Gerald   C. Mann                        AUSTIN 11. -r~xaS
X-Y




         Hon. Fred Norris               Opinion No. O-3132
         County Auditor                 Re:   Can a county of 20,635 population,
         Polk County                    according  to the 1940 Census be charged
         Livingston,  Texas             with commissions   or fees for the county
                                        treasurer,   and another related  question7
         Dear Sir:

                    Your letter    of February 5, 1941, requesting       an opinion
         of this department,    later  modified    by your recent letter    of May
         24, presents  the following    questions:

                         “1.    Can a county of 20635 population,             accord-
                  ing’to     the 1940 Census, charge commissions             or fees
                  for the County Treasurer?

                        “2.   Should     the treasurer  in the above           mention-
                  ed County   deposit     his fees into the officer’s            Salary
                  Fund?

                         Xe have restated  your first          question      in the   caption
         set     forth   above as we understand   it.

                        Article    3943, Vernon’s      Annotated     Civil     Statutes,       in
         part,     provides:

                          “The commissions allowed          to any county treasurer
                  shall not exceed Two Thousand             Dollars  ($2000,00) an-
                  nually;    *** .I’
                                                                                           .     .
                         Section  13, Article      3912e,     Vernon’s    Annotated        Civil
         Statutes,       in part,  provides:

                          “The Commissioners’       Court in counties       hav-
                  ing a population      of twenty thousand         (20,000)
                  inhabitants     or more, and less than one hundred
                  and ninety thousand       (190,000)      inhabitants     ac-
                  cording    to the last preceding         Federal   Census,
                  is hereby authorized       and it shall       be its duty
                  to fix the salaries       of all the following         named
                  officers,    to-wit:     sheriff,    assessor     and col-
                  lector    of taxes,   county judge,        county attorney,
                  including    criminal   district      attorneys     and coun-
                  ty attorneys     who perform the duties          of district
Hon. Fred Norris,        page 2



         attorneys,    district    clerk,   county clerk,    treas-
         urer? hide and animal inspector.          Each of said
         officers    shall   be paid in money an annual salary
         in twelve    (12) equal installments      of not less
         than the total      sum earned as compensation        by
         him in his official       capacfty   for the ffscal
         year 1935> and not more than the maximum amount
         allowed    such officer    under laws exfsting      on Aug-
         ust 24, 1935; ***."

               Section     7, Article 3912e, Vernon’s            Annotated        Cfvil
Statutes,      reads,    in part ) as follows:

               ‘*All monies drawn from said Officers’    Salary
         Fund or funds shall    be pafd out only on warrants
         approved by the county auditor      in counties having
         a county auditor;   otherwise   all claims against
         said fund shall first    have been audfted and ap-
         proved by the Commissioners’     Court of said county
         and the monies shall    be disbursed   on such ap-
         proved claims by warrants     drawn by the county treas-
         urer on said fund.‘”

               Section    5,   Article   3912e,   of   said     statutes,        in part,
provides:

                “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, or funds provided
         fn this Act. ****‘I

               Section    3, of Article     391.2e,    of     said   statutes,      pro-
vldes:

               “In all cases where the Commissioners’
         Court shall have de.termined that county officers
         or precinct      officers   in such county shall        be
         compensated      for their    services     by the payment
         of an annual salary         neither     the State of Texas
         nor any county shal f be charged with or pay to
         any of the offfcers        so compensated,       any fee or
         commission     for the performance         of any or all of
         the dutfes     of their    offices     but such officers
         shall   receive     said salary     in lieu of other fees,
         commissions      or compensatfon. which they would
Hon. Fred Norris,         page   3


        otherwise    be authorized      to retain;       provided,
        however,    that the assessor       and collector        of
        taxes shall     continue    to collect      and retain       for
        the benefit     of the Officers!        Salary Fund or
        funds hereinafter      provided     for all fees and
        commissions     which he is authorized           under law
        to collect;     and it shall      be his duty to account
        for and to pay all such monies received                 by him
        into the fund created         and provided       for under
        the provisions      of this Act; provided           further,
        th.t the provisions       of this Section          shall not
        affect   the payment of costs         in civil      cases by
        the State but all such costs            so paid shall be
        accounted    for by the officers         collecting      the
        same, as they are required          under the provisions
        of this Act to account for fees,              commissions
        and costs    collected    from private        parties."

               The county treasurer,       being specifically     named in
Section     13, Article     3912e, supra, the method of fixing         the
county    treasurer's      compensation    formerly    prescribed  by Article
3941, Revised Civil Statutes,           1925, has been superseded       by the
foregoing      provisions    of the Officers'      Salary Law as they apply
to countfes       of twenty thousand (20,000)        inhabitants   or more,
The law provides        that    a county treasurer      in such counties    shall
draw all warrants         on the Officers"     Salary Fund, which must be
approved by the county auditor.

             Relative      to your first     two questions,      the foregoing
statutes    require    the officers      designated    to deposit      all fees
and commissions       collected     for all official      services    performed
by them in the Officers'           Salary Fund.      Since they are prohibited
from makfng any charge to the county9 such commissions                     as pre-
scribed   in Article         3941, Revised Civil      Statutes,     are no longer
"permftted     by law to be assessed         and collected"      as provided     in
Sectfon    5, of ,Article 3912e, supra.
            It is, therefore,           the opinion   of this department that
your questions    in the order          presented   should be answered in the
following   manner:

              1.    Question     No. 1.   is   answered    in the     negatfve.

               2.   Commissions authorized          by Article    3941, Revised
Cfvil     Statutes,   1925, can no longer          be charged to the county in
those     counties   with twenty thousand          (20,000)   inhabitants   or more,
Hon. Fred Norris,         page    4



therefore    are    not   to    be deposited     in the     Officers8      Salary
Fund.

                                               Yours     very   truly

                                               LTTORNEYGENERfi OF TEXAS

                                               By /s/     Wm. J.     R. King

                                               Wti. J.    R. King,      Assistant

APPROVEDJUL 8, 1941
Is/ Grover Sellers
FIRST ~ASSISTtiT ATTORNEYGENERAL

This   opinion     considered         and approved      in limited      conference-

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