GROVER SELLERS




  Honorable Roscoe Runge
  District Attorney
  33rd Judicial District
  Mason, Texas

  Dear Sir:                  .Opinion No. O-6736
                             Re: Under the provisions of Senate
                                  Bill No. 123, Regular Session,
                                  Forty-ninth Legislature, is the
                                  Commissioners~ Court of
                                  Gillgspie County authoriied,to
                                  allow the dssessor-Collector to
                                  retain kn increase in his salary?
                                  And related question.

  We acknowledge receipt of'your request for an opinion on the
  above questions, said request reading as.follows:

       "Kindly give me your opinion on questions pertaining to
       recently enacted Senate Bill No.,l23; which reads in
       part, as followsi

       "'BE IT EXACTED BY TRE LEGISLATURE OF THE STATE OF TEEAS:

       nrSection 1. That Artiole 3891, Revised civil Statutes
       of Texas, 1925, as emended, be and the same is hereby
       amended by adding thereto the following:

       "r (a) The Commissioners Court is hereby authorized when
       in their judgment the financial condition of~the cquntg
       and the needs of the officers justify the increase, to
       enter an order increasing the compensation of the preoinct,
       county and ,district officers in an additional amount not
       to exceed twenty-five (25%) per cent of the sum allowed
       under the law for the fiscal year of 1944, provided the
       total compensation authorized under the law~for the fisoal
       year of 1944 did not exaeed the sum of Thirty-six Bundred
       ($3600.00) Dollars.*

       "The questions are:

       "(a) Is the Commissioners *'Court of Gillespie County
       authorized under S. B, #123, to allow the Assessor and
       Collector of Texas to retain an increase, up to 25% of his
                                                                 I   =



                                     1,   ‘-;


Hon. Rosooe Runge, page 2,0-6736



     salary for 1944, which was $3,000, from the excess
     fees of office which remain upon oompiletion of his
     annual fee report and which up to this time were paid
     into the County Treasury as excess fees of office?

     "@I   Since Gillespie County remunerates its officials
     on the fee basis, will it be permissible for the Com-
     missioners' Court to order the increase of salary es of
     May 9, 1945, the effective date of S. B. #123?"

          In connection with said request, we also have a
letter from Honorable Wm. M. Petmeoky, President of the Tax-
Assessors and Collectors Association of Texas, as well as
Assessor and Collector of Taxes of Gillespie County, from
which we quote as follows:

    "The first question is in regard to paying the increase
    out of excess fees. In other words for illustration,
    last year after making my annual fee report my oompense-
    tion permitted me totaled 963,000. I ~then had about
    @202.00 excess fees remaining whichwere paid into the
    County Treasury. My question is whether the Court may
    allow me to retain up to 25$, which would be $750, out
    of these excess fees? It is my opinion that the Court
    could do this as S. B. #123 directs the total compensation
    may be increased and I would think this the most ,feasible
    way to do it for officials on the fee basis.

    "In regard to the second question, as to the date the
    Court might order the increase effective for officials
    on the fee basis, I would think the order could date to
    May 9, 1945. My reason for this is that offi~oiels on
    the fee basis do not actually know until the end of the
    gear what their fees will be and they oennot figure
    their remuneration until then. For that reason I would
    hold that the increase could be declared effective as
    of May 9, 1945, sinoe this would not be beck peg for
    officials on a fee basis. In your opinion to officials
    of counties on salary basis you held that Seotion 44,
    Article 3 of the State Constitution did not permit in-
    areese of compensation for months passed. Woulclnvt the
    fee arrangement be entirely different fromthet  of a
    definite set seleryTv

Article 3883, Vernon's inotated    Civil Statutes, subdivision
1, provides in part as follows:

    ."In counties containing twenty five (25,000) thousand
    or less inhabitants:   County Judge, District or Criminal
    District Attorney, Sheriff, County Clerk, County Attorney,
    District Clerk, Tax Collector, Tax'Assessor, or the
    Assessor and Collector of Taxes, Twenty-four Hundred
Hon. Roscoe Runge, page 3, O-6736



