-   .




                    HEA~~ORNEY           GENEKAE
                             OFTEXAS




        Honorable E. A. Watson
        County Attorney
        Crosby County
        Crosbgton, Texas
        Dear Sir:                 Opinion No. O-6749
                                  Re: Under the given facts could the
                                       Commissioners' Court of Crosby
                                       County under the provisions of
                                       Senate Bill No. 123, R.S., 49th
                                       Leg., pay all or any part of the
                                       increase in compensation out of
                                       any other fund than the fees of
                                       office?
                Your request for our opinion on the above questions is
        iisfollows:
                "Crosby County contains a population of
            slightly in excess of ten thousand, according
            to the last United States census.
                "Crosby County Is still under the fee bill,
            and has never been placed on the salary basis.
            Tax valuation under $7,000,000.00.
               "If, under Section I (a) of said bill, the
           Commissioners' Court decided to enter an order
           increasing the compensation of Precinct, County
           and District Officers, not to exceed twenty five
           per cent of the sum allowed under the law for the
           Fiscal year 1944, from what source would the funds
           come to pay for the increase in compensation?
           In other words, under this section I (a) could
           the Commissioners' Court pay all or any part of
           the increase in compensation out of any Other
           fund than the fees of the office?
               "As to Section 2 of said bill, could the
           Commissioners' Court of Crosby County increase
           the compensation of any deputy, assistant OF
           clerk in any sum above the amount paid for the
           fiscal year 1944, and if so, would such increase
           compensation be paid out of the fees of the of-
Honorable E. A. Watson, page 2         o-6749


    fice, or commissions or could they be paid out
    of any other county funds?
        "With reference to Section 3 of said act,
    paragraph e, can the Commissloners' Court of
    Crosby County increase the compensation of Pre-
    cinct, County and District Officers as provided
    in said section, and if so, will the increase be
    paid out of fees of the office, or if they are
    insufficient out of some other fund of the county.
        "Section 4 (b) under this section, can the
    Commissioners' Court of Crosby County, Increase
    the compensation of precinct, county and district
    officers as therein provided for, and If so, will
    the increase have to be paid out of fees and com-
    missions or will the court be permitted to pay
    said increase out of any other county fund.
        "Section 5 of said act provides that section
    2 of Article 3934 Revised Civil Statutes of Texas,
    1925, be and the same is hereby in all things re-
    pealed. Said Section 2 of Article 3934 is the
    Section which provides that the Commisslonera'
    Court may pay to the Sheriff for services in post
    ing election notices, etc., in any sum not exceed-
    ing one thousand dollars per year. It appears to
    me  that said section 5 destroys the right of the
    Commissionera' Court to pay the Sheriff any sum
    for such services, and I am unable to find where
    the court would be authorized to pay the Sheriff
    anything for such ex officio services as are pro-
    vided for in the original section 2 repealed by
    Section 5 of this act.
       "Please advise me what your ruling is on
   this matter, and If the Court cannot pay the
   Sheriff any salary for such ex officio duties out
   of the General Fund, then please advise me what
   fund, if any, they may pay him besides the fees
   and commissions of his office. In other words,
   under the present statutes and under this act,
   is there any provision for the Commissioners'
   Court to pay the Sheriff of Crosby County ang-
   thing except such as he may earn by the fees of
   the office.
        "So far as furnishing you with any further
    brief than the above, I am not prepared to do so
    except to refer you to the former brief furnished
Honorable E. A. Watson, page 3         o-6749


