             OFFICE OF THE ATTORNEY   GENERAL   OF TEXAS
                              AUSTliU




Bonorable Carlo8 0. Aehley
Dlatrlot Attorney
Llarlo,Texas
Attention:     Xr. A. 0. llueller
Dear Blrr




      fied and is now haldkg off%oe,
           “So formal olalm has ever been filed for said
      unaolleatedaommIsaIon8,and.no avorB statement ~a8
      made for any OS said years as required by Artlole
      3897 R. s. Ho report voa illed by the Collector
      shoving the said ooztnisslonadue and uncollected.
                                                                             914   .   .   .




Bonorable    0~108   C. Ashley,   page 2




             "Is there any vay that the Tax A88eraor-Col-
       leator may at this time he lavfully paid the aggre-
       gate olaim for ~ommlaal~8 due him by virtue of said
       la8e8ament8?
             . l . .*

             Llano County has a population or 5996 inhnbitont.8        ac-
oording    to the 1940 ?ederal Cen8u8, and it8 oounty offlola
lr a   oompenaatedo n a fee basis.
          Artlolo 2795, Vernon’8       Annotated   Iox   Civil Stat-
utes, reads as follova:
                   "The ocmmir8lonerr court, at the time of levy-
        ing taxes for county purporer, shall also levy upon
        all taxable property vlthin any oomnon school dir-
        triot the rate OS tax 80 voted if a rpeairio rate
        ham been voted3       othervise said oourt ahall levy
        luoh a rite vlthin the limit 80 voted as has bean
        determined by the board of trustee8       of said diatrlot
        and the oounty lupmintendent and oertifled to said
        aourt hy the oounty au rlntendent. If auah tax
        has heea voted after tre~levy of county taxes, it
        shall be levied at nnymietlng'of said oourt prior
        to the &livery of t&:&aaeasment rolls by the aa-
        a ea a o r  l  The tax arusarbr 8hall aaaeaa said tax a8
        other taxes are assessed and make en abstract shov-
        ing the amount of special texea assersed against
        eaoh aahool dlatrlat-~inhiroounty and furnish the
        same to the ootmty luperlntendemton or before the
        firat day of September of.the.yearfor vhlah augh
        taxes are aaaeaaed. Zhe taxer levied upon the real
        property in said diatrlata shall be a lien thereon
        and the same ahall be aold for unpaid taxer in the
        namer and at the time of 8alea Sor State and ooun-
        ty taxer. The tax colleator lhsll collect aaid
        taxer as other tuea are oolleated. The tax aa-
        aea8or shall reoelve a commla8ion oi one-half of one
        p r oent . for l88e88      ing mu& tax and the tax aollec6-
         or a aommisafon of one-half of one per cent. for
        gollectinffthe same. The tax oOlleOtOr shall pay
        a11 auah taxer~to fie aounty treaaureP', and said
.




    Bonorablo CW108   0.   A~hlOy,   *go   3



         treasurer shall oredit oaoh school dlrtrlat vlth the
         amount belonging to It, and pay out the same in ao-
         aordanoe vlth 181. Aots 1921, 9. 56.' (Undorroor-
         lag ours)
              Artlalo 3883, Vernon's hotsted    Texas Civil Statutes,
    reads In part as follovar
              'Paopt as othorvlro provided in this Aat, the
         annual foes that may be retaIned by proainot, ooun-
         ty and dlstrlct offlcor8 montloned In this Artiolo
         Shall be as iO11OUSI

              “1, ti countlsr OOxkt8ining  tventy f'lve(25,000)
         thousand Or 108S iDhabItants: county Judge, Dir-
         trlat 02 Criminal Matriot Attorneg, nheritf,     County
         Clerk, Oouaty Attorney, District Clerk, Tax Colleot-
         or, Tax Aa8os8or, or the Aaso8sor  and Colloator   of
         T6xo8~ Bmnty-four Eundrsd ()2400.00)D0llars eaohj
         . . .
              Artiolo 3891, Vernon’s mnotated Texas Civil Statutes,
    roads In part as follov8r
            ?&oh   ofiioer named ia thls Chapter 8hall flrat
         out of the current fees of his offlod pay or be paid
                    alloved him under
         the &imoUzit                 the provlrlona of Arti-
         cle 3883, together vlth the salarlos of his asrlat-
         NOZLtSand dO&NXtiOS,and authorized expenses uuder
         ArtIolo $399, and the amount necessary to aover
         aoats of proaium on vhatevor surety bond may be Fe-
         quired by lav. If the current fees of suoh office
         aolleoted In any year be more than the amount need-
         ed to pay the amounts above 8poclfIed, wuw shall be
         deemed excess fees, and shall be disposed Of IU the
         maunor hereinafter provided.
              ‘In counties oontalning tventy-five thousand
         (25,000) or loss Inhabltantm,DIrtriot and County
         offiaors named heroin shall retain one-third of nuch
         exaes8 fOO8 until 8Uah one-third, together vlth the
         MOUIItS speolfled Zn Artlole 3883, mounts to !&Pee
         Thousand Dol;Lars($3,000),  . . .
              ”. . . .
                                                               916

