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      Mr. J, C. Gowdy
      County Auditor, Wichita County
      Wichita Falls, Texas
      Dear Sir:                 Opinion No. O-5495
                                Re: County Judge's commission under
                                     Article 3926, Vernon's Annotated
                                     Texas Civil Statutes, and related
                                     questions.
              Your request for an opinion on the above matters has
      been received and carefully considered. We quote from such
      request as follows:
                 "Article 3926, Vernon's Annotated Texas Civil
             Statutes, reads as follows:
                 "'The County Judge shall receive a commission
             of one-half of one per cent upon the actual cash
             receipts of each administrator upon the approval
             of the c-<hibitsand the final settlement of the
             account of such administrator.'
                 "In the case of Lgles vs. Oheim et al, No. 7803,
             Supreme Court of Texas, February 18, 1942, page 102,
             South Western Reporter, 2d Series - No. 159, I quote
             the following: 'The law allows the county judge a
             fee of one-half of one per cent 'upon the actual cash
             receipts' received; and since he must perform the
             duties Imposed upon hLm by law, surely he is entitled
             to such commisslons upon the approval of such accounts.
             The reason of this construction rests upon the ground
             that the. judge performing these duties is entitled to
             be paid therefor, and that he should not be denied his
             fee until the estate is finally settled after a lapse
             of many years.'
                 "From the above it is pointed out that the
             County judge who does the work Is entitled to
             the fee allowed under said article.   We would
             s..;;;ciateyour opinion on the following ques-

                 "Is the County Judge entitled to the above
Mr. J. C. Gowdy, page 2         o-5495


    commission on money received as a disabled war
    veteran, money paid by insurance company to
    guardian etc., or are all receipts subject to
    the one-half of one per cent commission to the
    county judge. In the event there are some items
    of receipts not subject to the commission please
    enumerate them?

        "Is the county judge, under the above sta-
    tute, entltled to a commission on money received
    by a guardian from an Insurance Company in settle-
    ment of a claim, for his ward, it being necessary
    before the ward receives the money, that a guard-
    ian be appointed for the purpose of receiving said
    money?
        "Which County official should calculate the com-
    missions due the County Judge and who is charged
    with the responsibility of entering same on the
    Probate Docket and collecting same?
        "In the event there are some items of fees of
    the above nature due the County Judge that have
    not been charged or entered on the probate docket
    whose duty is it to make such calculation and en-
    ter same on docket, and make the collection? In
    case this is not done who, under S. B. No. 5, Sec-
    tion 5, Forty-Fourth Legislature, Second called
    Session, is responsible for failure to collect
    such amounts and should be subjected to having
    them deducted from the salary of such officer."
        Article 3926, Section 1, Vernon's Annotated Texas Civil
Statutes, is as follows:
        "The county judge shall also receive the follow
    ing fees:
        "1 . A commission of one-half of one per cent
    upon the actual cash recefpts of each executor,
    administrator or guardian, upon the approval of
    the exhibits and the final settlement of the ac-
    count of such executor, administrator or guardian,
    but no more than one such commission shall be charged
    on any amount received by any such executor, adminis-
    trator or guardian. * * *'
        In the case of Willls et al. v. Harvey 26 S.W. (2d)
288, writ refused, a question was raised as to'the meaning of
the term "actual cash receipts," as used in the above statute,
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    Mr. J. C, Gowdy, page 3        o-5495