    you in connection with the request for an opinion
    with reference to Sheriff's compensation, etc.
    However, it la my opinion that under the law as
    it now stands, all compensations paid to all of-
    ficers in Crosby County, except the Sherlff, are
    to be paid out of fees and ex officio salaries as
    heretofore provided. It Is further my opinion
    that since Section 5 of said act repeals section
    2 of Article 3934 that all of the compensation
    that can be paid to the sheriff of Crosby County,
    must be paid out of fees and commissions and that
    the commissioners' Court would not be authorized
    to pay the Sheriff any kind of compensation for
    any service except 30 far as they come from fees
    and commissions earned by him.
        "It is my further opinion that the Legislature
    probably overlooked the fact that they were cutting
    the Sheriff off from the ex officio provided in the
    original section 2 of Article 3934, However, I
    hope that I am mistaken and that you will hold that
    the Commissioners Court can pay the Sheriff compen-
    sation in excess of what he drew under the law for
    the fiscal year 1944."
        Senate Bill No. 123 is in part as follows:
        "Section 1. That Article 3891, Revised Civil
    Statutes of Texas, 1925, aa amended, be and the
    same is hereby amended by adding thereto the fol-
    lowing:
        "'(a) The Commissioners' Court is hereby au-
    thorized, when in their judgment the financial con-
    dition of the county and the needs of the officers
    justify the increase, to enter an order Increasing
    the compensation of the precinct, county and dis-
    trict officers in an additional amount not to exceed
    twenty-five (25%) per cent of the sum allowed under
    the law for the fiscal year of 1944, provided the
    total compensation authorized under the law for the
    fiscal year of 1944 did not exceed the sum of Thirty-
    six Hundred ($3600.00) Dollars.'
        "Sec. 2. That Article 3902, Revised Civil
    Statutes of Texas, 1925, as amended, be and the same
    is hereby amended by adding thereto the following:
        If19. The Commissioners' Court is hereby au-
    thorized, when in their judgment the financial con-
Honorable E. A. Wstaon, page 4         o-6749


    dition of the county and the needs of the deputies,
    assistants and clerks of any diatrlct, county or
    precinct officer justify the Increase, to enter an
    order increasing the compensation of such deputy,
    assistant or clerk in an additlonal amount not to
    exceed twenty-five (25%) per cent of the sum allowed
    under the law for the fiscal year of 1944, provlded
    the total compensation authorized under the law for
    the fiscal year of 1944 did not exceed Thirty-six
    Hundred ($3600.oo) Dollars.'
        "Sec. 3. That Section 13 of Article 3912e,
    Revised Civil Statutes of Texas, 1925, aa amended,
    be and the same is hereby amended by adding thereto
    the following:
        "l(e) The Commissioners' Court is hereby au-
    thorized, when in their judgment the financial con-
    dition of the county and the needs of the officers
    justify the increase, to enter an order increasing
    the compensation of the precinct, county and dis-
    trict officers in an additional amount not to exceed
    twenty-five (25%) per cent of the sum allowed under
    thenlaw for the fiscal year of 1944, provided the
    total compensation authorized under the law for the
    fiscal year of 1944 did not exceed the sum of Thirty-
    six Hundred ($3600.OO) Dollars.'
        "Sec. 4. That Section 15 of Article 3912e,
    Revised Civil Statutes of Texas, 1925, as amended,
    be and the same is hereby amended by adding thereto
    the following:
        "l(b) The Commissioners' Court is hereby au-
    thorized, when in their judgment the Financial con-
    dition of the county and the needs of the officers
    justify the increase, to enter an order increasing
    the compensation of the precinct, county and district
    officers in an additional amount not to exceed twenty-
    five (25%) per cent of the sum allowed under the law
    for the fiscal year of 1944, provided the total com-
    pensation authorized under the law for the fiscal year
    of 1944 did not exceed the sum of Thirty-six Hundred
    ($3600.00)Dollcrs.'
        "Sec. 5. That Section 2 of Article 3934, Revised
    Civil Statutes of Texas, 1925, be and the same is
    hereby in all things repealed; and ~a11 laws or parts
    of laws in conflict with the provisions of thfisAct
    are hereby repealed insofar as they conflict.
Honorable E. A. Watson, page 5        o-6749


