   OFFICE   OF THE AlTORNN      GENERAL   OF TEXAS
                       AUSTIN




Eon.&yneIalbYr8
countyiwitor
c4 *=m




                   80, n, 0. E. 1911, r8aes 88 follcnmr
                    1 be allawed the county judge
                             of one per otmtupon
                             of rwoh am~cttim, ad-
                             Y upon the approyal
Hon. Wayne Iefevw,    Page 2


           Article 3850, supra, was.bro~ht   lorward,ln
the Revised Civil Statutes of 1925 in Artlole    3926, whioh
reads in part a8 followsr
            "The oounty judge shall   also   reoelve    the
    following   Sees:
          "1. d oom~~laelon or one-half   OS one per
   oent upon the eotual oaeh reaelpta of eaoh
   exeaubor, administrator   or guardian,    upon the
   approval ol the 'exhlblhe end the rinal settle-
   ment of the aooouut of suah exeo'utor, adminia-
   trator or guardian, but no uore than one suah
   oomlselon   shall be ohargecl,on any emouut m-
   osived  by any suah exeautor,   administrator   or
   guardian,"
         We quote from the ease of Oriae vs.           Coolep,   et
   170 6W 1088, as follows!
           "When are the aomiasiona    pmvlUsQ tar
    by Artlole 3250 (mm Art. 39261 payable')         ft
    is the oontention o? appellant.that      thay a+
    not payable until the guartlian'e final aooount
    Is approved., Appelleee oontend that they a*
    payable upon all oaah reaeipte shown by any
    annuati~eoount OS the guarilhn, wheti euah dooount
    Is approved by the jutl e to whcm It Is presslit-
    ed.   Omitting r0=at   f er5,the artlole    provide19
    that the aounty judge, in addition to other
   apecliied   fees, shall %I allowed .*..,       ~'o~QI-
   mission of one-half of 1 er sent. upon the ao-
   teal cash reoeipta of eaog i..,. guardian         upon
   the approval of the exhchibfta and the f&l
   settlement of the aooount of suoh . . . . guaMIan,*
   provided only one suoh oharge shall be made.
   Prooeaalng on the theory that the faglalature,~
   when It enaotod that euoh ices should bk'pald
   *upon' the approvnl of the exhiblfs'and      the'
   rlnaz settlement of the aaoount' of the guar-
   dian, intended that full rorae and efffsot should
Eon. Weyne Lefevre,     Page 3


      be given to both pmvislone,          we oonolude
      that suoh ommlrrdons may be payable upon
      approval of the annual eocount or upon
      approval of the final eaoount, depending
      upon when the ~rdIan         resolved the money
      upon whIoh the ocnnmIee.ion Ie.sou@t           to be
      ool?ected.     For illustration,      it;upoti
      presentation    of an annual aooount         It
      discloses    that oaeh has been reae i ved by
      t:-!e tpuxrdian p~rlorto such preaentatfon           .
      and subsequent to any last annual aooount,
      such guardianwould       be en%Itl+d to the
      speolfIed    ooErmlssfona upon the approval
      of the acoount 80 preeented.          On the other
     hand, if it appears fz~m the guardlan*s.
     f’inal acoount that slnae his last annual
     aooount further cash hae been received,
     he would be entitled       to his oommlaslon
     thereon upon the approve1 of suah final
     aaaount . The reierende to the approval
     OS the guardian18 exhibits         and the approval
     0r   Ns final eooount we regard ue merely
     rixinC:the period or time when~the county
    .judge may tax hls owimlsslons.            By Article
    4186, R. E. 1911, guardlane are required
     to present an annual aoaount’under oath
     showing, amory; other thinKs, ‘a ocmplete
    aooount of reoelpts end disbursements
     olnoe the last annual eooount.’ .Upon pr?-
     eentatlon of suoh annual account, It Is
    by subsequent provIsIons         of the statutes
    made the duty of the then presiding             county
     judge to oonduat a hearing thereon, and,
    Ii he is satisfied       that/the    aooount le
    oorreot,     it is his duty to approve -s=e.
    Ravbq made It the duty of tho.oounty
    judr~e to approve such eooounta, and ha*-
    I= allowi$ a fee of one-h&!            Of 1 per
    oent. upon the ‘eatual oaeh reoeipts
    shown thereby, It surely follows,            It Seerae
    to us, that the oommisaiona are payable
    upon ouoh appaoval, for the reason that
Eon. !‘&ayneLerevre, bee    4