    and the Court held that said term should be held to specifl-
    tally describe money received by the executor other than the
    cash or corpus of the estate which was on hand when the testa-
    tar died.
            In the case of Goodwin v, Downs, 280 S.W, 512, the
    Commission of Appeals held that the county judge was entitled
    to a commlsslon-upon money received by a personal representa-
    ttve in the fulfillment of a road construction contract of the
    deceased, even though most of the money was disbursed by the
    representative. We quote from said opinion as follows:
            "The county judge has only one way to receive
        any compensation for his supervision of an adminis-
        tration, His responslbiltiy is great. He must study
        the reports and approve the accounts, including re-
        ceipts and disbursements. The Legislature fixed this
        definite method of computing his fees. It will not
        be assumed that the Legislature intended to do an un-
        reasonable or absurd thing. But we see no reason to
        amend or limft this article upon either of such hypo-
        thesis. There is nothing in the history of this act
        (The court is speaking of Article 3850, Revised Civfl
        Sta,tutes,1911, which is now Article 3926, Vernon's
        Annota,tedCivil Statutes) which shows that the Legis-
        lature had any exception in mind. * * * *
            "* * * We see no reason for not allowing the
        county judge what the statute in clear and unmistak-
        able language gives him, We do not believe it is in
        any wise unreasonable."
            See also Von Koenneritz v. Ziller, 245 S-W. 423; Grice
    v, Cooley 179 S.W. 10980 Lyles v. Oheim et al., 142 S.W,'m-
    959; 159 i,W. (2d) 102; &i Tex. Jur.. Section 20, ppO 259-260.
            The case of LylmI,                 142 S.W. (2d) 959,
    159 S. W. (2d) 102, involved a questfon of which county judge
    was entitled to certain commissions, and no questfon was raised
    as to the meaning of the term "actual cash receipts," but the
    commissions involved were paid on the cash received from the
    sale of ranch lands which were the property of the testator at
    the time of his death, The Supreme Court, 159 S.W. (2d) 102,
    held that the Legislature intended that said commission should
    be allowed to the county judge who ordered the sale of the
    property and who approved the exhibits relating to the sale,
    thereby inferentially holding that the receipts from the sale
    of property owned by a testator at the time of his death are
         "actual cash receipts" as It was intended the county judge
    E%,"ld be paid commissions on under Section 1 of Article 3926.
Mr. J. C. Gowdy, page 4        o-5495


        It is our opinion, therefore, that a county judge is
entitled to a commission of one-half of one per cent on money
received by a disabled war veteran where such veteran has a
guardian and said money is paid through the Probate Court, as
there is no llmltation 1n the War Risk Insurance Act upon ,the
fees or commissions of the county judge in the administreLlon
of the proceeds of a government War Risk Insurance Policy.
However, where the amount received is not more than $40 per
month, the Court may order that no such commission be paid~~
under authority of Article 4123a-1 of V,A.T.C.S., which reads.‘
as follows:
       "Whenever a guardian is appointed for the pur-
   pose of enabling a person to receive not more than
   Forty ($40.00) Dollars a month from the State and/or
   Federal Government, the Court may, in its discretion,
   order that no costs or fees shall be charged in con-
   nection with the proceeding."
        Such commissions are also payable upon money paid by
an insurance company to a guardian for his ward, as well as
upon all actual cash receipts received by an executor, admin-'
istrator or guardian in handling estates, except cash on hand
at the time of the death of the testator or other decedent.
Such commissions are due and payable upon the approval of the
accounts or exhibits thereof as appears from the following:
        Article 3926, Section 1, provides that the county
judge shall receive such commissions "upon approval of exhi-
bits and the final settlement of the account of such executor,
administrator or guardian," and the Dallas Court of Civil Ap-
peals in the case of Grace v. Coolev, County Judge, et al.,
179 S,W. 1098, construes such provision as follows:
        "When are the commissions provided for by Arti-
    cle 3850 (now Art. 3926) payable? It is the con-
    tention of appellant that they are not payable until
    the guardian's final account is approved. Appellees
    contend that they are payable upon all cash receipts
    shown by any annual account of the guardlan, when
    such account is approved by the Judge to whom it is
    presented. Omitting formalities, the article provides
    that the county judge, in addition to other specified
    fees, shall 'be allowed * * * a commLssion of one-half
    of 1 per cent, upon the actual cash receipts of each
    + + * guardian, upon the approval of the exhibits and
    the final settlement of the account of such * * * * *
    guardian,' provided only one such charge shall be
    made. Proceeding on the theory that the Legislature,
    when it enacted that such fees should be paid' upon
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    Mr. J. C, Gowdy, page 5