        Article 3883, Vernon's Annotated Civil Statutes, is in
part as follows:
        "Except as otherwise provided in this Act, the
    annual fees that may be retained by precinct, county
    and district officers mentioned in this Article shall
    be as follows:
       "1. In counties containing twenty five (25,000)
   thousand or less inhabitants: County Judge, District
   or Criminal District Attorney,  Sheriff, County~Clerk,
   County Attorney, District Clerk, Tax Collector; Tax
   Assessor, or the Assessor and Collector bf Texas,
   Twenty-four Hundred ($2400 ,OO) Dollars each. Justice
   of the Peace and Constable, Twelve Hundred ~$1200.00)
   Dollars each."
        Article 3891 of said statute is in part as follows:
        "Each officer named in this Chapter shall
    first out of the current fees of his office pay or
    be paid the amount allowed him under the provisions
    of Article 3883, together with the salaries of his
    assistants and deputies, and authorized expenses
    under Article 3899, and the amount necessary to
    cover coats of premium on whatever surety bond may
    be required by law. If the current fees of such
    office collected in any year be more than the amount
    needed to pay the amounts above specified, same shall
    be deemed excess fees.,and shall be disposed of in
    the manner hereinafter provided.
        "In counties containing twenty-five thousand
    (25,000) or leas inhabitants, District and County
    officers named herein shall retain one-third of
    such excess fees until such one-third, together
    with the amounts sBeclfied in Article 3883, amounts
    to Three Thousand ollars ($3,000). Precinct offl-
    cers shall retain one-third until such one-third
    together with the amount specified inArticle 3883,
    amounts to Fourteen Hundred Dollars ($1400).
        II. . . . . . . .

        "All current fees earned and collected by
    officers named in Article 3883 during any fiscal
    year In excess of the maximum ana excess allowed by
    this Act, and for their services and for the services
    of their deputies and assistants and authorized ex-
    penses, together with all delinquent fees collected
Honorable E. A. Watson, page 6         o-6749


    and not used as provided in Article 3892, or used to
    pay salaries of deputies ana assistants when current
    fees are insufficient, shall be paid Into the County
    Treasury In the County where the excess accrued.
        "All fees due and not collected, as shown in
    the report required by Article 3897, shall be col-
    lected by the officer to whose office the fees ac-
    crued and shall be dlaposed of by said officer In
    accordance with the provisions of this Act.
        "The compensation, limitations end maxlmuma
    herein fixed in this Act for officers shall include
    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 any special or general law
    inconsistent with the provisions 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 and com-
    pensation whatsoever collected by said officers In
    their official capacity, whether accountable as fees
    of office under the present law, and any law, general
    or special, to the contrary Is hereby expressly re-
    pealed. . . .'
        The above-quoted provisions of Article 3883 authorize
the county officials therein named to retain from the fees col-
lected by them the sums of money therein set forth. The quoted
provisions of Article 3891 authorize said offlclals to retain
from one-third of the excess fees collected by them the aadition-
al sums therein provided for. Section 1 of Senate Bill No. 123
amends Article 3891 by authorizing the Commissioners' Court, in
their discretion, and when in their judgment the financial con-
dition of the county and the needs of the officials therein named
justify the Increase, to enter an order increasing the annual
compensation of said officials In an additlonal amount not to
exceed twenty-five per cent of the sum allowed under the law for
the fiscal year 1944, provided the total compensation authorized
for under the law for the fiscal year of 1944 did not exceed
the sum of $3,600.00.  This increase, if authorized by the Com-
missioners' Court, must be paid from the excess fees collected
by said official, unless It, or a part thereof, should be ln-
eluded in the payment of compensation for ex-officio services,
as hereinafter set forth.
Honorable E. A. Watson, page 7        O-6749


