        OFFICE OFTHEA'TTORNEY         GENERALOFTEXAS
                             AUSTIN




Etinorable Fred Blundell
Distrlat  Attorney
fan bfarcos, Texas
Dear sir;                   Attentions   Hon. Tom G. Oliver,   Tr?
                            Oplnlon NO. O-4034
                            Ret County Clarke - ex-offlolo     can-
                                 pensaticn - esoese fe4e
          Your rewest  for opinion has boon reooived and
aarefully cone&dared by this &apartment, V?a quote from satd
request ee iollovmr
             %on. L. 19. Bopkins, County Clerk of &ye
     County, ha8 raquorted me to ~8eoure from you a
     ruling with reforenos     to excess fess of his
     office,   ‘whLuh question ie, and arieoe,  ae rol-
     lower
             “Hayrr County is on the isa basis;   the
     county olerk reoeivse an ex 0rriOio compensa-
     tion, wMc.h is paid to him quarterly,       by war-
     rant on the general fund, and also reoeivae
     fees of ofilae.      The general fund of Hays
     County has been on a defioit      bash for aooeral
     yaare, and in order for the oounty olsrk         ati
     other offloere,     who reoeive salary payabia out
     of t>e general fund, to oash said warranta, it
     becomeeneceeaary to take a 8ubstantial       tlie-
     count, such as, say, lC$.’ DrAer article        3803,
     the oountg clerk of Rays County raceives          snd
     retains 6x otflcio      and foes until iii8 oompen-
     sation for tho year, in addition to saleriot!
     of ds2utles and expenses of conduct of the
     office,    has amounted to $8400.00, and than,
     under art&ale X+91, he rotabE        l/33 of th
     6208ss until hla tote1 cor;ponsetiosi amounts
     to ~3,000.00
Honorable   Fred Blundell,   Page 2


           “Article 5a91 provides:  ‘All current fees
     earned and colle~cted- - - In excess . OX
                                    . . . ~0%. -the- --
     maximum and excesf~ allowed by cnls
     shall be ,~aid into the County Treasurer in the
     county where the excess accrued.’
           "Do:?8 this mean that such county clerk
     must pay said BXOBBB   fees to the treasurer  in
     the form of cash, or may he pay seme in the
     form in which he reoeived the pay from the
     county, namely, the uncashed general fund war-
     rant issued to him, r:nU endorsed by Nm baok
     to the county?
          “01 course, by the time the last quarter-
    ly payment is due him by the crounty, he has
    completed the year and then know8 whether or
    not he will have an exoess and how muoh, and,
    as to this last payment he aan reZra1.n from
    taking came from the county, and henoe show
    that muoh less inoome to the offloe,     end that
    much lees exoees fee to be paid by him bask
    to the county.    No trouble is ‘had with this
    last payment, since eaoh he and .the county
    has a olaim ~agalnsf the other, and the ao-
    counts are simply baladoed by Ne refraining
    from aooppting his salary for the last quer-
    ter,.  It’ie believed that the priaoiple    or
    thia eort of adjuetment or eettlement is sanc-
    tioned by the Supreme Court in the ease of
    Felts ve. Bell County, 132 S. W. 123.
            “But the annual tee report, apart irom
    the foregoing    paragraph, yet shows en exoess
    of fees to be paid baok to the county, and
    the alerk has in poesession the oounty warrant
    on the goneral fund oovering his salary for
    the third quarter, the months of July, August
    and September, whioh warrant he has not dis-
    counted and cashed 6 can he tender said war-
    rant to the county and require the county to
    accept same, as payment upon the claim the
    oounty has a;::ainst Nm for exoeaa fees of
    office?     From the standpoint or common eanse,
    reason and natural justice,      it occurrs to
    the wrjter that the clerk should be legally
Honorable Fred Blundell,        Page 3


        authorized to pay the county In the same
        medium in ahia:! the county pays him, an&~
        hence I am inclined to answer the forego-
        ing qucstlon in the affirmative,   However
        I have not found any authority preeisaly
        on the point, although the reasoning of
        the above case supports this oonolusion.w
          The population of Hays County, Texes, is leas than
20,000 inhabitants   aocordlng to the 1940 Federal Census, and
its county offlcials   are compensated on a fee basis.
              Article   3895, Vernon’s   Annotated Texas civil     Stat-
utes,    made as follows;
                The Commissioners’ Court la hereby
        debarred rrom allowing oompensation for
        ex-offioio     servloes to oounty o.ffiaiale
        when the compensation and exoess fess whioh
        they are allowed to retain ehall reaah the
        maximum provided for in this ohapter.           In
        oases where the compensation and exaess
        leea wbioh the oftioers      are allowed to re-
        tain shall not reaah the maximum provided
        for in this ohapter, the Commiesioner,rrr*
        Court ehall allow compensation Sor 81: offi-
        oio eervloea when, in their jud          ent, auoh
        compensaticin is neoeesary       prov IT
                                               de&,  euoh
        compensation for ex ofiioio       serviaee allowed
        shall not increase the oompensation of the
        offioial    beyond the maximum of compensation
        and exoess fees allowed to be retained by
        him under this ohapter.       Provided, however,
        the ex officio      herein authorized shall be
        aumea      only after an opportunity      for a
        public! hearing and only upon the affirmative
        vote of at least three members of the Com-
        mlseioners*     Court.”
              Seation   1 of Article   3883, 8. A. T. C. S.,     reads
aa roilore:

