            TE~~A~~~RNEY          GENERAL
                     OFTEXAS




Honorable Richard 3. Morris
County Attorney
Armstrong County
Claude, Texas
Dear Sir:              Opinion No. O-1153
                       Re: Under the facts set forth should
                            the sheriff report es fees of of-
                            fice the compensation he receives
                            as tax collector for the Claude
                            Independent School District? If
                            so, what is the proper method of
                            adjusting the error of not having
                            reported such fees for the years
                            1936, 1937 and 1939
        Your request for an opinion on the above stated   ques-
tlons has been received by this office.
       Your letter reads, in part, as follows:
       "In Armstrong County, having a population
   of 3';329,the Sheriff also acts as Tax Asses-
   sor and Collector for the State and County.
   For convenience herein this officer will be
   hereafter designated as the sheriff. The pre-
   sent in cumbent assumed the duties of this of-
   fice January 1, 1935. There are three lnde-
   pendent school districts in this county, of
   which the Claude Independent School District
   alone has its taxes collected by the sheriff.
   The Board of Trustees of the Claude Independ-
   ent School District appoints the Sheriff to
   collect the taxes for such district, an asses-
   sor being another person. The tax rolls of
   the school district being prepared by the
   assessor and turned.over to the sheriff who
   collects the school taxes from such tax rolls.
   The School District pays the premium on the
   bond of the sheriff es tax collector for the
   School District and other necessary expenses
   in connection with his duties as tax collec-
   tor for the School District. The compensation
   for such servkes Is 1% of the taxes col-
Honorable Richard 3. Morris, page 2        O-1153


    1eCted for the School District. The other
    independent school districts in the county
    have their own tax essessors and collectors.
        "In the year 1935 the~'sheriffincluded
   in his annual fee report as Sheriff and Tax
   Assessor and Collector for the State end
   county, the compensation he had received dur-
   lng that year as tax collector for the Claude
   Independent School District, paying some ex-
   cess fees to the county. Before making-up
   his annual fee report for the year 1936, the
   sheriff asked the county attorney whether
   or not he should-,enterthe compensation he
   received as Tax Collector for the Claude
   Independent School District in his annual fee
   report end show same es e fee of office es
   Sheriff and Tax Collector end Assessor for
   the State end county. The County Attorney
   being of the opinion that, since the sheriff
   wes not elected to the offfce of Tax Collec-
   tor for the Claude Independent SchoolDis-
   trict but appointed by the school board which
   had the power to grant or deprive him of the
   duty or office of Tax Collector for the
   School District according to their prefer-
   ence, such compensation he received es tax
   collector for the school district should not
   be reported in es much as the office of Sher-
   iff end tax essessor and collector for the
   state and county was separate and distinct from
   that of tax collector for the school dis-
   trict. The sheriff, following the advice of
   the county attorney, did not report the com-
   pensation he received as tax collector for
   the school district in his annual fee report
   as sheriff and tax collector for the state
   and county for the years 1936, 1937, and
   1938. Each annual fee report was approved
   by the Commissioners' Court. The matter of
   such compensation not being included in the
   annual fee report by the sheriff was ques-
   tioned by the auditor and taken before the
   grand jury in the October term of District
   Court, 1938, and also before the grand jury
   of the April, 1939, Dlstrlct Court, both
   juries approving the action of the Commission-
   ers' Court. The office of Sheriff and Tax
   Assessor and Collector for State end county
   ran excess fees for the years 1936 and 1938
Honorable Richard 3. Morris,   page 3       o-1153


