3,




                        Aus-    11. TEXAS



                         December 5,   1962




     Honorable Earl C. Fitts           Opinion No. WW-1483
     County Attorney
     Montague County                   Re:    Constitutionality of
     Montague, Texas                          the provisions of Arti-
                                              cle 1436-1, Sections
                                              57 and 57a, Vernon's
     Dear Mr. Fitts:                          Penal Code.
               In your letter requesting an opinion of this office,
     you specifically inquire:
               "DO the amendments to Section 57 and the
          addition thereto of Section 57a correct the
          objections set forth in the opinion rendered
          in the Robinson case above cited? Or are the
          provisions of Sections 57 and 57a still a
          violation of Section 61 of Art.XVI   Consti-
          tution of Texas?" (Emphasis ad&dj
               Article 1436-1, Section 57, Vernon's Penal Code,
     prior to the amendment of 1955, read in part as follows:
               n. . .provided further, that in counties
          in which the designated agent is compensated
          on a fee basis, he shall be entitled to retain,
          as added compensation, the fund created by the
          twenty (20s) percent of the twenty-five (25$)
          cents above set aside; and in counties where he
          is compensated on a salary basis, the Commissioners
          Court shall fix and allow, as additional salary
          for the duties required.under this Act, a sum
          annually not less than fifty (50s) percent and
          not more than the total of the special sala
          fund created by setting aside one-fifth (I/';5
          of such twenty-five (25$) cents fee retained,
          any excess to be paid into the Road and Bridge
          Fund of the county."
               Article XVI, Section 61, Constitution of Texas, pro-
     vides in part:
Ronorable Earl C. Fitts, page 2 (W-1483)


          "All district officers in the state of Texas
     and all county off-icersin counties having a pop-
     ulatlon of twenty thousand (20,000) or more, accord-
     ing to the then last preceding Federal Census, shall.
     be compensated on a salary basis. . . .
          "All fees earned by district, county and
    precinct officers shall be paid into the county
     treasury where earned for the account of the prope:r
     fund, . . .provided that where any officer is com-
    pensated wholly on a lee basis such fees may be
    'retained by such officer or paid into the treasury
    of the county as the Commissioners Court may direct.
          11
     . . .
          In Wichita County v. Robinson, 155 Tex, 1; 276 S.W.2d
509 (1954), the Supreme Court of Texas held that the additional
compensation to be paid the Tax Assessors-Collectors under the
provisions of Article 1436-1, Section 57, supra, constituted
"fees of office" and therefore was in conflict with Article
XVI, Section 61 of the Texas Constitution.
          Ju,sticeCulver, speaking for the Court in the Wichita
County case, stated:
          "l!hilethe Legislature in authorizrng the
     Commissioners Court to fix a sum not less than
     fifty per cent and not more than one hundred ?er
     cent of the salary fund denominates it 'as addi-
     tional salary' the term used is not controlling.
     The fund is created by setting aside a part of the
     fee received for the issuance of title certificates.
     The compensation is contingent upon collection of the
     fees paid into that fund. . . ."
          On motion for rehearing, we find the following:
          "The Legislature imposed certain additional
     duties upon the Tax Collector and clearly intended
     for him to be compensated therefor. The error was
     in fi.$ng the manner of paying that compensation.
     . . .
          From the language found in the Wichita County case,
we can conclude that additional compensation for services per-
formed by Tax Assessors-Collectors, is not within itself void.
Honorable Earl C. Fitts, page 3 (W~-1483)


The problem is in the method devised to provide the payment
of the additional compensation.
          B Senate Bill 379, Acts 1955, Cha ter J+52,page
1172, the 5 % th Legislature amended Article 1E36-1, Section
57, pertaining to the additional compensation part, to read:
           1,
            . .~. 'In counties in which the County Tax
     Assessor-Collector is compensated on a salary
     basis, he shall turn the Ttienty-fiveCents (25d)
     over to the County Treasurer for deposit in the
     Officers' Salary Fund; provided further, that in
     counties where the County Tax Assessor-Collector
     is compensated on a salary basis, the Commissioners
     Court shall fix and allow as additional or supple-
     mental salary for the duties required of him under
     this Act not less than the minimum nor more than
     the maximum provided for in the scale which fol-
     lows:
             "'In counties of less than twenty thousand
     inhabitants, not less than Ten Dollars ($10) nor
     more than Twenty Dollars ($20) per month; in
     counties    having a population of not less than
     twenty thousand nor more than forty thousand in-
     habitants, not less than Twentg Dollars ($20)
     nor more than Thirty Dollars ($30)    per month; in
     counties having a population of not less than
     forty thousand and one, and not more than sixty
     thousand inhabitants, not less than Thirty Dol-
     lars ($30)    nor more than Fifty Dollars ($50)  per
     month; in counties having a population of not less
     than sixty thousand and one inhabitants nor more
     than one hundred thousand inhabitants, not less
     than Fifty Dollars ($50)    nor more than Seventy-
     five Dollars ($75)    per month; in counties having
     a population of not less than one hundred thousand
     and one inhabitants and not more than one hundred
     sixty-five thousand, not less than Sevent -five
     Dollars ($75)    nor more than One Hundred ($ 100) Dollars
     per month; in counties having a population of not less
     than one hundred sixty-five thousand and one inhabi-
     tants and not more than two hundred thousand, not less
     than One Hundred Dollars ($100) nor more than Two Hund-
     red Dollars ($200) per month; in counties having a pop-
     ulation of two hundred thousand and one inhabitants
     or more, not less than Two Hundred Dollars ($200) nor
     more than Two Hundred Fifty Dollars ($250) per month.
Honorable Earl C. Fitts, page 4 (WW-1483)


