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     Honorable Joseph II.Mims
     County Attorney
     Midland County
     Mi.dlandTexas
     Dear Sir:                 Opinion No. O-5073
                               Re: Order of commissioners' court of
                                    Midland County quoted in your
                                    letter is invalid.
             Your request for opinion has beenreceived and care-
     fully considered by this department. We quote from your re-
     quest as follows:
               "Will you please furnish me with an opln-
           Len'on the question of the validity of the fol-
           lowing order of the Commissioners1 Court of Mid-
           land County:
               "'On motion of J. L. Dillard seconded by
           3. C. Roberts, all offlctals collecting fees for
           officials of Midland County and district offices
           are directed to remit all receipts for fees
           earned in 1943 direct to the Treasurer of Mid-
           land County who shall receipt the official
           thereof, and deposit same in the Officers' Sal-
           ary Fund of Midland County. The foregoing mo-
           tion was unanimously passed, all Commissioners
           voting and. it Is so ordered by the court.'
               "Explanation and supporting brief accompany
           this letter."
               We 'quote from your brief as follows:
           "EXPLANATION AND HISTORY:
               "At its first regular meeting In January,
           1943, the Commissioners' Court, In accordance
           with Article 3912e, Sec. 2, by its order duly
           made and entered of record, determined that coun-
           ty officers ,of Midland County shal! be compensat-
           ed for the fiscal year on the basis of an annual
           salary, to-wit: $3000 for each county official,
                                                         ?   .




Honorable Joseph H. Mlms, page 2          O-5073                 ’“‘“I

    Including only the following officials: county
    clerk, district clerk, county judge, sheriff
    tax assessor and collector, and county attorney.
    Precinct officials shall remain on the fee basis
    by order duly made and entered of record. Mld-
    land County has a population according-to the
    last Federal Census of less than 20,000.
        "The Order first above mentioned was next
    adopted.
       "Prior to 1943, all Midland County officials
   were on a fee basis for their compensation.
   Under the fee system, each official, as and when
   he collected fees, retained those fees which ac-
   crued to his office, and turned over to other
   officials the portion of collected fees accruing
   to their respective offices. In this manner each
   official could keep the entries in his fee book
   current, and, at the end of the year, make the
   sworn statement required by Article 3897.   .~
       "The order of the,Commissioners' Court was ln-
   tended to change the manner of paying out fees by
   the collecting official, as outlined; and to sub-
   stitute in its place the payment of fees collected
   directly Into the hands of the Treasurer, by who-
   ever collected the fees.
       "The county clerk, district clerk and justice
   of the peace are the principal offlclals uho col-
   lect fees, and the question has arisen whether
   they can be compelled by the Order of the Commis-
   sioners' Court to pay to the Treasurer the fees
   accruing to other officials.
    "OPINION:
        "It is my opinion that the Order 1s Invalid.
    'HHASCNS:
         "When the ~Leglslatureprovided for counties
   of less   than 20,000 to pay county officials on an
   annual salary basis In lieu of fees, It did not
   attempt to change the manner in which officials
   received and accounted for the,fees~accruing to
   thelr respective offices.
       "Article 39129, Sec. 5, provides that fees
   shall be depositedin the Officers' Salary Fund,
Honorable Joseph H. Mlms,page 3         Q-5073


    but does not say that the collecting official
    shall deposit all fees in said fund, both his
    own and the fees accruing to other offices:
        "'It shall be the duty of all officers to
   charge and collect In the manner authorized by
   law all fees and commissions which are permitted
   by law to be assessed and collected for all of-
   ficial service performed by them. As and when
   such fees are collected they.shall be deposited
   In the Officers' Salary Fund;.-orfunds provided
   In this Act. In event the Commissioners' Court
   finds that the failure to collect any fee or
   commission was due to neglect on the part of
   the officer charged with the responsibility of
   collecting same, the amount of such fee or com-
   mission shall be deducted from the salary of
   such officer. Before any such deduction Is
   made, the Commissioners' Court shall furnish
   such officer with an itemized statement of the
   uncollected fees with which his account is to
   be charged, and shall notify such officer of
   the time and place for a hearing on same, to
   determine whether such officer was guilty of
   negligence, which time for hearing shall be at
   least ten days subsequent to the date of notice.
   Unless an officer is charge by law with the res-
   ponsibility of collecting fees, the Commlsslon-
   ers ' Court shall not in any event make any de-
   ductions from the authorized salary of such
   officer . (
       "Sec. 22, Article 3912e, providesthat the
   provisions of this Act shall be cumulative:
       "'The provisions of this Act shall be cumu-
   lative of all laws not In conflict herewith....'
        "Accordingly the Legislature evidently ln-
    tended that Articles 3896 and 3897 should contin-
   ue in force even as to those officials whose
    compensation is on the basis of an annual sal-
   ary in lieu of fees. It would be difficult, if
    not impossible, for the respective officials of
   -the county to keep the records of their fees
   and to make an annual sworn statement, as re-
   quFred by Articles 3896 and 3897, unl.essthe
    collecting officials from time to time turned~
    over to each respective official that portion
    of the collected fees accruing to his office.
                                                            .   .