              “Except a0 otnerwise provided in tNe
        Act, the annual fees that may be retained
        by precinct,  county and distriot  offioers
        mentioned In this Article   shall be as follows:
Honorable Fred Blundell,       Page 4


                    In counties oontaining twenty five
          (23,Oi%j thousand or less inhabftantsr       County
         Judge, Distriot   or Criminal Distrfot    Attor-
         ney, Yherifr,   County Clerk, County Attorney,
         Distriot  %rk,    Tax Colleotor,    Tax Assessor,
         or the A:zaessor and Collector     of Taxes, Twenty-             ..,:
         four Hundred ($2400.00) Dollars each; Justiae
         of the Peace and Constable,      Twelve Hundred
         ($1200.00) Dollar8 eaoh.“.
              Article   3891, v. A. T. C. S.,   reads   in part as fol-
lows :
                “Paoh offiaer   named in th5.a Chapter shall
         firet   out of the current fees of Ns office
         pay or be Paid the amount allowed him under
         the provisions     or Article 3883, together with
         the salaries    of Ns assistants   and deputies,
         and authorizad expenses under hrtlals      3889,
         and the amount nsaeesary to cover costs of
         premium on whatever surety bond may be required
         by law.    IX the current fees of such offioe
         collected   in any year be more than the amount
         needed to pay the amounts above speoifled,
         same shall be deemed exoess f’eos, and shall
         be disposed of In the manner hereinafter      pro-
         vlded.
                “In counties containing twenty-five    thousand
          (26,000) or less inhabitants,   Distriot   and
         County officers    named herein shall retain one-
         third of such excess fees until suah onepthfrd,
         touether with the amounts aneoified      in Arti-
         cle. Z&33, amounts to Three Thousand Dollars
         (Q3,OOO). . . .”
           Opinion No. O-3896 of this department contains a
pertinent disauesion relative    to 8x088s fees and ex-offioio
compensation.    r;e quote from said opinion as follows:
                “In answer to your inquiry,   you cre aa-
         vie,ed that it is the opinion of’ tNs department
         that the ex-officio    compensation oi the county
         clerk must be considered and aoaounted for in
         arriving at the maximum annual corn-penaatlon of
         said clerk.    The alerk shall first   out of the
         current Sees of his office    pay or be paid the
          Honorable   Fred Blundell,   Page 5
 .(,.


>*
     s,


               amount allowed him undar the 2rovlsions
                of Article     3883, together with the salaries
                of hisassistants      and deputies,     and author-
                ized ex2ansn.e under Article       3299, and the
               amount necessary to cover the cost of premium
                on whatever surety bond day be reqllired hy
               law. If the ourront fees of such office
                collectea    in any year be more than the amount,
               needed to pay the amounts above speoified
               the same shall be deemed excess fees and
               the clerk is permitted to retain one-third
               of nuch excees fees until suoh one-thlrd,
               together with the amounts spooifled          ln.Arti-
               cle 3883, arcounts to $3,000.00)          In other
               words, the county olerk is sntitlod          to retain
               all the cozpeneation       allowed by Article
               3883, together with the one-third oxuess
               fees allowed by Article        3891, until euoh one-
               third     together with the amount speaified          in
               Article    .3883, amounts to $3,000.00 per annum.          :
               If the compensation allowed undar Article
               3333 and the 8x088s fees allowed under Artl-
               ale 3891 do not reach the maximum of $3,OOO,OO
               per annum, the Commissioners* Court is au-
               thorized to pay the clerk an ox-officio           com-
               pensation,     Provided such oompen&+ation, to-
               gether with the fees retained by him under
               Articles    3883 and 3891, doe8 not amountto
               more than $3,000.00.        Thare~aan be no excess
               fees until the amount of $2,400.00 is reach-
               ed and the deductions which are allowed           by
               law are made. To illustrate,          the county olerk
               oarnot take $1,400.00 as fee8 under Article
               3883 and then add the $l,OOO.OO ex-officio
               compensation to make a total of $~2,400.00 and
               then say rll fees coming into the office           as
               are authorized by law are exoass fees, and
               that he ia entitled      to one-third     of the same.
               In short, before the clerk is entitled           to any
               excess fees under Article        3891 he must first
               receive as fees the amount of $2 400.00 not
               inaluding any part of the ax-ofi&io           co?rqen-
               aatlon after making the legaldedmtlons             a8
               allowed by law and after this amount has been
               reached then the alerk is entdtled to one-third
        Bonombla      Fred Blundell,   Pago 6


             of such emess fees as provi4ed by &?tiola
             3891 and as above stated if this does not
             reach the totalmaxLmun of $3,000.00 per
             annum, the Covuuissionersl Court may in its
             discretion  legally allow an ax OffiOio
             compensation provided such com@csation,
             together with the fees retained under the
             above mentioned artioles,  door not exoeed
             #3,000.00 per annum.”
                   We enolose     herewith   a copy of said   opinion   for
        your lnfonaation.