        Article 3902 of saFd statutes provides Ln part as
f0110w3:
       "Whenever any district, county or precLnct
   officer shall require the services of deputies, as-
   sistants or clerks In the performance of his duties
   he shall apply to the County Commissioners'
   Court of his county for authority to appoint such
   deputies, assistants or clerks, stating by sworn
   appllcatlon the number needed, the posltion to be
   filled and the amount to be paid. Said application
   shall be accompanied by a statement showing the
   probable receipts from fees, commissions and com-
   pensation to be collected by said office during
   the fiscal year and the probable disbursements which
   shall include all salaries and expenses of said of-
   fice; and said court shall make its order author-
   izing the appointment of such deputies, assistants
   and clerks and fix the compensation to be paid them
   within the limitations herein prescribed and deter-
   mine the number to be appointed as In the discretion
   of said court may be proper; provLded that in no
   case shall the Commissioners' Court or any member
   thereof attempt to Influence the appointment of any
   person as deputy, assistant or clerk in any office.
   Upon the entry of such order the officers applying
   for such assistants, deputies or clerks shall be au-
   thorized to appoint them; provided that said compen-
   sation shall not exceed the maximum amount hereinafter
   set out. The compensation which may be allowed to the
   deputies, assistants or clerks above named for their
   services shall be a reasonable one, not to exceed the
   following amounts:
        "1 . In counties having a population of twenty-
    five thousand (25,000) or less inhabltants, first
    assistant or chief deputy not to exceed Eighteen Hun-
    dred ($1800.00) Dollars per annum; other assistants,
    deputies or clerks not to exceed Fifteen Hundred
    ($1500.00) Dollars per annum each."
        From the above-quoted provisions of the statute relating
to the compensation of deputies, assistants and clerks, 1t was
evidently intended that such compensation should be paid only
from the fees of office, commissions and other compensation, ex-
cept compensation for ex officio services, collected by the
various county officials,  In our opinion, the amendment of
Article 3902 by Senate Bill No. 123 makes no change in the man-
ner of payment of such deputies, assistants and clerks, and that
they must be paid from said fees, commissions and other compen-
sation collected by sala officials as above set forth.
Honorable E.A. Watson, page 8           o-6749


        Sectlons 3 and 4 of Senate Bill No. 123 do not apply
to Crosby County, since said sections are applicable only to
counties that are on a salary basis. Therefore, you are aa-
vised that Crosby County cannot increase the compensation of
its county and precinct officials under the provisions of
either Section 3 or Section 4 of Senate Bill No. 123.
        Article 3926, V.A.C.S., is in part as follows:
        "The county judge shall also receive the following
fees:
        11
         . . . . . . .
        “3. For presiding over the Commissioners
    Court, ordering electtons and making returns thereof,
     hearing and determining civil causes, if any, and
    transacting all other official business not other-
    wise provided for, the County Judge shall receive
    such salary from the County Treasury as the Commia-
    sioners' Court may allow him by order, payable mtn-
    thly from the general funds of the county, . . .
        Article 3928 of said statute   is   in part as follows:
        "The District Clerk shall also receive the
    following fees:
        II
         . . . . . . .
        “3. For the care and preservation of the records
    of his office, keeping the necessary indexes, and other
    labor of the like kind, to be paid out of the County
    Treasury on the order of the Commissioners' Court, such
    sum as said Court shall determine."
        Article 3932 of said statutes Is in part as follows:
        "For all ex-officio services in relation to
    roads, bridges and ferries, issuing jury script,
    county warrants, and taking receipts therefor,
    services in habeas corpus cases, making out bar
    dockets, keeping records of trust funds, filing
    and docketing all papers for Commissioners' Court,
    keeping road overseers' books and list of hands,
    recording all collection returns of delinquent
    insolvents, recording county treasurer's reports,
    recording reports of justices of the peace, record-
    ing reports of animals slaughtered, and aervlces in
    connection with all elections, and all other public
Honorable E. A. Watson, page 9         o-6749


