   in any county contain-
                                                  lng a ,.populatlon of twenty .thousand (29,000) .~’
.L..                           1.


             ..                                   inhabitants   or more adcordlng .to the last         ”
I~                        ~;,::                   preceding Federal Census ‘any fee’ or, cqtilr-,
                               ..                 slon for-‘any service by him ‘performed ,+s. euoh


    :
        .,,                                                                                                                             ..

.                                                                                                             ‘.,
                .




              Honorable   Robert S. Calvert,    page 3 (w-628     1

 ;    :              offloer;   provided, however,      that the
                     assessor and collector      of taxes shall
                     continue to c’ol~leat and retain for the
                     benefit   of the Offlc+rs’ ,Salary Fund. or
                     Funds hereinafter     pr6vlded .ior~, all feds        ‘,
                     and counniorlons which he Is authdrizad          )’
                     under law to collebt;“and      it shall be hle
                     duty ,to account. for and to.pay .a11 such,.
                     moneys received by him into the fund.or
                     funds created and provided for uhder,the
                     provlslonn   of this Aat; provided .?e%her,
                     that the provisions     of this Seatlon shall
                     not affect the payment of ooets..ln 01~11
                     cases or eminent domain proceedings        by,
                     the State, bu% all such costmao        paid
                     shall be aocountbd for by the officers          ooi--
                     lectlng   the seme, as they are require&under
                     the provisions    of~this Aat, to account.for
                     fees, commissions and costs collected         from
                     private parties;     provided further,    that ,the
                     provisions   of this Section shall not affect
                     the, payment of .feep and commlsalons by the
                     State or County for services rendered.by
                     County Offlcecs    In connection with the’acqui-
                     rltlon of’ rights ,of way for public roads or
                     highways, and provided that such fees :and’
                     aonu&lsslonr ehall be deposited Into ,.the OffI;
                     cers’ Salary i?und of the County by t:tj.e Cdunty
                     Officer oollectlng     such fee.”
                            “Sea. 3. In all cases where the Commlr-
                     sloners Court shall have.determlned        that ootinty
                     offfcers    or precinot officers    In suoh county
                     shall be compensated for their setiices:by        the
                     payment of an annual salary, neither thd State
                     of Texas nor any county shall be charged:with
                     or pay to any of the officers       so compensated,,
                     any fee or acmnleeion for the performance bf
                     any or all o? the dutiee OS their offloes,but
                     puch,oSfloers    shall receive said salary in lieu
                     of all other fees, commleslons or compensdtion
3,.       :




                     whioh they would otherwise be authorized to re-
                     tain;‘provlded,     however, that the assessor and
                     colleotor    of taxes shall oontlnue to collect
                     and retain for the benefit       of the Officers’
 ,                   Salary Fund or funds hereinafter       provided for     ’
                     all fees and oouunisslons whloh he Is authorized
                     under law to oollect;     and ‘it shal,l be his duty
                                                                                     1




           Honorable    f;obert   S. Calvert,   page 4 (w-628)
 .