         the approval of the exhlblts and the final settlement
         of the account' of the guardian, intended that full
         force and effect should be given to both provisions,
         we conclude that such commissions may be payable upon
         approval of the annual account or upon approval of
         the final account, depending upon when the guardian
         received the money upon which the commission fs sought
         to be collected. For illustration, if, upon presenta-
         tion of an annual account, it discloses that cash has
         been received by the guardlan prior to such presenta-
         tion and subsequent to any last annual account, such
         guardian would be entitled to the specified commissions
         upon the approval of the account so presented. On the
         other hand, if it appears from the guardian's final ac-
         count that since his last annual account further cash
         has been received, he would be entitled to his cotmnfs-
         sion thereon upon the approval of such final account.
         The reference to the approval of the guardian's exhi-
         bits and the approval of his final account we regard
         as merely fixing the period or time when the county
         judge may tax his commissions. By Article 4186, Re-
         vised Statutes, 1911, guardians are required to pre-
         sent an annual account under oath showing, among other
         things, 'a complete account of receipts and dfsburse-
         ments since the last annual account. Upon presenta-
         tion of such annual account, it is by subsequent pro-
         visions of the statutes made the duty of the ten pre-
         siding county judge to conduct a hearing thereon, and,
         if he is satisfied that the account is correct, it is
         his duty to approve same, RAving made it the duty of
         the county judge to approve such accounts, and having
         allowed a fee of one-half of 1 per cent upon the 'actual
         cash receipts' shown thereby, it surely follows, it
         seems to us, that the commissions are payable upon such
         approval, for the reason that they were clearly intended
         for the benefLt of the officer performingthe duty, and,
         having been so intended, It was never contemplated that
         he should forego his compensation until final settlement
         of the estate, particularly when final settlement might
         not come until after the lapse of many years and ,the
         possible death of the officer. We do not, as indicated,
         think the reference to final settlement at all meaning-
         less. It is very probable that in many guardianship
         proceedings cash would be received by the guardian in
         the period intervening between his last annual account
         and the final account. If such case was received, the
         county judge who heard and approved such final account
         would be entitled to the commission thereon, and the
         sole purpose, in our opinion, for any reference to final
         settlement, was to secure the officer In the payment of
Mr. J. C. Gowdy, page 6         o-5495


    the fees accruing at that time and which could not be
    done under the provlslons covering annual accounts.
        "We have treated the word 'exhibits,' in Article
    3850, as referring to annual accounts. While It may
    not be said that the exhibit, either literally or in
    legal contemplation, means account, it fs well known
    that accounts are often attached to pleadings as ex-
    hibits, Such custom, taken in connection with the
    reference in the same article to cash receipts re-
    quired to be shown in annual accounts by Article 4186,
    Revised Statutes, 1911, and the further fact that the
    annual accounts required of other fiduciaries are re-
    ferred to as annual exhibits (Articles 3241, 3242, R.
    S. lqll), are in our opinion sufficient basis for
    holding that annual accounts were intended."
        A similar holding was made by the Su reme Court in the
case of Lyles v, Oheim et al., 159 S. W, (2dP 102, wherein the
following was held:
        "The law places the duty on the county judge to
    hear applications for the sale of property belonging
    to an estate, and ,toorder it sold. It also places
    on him the duty to see that such sales were made In
    accordance with his orders, and that the administra-
    tor in all things complles with same. He must check
    and approve such sales, and order a distribution of
    the proceeds derived therefrom. The law allows the
    county judge a fee of one-half of one per cent 'upon
    the actual cash receipts' received; and since he must
    perform the duties imposed upon him by law, surely
    he is entitled to such commissions upon the approval
    of such accounts. The reason of this constructLon
    rests upon the ground that the judge performing these
    duties is entitled to be paid therefor, and that he
    should not be denied his fee until the estate Is
    fInally settled after a lapse of many years. We do
    not believe that by the use of the language 'upon
    the approval of the exhibits and the final settlement
    of the account,' the Legislature Intended to deny to
    the judge who ordered and approved the sales, and who
    did all the work necessary to obtain the funds, the
    commissions allowed under said article."
        Article 3298, V.A.T.C.S., provides that the county clerk
shall keep a record book, styled, 'Probate Fee Book," and enter
thereln each Item of costs which accrues to the officers of the
Court, together with witness fees, if any, showing the party to
whom such costs or fees are due, the date of the accrual of
Mr. J. C. Gowdy, page 7         o-5495


