.-   .




         Honorable W.P. Herms, Jr.
         County Auditor
         Waller County
         Hempstead, Texas



         Dear Sir:                      Opinion No. O-3127
                                        Re: Whether under circumstances
                                            set forth County Treasury
                                            should refund to the county
                                            amount deducted by the Treas-
                                            urer as part of the premium
                                            paid on surety bonds. Other
                                            related questions.



              Yours letter of February 4, requesting an opinion
         of this department, treats of two separate matters, expense
         authorized as a reduction by your County Treasurer and the
         matter of appointing an Assistant to the County Treasurer.
         We will discuss your request in the order in which your ques-
         tions are set forth.

             We Quote from your letter as follows:

              "I find that our County Treasurers' report
         for 1939 includes payment on Surety Bond as an
         expense. Total fees of office without this de-
         duction was $2068.98. After deduction of $90. 00
         premium paid of Surety Bond, fees retained showed
         $1978.98
              "Had this premium on Surety Bond not been
         shown as an authorized deduction, than and in that
         event, County Treasurer would have refunded $68.98
         to the County, since Treasurers' commissions col-
         lected in 1939 were $2068.98 and $2000.00 were
         maximum fees.

              "Despite this error, annual report of County
         Treasurer for 1939 was approved by Commissioners'
         Court.
                                                                 -   .


Honorable W.P. Herms, Jr., Page 2


     "Under these circumstances, should or should
not County Treasure refund to County $68.98 which
amount would show as due the County if report
were correct?

     "Also should correct report be filed in lieu
of erroneous report of 1939, the individual being
the same person who now occupies office?"

     Article 3897, Vernon's Annotated Civil Statutes, pro-
vides:
     "Each district, county and precinct officer,
at the close of each fiscal year (December 31st)
shall make to the district court of the county
in which he resides a sworn statement i tripli-
cate (on forms designed and approved by the State
Auditor) a copy of which statement shall be for-
warded 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 filed 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 compensa-
tions whatever earned by said officer during the
fiscal year: and secondly, shall show the amount
of fees, commissions and compensations 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, com-
missions and compensations. Said report shall be
filed not later than February 1st following the
close of the fiscal year and for each day after
said date that said report remains not filed, said
officer shall be liable to a penalty of Twenty
Five ($25.00) Dollars, which may be recovered by
the county in a suit brought for such purposes,
and in addition said officer shall be subject to
removal from office."

     In regard to your first question, we have repeatedly
held that the County Treasurer is not authorized to deduct the
premium paid on Surety Bonds from commissions of that office.
Honorable W.P. Herms, Jr., Page 3


Our Opinion O-597, a copy of which is attached, specifically
so rules. See also O-204, O-252, O-318, O-902, O-1193
Annual Report of the Attorney General for 1939, pages 48,
61,77,237 and 320 respectively.

     It is therefore the opinion of this department
that a County Treasurer should refund to the county any un-
authorized sums deducted from commissions of the office. As
the statutes do not prescribe the forms or procedure whereby
a refund is to be made, such procedure or methods prescribed
by the Auditor, consistent with the provisions of Article
3897, Vernon's Annotated Civil Statutes, as a corrected final
report, should be followed in correcting an error made in the
Annual Report.
     We find that Wailer County contain a population
of 10,280 inhabitants according to the 1940 Federal Census
and according to your letter, has a valuation of $5,991,000.


     Accompanying your request is a copy of an Order
taken from the minutes of the commissioners' court of Waller
County, setting forth the application of the County Treasurer
for the employment of an office assistant with compensation
to be fixed at an amount not to exceed $600.00 within any
one year, nor the amount of $50.00 within any one month.
Following the application described therein, the following
order appears:

     "It is ordered by the Court that the fore-
going application of L.E. Stinson Hill, County
Treasurer, be and the same is hereby allowed for
the year 1941. That such fees are payable out of
her fees of office and deductible in her annual
settlement with the County."

