Honorable Robert S. Calvert          Opinion NO. M-37
Comptrollersof Public Accounts
Austin, Texas                        Re:    Whether the Comptroller
                                            of Public Accounts can
                                            include King County in
                                            the apportionment payment
                                            under Article 3912e, V.C.S.,
                                            when all County officers
                                            will be paid on a salary
                                           'basis and the County and
                                            District Clerk; in addition
                                            to the salary payment, will
                                            retain the fees of office
Dear Mr. Calvert:                           ana related question.

          Your request for an opinion of this office reads, in
part, as follows:

         "King County is a County under 20,000
    population and for several years the Com-
    missioners Court has elected to place all
    of the County officers on a salary basis.
    . . .
          1,
               .   .   .




          "This County submitted an amended order
     placing the County and District Clerk on a
     salary basis of $340.00 per month and to re-
     tain the fees of office.
          I,
               . I shall appreciate your opinion
                   .   .


    as to whether this department can include
    King County in the apportionment payment for
    the year 1967 under these orders. In the
    event you hold that King County is entitled
    to the apportionment; could this department
                           - 172 -
Hon. Robert S. Calvert, page 2 (K-37)



     pay the District Clerk any fees of office.
     There is no litigation peridingwhich would
     have a bearing in this'matter."

          In order to clearly"set out the facts, in regard
to this particular question, we are quoting the pertinent
portions of the order of the Commissioners Court of King
County, Texas, made January 11, 1967:

     "SALARIES AED FEES OF CODRTY ELECTED OFFICIALS

         A motion was made by J. C. Moorhouse and
    duly~seconded by Louis Burfiend to place Sybil
    Z.'Hensley, County and District Clerk of King
    County, Texas, on fee basis for the year 1967.
    All other County Officials of King County,
    Texas, to be retained on Salary Basis for cal-
    endar year 1967. A vote was called and all
    members voted in favor of said motion."

          Thereafter under date of February 13, 1967, the
Commissioners Court of King County, Texas, passed the follow-
ing order:

     "AMENDMENT TO ORDER PASSED JANUARY 11, 1967

         A motion was made by J. C. Moorhouse and
    duly seconded by Louis Burfiend to amend the
    Minutes of an Order passed January 11, 1967,
    which shall read as follows: All County
    Officials shall remain on a Salary Basis as
    set out in that order, with the exception of
    the County and District Clerk, who is hereby
    placed on a salary of $340.00 per month and
    retain the fees of office. A vote was called
    and all members voted in favor of said motion."

          Section 61 of Article XVI of the Texas Constitution
provides as follows:

          "Sec. 61. All district officers in the
     State of Texas and all county officers in
                           - 173 -
Hon. Robert S. Calvert, page 3 (R-37)



    counties,having a population of twenty thou-
    sand (20,000) or more, according to the then
    last preceding Federal Census, shall be com-
    pensated on a'salary basis. In all counties
    in this State, the Commissioners Courts shall
    be authorized to determine whether precinct
    officers shall be compensated on a fee basis
    or on a salary basis, with the exception that
    it shall be mandatory upon the Commissioners
    Courts, to compensate all constables, deputy
    constables and precinct law enforcement officers
    on a salary basis beginning January 1, 1949;
    and in counties having a,population of less
    than twenty thousand (20,000), according to the
    then last preceding Federal Census, the Com-
    missioners Courts shall also have the authority
    to ~determinewhether county officers shall be
    compensated on a fee basis oreon a salarv basis,
    with the exception that it shall be mandatory
    upon the Commissioners Courts,to compensate
    all sheriffs, deputy sheriffs, county law en-
    forcement officers including sheriffs who also
    perform the duties of assessor and collector
    of taxes, and theirdeputies, on a salary basis
    beginning January 1, 1949.

         “All    fees earned by district, county and
    precinct officers shall be paid into the county
    treasury 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 pro-
    vided that where any officer is compensated
    wholly on a fee basis such fees may be retained
    by such officer or paid into the treasury of the
    county as the Commissioners Court may direct.
    All Notaries    Public, county surveyors and public
    weighers shall continue to be compensated on a
    fee basis." Added Aug. 24, 1935, as amended Nov.
    2, 1948.      (Emphasis added.)

                         - 174-
Hon. Robert S. Calvert, page 4 (M-37)



          The Judiciary Section - Comptroller's Department
Appropriation (H.B. 12, Acts 59th Legislature, p. 1690) pro-
vides the following on pages 1690-91:

                                           For the years
                                              Ending
                                         August      August
                                        31, 1966    31, '1967

   "9. Apportionment to counties
   where county.officers are paid
   salaries. . . . Should any
   county by election of the Com-
   missioners Court, change from
   a salary to a'fee basis during
   this biennium, the Comptroller
   shall~make adjustments in the
   appropriations by transferring
   the correct amount from this
   appropriation to the appropria-
   tion made for paying fees and
   costs of sheriffs and other
   county officials.                     611,397    611,397

    "10. Fees and Costs paid to
    sheriffs, attorneys and clerks
    in felony cases, and fees of
    county judges, county,attorneysi
    justices of the peace, sheriffs
    and constables in examining
    trials where indictments are
    returned. . . .                  $ 15,000      $ 15,000"

