                             4                                       R-904



                                      OF’PICE       OF

                      THE ATTORNEY                    GENERAL
                                    AUSTIN.     TEXAS
PRICE   DANIEL
AlTORNEY GENERAL                       Bovember 21, 1947

         Hon. Ben D. (teeslln             Opinion Bo. v-430
         county Attorney
         UcCulloch County                 Re:   Authority of the Commis-
         Brady, Texas                           sionersl   Court to grant
                                                ex offlclo   salaries  to
                                                oounty offioers    any tine
                                                in the year.
         Dear Sir:
                     We refer  to your request for au opinion from
         this office   on the above subject matter in which you ask
         the following   questlone:
                         “1. May the ConmissionersCourt make an
                   order granting ex-officio pay to County Offl-
                   cers at any .tUne hu.r%~~%m ml
                        “2. Hay the Commlsslonera Court pay to
                   the Tax Asseasor-Collector of McCullooh Coun-
                   ty an ex-officio  salary?"
                     Mcculloch County ha.s a population   or 13,208
         inhabitants   acaordlng to the 1940 Federal Census.     Its
         county officials    are compensated on a fee baala and the
         maximum compensation allowed under Artlale 3883, V.C.S.,
         and Article   3891 V.C.S.,     as amended by S. B. 123, Acts
         49th Leg., p. 244, is $3,750.00. The authority for the
         Commissioners1 Court In countlea in which Its county of-
         ficials  are compensated on a fee basis to allow such
         oounty officials    ex officio   compensation Is found in
         Article  3895, V.C.S., which provides as follows:
                           “The Commissioners1 Court is hereby de-
                   barred from allowing compensation for ex-
                   officio    services  to county officials   when the
                   compensation and excess fees which they are
                   allowed to retain shall reach the maximum
                   provided for in this chapter.        In cases where
                   the compensation and excess fees which the
                   offioers    are allowed to retain shall not reach
                   the mexlmum provided for In this chapter, the
                   ~onerlsslonera’ Court shall allow compensation
                                                                       . .


Hon. Ben D. Oeeslln     - Page 2    (V-438)


      for ex -0ffiolo services    when, * their judg-
      ment, suoh compensation Is necessary,      provld-
      ed, such compensation for ex officio      services
      allowed shall not inorease the compensation
      of the offlclal   beyond the maxbum of compen-
      sation and excess fees allowed to be retaln-
      ed by him under this chapter.      Provided, how-
      ever, the ex officio     herein authorSzed shall
      be alloved only after an opportunity for a
      public hearing and only upon the afflrmatlve
      vote of at least three members of the Commls-
      sioners’ Court .”
              It was held In Taylor v. Brewtiter County, 144
3. Y. (26) 314, that the panting            of ex officio    compen-
sation was entrusted to the discretion            of the Con&a-
aloners’ Court by Article         3895 and that there was no
time specified     in said Article      as to when the Commis-
sioners’ Court could grant ex offiolo            compensation.    We
quote the following:
              ”      Conditions existing       as provided in
      Art. 3&,‘lt      tight validly make this allow-
      ante . It clearly appears from the agreed
      statement of fasts that but for the ex-officio
      allowance the fees of office          would not have a-
      mounted to the maxImumof $3,000, which was
      the maximum compensation allowed appellant
      Taylor.     The time when the Commiasloners’ Court
      may make this allowanoe is not specified            in Art.
      3895 . The allowance does seem large.             However,
      we have not the benefit         of the amount realized
      In fees of the offlce during preceding years.
      Under the conditions        named in the statute it
      was entrusted to the discretion           of the Comula-
      aloners I Court.      If theae conditions       did not
      exist or could not exist,          the action of the
      Commissioners’ Court would be void and COaieP-
      red no authority      for the payment.       ?!he quoted
      poo;l;;,;f    the stipulation       is a8 to an ulti-
                  . Only acting in the manner provid-
      ed for In the quoted statute could it author-
      ize the payment.        It has power to act in the
      premlsea.     Aotlon   vas   taken therein.      The oon-
      .4zuctlon    Is justified,      if not compelled,    that
      It acted lawfully.        . . .
          In the aase of Tarrant County V. Hollls,  76
9. W. (26) 198, aft  dlsmlased, the Court was conslder-
Hon. Ben D. Qeeslin     - Page 3     V-438)