     In connection with the foregoing, you raise the
following questions:

     "First, with valuation of approximately
5,991,000, outstanding bonded indebtedness being
approximately $65,000 and the probable commis-
sions in treasurers office not being more than
maximum allowed, does the Commissioners, Court
have authority to allow such an assistant, the
expenses of which are to be deducted from the fees
of office? Such expense allowance is equivalent
to allowing maximum fees of $2600.00.
Honorable u. P. lierms,Jr., P8ge 4


          %oond,   the appointment 0r such assistant
     Is clsa~ly disproportionate vlth the vork neons-
     sary to oonduot our county Trersurers’ 0rri00.
     Said County Treasurer runs an Abstwat orrloe 8u&
     is housed In the sfusebuildlug as Treasurers~
     Orfloe 8nd 8 greet deal or the treasurers' 8ud
     the 8ssist8ntts time 18 devoted to abstract busl-
     ness. Therefore,  my ssoond question Is whether
     or not it Is neoessary ror County Auditor to
     approve the expense deduetlon allovsnce order
     of Gommissloners~ Oourt b&ore it oau be legally
     alloved?"
           Slnoe the county orrloers or Yeller aounty 8re ocm-
pensated on a fee basis rather th8n ualery lmsis, Artloles
3941, 3942, Vsrnon'S Annotated Civil Statutes,oontrol aud
provide ror the manner and rate won vhloh the oommisslons
alloved the County Treasurer ars based. Artiole 3943 of ssid
statute, be$ng applloable, provides:
          "The ocsmisslons allowed 8ny oounty Tress-
     urer shell not exoeed $2,000.00 anmmlly;  ..."
          Our Opinion O-318, round ln the AnmaX Report or the
Attorney General r0r 1939, page r7, holds th8t suah oounty
treasurer oan only be allowed and may not rstalu as his oosmts-
81~ 012snnua;l8tmwy eny SUIDin 0~0888 0r $2,000.00anwslly.
          Artlole 3902, Vernon'@ Annotated Civil Ststutes, In
part, provides :
          "Whenever say dlstrlot, oounty or pro&not
     orrlcer shall mqulre the aervloes of deputies,
     assistants or clerks In the performance oi hls
     duties he sh8ll 8pp1y to the County CGSUSI~~~~~~~~
     Court 0r his oounty r0r authority to appoint rush
     deputies, 8ssist8nts, or olerke, stating by SVoPn
     applioatlon ths number needed, the posit&n to be
     filled aad the mount to be p8ld. Ssid applioa-
     Won shall be aocompanled by 8 ststement shoving
     the probable reoelpts rrom rt388,ooml8rlont38ad
     oompensation to be oolleoted by said off'leeduring
     the flsoal year md the probable disbut?ssments
     whlsh sh8ll lnolude all salaries and expenses Of
     said QrrieS; and said court shall nmke it8 order
     authorizing the appointslentor swh deputies,
     8sslstants and olsrks and fix the aompensattoA
     to be paid them wlthln the Zimitatlons herein &+%?a-
     scribed and determine the number to be appo%i%~ed
Honorable U. P. Hems,   Jr.,   psg~ 5


    8a in the disoretlon of said court may be proper;
    provided that in no 88se shell the Commlssloners~
    Court or any member thereor attempt to lnflusnoe
    the a pointment 0r any person as dsptity,8ssist8at
    or o&k   in any offiae. Upon the entry of suoh
    order the orricers applying ror su0h 8ssist88t8,
    deputies or olerks sh8l.lbe authorlsed to appoint
    themj provided that said sanpensatlon shall not
    exoeed the maximum 8mount herelndter set out.
    The ooispensatlonvhleh m8y be alloved to the
    deputies, asslst8uts OF olerks above'namsd for
    their servloes shall be a reasonable one, not to
    exceed the iollowlng smount.8~
         "1. In oouutles h8vlng a po    8iti0a0r
    tventy-rive thousand (25,000) or p"
                                      ens lnhabltrrnts,
    first attsistantor ohlef deputy not to exoeed
    Eighteen Hundred ($1800.00) Dollscs per annum;
    other aaslstants, deputlss or oletiksnot to ex-
    oeed FlfteenXundred ($1500.00) Dollars per annum
    eaoh.
          I . . . .*

