                      September 18, 1952

Hon. Henry Wade            Opinion No. v-1522
District Attorney
Records Building          Re: Compensation of the Co,unty
Dallas, Texas                 Auditor for services ren-
                              dered improvement districts.
Dear Sir:
          You have requested an opinion on the following
questions:
          "1. Can the'Dallas County Auditor col-
     lect compensation for services to improve-
     ment districts under the provisions of Arti-
     cle 1672 (V,R.C.S.)?
          "2, If so, must the amounts be paid in-
     to the general fund, or may they be retain-
     ed by the County Addltor as compensation over
     and above his regular salary?"
            Article 1672, V.C.S., provides:
          "The county auditor shall receive for
     &is services In auditing the affairs of such
     districts, LImprovement Districts/ such com-
      ensation as the commissioners court may
    ~~~s~~i~;;,which shall be paid by the co,unty
              e general fund and repaid to the
     county by such districts by warrants drawn
     upon the proper funds of such district, In
     suoh counties which have or may have as many
     a8 five such distticts, the compensation al-
     lowed the county auditor for his services
     on behalf of such districts shall be not less
     than the sum of twelve hundred dollars per
     annum, to be prorated among the districts
     In such proportion as the commissioners co,urt
    may determine." (Emphasis ours)
          Article 1645, V.C,S., prescribing the compen-
sation to be paid county auditors in counties having a
population of 35,000 inhabitants or more or having a
tax valuation of $15,000,000.00 or over,specifically
                                             .      .




Hon. Henry Wade, page 2 (V-1522)


states that its provisions shall not repeal or affect
Article 1672. S.B. 119 Acts 47th Leg., R.S. 1941, ch.
601, p. 1331. Therefore, it Is clearly the Intention
of the legislature that the county auditor should re-
ceive both the compensation provided in Article 1645
"for his services to the county" and the compensation
provided in Ar.tlcle1672 "for his service in auditing
the affairs of such districts."
          Section 61 ~of Article XVI of the Constitution
of Texas requires all district, county and precinct of-
ficers compensated on a salary.basis to pay into the
county treasury all fees collected by those officers in
the performance of their duties. Att'y Gen. Op. v-1460
(1952). If the compensation provided in Article 1672
constitutes a fee or commission within the meaning of
Section 61 of Article XVI of the Constitution of Texas,
the county auditor would be required to turn the money
received into the county treasury.~ However, we believe
that the compensation constitutes a salary rather than
a fee of office for the following reason.
          In Greer v. Hunt County 249 S.W. 831 (Tex.
Corn.App. 1923) the Court discus&d the distinction
between salary and commissions and stated:
                  The controlling element in
     determinikg'whether the amount to be re-
     ceived is upon a commission or salary basis
     Is whether that amount, by whatever name it
     may be called, Is absolute and fixed regard-
     less of what the lawful commissions may be,
     or Is made contingent upon earning that
     amount as commissions."

          It is noted that the compensation provided for
in Artiole 1672 is not dependent upon fees or commissions
but is set by the commissioners' court at an absolute
and fixed amount.
           Therefore, you are advised that the commission-
ers ' court Is authorized to pay the county auditor a
salary for services rendered to improvement districts of
Dallas County governed by Article 1672.
                      SUMMARP
          Commissioners' court of Dallas County
     is authorized to pay the county auditor a
Hon. Henry Wade, page 3 (V-1522)


     salary pursuant to the.provislons of Article
     1672, V.C.S., for services rendered lmprove-
     ment districts, in'addltlon to the salary he
     realizes under the provisions of Article
     1645, v.c.s., for services to the county.
                           Yours very truly,

APPROVED:                    PRICE DANIEL
                           Attorney ffeneral
J. C. Davis, Jr.
County Affairs Division
E. Jaoqbsoti
Reviewing Assistant
Charles D. Mathews
First Assistant
JR:am