Honorable Joseph II.Mlms, page 4        Q-5073


        11
        Article 1896 ' Eich district, county and pre-
   cinct o,fflcershall keep a correct statement of all
   fees earned by him and all sums comlhg into his hands
   as deposits for cost, together with all trust funds
    placed In the registry of the court, fees-of of-
   fice and commissions in a book or in books to be' .
   provided him for that purpose, in which the officer,
   at the time When such deposits are made or such
   fees and commissions are earned and when any or all
   of such funds shall come into his hands, shall enter
   the same; and It shall be the duty of the county -~-
   auditor In izountleshaving a county auditor to an-
   nually examine the books and accounts of such of-
   ficers analto report his findings to the next suc-
   ceeding grand jury or district court. In counties
   having no c'ountyauditor, it shall be the duty of
   the Commisslonerti'Court to make the examination of
   said books and accounts or have the same made and
   to make report to the grand jury as hereinabove pro-
   vided.'
        "Article 5897 'Each district; county and pre-
   cinct officer, at the close of each fiscal year
    (December 31st) shall make to the district court
   of the county In which he resldes~a sworn statement
   In triplicate (on forms designed and approved by
   the State Auditor) a copy of which statement shall
   be forwarded to the State Auditor by the clerk of
   the district court of said county within thirty (30)
   days after the same has been filed in his office;
   and one copy to be flied with the county auditor,
   If any; otherwise said copy shall be filed with the
   Commissioners' Court. Said report shall show the
   amount of all fees, commissions and compensations
   whatever earned by.sald officer during the fiscal
   year; and secondly, shall show the amount of fees,
   commiss~lonsand compensation collected by him during
   the fiscal year; thirdly, said report shall contain
   an Itemized statement of all fees, commissions and
   compensations earned during the fiscal year which
   were not collected, together with the name of the
   party owing said fees, commissions and i2ompensatlons.
   Said report shall be filed not later than February
   1st following the close of the fiscal year-aridfor
   each day aft&r said date that said report remains
   liotfiled, said officer shall be liable-to a penalty
   of Twenty Five ($25.00) Dollars, which may be re-
   covered by-the county In-a suit brought for such   --
   purposes, and in addition said officer shall be sub-
   ject to removal from office.'
 Honorable Joseph Ii.Mims, page 5          Q-5073


        "In connection with the above quoted Articles,
    it is further noted that Article 3891, in part,
    requires that:
        "'All fees due and not collected, as shown
    In the report required by Article 3897, shall be
    'collectedby the officer to whose office the fees
    accrued afidshall be disposed of by said officer
    In accordance with the provisions of this Act.'
        "This Article also contemplates the keeping
    of a record of fees accruing to each office.
        "The underscored portion of the following
    Article might conceivably be sufficient author-
    ity for the Order of the Commissioners' Court,
    but if it Is, the question naturally arises How
    can the officials make the~swopn statement and
    keep the record of fees requlred.by Articles
    3896 and x897?
        "Article 3899 'The fiscal year, within the
   meaning of this act, shall begin on January 1st
   of each year; and each district, county and pre-
   cinct officer shall file his report and make the
   final settlement required in this Act not later
   than February 1st of each Tear: provided. how-
   ever, that o?ficers receiving in-annual salary
   as compensation for their services shall. bs the
   close of each month, pay Into the Officers' Sal-
   aryFund or funds, all fee:. commissions and
   compensation collected by him durlnn said month.
    . . . . .

        "In fairness to each member of the Commls-
    sioners' Court of Midland County, I wish to say
    that the Order referred to herein was passed in
    entire good faith."
        We agree with you that the above quoted order Is ln-
valid.  We wish to express our appreciation for your excel-
lent brief in this matter.
WJF:db:wc                           Very truly yours

APPRCVEC FEB 9, 1943            ATTORNEY GENERAL OF TEXAS
s/Gerald C. Mann
ATTCR?XY GENERAL OF TEXAS          By s/Wm. J. Fan&&
                                        Wm. J. Fanning
Approved Opinion Committee By s/BWB'         .Asslstant
Chairman
