                            EXAS




Honorable Joe Resweber         Opinion No. C-751
County Attorney
Harris County                  Re:   Commissions of County Attorneys
Houston, Texas                       in counties of 20,000 poRula-
                                     tion or more for suits for
                                     delinquent personal property
                                     taxes - Offiuer'e 6alary
Dear Mr. Resweber:                   Fund.
       We have received your request for an opinion reading as
follows:
              "When the County Attorneys In counties
         with populations of twenty thousand (20,000)
         or more have successfully represented the
         State and County in suits to collect delin-
         quent personal property taxes, are said County
         Attorneys entitled to deduct their commissions
         from said taxes and pay the same into their
         respective County Treasuries (Officer's 'Salary
         Fund)?"
       Youhave submitted a brief on the question propounded
in which you reached the conclusion that it should be answered
in the affirmative. We agree with your conclusion.
       While the statute (Article 7332, Vernon's Civil Statutes)
specifically provides for the fees of the county attorneys in
suits for delinquent taxes on real estate, there is no specific
statute mentioning compensation for suits for delinquent taxes
on personal property.
      Article 335, Vernon's Civil Statutes, reads as follows:
              "Whenever a district or county attorney
         has collected money for the State or for any
         county, he shall within thirty days after
         receiving the same, pay it into the treasury
         of the State or of the county in which it
         belongs, after deducting therefrom and retain-
         ing the commissions allowed him thereon by
         law. Such district or county attorney shall
         be entitled to ten per cent commissions on
         the first thousand dollars collected by him
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Honorable Joe Resweber, Page 2 (C-751)


          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 retained out of the money
          when collected, and he shall also be entitled
          to retain the same commissions on all collec-
          tions made for the State or for any county.
          This article shall also apply to money realized
          for the State under the escheat law."
       This office has consistently held that the above Article
provides for compensation to be paid to the county attorneys
on money collected in suits for delin uent ersonal property
taxes. Opinions numbers 0-260, O-109% , O-9t;
                                            8 and o-2410. In
view of this, the only question to determine is whether the
compensation collected by the county attorney in such cases is
to be placed in the Officer's Salary Fund.
       Article 16, Section 61 of the Texas Constitution reads
as follows:
              "All district officers in the State of
         Texas and all county officers in counties
         having a population of twenty thousand (20,000)
         or more, according 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
         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 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 Rotaries Public, county surveyors and public
         weighers shall continue to be compensated on a
         fee basis. . . .'
       The enabling act for the above constitutional provision
is Article 3912e, Vernon's Civil Statutes. Section 1 of this
Article provides that neither the State nor County shall pay to
any county officer of any county containing a population of

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Honorable Joe Resweber, Page 3 (C-751)


20,000 or more inhabitants any fee or commission for any service
by him performed as such officer, with certain exceptions, which
exceptions do not mention the compensation provided for by Article
335. However, we believe that this provision was intended to pro-
vide that such officer shall not be entitled to receive and keep
any fee or compensation authorized by law, but only provides
that such compensation so received shall be placed in the Officer's
Salary Fund since Section 5 of the same Article provides as
follows:
                 "It shall be the duty of all officers
            to charge and collect in the manner authorized
            by law all fees and commissions which are per-
            mitted by law to be assessed and collected for
            all official service performed by them. As and
            when such fees are collected they shall be de-
            posited in the Officers' Saiary Fund, or funds
            provided in this Act. . . .
       In view of the above, we answer your question in the af-
firmative.
                             SUMMARY
                 When the County Attorney in a county of
            a population of 20,000 or more has successfully
            represented the State and County in a suit to
            collect delinquent personal property taxes and
            has collected such taxes, said attorney is
            authorized to collect the commission provided
            by Article 335, V.C.S., and may deduct the
            same from the taxes collected, but is required
            to pay the same into the Officer's Salary Fund.
                                         Yours very truly,
                                         WAGOOWER CARR
                                         Attorney General

                                         By:


HGC/fb:lr



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APPROVED:
OPINJIORCOMMITTEE
W. V. Geppert, Chairmm
James Broadhurst
Jack Goodman
Lewis Berry
Ben Harrison
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright




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