Honorable Carlo8 C. Ashley,   page   4



          'All current foes earned and oolloctod b or-
     floors hamod in Artlolo 3%63 during imy ilaoaf yeor
     In exaess OS tho maxlmm and exaesa alloved by this
     Aat, and for their servicer and for the rorvloes of
     their deputies and aa8iatMtr oud authorlrod ox-
     ponaoo,together ulth all delinquent fooa colleatod
     ond not uued as provided ln Artlalo 3892, or u8ed to
     pay 8818ldO4 Of deputlor Ud o88iStMta VhM Our-
     rent foes ore luaufflolent,Shrll be pold Into the
     County Treasury in tha oounty whore the exooa~ ao-
     aruodi
         "All fees duo ond not colleoted, as 8hOPn in the
     report ropulrod by Artlole 3697, rho11 be oolloated
     by the offloer to vhoae o?f.Ioethe foes aoorued and
     rho11 bo dl8pOSod O? by raid Offioer in acoordanoe
     vlth tho provisions of thla Aat,
          "Zhe compensationa,lImItatIonaand moximunm
     herein fixed In this Aat iOr offloors sholl Include
     and apply to oll offlaers mentioned heroin in eaah
     and every county o? this State, and it i8 hereby
     declared to be the Intention of the Logislaturo that
     the povlalona of this Aot aholl Spply to each of
     88ld officers, and any special or general lau In-
     consistent vlth the provlalona hereof la hereby ex-
     pressly repealed in 80 far as the same may be In-
     aonalatent vlth this Aot,
           "The aompenaatlon,uJUitatiOn8and amximuma
     heroin fixed aholl also apply to all foes and sow
    .ponaatIonvhatsoever oolleated by lald officers In
     their ofilolal aapaalty, vhether aaaountableas
     foes  of offioe under the present law, and any law,
     general or Special, to the contraby la hereby ox-
     prossly repealed. ?he only kind and charkater of
          enaation exempt from the QrOViSiOnq Of this Pot
     ""7
     aha 1 be revarda roaelved by Sheriffa for apprehon-
     810n OS OrIQiiM.lSor fu&tIVeS from jUStI and ?OP
     the reaovory of stolen property, and moneys received
     by County Judges and Justices of tho ?eaao for per-
     forming awriago oeremales, which sum shall not be
     looountablo for and not required to be reported as
     is88 of o?fiae. (As amended Aats 1930, 418t L og., 4th
     G.S., p. 30, ah. 20; Aate 1931, 42nd Log., p 870, ah.
                                          oh 220, i 23 Act.8
     ~~~~,A~~~h1~~~,4',~d7~~'~h~*3~fjj)~.j"
 e

                                                                               ---.




Honorable   Carl+     a4 Aahloy,   p&go 5


                   3892, Vwnon'p Annotated
            'irfilole                               ?OX4%8 civil   St@&uter,
roads .a8 r0ii0v81
             *Any offlaer   mentioned   .in this   ChaDtor vho door
      not   oolliot


      to oOiRplotothe aaxlmum~aompenaatlonSUthOrlSodby
      Artiolor %3, 3883-A,         and 3886 for the youp  In
      vhlah dollnquont fear voro charged,and al80 retain
      the munt      of lx u o a ~too8 authmlred b law, and the
      rmlndor of the dolinqwnt fees for tL t firaal
       oar shall bo p8id a8 horrln provided for trhonool-
      Ieot4d; povid4d, the provialon8 0s thl8 hrtiolo
      shall not apply to 4ny offioor after 'xzayo4r ir05
      the date he 0088.8 to hold the orrioe to vhich any
      deAinqwnt r04 18 duo, aad in the event the orriaor
      o4rnm the foor t&t 4re delinquent has not aolleut-
      od the same PithIn tvelvo mmthe aiter.he aoaso8 to
      hold th4 0rfi00, tha aatount0s fee8 001140ted shall
      bo patd into tho oounty treasury. Provided, how-
      over, that nothing In this Aat prealuder the gaymont
      of ox-ofrlalo    fooo in aacordanae vlth Tltlo~61 of
      tho RoviaodOivll Statutes        0s Toms4, 1925, a8 part
      of tho lu~l~n 003qW88tlOn. Provided,           that any
      change mode in thlr &tlole         by this bet 8h4ll not
      apply to fear h4retoforo earned. (A4 amended Acts
      1930, SlSt tg., 4th c. d., QD 30, oh. 20, )'4.)”
      (Undorooorlng ouro)
          lW above quoted rtatuto boaw    offootivo iu 1930,
prior to the oornfng of the oOmmIanlona in quortlon hero.
          ArtlOb 3897,       !hrnoSi'SAunot8t.d 90X48 Civil Stahter,
roads 88 folloor~
           Woh diatriot, 0Ounty Ud pr4ofnOt orrmir, at
      the.aloao of o8Oh ii8041 y44r (Dwenbor 31at) rh411
      make t0 the dl4trlot oourt of the oounty ln vhIoh
      ho rorido8 a 8vorn rtetom4at in tripllcatct(on row
      doSi@lod and approvedby the State Auditor) a OOQJ
      of wh$oh St8teMnt ahall be forvardbd to the State
      Auditor by the olerk Of the dIatrlOt oourt of said
      aounty within thirty (30) days after the rw has
      been filed in hi8 OfflOO, and One OOQy to be filed
 Honorbble C-108 0. Ashley, page 6