                     There oan be ‘no ox~oss fees for the oou5ty clerk
        of Eays Gounty until the amount or $2,400.00 is reaohed and,
I       the deduotione which are allowedd by law are made. And us-
        ing the Illustration       giv85 In opinion Ho, O-3896, eupra
i :f~   the county olerk oannot take $1, 400.00 as fees undar &i-
/ ‘,a   ale 3883 and then add’s $1,000.&I sx-offioio        compensation
        to make a total of i;2,400~00 an&.thrJn eay that all fees
        coming Into the. offioe aro exooss fees and say that he ir
        entitled    to one-third    of the same. Ae pointed out in 6ald
        opinion,    before the olezk ie entltleU to any axeesr fees
        undsr~drticla     3291, he must ffr~etreaelve aa fees the amount
        or b2,roo.oo     arteq, making the legal arduotiona allowed by
        law and not lnoludying any part of his ex-officio       ocmpen-
i”      satfon     and artar this amount has been reaoh6d, then the
        alerk is eutitled      to one-tNra   of auoh exoess foes as pro-
\,      vided by Artial3 3891 and that if this does not reach
        $3,000.00 por anhum, the Commleaionerst Court may in It8
        disoretion    legally   allow an ex-officio  oomponsation pro-
        vided such eom eneation tol;ether~ with the ieas retained
        do not omeod P3,000.OO.
                  ‘The case 0s l%lts, ‘et al v;~ Bell County, 132
        3. W. 123, (Supreme Court of Texas), aited by you, hold8
        that where a county judge, by purehaaing property at a
        aheriffte sale, was acoountable to the county for the pur-
        ohase price, the oountyts crediting   itself  05 e dobt owing
        him to the extent of tho ptiohaso ha& the same effeot as
        if the money was paid him, and that the settlenunt    aas a
        valid 0n0. ‘Jyequote from said ease as r0n0m     I

                      Cbt evlaanao shows that the oounty       de-
             clined     to aocept ~a aonveyanou frolc Belts    (the
     County Judga)~, but alrote& to raoeirs from
     him the prioe of the land whlah he paid in
     settlement by whioh the oounty got aredit
     On a debt dur to Felts   iOr tho sum bid for
     the lend, ~,A oredit on the county*8 debt was
     (I paymant and had the same eifaot as fi. the
     money had been paid by Felta."     (Bracket
     insertion  ourrr)
            "'; . . The colIlmlesi0nsre* court had
     jurisdiction    over the finanolal~aifairs     of
   I the ooupty and had the authority       to make an
     adjustmept between it and any person where
     there' W&s mutual alai-o;      Lt is the same
     thlog'as.lS    Beltr had paid the amount of his
     bid to %ll County and the oounty had then
     paid the aama money to Felts,       We therefore
     hold that tha settlament batween Bell County
     and Felts was valid and binding upon the
     aouuty.     It le not sought in thie aotion to
     sot the settlement aside, nor ia there any
     svidenoe to justify     ouch aetlonrW
           You do not state the amount of fsaa earned and
oollacted  by the clerk.   If, for example, the olark earn-
ed and oollected tees aiaountLng to $4,S!O0.00 after deduot-
fng the expenses allowed by law and exclusive       of any
ox-oifioio  compensation, he would bs mtltled-to       retain
fiT3fX.00 and would hava to yay the county #1,200.00 axeaas
      . If he had been paid any ex-offioio      oompen$;to&k
r0u.M have to return all of it to the county.
oashed or sold hismrrants     for said ex-officio    oompenaation,
he would hzve to pay the County in money, but it ha had
not oashed or sold his warrants he would be aut&oriead to
return them to the oountg la settlement or his obligation
under the authority or Felts, et al V. Bell County, euprar
            If the clerk earned and oollected  $2 700.00 in
fees after deducting his letgal expeneee he woui d be en-
titled   to retain ~2,500.00 and would owe the oounty $800.00
exoess fees.     If the county had allowed him, say #200,00
ex-officio    conpensetlon and paid him with general fund
warrants we think thet he awld return the warrant8 (if
Eonorable   rSrd BlUrtdoll,   we   8


he still had th-1   to the aounty in 8ottlemnt oi the $800.00
ha owed the aounty for OXOOE~teem under the authority or
Felta, et al v. Bell county, 6tip-8.
            Truatlng that this satlsfaotorily   answer8your in-
quiry,   and with bs8t regards, we are