    of the years the compensation received by such
    officer as tax collector for the School Dis-
    trict were not Included in such fee report. ~ .
        "1. Under the facts end circumstances re-
    lated above, should the sheriff report as fees
    of office in his annual fee report the compen-
    sation he receives as tax collector for the
    Claude Independent School District.
         "2. In the event such fees or compensa-
    tion should have been reported, then whet is
    the oroner method of ad.iustinnthe error of
    not havingreported such fees-for the years
    1936, 1937, end 1938?”
        Section 16 or Article VIII of the Constitution reeds
as follows:
        "The sheriff of each county; in addition to
    his other duties, shall be the assessor end col-
    lector of taxes therefor- but, in counties hav-
    ing ten thousand (10,OOOj or more Inhabitants, to
    be determined by the last preceding census of the
    United States, an assessor and collector for taxes
    shell be elected to hold office for two (2) years,
    end until his successor shall be elected and
    qualified."
        Article 7246, Revised Civil Statutes, reads as fol-
lows:
        "In each county having less than ten
    thousand (10,000) inhabitants, the sheriff of
    such county shell be the essessor and collec-
    tor of taxes, and shall have end exercise all
    the rights, powers and privileges, be subject
    to all the requirements and restrictions, and
    perform all the duties imposed by law upon as-
    sessors end collectors; end.he shell also give
    the seme bonds required of a collector of tex-
    es elected."
        Articles 3896 and 3897, Revised Civil Statutes, read
es follows:
        "Article 3896. Each district, county and
    precinct officer shall keep a correct statement
    of all fees earned by him and all sums coming
    Into his hands es deposits of costs, together
Honorable Rlcherd 3. Morris, pege 4        o-1153


   with all trust funds placed in the registry of
   the court, fees of office and commissions in a
   book or.ln books to be provided him for that
   purpose, in which the officer, at the time when
   such deposits ere made or such fees and commis-
   sions are earned and when any or all of such
   funds'.shallcome Into his hands, shall enter
   the same; and it shall be the duty of the county
   auditor in counties having a county auditor to
   annually examine the books and accounts of such
   officers ana to report his findings to the next
   succeeding grand jury or district court.~ In
   counties having no county auditor, it shell be
   the duty of the Commissioners'.Court to make the
   examination of~saia books end accounts or have
   the same made and to make report to the grand
   jury as hereinabove provided.
        "Article 3897. Each district, county and
   precinct officer, at the close of each fiscal
   year (December 31st) shall make to the district
   court of the county in which he resides a sworn
   statement in triplicate (on forms designed and ap-
   proved by the State Auditor) a copy of which
   statement shall be forwarded to the State Auditor
   by the clerk of the district court of said county
   within thirty (30) days after the same has been
   filed in his office, and one~copy to be filed
   with the county auditor, if any; otherwise said
   copy shell be filed with the Commissioners' Court.
   Said report shall show the amount of all fees,
   commissions and compensations whatever earned
   by said officer during the fiscal year; and
   secondly, shell show the amount of fees, commis-
   sions end compensations collected by him during
   the fiscal year; thirdly, said report shall con-
   tain en itemized statement of all fees, commis-
   sions and compensations earned during the fiscal
   year which were not collected, together with the
   name of the'perty owing said fees,'~commissions
   and compensations. Said report shall be filed.
   not later then February 1st following the close
   of the fiscal year and for each day after said
   date that said report remains not flied, said
   officer .she'llbe liable'to a penalty of Twenty
   Five ($25.00) Dollars, which may be recovered
   by the~county in e suit brought for such put'-
   poses, and in aaaltion sala officer shell be
   subject to removal from offlce."
Honorable Richard 3. Morris, page 5                  o-1153


        The last two paregraphs of Article 3891, Revised C~vll
Statutes, read es follows:
        "The compensations, limitations and maximums
    herein fixed in this Act for officers shall in-
    clude and apply to all officers mentioned herein
    in each and every county of this State, and it
    is hereby declared to be the intention of the
    Legislature that the provisions of this Act shall
    apply to each of said officers, and eny special
    or general law inconsistent with the provislons
    hereof is hereby expressly repealed in so far as
    the same may be inconsistent with this Act.
        "The compensation, limitations and maximums
    herein fixed shall also apply to all fees end
    compensation whatsoever collected by seld of-
    ficers In their official capacity, whether ac-
    countables as fees of office under the present
    lav, and any law, general or special, to the
    contrary Is hereby expressly repealed. The only
    kind and character of compensation exempt from
    the provisions of this Act shall be rewards rs-
    ceived by Sheriffs for apprehension of criminals
    or fugitives from justice and for the recovery
    of stolen property, and moneys received by County
    Judges and Justices of the Peace for performing
    marriage ceremonies, which sum shall not be ac-
    countable for and not required to be reported es
    fees of office."
        It appears that the terms of the lest above quoted
Article are inclusive to the extent that In order for fees
to be exempt thereunder, they must be specifically excluded.
This contention Is borne out by the following prior opinions
of this department:
                 To William B. Love, Carrizo Springs, Texas, dated
June zg,lig36.
            To Honorable Moreland, State Auditor, dated
            2.                                                        Octo-
ber 9, 1931.