                    to account for and to pay all such moneys
                    received by him into the fund created and
                    provided for under the provisions           of this
                    Act; provided further,,       that the provlslonS
                    of this Section shall not affect           the pay-
                    ment of costs In. civil       cases or eminent
                    domain proceedlngs’by       the State but all,
                    costs so paid shall be acoounted for by the
                    officers    collecting    the same, as they are
                    required under the provisions          of this Act
                    to account for fees, commissions and costs
                    collected.from      private parties,     providing
                    further that the provisions          of this Section
:
                    shall not affect       the payment of fees and
.
                    commissions by the State or County for servl-
.
                    ces rendered by County Officers          in oonnectlon
                    with the acquisition       of right8 of way for
8..                 public roads or highways, and provided that
                    such fees and commissions shall be deposited
                    into the Officers’       Salary Fund of the County
                    by the County Officer       collecting     such fee.”
                    The emergency clause        of Chapter 23, Acts of the
:.          56th Legislature,  states:
                           “The fact that under ,exldtlng laws the,
                    County   Officers   are prohibited    from-colleotz’
                    ing fees and commitisiona from the.State          or
                    County for services      rendered,ln    connection      .
                    with the acquisition       of rights of way for                  ‘
                    publlo,roads     and highways, other than 8s~
                     ayment of’cost     In civil   actions and ther
                        t th t the accelerated      highway program
                    h:i plazed an undue burden on the Officers’
                    Salary Fund of the.Counties        due ,to the ln-
!,    ,:
                    creased work required to be performed by the
                   ‘County @ticerr,     for uhlch no tee or oommla-
                    sion Ia oolleoted.creataa       an embrgency,     . . .
                    etc. ” (Bnphasls ours)
                      Prior to the enactment of Chapter 23i,the prohl-           ”
             bltlons   contained In Sections 1 and 3.of Article         3912e
             prohibited    the payment of any fee or commia~slon by thq
             State to.any County offloer      for any service    performed
             by him as ,ruch officer   unless    the fees constituted      (1)
             fees colleoted    by the Assessor-Collector     of, Taxes and,
           .(2)   payment pf oortb’ln   01vU oaeee.      See Attorney
             OeneraP8 dpinlon. ~1-508 holding that. thu,..Comptr#Jer
     .       0.       ‘.               ._
                                                ,




‘.
                           Honorable   Robert S. CalGert,      page, 5 ~-628)


                           of Public Accounta Is not authorized to Issue a warrant
                           In payment of a reoording fee for reoordlng an agrlaul-
                           tural lease on lands purohased by the Veterans Land Board.                  ..

                                   Chapter 23, Aats of the 56tb Leglhlature,       recog-
                           nized that the prohibition       contained In Sections 1 and 3
                           contained only the exceptions mentioned above and beoause
                           the aocelerated    highway program had placed an undue burden
                           on the Offloersl     Salary Fund of the Counties added an
                           addltional   exception    to the prohibition  so as. to permit the
                           State to pay fee8 and commissions for service rendered by
                           county offlcera     In connection with the acquisition     of rights
                           of way for publla roads or highways,
                                     It lr noted that the prohibitions   oontained in Sec-
                           tions 1 and 3 of Article     3912e, Vernon’s Civil Stautes,
                           concerning the payment of fees or commissions by the State
                           do not apply to the payment of costa In clVI1 cases by the
                           State where the feea earned constitute      a part of the coat
                           aseessed    against the State in a particular   case.    There-
                           fore,    such ooat must be paid by the State as provided by
                           law rather than as a fee to the Individual      officer.
                                 Subdivision   (J) of Section 19,         Artlole  3912e, appli-
                         cable to counties having a population            In exoess of 190,000
                      ,. Inhabitants,   provides as follows:
                                            “(3)   Enoh dlstrlct,    county, and preelnct
             :                      officer     rho shall be compensated ,on a salary
                                    banlr ehall continue to oharge for the benefit
                                    of the Offloers~       Salary Fund of his offloe      pro-
                                    vided ?or In this Section,        all fees and oommls-         I
                                    slonr which he Is now or hereafter         may be au-
                                    thorized to charge against and collect.from            the
                                    State of Texas for services performed by him In
                                    clvll    proceedings    and to file claims for the
                                    fees or commlsslons due for such services            in the
                                    manner now or hereafter       provided by law; and It
                                    shall be the duty of said oS?laer to acaount for
                                    and catme to be paid to the adlary fund created
                                    for such officer       all such commlasfons and.fees
                                    when paid by the State In like manner as for
                                    aouts aolleoted      from private parltee;      provided
                                    further, ,that such warrant0 Issued by the State
                                    Comptroller of Publlo Aooounte shall be made
                                    payable jointly      to the ofiloer    in office   at the
                                    d.ati CJ~PameW A& to the’ oouzity treasurer,
                                .   and that upon endorsement thereof such warrants
         .        *
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           ‘..   .