         In treeing the history of titlole 3902, supra, we
find that this Art1016 underwent 9 spparate amendments subse-
quent to the Revised Civil Statutes of 192 and prior to the
ensatment of'Senate Bill 5, A&s of 1935, 94th ~glslature,
2nd Called Besslon, Chspter 465, oommonly knovn 811the orriaers*
salary Lor. Beginning with the $925 Revised Olvll Statutes,
8nd ln esch of the suooeedlng 9 mendments, oertaln county and
distrlot orrloers vere expressly n8med therein to vhcasthe
applloablllty or the subject was limited. All suoh ofricers
mmed vere deslgn8ted in Artlole 3883, et seq., known 8s the
llaxlmumFee statutes, tith ths ofrloe or OouDty Treasurer
oonsplcuously absent.
          With the eneotment of Senate Bill 5, aforesaid, the
present vordlng of the llrst sentanoe In Artlole 3902, aupra,
~8s ohsnged from designating 8ud mm&g   the p8rtlcules orri-
oers to its present Ungusge, to-wltr
          nUhenever any distrlot, 0ounty or preainst
     officers shall requlP6 the servioes of deputies,
     8SsiSt8UtS or clerks in the perr0rmanoe~0r hie dut-
     lee he shall 8pp1{ to the oomm%saionerstcourt 0r
     hla oounty. . . .
Honorable W. P. Herma, Jr.,.Page 6


          Thus in the enactment of the Offlaeraf  Sslarg  Lav,
the question is raised as to vhether the Legislature, ln
adopting the broad language quoted and nov present in the
statute, intended to lnalude all aountg olflcera,   v&I.ahof
Qouree include8 the County Treasurer.
          The partioular change in the atatute along with
itr re-enacted provision8 muet be conetrued vlth other provi-
alonr of Senate Bill 5, including oertain re-enaated and un-
&anged provlrlona of the Nm       Fee Lov with vh%oh it
stands in pari materia, In determining this question.
          Primarily, ve are reeded   that Senate Bill 5 V&E
enaated pursuant to a constitutional emendment making it man-
datory that oonstltutlonal aount offioere In oountiecrhavine,
a population of tventy thousand T20,000) Inhabitanta or more,
according to the last preaeding Federal Census be o.@npeneated
oolely on a salar basis from and after the let day of January,
19%.   (Se&ion 2l , Senate Bill 5, 44th l;e,lslature,2nd
~$l~l~eealon.)    See Artlale 16, Seatlon f1, Oonatltution
           The caption of Senate Bill 5, pursu+nt to this
mandate,'ln part, provides:
           "AN ACT reletinn to the oolltDeneatlon
                                                of die-
     trlat, oertain desl&ated oountywand preainot of-
     fioera and providing the method and meana for
     wauoh       offlcere shall be oompeneated for their
     aerviaee; providing for the appo-titmentand pay-
     ment of deputiee, aaslstante, clerka and employees
     in dietriot, county end preolnct offloes; . . ."
          By Seatlon 22 of the Bill, it vaa provided that,the
provleions of the Aat shall be ormniLatlveof all lava nojzIn
oonfllot therevith; further deolaring it to be the intention
of the Leglelature that the 'oompensatlon, limitations and
marlmums fixed in thla Act for the named officers. their depu-
ties, assistants and employees aontrol over any other provi-
sions oontalned In all law. neneral  and speolal." (Under-
aooring ouraJ
          Senate Bill 5 blaausred, very definitely, ae to the
intent of the Legislature, dlatlngulehea betveen counties of
population less than 20,000 Inhabitants and those with popula-
tion of 20,000 inhabitante or more, but leee than 190,000
lnhabitents.
-orable   W. P. Berms, Jr., Page i'


