Mr. Joe Gordon
County Attorney
Gray County
Pampa, Texas
                      Opinion No. O-259
                      Re: Fees of county clerk - Officer's
                           Salary Fund.
            Your request for an opinion upon the following
question:
          “In county operating on a salary basis is
    county clerk entitled to fees on lunacy cases
    and for recording county Instruments, such fees
    to be remitted to Officer's Salary Fund?"
has been received by this Department.
            Section 3 of Article 3912e provides as follows:
          "In all cases where the Commissioners'
    Court shall have determined that county of-
    ficers 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 shall be charged with
    or pay to any of the officers so compensated,
    any fee or commission for the performancesof any
    or all of the duties of their offices but such
    officers shall receive said salary in lieu of
    all other fees, commissions or compensation
    which they would otherwise be authorized to re-
    tain; provided, however, that the assessor and
    collector of taxes shall continue to colle'ctand
    retain for the benefit of the Officers' Salary
    Fund or funds hereinafter provided for all fees
   land commissions which he is authorized under
    law to collect; and it shall be his duty to
    account forandto pay all such monies received
    by him Into the fund created and provided for
    under the provisions of this Act; provided
    further, that the provisions of this Section
    shall not affect the uayment of costs in civil
.
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      Mr. Joe Gordon, February 28,   1939, page 2         o-259



          cases by the State but all such costs so naia
          shall be accounted for by the officers collect-
          ing the same, as they are required under the
          provisions of this Act to account for fees. com-
          mlssions and costs collected from private oarties.'I
                Section 5 of Article 3912 e reads   as follows:
                 "It shall be the dutv of all officers to
          charge and collect in the manner authorized bg
          law all fees and commissions which are nermit-
          ted by law to be assessed and collected for
          all official service performed bv them. As and
          when such fees are collected they shall be
          deposited in the Officers' Salarv Fund. or funds
          provided in this Act. In event the Commissioners'
          Court finds that the fallure 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 commls-
          sion shall be deducted from the salary of such
          officer. Before any such deduction Is made, the
          Commlssloners’  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 onsame, 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 charged
          by law with the responsibility of collecting fees,
          the Commlssioners' Court shall not in any event
          make any deductions from the authorized salary of
          such officer.
,',
                Artic'le5561,   Revised Civil Statutes of Texas,
      reads as follows:
                 "Officers and jury fees. In such cases
          the officers shall,be ailowea the same fees as
          are now allowed for similar services performed
          in misdemeanor cases and the jurors shall each
          be allowed a fee of One ($1.00) Dollar, to be
          paid out of the estate of.the defendant, if he
          have an estate, otherwlse by the county on ac-
          counts approved by 'the county judge." (This
          article appears ln the chapter relatlng to lunacy
          proceedings and Is the costs allowed officers and
          jurors  Ln lunacy proceedings.)      ,
Mr. Joe Gordon,,Februarg 28, 1939, page 3


          Lunacy proceedings are of a civil, and are not of
a criminal nature - insanity is not a crime; in contradis-
tinction it Is a disease - White vs. White, 196 SW 508 (Sup.
Ct. of Tex.).
          A lunacy proceeding is a civil, and not quasi
criminal, proceeding. Ex Parte Singleton, Court of Criminal
Appeals, 161 SW 123,
          You are respectfully advised that if the defendant
in lunacy have no estate then the county clerk should charge
the county a fee for services under Article 5561, Revlsed
Civil Statutes of Texas, as the same is a civil case, and
that he should be paid by the county for such services out
of the General Fund of the county, and that when such clerk
receives s;lchpayment out of the General Fund it Is the duty
of the clerk to,place such payment he receives from the Gen-
eral Fund into the Officers' Salary Fund of the county.
          It is the further opinion of this Department that
the only compensation that the clerk is entitled to retain
if the salary allowed him under the Officers' Salary Law.
However, it Is still his duty to charge and collect and ac-
count for all~fees and commissions which are permitted by
law to be assessed and collected for all official services
performed by him and, as and when such fees are collected,
the clerk must deposit the same in the Officers' Salary
Fund or funds provided in the Salary Act.
          On May 2, 1931, this Department held, in an oplnion
written by Hon. R, G. Waters, Assistant Attorneg,General, that
the county clerk is not entitled to a recording fee to be paia
by the county for recording deeds and the county instruments
pertaining to land purchased by the county and that services
rendered by the county clerk for recording county instruments
would be considered "public services” and his remuneration
would be taken care of in his ex-officio salary, if any, paid
by the county.
          On August 19, 1935, this Department held, in an
opinion rendered by Hon. Leon 0. Moses, Assistant Attorney
General, that the county clerk was not entitl,edto a fee for
recording right-of-way deeds for the county.
           You are further advised that it is the opinion of
this Department that the county clerk Is not entitled to
charge the county recording fees for recording right-of-way
deeds for the county because there is no ~authoritywhich
authorizes the county clerk to charge the county for such
services s