                               Honorable    Robert S. Calvert,           page   6 (ww-62k.)

                                                          .~.
                                         shall be deposited ‘forthwith by, said &&t.y             ..,‘.,
                                         treasurer in tne salary fund created for ,. s.u’fh              ,.
                                         officer;”        :’
                                                                                          .~ : .,
:         ,,         .a.
                           ”             Subdlvls1o.n ($) of, Section. ‘,lg above,’q$oted, ;spe,-.
                               clflcally      provides how’dasts in civil &Ssbs- ‘a.$$‘,tO:,t+
                               paid by the State,.       The Comptroller 38,’spic.lfl~al~~y dl-
                               rected: to ,make warrant,8 ‘pa’yable, to., th’e~,offlcer-:ln. Office
                               at the date of the payment. ,and to the Co@$y ‘T~eaeur+?i~
                               Therefore,      you are, advised tha’t ,ln’ c.ountle.9, .gf ~.IgO.,‘OOC
                               Inhabitants ,or more, .fees or commlsslonsearned              .by offi-
                               cers in. Civil. proceedings      lh~ which’ the Statd;::fs ‘a~ party,,
                               assess’ed as $?osts, shouldbe        paid joln,t$y to, %he’Clerk .,
                               and to the .County Treasu.reti, in,,paymen,t o,f the. opst blXl,
                               unless the fln,a$’ ju’d&nent’directs       otherwlse;~      Iii other
                               countless the’~warrant should. be ,made’payable. to. the Clerk
                               or as directed by the final, judgment.               ,:. ,”
                                        Artlcle..6252-7,   &rnonls: Civil Statutes,        -providing
                               for loyalty oaths, 1s .appllcable       to, the paymen,t:iby the
                               State of Texas .of saiarles. or..‘other c.ompe:nsatlon~:for.‘per-
                               sonal services      rendered the ‘St.ate,“:,.nd,.~ ls, therefore,     not
                               applloable,,to     ?yment. of, costs by. ,the:State.     :, .‘,    ,,
                                                                     S~MY
                                            In counties cont’alnlng ,a po@atlon                   ,‘~ : ,:
                                            In ,excess .‘of ~lgO,OCO inhabitants,:            .,
                                           ~fees ?r’ cpmm$gt3ic?n,s;‘+3~~s,s~d.:,p’cg,St                          ”
                                            against the, State in; a;‘clvll-,p,rqq’eed-                ~’
                                            Ing In whlqh~theSt,at~e ,$a’a party ‘,                         .’ ,..
                                            should’ be ,,pal.d by’.war.rant Issued ‘:’
                                            jointly’. to the; ,Clerk..and County Tress-
                                            urer unl,esa a final (judgmentdirects                     :,
                                            otherwise.     In. other .,‘ciumtles’, such;’                       :
                                           ‘warrant should ~:be made ‘$ayab,.ble.to.’the, ,,
                                            Clerk or, as ~dlrected’by’Yt,h+ final
                                            jw&inenD.                        ;     : i ‘i       ,,,;,”
                                                                                                            :
                                                                  Yqurg pebj: .trul$;:‘i. ~~           ;.~          :
                                                                                          ,~‘..; ;.,I.            . :
                                                                  WILL~~WILSCN    ‘.       ,.;.
                                                                 .Attorney General of ..,Teza,s
                                                            ,’       .       . .           .       .   . . .
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                         Honorable   Robert S. Celvcrt,   page 7 (~-628)

                                                                                                   !
                         APPROVED:                                                             i

                         OPINIONCOMMITl'EE
                         Oeo. P. Blaakburn,    CheirUin          *       .
                         Raymond V. Loftin,    Jr.
                         Cherlea Oebenies
                         C. K. Fliaherds
                         REVIEWEDFOR THE ATTORNEY
                                                OENERAL
                         BY: W. V. Geppert




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