Honorable Leroy L. Moore
County Attorney
Houston County
Crockett, Texas

Dear Sir:                            Opinion No. O-5306
                                     Re: Whether oounty attorney is entitled
                                          to coImnieeionunder faCtB statea
                                          and related matter.

          Your request for opinion has been received and carefully considered
by this department. We quote from your request a8 fbllow~:~

                nRecently I filed a suit for the six Consolidated
            Common School District in Houston County, Texas, and a
            suit for Houston County. In the first instance to ool-
            lectmoney for junk sold by said school dietriots and
            in the second inetance to collect money for damage to
            bridges of Houston County and materials to replace same.

                "As county attorney of Houston County and drawing
            a salary under Article 1883 Section 3 found in the'sup-
            plement of the Vernon's Civil Statutes Vol. I would I be
            entitled to a commission as authorized in Art. 335 of the
            *ame etatutes in addition to the salary given me under
            Art. 1883 a8 above? If 80, would I be required to turn
            this money received aa commission into Houston County
            under the salary statute?
                II
                 . a . ."

          The population of Houston County, Texas, is 31,123 inhabitants
and its county officers are compensated upon a salary basis under the
Officers' Salary Law.

          Article 1883 mentioned by you ia evidently an error as this
article does not pertain to your question.

            We have not been able to find any statute making it your duty
as   county attorney to file suit for the common school districts of your
Honorable Leroy L. Moore, Page 2 (0-5306)



county to coliectmoney for junk sold by said.school districts. It is
our opinion that sny fee obtained by you from said school districts for
such services would be purely 8 private civil attorney fee which you
could clearly keep.

           Article 335, Vernon's Annotated Texas Olvil Statutes, reads as
follows:

               “Whenever a district or county attorney has col-
           lected money for the State or for any county, he shall
           within thirty days after receiving the same, pay it
           into the treasury of the State or of the county in whi-h
           it belongs, after deducting therefrom and retaining the
           commissions allowed him thereon by law. Such district
           or county attorney shall be entitled to ten per cent
           commissions on the first thousand dollars collected by
           him in any one case for ,theState or county from any
           indiviclualor company, and five per cent on all 8ums ovei‘
           one thousand dollars, to be retained out of the money ~whsn
           collected, and he shall also be entitled to retain the
           same commissions on all collections made for the 9'at.eoi'
           for any county. This article shall also apply to money
           realized for the State under the esoheat law. (Acts 1876,
           p. 86; G. L. vol. 8, p. 922.)"

          This deperbnent held in a conference opinion written 5yHocorable
L. C. Sutton, Assistant Attorney General, dated April 6, 1921, ~tbat%e
county attorney was not entitled to commissions uder Article 363?.of the
Revised Civil Statutes of 1911, (new Art. 335) 01?money collected :forthe
county In a suit which it was not the duty of the county sttorney to bring
in behalf of the aounty. We quote from said opinion aa follows:
               " . . . There is no constitution81 or statutory
           provision making it your ddy to bring such a suit.
           That being true, you, 88 county at%%'ney, are not en-
           titled to any oomnissions under Article 363, (now Art.
           335). The commissions therein provided for are for
           services rendered in the collection of money bg the
           county attorney in the performance of duty required of
           him by law. The county attorney ia not entit3.d to th-:
           commissions provided by Article 363 (now Art. 335) upon
           moneys which the law does not require him to collect.
           A county officer claiming compensation or fees must be
           able to show not only that the services were performed
           for the duty as such, but slso 8 statute or conetitu-
Honorable Leroy L. Moore, Page 3   (0-5306)



          tfonal provision authorizing compensation for the
          particular aervlces in question. . . citing the
          following authorities:

              "15th corpus &u-is, 496
              "Ellis County ~8. Thcmpeon, 95 Tex. 22
              "64 s. w. 927, 66 s. w. 48
              "Wharton County vs. Ahldog, &4 Tex. 12, 19
                  5. w. 291
              "State vs# Moore, 57 Texas 307."

          Paragraph 3 of Article 6716, Vernon's Annotated Texas Civil
Statutes, provides:

             "3. The owners, operators, drivers or movers of
         any vehicle, object or contrivance over a public
         highway or bridge shall be jointly and severally
         responsible for all damages which said highway or
         bridge may sustain as the result of negligent driv-
         lng, operating or moving of such vehicle, or as a
         result of operating same at a time forbid&en by said
         road officials. The amount of such damages may be
         recovered in any action at law by the county judge for
         the use of the county, and such recovery shall go to
         the benefit of the damaged road. The county attorney
         shall represent the county in such suit. (Acts lst
         c. S. 1921, p. U3; Acts 1923, p. 160.)"

          Section 5 of Article 3p12e9 Vernon"6 Annotated Texas Civil
Statutes, provides:

             "It shall be the duty of all officers to charge
         and collect in the manner authorized by law all fees
         and commissions which are performed by them. As and
         when such fees are collected they shall be deposited
         in the OPficerss Salary Fund, or funds provided in
         this Act. In event the Commissioners' Court finds
         that the failure to collect any fee or commission was
         due to neglect on the part of the officer charged with
         the responsibility of collecting same, the emount of
         such fee or commission shall be deducted from the salary
         of such officer. Before any such deduction is made, the
         Commissioners' Court shall furnish such officer with 8n
         itemized statement of the uncollected fees with which
         his account is to be charged, and shall notify such
HonorableL?roy L. Moore, Page 4 (0-5306)



         officerof the time and place for a hearing oz *ame,
         to determinewhether such officerwas guilty of neg-
         ligence,which time for hearing shall be at least
         ten days subsequentto the date of notioe. Unless
         an officer is chargedby law with the responsibility
         of collectingfees, the Conmissioners' Court shall not
         in any eventmake any deductionsfrom the autiorizad
         salary of such officer."

          We .ssexmethat the suit for damagesto the cw~nty'abridges
was broughtby authorityof Article 6716, supra. Under this ar%lcl it
wee your duty to bring such suit for the countyand you aho&& collect
the commissionauthorizedby Article 335, supra. However,when collected
you must place said commissionin the Officers'SalaryFusd of rour county.

                                           Very truly yours

                                     AT'TOPX3YGENERP.LOFTEXAS



                                     By    /s/Wm. J. Fanning
                                              Wm. J. Fanning
                                                   Aesial;ant

wJF:mp:tiw

              APPROVEDMAY 22, 1943

              /s/ GeraldC. Mann

              ATl!OEUhTGE?iERnLOFTEXAS


                                            APPROVED
                                             OPINION
                                           co&fl4mm

                                           BY /a/ BWB
                                             Chairman