    services not otherwise provided for to be paid upon
    the order of the Commissloners' Court out of the
    treasury, the county clerk shall receive such sum
    as the Commissioners' Court may determine under the
    provisitns of Article 3895, to be paid quarterly.
    . . . .
       Article 3895 of aa1d statutes is aa follows:
        "The Commissioners' Court is hereby debarred
    from allowing compensation for ex-officio servLces
    to county offYcials when the compensation and ex-
    cess fees which they are allowed to reteln shall
    reach the maximm provided for in this chapter.
    In cases where the compensation and excess fees
    which the officers are allowed to retain shall
    not reach the maximum provided for in this chapter,
    the Commissioners' Court shall allow compensation
    for ex officio services when, In their judgment,
    such compensation is necessary, provided, such
    compensation for ex officio services allowed shall
    not increase the compensation of the official be-
    yond the maximum of compensation and excess fees
    allowed to be retained by him under this chapter.
    Provided, however, the ex officio herein authorized
    shall be allowed only after an opportunity for a
    public hearing and only upon the affirmative vote
    of at leaat three members of the Commiaaioners'
    Court.'
        In the case of Veltman v. Slator, 217 S.W. 378, the
Supreme Court construed the last above-quoted statute, which was
then Article 3893, as follows:
        "Article 3893 as amended by the Act of 1913,
    is a clear grant of power to the Commissioners'
    Court to allow, when in their judgment necessary,
    ex offlclo compensation to county officials where
    their compensation and the excess feea they are
    permitted to retain do not reach the maximum provided by
    law, limited only by the requirement that the allowance
    shall not increase the compensation of the partFcular
    official beyond that maximum, and the operation of other
    subsisting laws. There Is no implication from the lan-
    guage, as has been suggested, that the power can be ex-
    ercised only where the allowance of ex officio compensa-
    tion to the official is authorized by some other statute.
    The evident purpose of the Legislature was to authorize
    its allowance by this statute, within the lj.mitations
    above stated; and it therefore suffices for the pur-
Honorable E. A. Watson, page 10         o-6749


    pose. The power was one within the authority of the
    Legislature to confer. The statute grants it in un-
    equivocal terms. That ends the matter so far as the
    courts are concerned except in cases of a manifest
    abuse of the power."
        In the case of Tarrant County, et al v. Hollls, et al,
76-3.~. (2d) 198, writ dismissed, the Court was considering an
order of the Commissioners' Court authorizing the payment of
ex officio compensation and it announced the following rules of
law governing the payment of such compensation, to-wit:
        llTheorder was entered just thirty-one days
    after appellee took office and at a time when the
    commissioners' court did not know what service 'ex-
    officio' the appellee would render or what amount
    he would collect In fees of office, i.e., what his
    compensation therefrom would be. The fact that in
    that one order the commissloners',court fixed the
    same ex officio compensation of$1,500 for the con-
    stable, the justices of the peace, the assessor, the
    collector, and the district clerk Is strongly sug-
    gestive that the court did not consider seriously
    just what 'ex officio' services these officials would
    render, but since it is not necessary to ourdecision
    to do otherwise, we indulge the presumption of cor-
    rectness, which Is ordinarily due a court judgment.
    We do call to the attention of the commissi.oners'
    courts that not only mmst the ex officio services
    be rendered, but that such compensation therefor must
    be 'necessary.' It violates the spirit of the act for
    a commissioners' court to make such order merely to
    enable the petitioner to make the maximum allowed by
    law. The record is wholly silent as to what, if any,
    services those various officials were to perform, each
    in his different line of work, but each none the less
    of the same value to the county. If the purpose was
    only to increase the pay of those officials without
    any ex officio service contracted for, then the order
    was improper. We are unwilling to give the order a
    construction which its language does not warrant, and
    which, if so construed, would suggest,,Fmprudenceon
    the part of the commissioners' court.
        Under the last above-quoted statutes and the rules of
law laid down in the court decisions referred to, it Is our
opinion that the additional compensation provided for by Sen-
ate Bill No. 123, Section 1, if authorized by the Commissioners'
Court, can be paid from one-third of the excess fees of office
and any ex officio compensation allowed to said officials, or
.   -