      (qb2400.00) Dollars each; . . .a

     Artiole 3891 of said statutes is in pert es follows2



     "In counties containing twenty-five thousand '(25,000)
     or less inhabitants, District and County officers named
     herein shall retain one-third of such excess fees until
     such one-third, together with the amounts specified in
     Artiole,,38839 amounts to Three Thousand Dollars ($3,000)
     . . . .
     Senate Bill No. 123 is in part es follows:

     "Section 1. That Article 3891, Revised Civil Statutes
     of Texas, 1925, as amended, be and the same is hereby
     amended by adding thereto the following:

     "*(a) The Commissioners Court is hereby authorlied,
     when in their judgment the financial condition of the
     county and the needs of the officers justify the increase,
     to enter an order increasing the compensation of the
     precinct, county and district officers in an additional
     amount not to exceed twenty-five (25%) per cent of the
     sum allowed under the law for the fiscal year of 1944,~
     provided the total compensation authorized under the law
     for the fiscal year of 1944 did not exceed the sum of
     Thirty-six Hundred (Qb3600.00) Dollers.cs

 The above quoted provision of Article 3883 authorizes the
 Assessor and Collector of Taxes '       of Gillespie County to
 retain from the fees collected by him the sum of $2,400.00 es
 his annual compensation. The quoted provision of Article ~3891
 authorizes him to retain from one-third of the excess fees
 collected by him an additional sum until such sum, added to the
 amount specified in Article 5883, amounts to $3,000.00, which
 would be the aum of $600.00. The quoted amendment of said
 Article 3891 by Senate Bill No. 123 authorizes the Cotnmissionersr
 Court, in their distiretion and when~ in their judgment the
 financial condition of the county end the needs of the Assessor
 and Collector of Taxes justify the increase, to enter an order
'koreasing his annual compensation in an additional amount not
 to exceed 25% of the sum allowed under the law for the fiscal
 year 1944, provided the total compensation authorized under the
 law for the fiscal year of 1944 did not exceed the sum of
 #3,600.00.  This increase, however, if authorized by the Com-
 missioners' court and required to be paid from fees of office
 only, would have to be paid from one-third of the excess fees
 over and above the excess fees necessary to authorize a compen-
 sation of $3,000.00.  In other words, the base pay of the
 Assessor and Collector of Taxes of Gillespie County is $2,400.00.
                                                               .   .




Hon. Roscoe Bunge, page 4, O-6736



If he we8 paid $3;000.00 in 1944, the Commissionersr court is
now authorized to allow him as much es $3,750.00 under the
provisions of Senate Bill No. 123; but, if all of then
compensation over and above $2,400.00 is to be paid from
exo6ss fees only, it must be paid from one-third of the'excess
fees as no change has been made in the original provisions of
Articles 3883 and 3891.

Mr. Petmecky is in error in the contention made by him that,
 if Senate Bill No. 123 had been in force and had applied to
his salary for 1944 and he had had $1,202.00 in excess fees
remaining after having deducted from such excess fees an
amount sufficient for him to be paid compensation of $3,000.00,
the Commissioners* Court could have authorized him to retain an
additional sum of $750.00 from said $1,202.00 in order to make
up the total sum of $3,750.00 authorized by Senate Bill No.
123. He had already retained the one-third of said excess fees
required to raise his compensation to $3,000.00, and the remain-
ing two-thirds of said excess fees belonged to the county. In
order for him to have been paid the additional~ sum authorized
by Senate Bill No. 123 from fees of office only, he would'have
had to have collected additional excess fees over and above the
remaining .$1,200.00 and from these additional excess fees he
could have retained only one-third until he had retained the
additional sum of $750.00, if authorized by the Commissioners~
Court, or such part thereof es the Commissioners' Court might
have authorized.   In other words, if such increase in campensa-
tion was to have been paid from fees of office only, before he
could have retained the additional sum of 96750.00 authorized
by Senate Bill No. 123, he would have had to have colleoted an
additional $2,250.00 in excess fees over and.ebove the amount
he had to collect in order to be paid the $3,000.00 oomp&setion
from fees of office only.