lng an order of the CoIIIpIssionersl Court a!+thoplzing the
Payment of 8x officio    compensation, and it announced the
following    rule of law coverlag  the payment of such aom-
perrrrstion:
            “The order was entered just thirty-one
     days after appellee took offlce            and at a time
     when the commlsslonersl         court did not know
     what servioe      ‘es-officio1      the appellee would
     render or what amouut he would oollect              in
     fees of offioe,       i. e., what his compensation
     therefrom would be.          The fact that In that
     one order the oommLsaloners’ court fixed the
      same ex offlclo      oompensatlon of $1,500 for
     the constable,       the justices     of the peaae, the
     amessor,     the oolleotor,      and the dlatrlot
     tlerk 1s strongly suggestive that the aourt
     did not consider seriously           just what ‘ex
     officio’    servloes these offlclals          would ren-
     der, but slnae It Fs not neaesrrary to our
     deolsion    to do otherwise,       we Indulge the pre-
     sumptlon of aorrectness,         whleb Is ordlnarlly
     due a court judgment.          We do call to the at-
     tentlon of the eomulssloners’            court that not
     only must the ex offiaio          services    be rendered,
     but that such compensation therefor must be
      ‘neee8aary.1      It violates     the spirit    of the
     act for a coxahsiontmf           court to make such
     order merely to enable the petitioner             to make
     the m8ximumallowed by law., The record Is
     wholly silent as to what, lf any, servlcea
     those various offloisls         were to perform, each
     in his different       line of work; but each none
     the less of the same value to the county.               If
     the purpose waa only to increase the pay oi
     those officials       without any ex officio       ser-
     vioe eontraoted for, then the order was im-
     proper.    Xe are unwllllng        to give the order
     a oonstruatlon      which its language does not
     warraat, and whloh, If so construed, would
     suggest imTrudenaeWon the part of the ooa-
     miaeloners     couct.
           In view of the foregoing,   It Is our opinion
that the CoIpIasloneral  Court of McCulloch County Is
authorized to allow ei offlolo    compensation at any time
during the year.
           Your attention     is directed     to the fdct    that
Hon. Ben D. Geeslin       - Page 4      (v-438)


anyallowance  of ex officio compensation           would be sub-
ject to the Budget Law. 68912-11, V.C.S.
             Article   III,   Section   53, Constitution   of Texas,
provides’:
            “The Legislature   shell have no power to
      grant, or to authorize any county OF munlol-
      pal authority   to grant, any extra compensa-
      tion, fee or ellowanoe to a public officer,
      agent, servant or oontraotor,    after service
      has been rendered, or a contract has been en-
      tered into, and performed in whole or in part;
      nor pay, nor authorize the payment of, any
      claim created against any county or munlcl-
      pallty of the State, under any agreementRor
      contract,  made without authority of law.
           In view of this provision of ‘the Constitution,
it is our opinion that If the Commissioners' Court of
McCulloch County deoldes to grant ex offlclo   compense-
tlon, suah oompeneatlon can only be for aervlces,,pender-
ed from the date of the order of the Coani~si~~i%~
Court grantlag   the same.
           In answer to your second question,       Tarrant
County vs. Hollls,     iPfre, held that the Oommlssioners’
Court may allow ex offiolo     compensation to those offi-
cers who perfoma “ex offioio      servioesn provided the
Court finds such oompensation~necessery.         Therefore,    If
the Commissioners1 Court of XcCulloch County finds that
the tax assessor-collector     performs nex offioio     servl-
aes” and compensation for such services       Is necessary,      it
ls’onr  opinion that the Commimloners*       Court may allow
the tax arsesaor-collector     ex offlclo   salary.


           The Conmissioners’ Court of MoCulloch
     County (operating      on a fee basis)   la author-
     ized to grant ex officio       compensation to its
     tax assessor-collector      If it finds that the
     tax aesesaor-collector      performsHex atfld.0
     services” and that compensation for such a--
   : vice8 is necessary.       Rx offioio   c~ensatlon
     may be granted by the CommlaaZoners’ Court at
     any time during the year, but such compensa-
     tion must be for services       rendered subsequent
                 V                             ci


Hon., Ben D. [ieeslin   - Page 5   (V-438)


      to the date of the order of the Commis-
      slonersl Court granting the same.
                                   Yours very truly
                             ATTORREffERERALOF TEXAS



JR:djm:mv