same, and the estate or party liable therefor.
        It is our opinion, therefore, that the county clerk in
offfce at the time such commissions accrue is the county offi-
cial who should calculate the commissions due the county judge,
and that such clerk is charged with the responsibility of en-
tering same on the Probate Fee Book, There is no question but
that the estate receiving the actual cash receipts referred
to in Article 3926, Section 1, is liable for the payment of
said commissions to the county judge, and that a responsibilfty
rests upon the executor, administrator or guardian, to see
that such commissions are paid.
        Under his general authority as presiding officer of
the Probate Court, the county judge would evidently have the
rigtito enter an order directing an executor or administrator
to make payment of any court costs that might be due by the
estate, including the commission to him on cash receipts, as
such are expenses of administration and are given priority over
all other claims against the estate, except a reasonable a-
mount for funeral expenses and expenses of the last sickness
not to exceed the sum of $500. (Article 3531) After entering
the order as to such costs, the county judge may enforce obed-
ience thereof by attachment and imprisonment.    (Article 3307)
        Each and all of said provisions also apply to guardians,
since the provisions of law regulating costs and security there-
for apply to matters of guardianship when same are not expressly
provided in the law (Articles 4102-4329) relating to guardian
and ward, (Article 4317) and Article 4108 governing guardfan
and ward provides:
        'The provisions, rules and regulations which
    govern estates of decedents shall apply to and
    govern such guardianships, whenever the same are
    applicable and not inconsistent with any provi-
    sions of this title."
        Article 3912e, Section 5, V.A.T.C.S., is, in part, as
follows:
        "It shall be the duty of all officers to charge
    and collect in the manner authorized by law all fees
    and commissions which are permitted by law to be as-
    sessed and collected for all official service per-
    formed by them. As and when such fees are collected
    they shall be deposited in the Officers' Salary Fund,
    or funds provided in this Act. In event the Commls-
    sioners' Court finds that the failure to collect any
    fee or commission was due to neglect on the part of
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Mr, J. C, Goadg, page 8          Q-5495


      the officer charged with the responsibility of collec-
      ting same, the amount of such fee or commission shall
      be deducted from the salary of such officer. * * *'
        It is our opinion that, while the responsibility
rests upon the count clerk to calculate said commissions and
enter same upon the KProbate Fee Book," as hereinabove set
out,the responsibility of seeing that same are collected rests
upon the county judge. The county judge has the right to de-
mand payment of said commissions when same become due under
the rules of law hereinabove referred to and, if said commis-
sions are not collected through neglect on his part, then the
amount of such commissions shall be deducted from his salary
under the provisions of Article 3912e, Section 5, above quoted.
        It Is provided, however, that each district, county
and precinct officer, at the close of each fiscal year (Decem-
ber 3lst) shall make to the district court of the county in
which he resides a sworn statement in triplicate, showing the
amount of all fees, commissions and compensations earned by
him during that year; the amount of such fees, etc., collected
by him during that year, and an itemized statement of all fees,
commissions and compensation earned during such fiscal year
which were not collected, together with the name of the party
owing same. (Article 3897) All such fees due and not collec-
ted shall be collected by the officer to whose office the fees
accrued. (Article 3891)
        You are advised, however, that in all counties of less
than one hundred and ninety thousand (190,000) inhabitants ac-
cording to the last preceding Federal Census wherein county of-
ficers are compensated on a salary basis, all fees and commis-
sions, when collected, must be deposited in the Officers'
Salary Fund. (Article 3912e, Sections 4 and 5)
         Trusting that we have fully answered your inquiry, we
are
                                     Very truly yours
                                   ATTORNEY GENERAL 0% TEXAS

JWB:EP:wc                            By Jas, W. Bassett
                                        Jas. W. Bassett
APPROVED SEP 11, 1943                         Assistant
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Oplnion Committee By s/BWB Chairman