            In the general aoverege of the Act, relating to the
%ppointment and payment of deputies, aarlrtants, clerks and
employeer," Artlole 3902, aupra, ve are definitely of the
viewthatthe     ohange in thelsngus(5enovreadlng   "anydir-
trlot, aounty or preolnct offloer, vaa not intended to In-
.elude the County Treasurer, but only thoae "eertein" or "named"
aounty,offlaera or thoae generally Inoluded within the various
proVlalona of the Haxlmum Fee atatutea previous   to the time of
their rs-enaatment in the Salary Lw, oxeeptlng where apeol-
fioally "named' and/or exaepted from the aoope of Senate Bill
5 ad a whole. Th.efaot that the County Tresaurer la expreaaly
named in Seat&on 13 of the Bill atrongly l  upporta the viev
that the Leglnlature purposely oonaldered the Oounty Treaa-
twer aa not   lnoluded within its provlalone appllaable to the
oountlea of population lesa than 20,000 Inhabitanta. The
oourta of thla State have had m      oooaaionr to oonrtros Arti-
olea 3941-3, Yernonfa Civil Statutes, relating to the oompenaa-
tlon of the County Treasurer and no deolaion has ever referred
to auah offloer aa oampenaated "on a fee baala." In thla eon-
neation Sootion 16 of Senate Bill 5 provider, and ve quotes
          "In oountlea hav     a population af leas than
     twenty thouaand (20,000
                           -7 inhabitanta awordIng to
     the lut preeedlng Federal Cenaua, all oounty offl-
     oera 8halJ oontlnue to-be ocnpeluatedfor their aer-
     rioea on a -!feebeair' until the oamnlralonerr~oourt
     ahall have dete&eU     othermise, in aaoordanaepith
     the provlaiona of Se&Ion 2 of this Aot.'
          We fall to find any authority* statutory OF othervIne,
authorlting the oommlsalonera,~court in oountlea vlth a papu-
latlon of 108s than 20,000 inhabitant8 to appoint an aaaiatant,
olerk, deputy or employee to the oounty treasurer to be paId
from oounty funda. Because "oounty .+ndpreoinot offIoera,a
mentioned In the aeoond phrase of the oe.ptIonto Senate gill
5 eforementloned la qualified by the preoedlng phrsrre "oertaln
dealgnated oounty and preainot offloera," am) further that the
county treaaurer la neither an offloer aompenaated on the
baa18 of "feea earned” within the maximum fee atatute6, Ohap-
Cer 1, Title 61, Vernon~s CIvll Statutes, nor a "dealgnated
oounty offloer' within the provlirlonaof Senate Bill 5 aa
applicable to oountlea vlth a population of lea8 thur 20,000
inhsbltante, for thin department to hold Artlol;e3902, aupra,
applicable to such offiaers, w-d   be over-riding the provi-
aiona of Seotion 35, Article Xff of the aonatitution of Texas
vhiah holds void 80 RiUGhof the aubjeortof en act not expreared
In the title. See Opinion O-351, Annual Report of the Attorney
@eneral for 1939, page 85.
                                                               ,i-P   ‘




gonorable W. P, Hems,   Jr., Page 8


          Aneverlng the eeoond part of your request, it la
the oplnlon of thlr department that the oommieslonera~ court
3f a oounty‘tith a popu$atlon of lees than 20,000 lnhabl-
tanta &%a no authority to appoint an asalatent to the county
bream-r   to be paid vlth oounty funds end Artlole 3902,
fern&r Apnotated GlvIl Statutes, Is not applloable to euoh
~fSla~q*;~
        "'The iwdec.of -the eommIstilon&~l co&t eubmltted
ti~'vdld'~@$er ;&.foregoln& authorities, a dleauarlon
>f the quertl6n'i!alaedln the last paragraph quoted from
your letter Is rendered unneoeaearg.
                                      Yours very truly