        Honorable E. A. Watson,   page 11        o-6749


        any of them, if the Commissioners I Court finds that said of-
        ficials, or any of them, would render ex officio services and
        that the compensation allowed therefor is necessary and enters
        an order to that effect. This would apply, of course, sepa-
        rately to each of said officials, that is, each official would
        receive his compensation from the fees of his offlce and the
        ex officio compensation allowed to him, and this might vary as
        to the different officials.
                Ex officio compensation is neither a fee of office nor
        an excess fee. Every service a county officer is required by
        law to perform, for which no fee or charge is specified, is an
        ex officio service, for which the Commissioners' Court, in its
        discretion, may allow ex officio compensation, payable out of
        the General Fund of the county.
                By way of illustration of the rules of law above an-
        nounced, we refer you to the following examples:
                If the fees collected in one ear are sufficient to
        pay only the base compensation of $2,;:
                                              00.00 allowed under Article
        3883, together with the salaries of assistants and deputies and
        all authorized expenses, the Commissioners' Court, under said
        rules of law, has authority to allow ex officio compensation in
        an amount sufficient to make up the maximum amount that could
        be paid under Senate Bill No. 123, to-wit, $3,750.00, or an ex
        officio compensation of $1,350.00, or such part thereof as said
        court may determine,
                If the fees collected in one year are sufficient to pay
        the base compensation of $2,400.00 allowed under Art. 3883, to-
        gether with the salaries of assistants and de.putiesand all au-
        thorized expenses, and there remains $1,800.00 additional In
        excess fees, said official would be entitled to retain one-
        third, or $600.00, of said excess fees in addition to the base
        compensation of $2,400.00, making a total of $3,000.00 retained
        by him from fees of office. The Commissioners' Court would
        then be authorized to allow him ex officio compensa'tionin an
        amount sufficient to make 'up the maxinmm amount that could be
        paid under Senate Bill No. X:3, to-wit, $3,75O.OC. or an er
        officio compensation of $750,030,or such part thereof as said
        court may determine.
                If the fees collected in one year are sufficient to
        pay the base compensation of $2,400,00 allowed under Art. 3883,
        together with the salaries of assistants and deputies and all
        authorized expenses, and there remains  $4,050.00 additional in
        excess fees, said official would be entitled to retail one-
        third, or $1,350000, of said excess fees in addition t,~the
        base compensation of $2,400.00, making a total of $3,722*30
                                                                     -   .




Honorable E. A. Watson, page 12           o-6749


retained by him from fees of office. In this event the Com-
missioners' Court could not allow any ex officio compensation
and, if ex officio compensation had been allowed and paid in
any amount, the'official receiving same would be liable to the
county for re-payment thereof, See Taylor et al v. Brewster
County, 144 S.W, (2) 314, writ dismissed.
        Your attention is directed to the fact that, in our
opinion, any of the increases in compensation above referred
to which may be paid as compensation for ex'officio services
would be subject to the budget law (Article 689a-9 to Art.
68ga-11, V.A.C.S.), and that, in order for that portion of such
increases to be paid from funds belonging to the county, the
county budget would have to be amended in accordance with said
budget law, as set forth in our Opinions Nos. 0-5184 and 0-5053-A,
copies of which are enclosed herewith.
        We also direct your attention to the further fact that
any such increase of salary for said officials, or any of them,
for the year 1945 must be in the proportion as the balance of
the year relates to the total annual increase that may be made
under Senate Bill No. 123.
        Trusting that this opinion satisfactorily answers your
inquiry, we remain
                                  Yours very truly
                             ATTORNEY GENERAL OF TEXAS
                                  By   s/Jas. W. Bassett
                                         Jas. W. Bassett
                                         Assistant
JWB:fb:wc
Enc.

Approved Aug 13, 1945
s/Carlos C. Ashley
First Assistant
Attorney General
This opinion considered and approved In limited conference.
Approved opinion Committee by s/BwB Chairman.