       vlth the oounty audItor, if any; otherwise aa’“,;;gy
       shall be filed tith the Oommiaaionera~ Court.
       rbport shall show the ameunt of all fees, oommia-
       siona and compenaatlonawhatever 4arned by said of-
       ficer during th4 ilaaal peari and 84oondly, ahall
       ahov the amount of f4e8, commlaaiona    and ooa~pen~a-
       tiona ooll4cted by bin durw     tha fiscal  y41rj thlrd-
       ly, 88id report ahall contain an it4miaed statement
       of all f448, ooamlaai~na and oompenaatlonaearned
       during the fiaoal yeas vhioh vere not oollected,
       tog4ther vith the name of the party ovlng said f44a,
       oommiaa~ona and oomp4naatlons. Said report shall
       be tiled   not later than P4bruary 1st folloving the
       close of the fl~csl ye8r and for each day after
       said date that said report remains not filed, said
       officer shall be liable to a penalty of tvanty Five
       (@LOO) Dollars, vhiah may be reoovered by the coun-
       ty in a suit brought for auoh purpoa48, and in addl-
       tion said offloer   shall b4 subject to removal from
       office. (As 6mended Aota 1930, 41at Leg., 4th CA.,
       p. 30    ch. 29 ) 5 Acts 1935, 44th Leg., 2nd C.S.,
       p. 1762, ch. 465, 1 9.)"
               The oaa4 of Pierson v. Oalreaton County, 131 S.N. (26)
  27, held that a justice of’the pea04 vaa not entitled to re-
  cover from a county items oi expenses claimed for oertain items
  during oertsln years In offlo where the justice did not ren-
  der monthly atatembnta of such expenses as required by Art1 1
  mg,    v .A .= .3 ., but merely filed  fm.nual reports estimating ghz
  expenses   in lump sum amounts. We quote from the court’s opin-
’ ion in said cause as follova:                      \
               “The manifest purpoao of this statute vaa to
        provide a mans of ascertainingthe correctness of
        erpenssitema eaoh month 88 they ere incurr4d. The
        actual 4x enaea paid or inaurrad constitute &$$$ea-
        ~.~e,~1-:t~4.:,qtficirl~a   right to recoupment.
        mohttil~~it4miaation    is for the protection >f the
        county by afford&x& a means of arcertain.tr?g     the feat
        and mount oi auoh albtimeditem of’expense and
        rh4ther it vaa properly chargeablea8 such. 1t is
        manifest from the mnwl reports and oonflrmed by
        the evidence that these expenses vere merely ea-
        tlmated and a lump sum given each year. The atat-
        ute would be of no value if its aalutory provisions
                                                                  929

Hono~rI114Osrloa C. Aehley, page 7


     aould,be eveded in thir m4nn4r. Ye hold the items
     properly diaalloved ~bythe oomlaalonera~  oourt,
     and the trial court*8 judgment correct in denying
     recoyery therefor,”
          U4 think it oould llk4ulae be said of Article 3892,
auprb, that before any dellAwent fear oould be aolleot4d un-
der leld brtiole that 88 a conditloA preoedent same must have
been reported as dellnqu4nt ire8 vlthln the time and aanner
required by Levi The fact8 in this obae reilect .thatthis
vaa not don4,
          It is our opinion that uud4r the racta stated, the
4x-tu assessor-oolleotorla not nov entitled to the oomaia-
aiona 5~2que8tlon.
          .Xt vi11 be noted further thbt your letter does not
ahov vhether the or-tax laaeaaov-oolleotoroolleoted the
muiaum fees alloved him by 140 (in this a848 - 3,OOO.OO)
e8,ohyear. If he did that vould beean addltlonaf reason for
denying him auoh oommiaaiuna-)- +
          Phere are pwhbpa additional reasons vhy ouch oom-
miaalona oould not nov be legally paid to such ex-tax aaaeaaor-
aolleator but it is not neoeaaP.ryto go intq them here as
the reason givsa &bow4 rfll &&ply suffice.
                                         Very   truly yours
                                     ATTO8lEY OWEBAL   OF TBXAS




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