          "'The added or supplemental salaries for
     administering the Certificate of Title Act in
     counties where the County Tax Assessors-Collec-
     tors are compensated on a salary basis shall be
     paid out of the Officers' Salary Fund of the res-
     pective counties. The last preceding Federal,
     Census shall govern as to population in all
     cases under the provisions of this Act.'"
          In Section 2 of Senate Bill 379, supra, which is
now codified as Section 57a of Article 1436-l supra, the Legis-
lature stated:
          "Sec. 2. It is the .intentionof the Legis-
     lature that the compensation provided for Tax
     Assessors-Collectors by this Act shall be in
     addition to their regular compensation regardless
     of whether they are compensated on a fee or
     salary basis."
          Section 3 of Senate Bill 379 reads in part:
          "Sec. 3. The fact that the 52nd Legis-
     lature in 1951 sought to provide additional
     compensation for County Tax Assessors-Collectors
     for their services in administering the Certifi-
     cate of Title Act and the fact that the present
     law has been held invalid, resulting in confusion
     in the administration thereof and imposing many
     hardships on County Tax Assessors-Collectors,
     create an emergency and an imperative public
     necessity. . .'
          The very language used by the Legislature in Section
3 quoted above reflects that they were cognizant of the holding
in Wichita County v. Robinson, su ra and is clear evidence of
                               -+ a statute by which additional
the Legislatures' intent to enac
compensation could be legally paid Tax Assessors-Collectors for
duties performed under Article 1436-1, supra.
          In order to accomplish this objective, the Legislature
adopted in Senate Bill 379, supra, a scale by which .addltional
compensation would be paid the Tax Assessors-Collectors. This
salary scale provides compensation which ". . .is fixed and
certain, irrespective of work done, labor performed, or money
collected" and it is not !'afee for particular work done and
contingent upon being earned." See Wichita County v. Robinson,
supra, at page 514.
Honorab:tcEarl C. Fitts, page 5 (:Ck!-l~48;)


                                            831 (Comm.App.,
          In Greer v. Hunt County, 249 S.J:J.
1923), which was cited by the Supreme Court in Wichita County
v. Robinson, supra, the following is set forth:
          :? ,
            . . .Thc controlling element in determining
     whether the amount to be received is upon a com-
     mission or salary basis is whether that amount, by
     whatever name it may be called, is absolute and
     fixed regardless of what the lawful commissions
     may be, or is ?adc contingent upon earning that
     amount as c0meissione.f"
          It is the opinicn of this office that the salary
scale contained in krticle 1436-1, Section 57, supra,". . .
is absolute and :fixedregardless of what the lawful commissions
may be . . .I!
          We are thenci"oreof the opinion that Senate Bill
379, Acts 1955, 54th Izgislature now codified as Article 1436-
1, Sections 57 and 5’[n, is not in con.?lictwith Article XVI,
Section 61, ConstituKon o-iTexas, and is constitutional    as to
the additional w si:p!,TLemental salary provided for Tax-Assessors-
Collectors who are compensated on a salcry   basis.
          Further, WC are of the opinion that the provisions
contained in Lrticlc 1436-1,  Section 57, providing for supple-
mental compensation :?or Tax Assessors-Ccllectcrs who are com-
pensated on a fee basis, is in conformity with Article XVI,
Section 61 of the Texas Constitution and is therefore valid.

                     SUMMARY
              The provisions for additional o.?supplemental
     compensation payable to Tax Assessors-Collectors for
     services rendered in performance oC their fiuties    under
     Article 1436-1,     Vernon's Penal Code, contained in Sec-
     tions 57 and 57a of Article 1436-1,     sl;pra,is not in
     conflict     with Article XVI, Section 61 of the Texas
     Constitution and is therefore a valid exercise of legis-
     lative power.
Honorable Earl C. Fitts, page 6 (~‘~-1483)


                                Sincerely,
                                WILL ULSON




0LB:ms:mkh
APPROVED
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
L. P. Lollar
Tom Peterson
Bob Shannon
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