This rule will apply, however, only to oompensetion for 8 full
year and where all of said offioiel~s compensation is paid from
fees of office. If any part of said compensation is'not paid
from fees of office, but is paid es ex officio oompensation,
then.you are referred to the rules of law set out in our
Opinion No. O-6749, a copy of~which is enclosed herewith.

gx officio compensation is neither e fee of offiae nor an
excess fee. Every service a county officer is required by law
to perform,,for which no fee or charge is specified; is an ex
officio servioe, for which the Commissionersf.Court, in its
discretion, may allow ex officio oompensation, payable out of
the General Pund of the county.

By way of illustration of the rules of law above announced, we
refer you to the following examples:

If the fees collected in one year are sufficient to pay only
.   _




        Hon. Roscoe Runge, page 5, O-6736



        the base compensation of $2,4OO.OO~allowed under Article-
        3883, together with the salaries of assistants and deputies
        and all authorized expenses, the Commissioners* Court, under.
        said rules of law, has authority to allow ex offioio compen-
        sation In an amount sufficient to make up the maximum amount
        that could be paid under Senate Bill No. 123 to-wit,
        $3,750.00, or an ex officio compensation of b 19350.00, or such
        part thereof as said court may determine.

        If the fees collected in one year are sufficient to pay the
        base compensation of $2,400.00 allowed under Article 3883,
        together with the salaries of assistants and deputies and all
        authorized expenses, and there remains $1,800.00 additional in
        excess fees, said official would be entitled to retain one-
        third, or $600.00, of said excess fees in addition to the base
        compensation of $2,400.00, making a total of $3,000.00 retain-
        ed by him from fees of office. The Commissioners' Court would
        then be authorized to allow him ex officio compensation in an
        amount sufficient to make up the maximum amount that could
        be paid under Senate Bill No. 123, to-wit, #3,750.00, or an
        ex officio compensation of $750.00, or such part thereof as
        said court may .detsrmine.

        If the fees collected in one year are sufficient to pay the
        base compensation of $2,400.00 allowed under Article 3883,
        together with the salaries of assistants and deputies end all
        authorized expenses, and there remains #4,050.00 additional
        in excess fees said official would be entitled to retain
        one-third, or 4 1,350.00, of said excess fees in addition to
        the base compensation of #2,400.00, making a,total of $3,750,
        00 retained by him from fees of office. In this event the
        CommissionersP Court could not allow .My ex offioio oompen-
        setion and, if ex officio compensation had been allowed end
        paid in any amount, the official receiving same would be
        liable to the county for repayment thereof. See Taylor et al
        vs. Brewster County, 144 S. W. (2d) 314, writ dismissed.

        Article 3, Section 53 of the Constitution of Texas, is es
        follows:

             "The Legislature shall have no power to grant, or to
             authorize any county or municipal authority to grant,
             s;,;;;ra   oompensetion, fee or allowance to e public
                       agent, servant or contractor, after service
             has bee; rendered, or a contract has been entered into,
             and performed in whole or in part; nor pay, nor authorize
             the, payment of, any claim created against any county or
             municipality of the State, under any agreement or
             contract, made without authority of law."

        In view of this provision of the Constitution, it is our
        opinion that, if the Commissioners 1 Court of Gillespie County
Hon. Roscoe Runge, page 6, O-6736



decides that the compensation of the Assessor and Colleotor
of Taxes of saLd county should be increased under the rules
of law above set forth, any increase thereof for the year
1945 must be in the proportion as the balanoe of the year
1945 relates to the total annual increase that may be allowed
under Senate Bill No. 123. If the annual increase of $750.00
should be allowed and the order is made on August 1, 1945,
then the increase would be 5/12ths of the $750.00, as the
compensation for the months already passed cannot be increased.


                                    Yours very truly,

                               ATTORNEY GWERAL   OF TEXAS

                               s/ Jas. W. Bassett

                               BY
                                          Jas. W. Bassett
JWB:LJ/cg                                       Assistant
encl.

APPROVED AUGUST 13, 1946
s/ Carlos C. Ashley
FIRST ASSISTANT ATTORNEY GENERAL

Approved opinion committee
By BWB, Chairmsn
