Honorable  G. A. Walters
County Attorney
San Saba County
San Saba. Texas

Dear   Sir:                                       Opinion No. O-1450
                                                  Re: To what fund should the
                                                       county treasurer   deposit
                                                       the excess commissions
                                                       received by him over and
                                                       above his $2.000 maxi-
                                                       mum compensation     earned
                                                       as commissions    on the pro-
                                                       ceeds of the sale of ‘Road
                                                       Bonds voted by the county.

                  By your letter of September          14, 1939, you submit for the
opinion   of this department three questions,          which we quote as follows:

                  -1. To what fund should the County Treasurer
          deposit the excess commissions    received by him over
          and above his $2.000.00 maximum compensation        earned
          as commissions    of the proceeds of the sale of road bonds
          voted by the county?

                     -Z. Is he required   to deposit    these excess   com-
          missions      in the general fund 7

                  “3. Or, is the Commissioners’    Court authorized
          to use these excess commissions    in the road districts
          for which the bonds were voted and sold? *

                 The County Treasurer,       under the provisions     of Articles
~1709 and 1710. is authorized    and required    to receive all moneys belong-
 ing to the County, irrespective    of the source from which they are de-
 rived, and to disburse   and account for all moneys which shall come into
 his hands by virtue of his office.    For performing     his official duties, he
 is allowed. under Article    3941. stipulated commissions       on certain moneys
.received and Raid out by him. Within the statutory limits. the Commis-
 sioners’ Court sets the percentage      which shall be paid him as commis-
 sions~.
Hon. G. A. Walters,    Psge 2 (o-1450)




               Subject to certain exceptions,  which do not concern us
here, Article 3943 provides that the maximum compensation      to be al-
Towed the county treasurer   in a county such as San Saba shall not exceed
$2.000.00 annually.

                  Our Supreme   Court    in Harris   County v. Charlton,   243 S.W.
460, 112 Tex.    19, held:

                “The commissions      accrued to the benefit of the
        county treasurer   as he handled the various funds en-
        trusted to his care . . . When his limit of $2,000 was
        reached in collecting and disbursing    these funds, in
        whatever month, then his right to collect and retain
        further commissions    . . . ceased.”

                  If, as your letter intimates,  the commissions   specified
in Article   3941 were set aside or collected and retained by the County
Treasurer     even after the maximum allowable      had been earned, such set-
ting aside   or retention was not authorized    by law.

                 It is provided in Article 7523 that moneys realized   from
the sale of road district bonds “shall be placed in the county treasury     of
such county to the credit of such political subdivision   or road district of
such county.   . . . * This means that such moneys belonging to the road
districts of the county constitute a special fund in the county treasury,
separate and apart from the county funds.

                 These road district funds can never become part of the
county general fund. Certainly     the fact that a portion of them have been
retained by the County Treasurer      under the mistaken impression     that
such portion constituted commissions       to which he is entitled by law does
not change their character   as road district funds.     Red River County v.
Graves   (Civ. App.. Texarkana,   1926) 288 S.W. 54. See also Watson v.
El Paso County (Civ. App.. El Paso, 1918). 202 S.W. 125.

                ~The Red River County case was a suit by the county to re-
cover excess commissions      collected and retained by the County Treas-
urer.   The court held that the county could not recover     that portion of tbe
excess commissions     which came from the Road district fund since it did
not allege that it sought recovery    of that portion for the use and benefit
of the road district.

                 In answer to your first question, therefore, it is the opin-
ion of this department   that under the statutes above noted and under the
decision in Harris    County v. Charlton. supra, no occasion should arise
Hon. G. A. Walters,     page 3 (o-1450)




for the County Treasurer    in San Saba County to receive any commissions
whatsoever   after he has earned his maximum compensation     of $2.000.00
for any fiscal year.

                However,   if due to a misinterpretation              of the law, the
County Treasurer   collected commissions      in excess            of that maximum,
such excess must be returned to the fund, or funds,                from which it
came.

                U all of the excess commissions.      that is. that portion of
the total commissions    which was received   after the maximum had been
earned, came from funds belonging to the road districts        for which the
bonds were voted and sold, all of such excess must be returned to the
road districts.  This answers    your third question.

                In answer to your second question, if a11 of the excess
came from the road district fund, such excess cannot lawfully be placed
in the county general fund.

                Trusting    that the above   sufficiently     answers        your inquiry,
we are

                                                 Yours      very    truly

                                      .ATTORNEY          GENERAL            OF TEXAS
APPROVED      NOV     10. 1939

/s/ Gerald   C. Mann
                                      By /s/Robert         E. Kepke
ATTORNEY      GENERAL                        Robert        E. Kepke
OF TEXAS                                                 Assistant




                                      By /s/ Peter          Maniscalco
                                             Peter          Maniscalco

PM:BT/cm

APPROVED
Opinion Committee
By   BWB
   ChaIrman