            3.   TO J. D. Looney, Boston, Texas, dated May 29,
1935 0
                 TO Honorable Moreland, State   AUditOr,      dated   fk?
6, lg32."
            The conclusions presented in the above opinions are
Honorable Richard 3. Morris, page 6         O-1153


further borne out by the case of Nichols vs. Galveston County
(3upreme Court of Texas, 1921) 228 S.W. 547. In this case
Galveston County sued the appellant to recover certain fees
and commissions received by him es Tax Assessor end Collector
of Galveston County, who also performed the duties of asses-
sor and.collector of a drainage district for which latter
services he received the compensation for which recovery was
sought. The court, In considering the case, compared the
Articles under which compensation is allowed to tax assessors
and collectors for their services in assessing and collecting
taxes of drainage districts to the Article under which the tax
assessor and collector of a county may be designatea assessor
and collector of an independent school district, end receive
in return for acting as such certain commissions. The court
consldered situations arlsing under each Article with respect
to accountability of commissions received thereunder to be
completely analogous. The~court cited the cese of Ellis County
vs. Thompson, 66 S.W. 49, quoting from such case in the fol-
lowing language:
       "The phrase 'fees of all kinds' embraces every
   kind of compensation allowed by law to e clerk of
   the county court, unless excepted by some provi-
   sion of the statute. 0 a The exceptions are so
   definite that by implication all fees not mentioned
   in the exceptions are excluded therefrom, end there-
   by included within the requirements of the act."
        Article 2792, Revised Civil Statute, reads as fol-
lows:
       "When the majority of the Board of Trustees
   of en Independent District prefer to have the
   taxes of their District assessed end collected
   by the County Assessor and Collector, or col-
   lected only by the County Tax Collector, same
   shall be assessed and collected by said County
   Officers and turned over to the Treasurer of the
   Independent School District for which such taxes
   have been collected. ~The property of such dis-
   tricts having their taxes assessed ?nd collected
   by the County Assessor and Collector may be as-
   sessed at a greater velue.than that assessed for
   County end State purposes, end in such ceses the
   County Tax Assessor end Collector shall assess
   the taxes for said district on separate essess-
   ment blanks.furnished by said district and shall
   prepare the rolls for said district In accordance
   with the assessment values which have been equal-
   ized by a Board of Rquallzation appointed by the
Honorable Richard 3. Morris, page 7          O-1153


    Board of Trustees for that purpose. If said
    taxes are assessed by's Special Assessor of the
    Independent district and-are collected only by
    the County Tax Collector, the County Tax Col-
    lector in such cases shall accept-'therolls
    prepared by the Special Assessor and approved by
    the Board of Trustees es provided In the proced-
    ing Article. When the~~countyAssessor end Col-
    lector 1s required to assess and collect the
    taxes of Independent School Districts he shells
    respectively receive one per cent (1%) for as-
    sessing, and one per cent (19 for collecting
    same.'

        The case of Nichols, et al. vs. Galveston County,
supra. further holds, in effect, that where the county esses-
sor did not account for the portion of the fees received for
which the county was entitled under the statutes prescribing
the maximum amount of fees that may be retained byethe county
assessor, the county could bring en ection on the assessor's
bond; the duty of accounting for the assessor's fees being
within the condition of the bond.
        You are respectfully advised that it Is the opinion
of this department that the sheriff who~is also assessor end
collector of taxes for Armstrong County, and tax collector
for the Claude Independent School District is required to re-
port as fees of office, the compensation he receives as tax
collector for the Claude Independent School District.
        Insanswer to your second questlon, you are further
advised that the fees or compensation received by the sheriff
and essessor and collector of taxes for collecting the taxes
of the Claude Independent School District should be properly
accounted for, end he should pay to the county all such fees
or compensation in excess of the maximum compensation allowed
by law.
         Trusting that the foregoing answers your inquiry, we
remain
Honorable Richard 3. Morris, page 8          o-1153


                               Yours very truly
                           ATTORNEYGRNRRAL OF TEXAS
                                                .
                              By s/Ardell Williisms
                                   Ardel~~Williams
                                   Assistant
AW:FG:wc

APPROVED AllG.10,1939
s/Gerald C. Mann
ATTOFNEYGXNEFUL OF TEXAS
Approved Opinion Committee By s/km    Chairman