     they were clearly      Intended for the~beneflt
     of the c?rrlcer psrromlng the duty, and,
     having been so Intended, It was never oon-
     tonplated that he should forego hls cc%-
     pensatlm until final settlenmt-a%:$hF           es-
     tate,   particularly    when final settlemit
     nIQht not oonm until artier the lapse of
     $.nfn~ars     and the possible death of the
                  WJ do not, as lndloated,    thlnk.
     the ref&enoe      to flnal settlesent   at ellsman-
     ln@ess.      It Is very pmbebly tbst In many
     2uardlanshlp ~roceedln~s oash would be re-
     oaived by tho ~uaMlan In the .perIod in-
     tervening between his last annual aooouut
     and the flnal account.       If such oash was
     received,    the oounty judge who hedtmd
     approved such final      aooount would; be .on-
     titled   to the comlsslon      thereon, and the
     8010 pwpos~, in 0~s opinion, for say rate*
     en06 to final settleaent,       was to aeoure
     the osf loer In ths peymmt of the Yees aa-
     crulng at that time and whloh oould not
     be done under the ~rovlalon covering anuual
     accounts.
           "'We have treated the word *exhibits',
     in article    J&50, as referring      to annual
     aooounts.     Wile It may not be said that the
     exhibit,   either literalLy     or in legal oontem-
     pletlon,   meens account, It Is well knm that
     aooounts are often attached to plsadlngs          es
     exhlblts.     Such oustom, taken In oonnection with
     the reference     In the ssns,atiIole      to oash pe-
     aeipts rsqulred.to     be shovs.ln snuual aocounta
     by article    4106, l?. 8. 1911, and the further
     faot that the annual aaoouuts required Oi
     &her fidualarles      are referred to ns snnual
     exhibits   (articles   324., 3242, R. 2. 19.911)
     sue in our'oplnlon     sufflclent     basis for hold-
     ing that anmal accounts were Intended."
               Artlolfe3320   and 3321,   R. C. S. read as fol-
low3 :

               "h-t. 3320. Exeoutors end adminietra-
         tort? shall ma& annual exhibits     under oath,
         fully nhowlnq the ccndltlon     or the estate;
         they shall n&n final settlement of the eu-
         tatea they represent.rithin    three years from
         the 3-t     of letters,  unless the tfms be extended
         by the oourt after satlsfaotory     showing laeda
         under oath; and, upon fatiure     in either 0888,
         shall be removed as provided     by law.

            "Art. 3321. Any exhibit made by qn ere-
      outor or administrator         showing a list   of
      olaims allowed and approved or established
      a&nst      the estate he represents,        or ehavt@g
      the condition-of        said estate and an aooount
      of all money received ati paid out on aoootmt
      of 8atd eatate,       returned   to the oourt betore
      the liliyr      of the aocount for final*eettle-
      ment, 5hal.l     be filed with the clerk, and
      notioe of muoh filw           shall be posted at
      the oourthouse door tcr ten days from the
      postin&      after whloh the onurt shall examine.
      aald exhibit,      and if correct,     render judqent
      of approval thereon and order it to be reoord-
      ed."
           In vim of the foregoing   authorities,  you are
respectfully  advised that it.ia the oplnion.of   this de-
partment thst the one-half of one per cent oommlst3ion
iron the reoelpts of properties   handled bye an adminis-
trator is paya!:le to the county judge upon the aubmlsslon
of exhibits and the annual report and that auoh oommlesfon
is not payable at the time of the sales “of the property.
               TrustLng that the foregoing     answers your inquiry,
we remain
                                     Very truly   yours
