Honorable W. L. McConnell
District Attorney
84th Judicial District
Panhandle, Texas
Dear Sir:            Opinion No. O-5161.
                     Re: Is a county and district clerk en-
                          tltled to retain such fees as her
                          had collected during the month of
                          December even though the official
                          whom he had succeeded in offlce had
                          collected the maximum allowed by
                          law?
        Your letter of March 22, 1943, requesting the opinion
of this department on the above stated question is in part as
follows:
        "The County and District Clerk of Carson
    County, Texas, died during the earlg~~partof De-
    cember, 1942. At the time of his death he had
    collected the maximum amount of fees allowed by
    law for the gear, 1942. His successor In office
    collected additional fees during the remainder
    of the month of December.
       "An examination of the Articles of the Re-
   vised Civil Statutes pertafning to fees of offLce
   and particularly Article 3883 and the succeeding
   articles thereto and the cases cited thereunder
   has not revealed to me the answer to the question
   propounded by the County and District Clerk, who
   finished out the year subsequent to the death of
   the incumbent In the office, as to whether or not
   he was entitled to retain such fees as he had col-
   lected during the month of December even though
   the official whom he had succeeded~'inoffice had
   collected the maximum allowed by law,
       I,
        ..eo.O...D.O.S...I,
        Carson County has a population of 6,624 Inhabitants
according to the 1940 Federal Census and the County officials
of said County are compensated on a fee basis. The same offi-
Honorable W. L. McConnell, page 2         o-5161


cial in Carson County performs the dutLes of Dlstrl,ctand
County Clerk.
         Article 3898, Vernon's Annotated Civil Statutes pro-
vides:
       -"Th-efiscal gear,~~'withln
                                 the meaning of this
    Act, shall beginon January 1st of each year; and
    each district, county and precinct officer shall
    file his report and make the fiscal settlement re-
    quired inthis Act not later-than February 1st of
    each year; provided, however; that officers re-
    ceiving an annual salary as compensation for their
    services shall, by the close of each month, pay
    into the Officers' Salary Fund or funds, all fees,'
    commissions and compensation collected by him dur-
    ing said month. Whenever such officer serves for
    a fractional part of the fiscal year, he shall
    nevertheless file his report and make final settle-
    ment for such part of the year as he serves and
    shall be entitled to such proportionate part of.'
    his compensation as the time for his service bears
    to the entire year."
        We have been unable-.tofind any case where the appel-
late courts of this State'have passed upon the Identical ques-
tlon presented in your inquiry. However, there are several
cases involving similar questions pertaining to county treasur-
ers.
        We first direct your attention to the case"of Daven-
port v. Eastland County, 60 S. W. 243: The material facts in
that case were that Davenport, who was ~County Treasurer of
Eastland County, held over for thr~eedays on account of delay
of his successor in qualifying. During those three days the
commfssions of the Treasurer upon the percentage fixed by the
CommissLbners' ~Court amounted to $434.85, which amount Daven-
port retaLned.and claImed as his own. The County sued Daven-
portand was awarded judgment in the trial court in the sum
of $414.41. The amount was arrived at by allowing Davenport "
to retain as compensation for his services'3/365ths 'of $2000.00.
Inother words his compensation was fixed at the same ratio to
$2900.00 that the number of days served ~bears to the number
of days in a year. Davenport appealed and the Court of CLvil
Appeals certified to the Supreme Court the questlon arising
upon the above facts. To that question the Supreme Court made
answer that Davenportwas entitled to retain only that portion
of the aum of $2,000.00 which the time he served after the
expiration of his term bears to the whole year. The Court
further stated in effect that whtle recognizing that a.trea-
surer's compensation Is not,strIctly speaking a salary, the
Honorable W. L. McConnell,   page 3        o-5161


compensation to which he is entitled Is not a fee for the per-
formance of such acts,but is an annual compensation for his
services for an entire year. The fact that it is payable in
the form of commissions as and when those commissions accrue
often result in making his compensation payable largely in
advance, but that does not alter the conclusion that payment
is for service for an entire year to be returned ratably If
the service is not performed.
        (To the same effect see the case of Tom Green County
v. Motley, 118 S. W. (2) 306).
        Under Article 3883 and Article 3891, Vernon's Anno-
tated Civil Statutes the maximum compensation cannot exceed
$3,000.00 per year.
        Following the same reasons as stated in the foregoing
cases it is our opinion that the deceased Clerk was entitled
to retain only that portion of the sum of $3,000.00 which the
time he served bears to the whole year. It Is our further
opinion that his successor in-office Is entitled to retain
that portion of the sum of $3,000.00 which the time he served
bears to the whole year. In other words the deceased official
and his successor in offFce,are allowed to retain between them
the maximum sum of $3,000.00 to be prorated or divided as here-
tofore stated. The excess fees collected by the deceased of-
ficer and the present Incumbent which the county Is entltled
to must be paid to the county.
                                 Yours very truly
                               ATTORNEY GENERAL OF TEXAS

                                 By s/Ardell Williams
                                      Ardell Williams
                                            Assistant

AW:mp:wc

APPROVED MAR 30, 1943
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By sfBWB Chairman
