      THEAT~FORNEYGENERAL
                    OF    TEXAS




                         August 21, 1950

Hon. Adrew P. Johnson              opinion   100. v-1093.
County Attorney
Mmuit   County                     Re: The right of a County
carriao Springs, Texas                 Attorney who Is com-
                                       pensated on a salary
                                       basis also to retain a
                                       commission on money
                                       collected for the coun-
Dear Sirt                              ty.
           Your reoent   request   for   our opinion   is In part
as Pollowsn
            "Upon investigation   it was found that>
     a former Commissioner of Precinct Rumber 4,
     DUmnit County, Texas, had appropriated ~to
     his own use funds belonging to Dimmlt Cona-.
     tg In the amount of $6,203.20.        The CosunZq-
     sioners'   Court of Mmmlt County lnstro&e(l
     the County Attorney of mt           County to make
     collection   from the Commissioner and allow
     him a small amount of salary due to him. On
     June 5, 1950, the Commlsslonerst Court of .
     Mmmlt County met'in Special session and
     entered the follxnrl.ng order in the minutes.
      "The Court lixstruoted the County Attorney
     to make collection     from the Comnissioner
     for the amount due the County within nine-
     ty (90) clays; in the event this amount .~+~a
     not paid to DUmnLtCounty within the s
     fied time, Hr. Johnson was further ins Y'-   Ilpct-
     ed by the Court to file     suit.'~   Volume 6,
     page 263..Couanlssionara~    Court Blnutes, Dim-
     tit County, Texas.
           *Through the efforts  of the County At-
     torney of Dinrmit County, the funds due to,
     the county have been collected    and placed
     in trust ready for delivery    to Mnrmit Ooun-
     ty.
          *The County Attorney of Dlmmlt County
     is compensated on a salary basis.'
-   .




        Roni Andrew P. JOhnSon, page 2       (V-1093)


             In connection    with the above facts,     you ask:

                  Where a county attorne      is compensated
             on a salary basis is he entl 9,led to receive
             the commlssl,on on funds collected   by him for
             the county a8 provided for by law?"
                  Article    335, V.C.S.,   provides:
                   “Whenever a district     or county attorney
            has collected    money for the State or for any
            county, he shall within thirty days after re-
            ceiving the same, pay it into the treasury of
            the State or of the county in which it belongs,
            after deducting therefrom an8 retaining        the
            commissions .allowed him thereon by law., Qach
            dlstrlat   or county attorney shall be e&&lea
            to ten per cent commissions on the ftist        thou-
            sand dollars    collected:  by him in any one case
            for the State or county from any Individual         or
            company, and five per cent. on all sums over
            one thousand dollars,      to be r&aineQ out of
            the money when collected,       and he shall also
            be entitle& to retain the same comml.sslons
            on all collections      made for the State or for
            any county,    This article     shall also apply
            to money realized for the State under the
            escheat law.'
                  Article    339, V.C.S.,   providess
                   %hen it shall come to the kr$owledge of
             any district    or county attorney that any of-
             ficer In his district     or county entrusted with
             the collection    or safe keeping of any public
             funds is in any manner whatsoever neglecting
             or abusing the trust confide& in him, or in
             any way failing    to discharge his duties uuder
             the law, he shall institute     such proceedings
             as are necessary to compel the perf&mance of
             such duties by such officer     and to preserve
             an8 protect the public interests."
                   It was held In Bexar County v. Davis,223 S.W.
        558 (TwKJXV.APP. 1920, error ref.)   that no member of
        the Commissioners8 Court is such an officer   as is "en-
        trusted with the collection  or safe keeping of any pub-
        lic funds” and that Article  339 does not empower the
        Mstrict   or County Attorney to bring an action against
        such an official.
-   .




        Hon. Andmw F. Johnson,     Page 3   (v-1093)


                  We fail to find any statute making it the duty
        of the County Attorney to file suit in such an ipstance
        as submItted by you.
                   In Attorney General's Opinion Ho. o-5306, dat-
        ed May 22, 1943, we quoted tith~approval  fras a confer-
        ence opinion of this department dated April 6, 1921, as
        fOllowS$
                    (I0 . . There Is no constitutional      or
             statutory    provision   making it your duty to
             bring such a suit.       That being true, you,
             as county attorney,      are not entitled   to
             conm~%ssions under Article      363 (now Art.335"s .
             The commlsslons therein provided for are for
             services    rendered In the collection     of money
             by the counts attorney in the performance of
             d&y reqaire~      of him 6y law.     %he county at-
             torney is not entitled      to the commissiaus
             provided by Article      363 (now Art. 335) upon
             honeys which the law does not require him to
             collect. A county officer        alaimlng compensa-
             tion orofees must be able to show not an'ly
             that the services      were performed for the duty
             as such, but also a statute or constitutional
             provision    authorizing   compensation for the
             particular    services   In question.'    (Y@phasls
             added.)
                  Therefore,  since there is no duty..$mpoged upon
        the County Attorney to bring such a suit, It 1s~ our opin-
        ion that he is not entitled  to receive a cormnlssion under
        Article 335.
                  In Attorney General's Opinion Ho. O-3656,         dated
        June 15, 1941, however, it is stated%
                    'It is our further opinion that it is
             not the duty of the County Attorney to re-
             present the County in any civil      case unless
             expressly made so by statute.     'If the above
             mentioned services    were performed in the ab-
             sence of a contract between the County Attor-
             ney and Ccmunissioners~   Court, but upon the
             request of said Court, the County Attorney is
             entitled   to reasonable compensation on a quan-
             turnmerult basis."
-   .




        HW. Andrew P. Johnson,    page 4    (v-1093)




                  The county Attorney      is not entitled   to
             the commission provided     for in Article    335,
             V.C.S.,  0n money oollected     from a county com-
             missioner and his bondsmen even the
             Commtssionerst Court authofised       himT o the
                                                           bring
             suit for its colleotion.       Bexar County v.- Davis,
             223 S.U. 558 (Tex.Civ.Ap          920, error ref 4) ;
             A.Q. Opinion Ho. O-5306 P'1943).l      The County
             Attorney Is entitled     to a reasonable compensa-
             tion on a quantum meruit basis. A.Q. Opinion
             Ho. O-3656 (1941).
        APPROVED:                              Yours very tNly,
        J. C. Davis, Jr.                         PRICE IUUIEL
        County Affairs  Mvlsian                Attorney Qeneral
        Everett Rutchinson
        Executive Assistant
        Charles D. HLathews                            Bruce Allen
        First Assisttint                                 d'sslstant
        BA:SlW