          Since Section 10, above quoted, is appropriated
for the purpose of paying fees, said section could not be
used for payment of any salaries. Section 9, however, is
appropriated for the purpose of apportionment to counties
where the county officers are paid on a salary basis. The
apportionment is to be made by Sec. 6(a) of Article 3912e
which provides:

                          - 175 -
Hon. Robert S. Calvert, page 5 (M-37)



         "In counties wherein the county officials
   are on a salary basis, in addition to the monies
   deposited in said Officers' Salary,Fund or funds
   under the provisions of Sections 1, 3, and 5 of
   this Act there shall be deposited therein . . .
   such sums as may be apportioned to such county
   under the provisions of this Act, out of the
   available appropriations made by the Legislature
   for such purposes, provided, however, that in
   counties where the Commissioners' Court is
   authorized to determine whether county,officers
   shall be compensated on a salary basis, no
   apportionment shall be made to such county until
   the Comptroller of Public Accounts shall have
   been notified of the order of the Commissioners'
   Court that the county officers of such county
   shall be compensated on a salary basis for the
   fiscal year, and in that case the first quarterly
   payment of such apportionment shall be made in
   fifteen (15) days after receipt of such notice
   by the Comptroller, and the remaining payments
   on the dates hereinabove,prescribed. It shall
   be the duty of the Comptroller of Public Accounts
   to annually apportion to all counties in which
   the county officers are to be compensated on the
   basis of a salary any monies, appropriated for
   said year for such apportionment; each county
   entitled to participate in such apportionment
   shall receive for the benefit of its Officers'
   Salary Fund or funds its proportionate part of
   the appropriation which shall be distributed
   among the several counties entitled to partici-
   pate therein, on the basis of the per capita
   population of each county according to the last
   preceding Federal Census."

          Section 2 of Article 3912e, V.C.S., provides, in
part, as follows:
          II
           . . . In counties having a population
    of less than twenty thousand (20,000) inhabi-
    tants according to the last preceding Federal
                          - 176 -
Hon. Robert S. Calvert, page 6 (M-37)



   Census, it shall likewise be the duty of the
   Commissioners 1 Court, by its order duly made
   and entered of record at its fir& regular
   meeting in January of each calendar year, to
   determine whether county officers of such
   county~ (excluding county surveyors, registrars
   of vital statistics and notaries public)
   shall be compensated for the fiscal Year on
   the basis of an annual salarv or whether thev
   shall be compensated on the basis of fees
   earned bv them in the performance of their
   official auties, and it shall also be the
   duty of the county clerk to forward to the
   Comptroller of Public Accounts of the State
   of Texas, on or before the 31st day of January,
   a certified copy of said order of said Com-
   missioners' Court." (Emphasis added.)

          Section 3 of Article 3912e, V.C.S., provides, in
part, as follows:

         "Sec. 3. In all cases where the Commissioners
   Court shall have determined that county officers
   or precinct officers in such county shall be
   compensated for their services by the payment
   of an annual salary, neither the State of Texas
   nor any countv shall be charsed with or oav to
   any of the officers so compensated, any fees
   or commission for the performance of any or
   all of the duties of their offices but such
   officers shall receive said salary in lieu
   of all other fees, commissions or compensation
   which they would otherwise be authorized to
   retain: . . .ll (Emphasis added.)

          In the case of Wichita County v. Robinson, 155 Tex. 1,
276 S.W.2d 509 (19541, the Court, in construing Section 61,
Article XVI, Constitution of Texas, held that an Act (Art.
1436-1, Section 57, Vernon's Penal Code) passed by the Legis-
lature to allow additional compensation in the form of fees
of office for a County Tax Assessor-Collector who was paid on

                          - 177 -
Hon. Robert S. Calvert, page 7 (M-37)



a salary basis was unconstitutional.

          In conformity with the holding in the above case
that portion of the Commissioners Court order,passed on
February 13, 1967, whereby the C,ommissionersCourt authoriz-
ed the County and District Clerk to retain the fees of of-
fice as part of her compensation isvoid and unconstitutional
and she is only authorized to receive the salary as authoris-
ed by such order.

          Therefore the King County officials are'on a salary
basis and your department can include King County, Texas,
in the apportionment payment for~the year of 1967.

          Your department is not authorized to pay the Dis-
trict Clerk any fees of office, by virtue of the provisions
of Section 3 of Article 3912e.

                         SUMMARY

          Under the facts submitted the Comptroller
    of Public Accounts is authorized to include
    King County in the apportionment payment under
    Section 6(a), Article 3912e, V.C.S.

          The Comptroller of Public Accounts is not
    authorized to pay the County'and District Clerk
    of King County, Texas, any fees of office, by
    virtue of the provisions of Section 3, Article
    3912e, V.C.S.

                                         truly yours,


                                             tT22zF-
                                        rney General of Texas

Prepared by John H. Banks
Assistant Attorney General


                             - 178 -
Hon. Robert S. Celvert, page 8 (M-37)



APPROVED:
OPIIUION COMMITTEE

Hawthorne~Phillips, Chair-n
W. V. Geppert, Co-Chairman
Bill Craig
Neil Williams
Houghton Brownlee
Lewis Berry

STAFF LEGAL ASSISTANT
A. J. Carubbi, Jr.




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