                  AUSTIN.                  XB




                     February 159 1963

Hon. Harrell Moore          Opinion NO. c-18
County Attorney
Midland County              Re : Whether the County Clerk of Midland
Mldland, Texas                   County should charge as part of the
                                 costs in a probate case the commis-
                                 sion provided~forin Article 3926
Dear Mr. Moore:                  of Vernon’s Civil Statutes.
          You have requested the opinion of this office as to
whether the County Clerk of Midland County should charge as a
part of the costs in a probate case I@ commissionprovided for
in Section 1 of Article 3926 of Vernon’s Civil Statutes.
          Section 1 of Article 3926 of Vernon’s Civil Statutes
provides as follows:
          “The county judge shall also receive the
     following fees:
         “1* A commission of one-half of one per
    cent upon the actual cash receipts of each
    executors administratoror guardian, upon the
    approval of the exhibits and the final settle-
    ment of the account of such executor, adminis-
    trator,or guardian, but no more than one such
    commission shall be charged on any amount re-
    ceived by any such executor, administratoror
    guardian.”
          Section 16 of the Probate Code reads as follows:
          “The county clerk shall keep a record book
     styled ‘ProbateFee Book,t and shall enter
     therein each item of costs which accrues to the
     officers of the court, together with witness
     fees, if any, showing the party to whom the
     costs or fees are due the date of the accrual
     of the same, the estate or ‘partyliable there-
     for, and the date on which any such costs or
     fees are paid,”
          Since Midland County has a population of 67,717 inhabi-
tants according to the last preceding Federal Census, the
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Hon. Harrell   Moore,   page 2   (c-18)


provisions of Section 61 of Article XVI of the Texas Constitu-
tion, and Section 1 of Article 3912e of Vernon's Civil Statutes,
make it mandatory that all the county officials in that county
be compensatedon a salary basis. In this connection,we invite
your attention to the pertinent part of Section 61 of Article
XVI of the Texas Constitution,which providesas follows: :, ~
          "All district officers in the State of Texas
     and all county officers in countieshaving a popu-
     lation of twenty thousand (20,000) or more, accord-
     ing to the then last precedingFederal Census,
     shall be compensated on a salary basis. . o . and
     in counties'havinga population of less than twenty
     thousand (20,000),according to the then last pre-
     ceding Federal Census, the CommissionersCourts
     shall also have the authority to determine whether
     county officers shall be compensatedon a fee basis
     or on a salary basis, with the exception that it
     shall be mandatory upon the CommissionersCourts
     to compensateall sheriffs,deputy sheriffs, county
     law enforcementofficers including sheriffswho
     also perform the duties of assessor and collector
     of taxes, and their deputies, on a salary basis be-
     ginning January 1, 1949.
          "All fees earned by district, county, and pre-
     cinct officers shall be paid into the county treas-
     ury where earned for the account of the proper fund,
     provided that fees incurred by the State, county,
     and any municipality,or in case where a pauper's
     oath is filed, shall be paid into the county treasury
     when collected and provided that where any officer
     is compensatedwholly on a fee basis such fees may
     be retained by such officer or paid into the treas-
     ury of the county as the CommissionersCourt may
     direct. m . .I1
          Section 1 of Article 3912e of Vernon's Civil Statutes
pzuvides in part as follows:
                                    -:,
           "No district officer shall be paid by the State
     of Texas any fees or commissionsfor any service per-
     formed by him; nor shall the State or any county pay
     to any county officer in any county containinga
     population of twenty thousand (20,000)inhabitants
     or more according to the last preceding Federal Cen-
     sus any fee or commissionfor any service by him
     performed as such officer; D + e provided further,
     that the provisionsof this Section shall not affect
                              -76-
Hon. Harrell Moore, page 3   (c-18)


    the payment of costs in civil cases or eminent
    domain proceedingsby the State but all such
    costs so paid shall be accounted for by the of-
    ficers collecting the same, as they are required
    under the provisions of this Act, to account for
    fees, commissionsand costs collected from priv-
    ate parties; provided further, that the provisions
    of this Section shall not affect the payment of
    fees and commissionsby the State or County for
    services rendered by County Officers in connection
    with the acquisition of rights of way for public
    roads or highways, and provided that such fees and
    commissionsshall be deposited into the Officers'
    Salary Fund of the County by the County Officer
    collecting such fee."
          Article 3926 of Vernon's Civil Statutes provides that
the County Judge shall receive a commissionof one-half of one
per cent upon the actual cash receipts of each executor admin-
istrator or guardian. Attorney General's Opinion wW-1036 (1961),,
Since Section 61 of Article XVI of the Texas Constitution,and
Section 1 of Article 3912e of Vernon's Civil Statutes make it
mandatory that the County Judge of Midland County be compensated
on a salary basis, it is mandatory that the County Judge collect
the commissionprovided for in Article 3926 but, at the same
time, Section 61 of Article XVI, and Section 1 of Article 3912e
make it mandatory that the County Judge place such fees with
the County Treasurer to be deposited in the Officers' Salary
Fund of the county.
          Section 1 of Article 3912e prohibits the County Judge
of Midland County from collectingfees or commissionsfrom the
county and the State of Texas, but at the same time there is
nothing in this Article or any subsequentArticle that would
repeal Article 3926 insofar as it requires the County Judge of
Midland County to collect a comrdissionof one-half of one per
cent upon the actual cash receipts of each executor administra-
tor or guardian but, as above pointed out, Section &L of Article
XVI of the Texas Constitution,and Section 1 of Article 3912e
make it mandatory that the Judge deliver these fees to the County
Treasurer to be deposited in the Officers' Salary Fund.
          Under your specific fact situation the County Clerk of
Midland County will continue to record the commission upon the
actual cash receipts allowed under Section 1 of Article 3926 of
Vernon's Civil Statutes, and after the fees are collected by the
County Judge of Midland County they should be paid into the
County Treasury for deposit to the Officers'Salary Fund.
                                                          .   -




Hon. Harrell Moore, page 4     (c-18)


          Since Section 61 of Article XVI of the Texas Constitu-
tion makes it mandatory that all county officials in counties
of 20.000 inhabitants or more be compensatedon a salary basis,
the principles of law announced in this opinion are applicable
to all counties in the State of Texas having a populationof
20,000 inhabitants or more, and also applicable to all counties
of under 20,000 inhabitantswhere the CommissionersCourts have
elected to compensateall the county officials on a salary basis
pursuant to the provisions of Section 61 of Article XVI of the
Texas Constitution.
                             SUMMARY
          The County Judge of Midland County is entitled
     toreceive a commission of one-half of one per cent
    upon the actual cash receipts of each executor, ad-
    ministrator or guardian as prwided in Section 1 of
    Article 3926 of Vernon's Civil Statutes, and Section
    16 of the Probate Code makes it mandatory that the
    County Clerk record said commissionsas a part of the
    costs, and when said commissionsare collected they
    should be paid into the County Treasury and deposited
    into the Officers' Salary Fund.
         The principles of law announced in this opinion
    are applicable to all counties in the State of Texas
    having a population of 20,000 inhabitants or more,
    and to those counties of less than 20,000 where the
    CommissionersCourt has elected to compensateall
    the county officers on a salary basis.. Section 61,
    Art. XVI, Tex, Const.
                              Yours very truly,
                              WAGGONER CARR
                              Attorney General of Texas


                                Bill Morse, Jr.
BM:wb                           Assistant
APPROVED
OPINION COMMITTEE
W. V. Geppert, Chairman
Brady Coleman
Ernest Fortenberrv
J. C. Bracewell -
Paul Phy
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone
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