Honorable W. A. Johnson
County Attorney
Tbm Green Count?
San Angelo, Texas
Dear Sir:                 OpLnion No. o-6810
                          Re: Maximum salary for the County
                               Treasurer oftTom Green County for
                               1944 and 19'15; employment of an
                               assistant whois the treasurer's
                               niece, and payment of salary to
                               her.
       Your request for an opinion of this department upon
the above questions reads as follows:
       'During the year 1943 our county treasurer,
    Mr. 0. M. Bennett, was ailing some, and was off
    from his work some, and procured the services of
    Mrs. Elizabeth Casey, who is his niece as an as-
    sistant. Later on his illness became extended to
    the extent that Mr. Bennett was confined, and it
    seemed that no one else was qualifiedto carry on
    the duties of his office, so Mrs. Casey continued
    to serve in the office. All this time Mr. Bennett
    paid Mrs, Casey for her services from his own funds.
       "Can the Commissioners' Court authorize a re-
    fund to Mr. Bennett for the amount paid to Mrs.
    Casey for her services, and can they still pay her
    as an assistant to Mr. Bennett, as he still needs
    an assistant?
       "(1940) The Federal Census ga;;eT;;tz;ez;-
    County, a population of 39,302.
    sessed valuation of property in Tom Green County,
    for the year 1944 was $25,239,425.00.
       "The total assessed valuation of 811 property
    in Tom Green County, for the year 1945 is about
    $300,000.00 more than in 1944.
       "What was Mr. Bennett's maximum salary for
    the year 1944? What is Mr. Bennett's maximum
    salary for the year 1945?"
Hon. W-A. Johnson, page 2         O-6810


        Article 3912e, Section 13, Vernon's Annotated Civil
Statutes, provides that Commissioners' Courts in counties hav-
ing a population of 20,000 or more and less than 190,000 accord-
ing to the last preceding Federal Census, shall fix the salaries
of the officers named therein, including the Cdunty Treasurer.
It also provides that each of said dfficers shall be paid s.Sal-
ary  of "not less than the total sum earned as compensation by
him in his official capacity for the fiscal year 1935, and not
more  than the maximum amount allowed to officers under laws
existing on August 24, 1935." It further provides that-in,
counties having a population of 37,500 and less than 60,000
according to the last preceding Federal Census, and having an
assessed valuation in excess of $20,000,000.00 according to the
last preceding approved tax roll of such county, the maximum
amount allowed to officers as salary may be increased one per
cent for each $1,000,000.00 valuation, or fractional part there-
of, in excess of said $20,000,000.00 valuation over and above
the maximum amount allowed to officers under laws existing
August 24, 1935.
       Article 3941 of said statutes, provides that the County
Treasurer may receive commissions on the monies received and
paid out by him, said commissions to be fixed by order of the
Commissioners' Court, and to be not exceeding 2 l/2 per cent
for receiving all monies for the county other than school funds
and not exceeding 2 l/2 per cent for paying out the same.
       Article 3943 of said statutes provides inpart that the
commissions allowed to the County Treasurer shall not exceed
$2,000.00 annually. There are some exceptions ,tothis salary
set out in said Article, but they do not apply to Tom Green
County.
       Under the above provisions of Article 3943, which were
in effect on the dates material hereto, the County Treasurer of
Tom Green County could have earned as commissions not exceeding
the sum of $2,000,00 for the fiscal year 1935, and this was
also the maximum amount that could have been allowed to him
under laws existing on August 24, 1935. The Federal Census
of 1940, which was the last preceding Federal Census prior
to the years inquired about by you, showed the population of
Tom Green County to be 39,302. The approved tax roll of Tom
Green County for 1943 showed the assessed valuation to be
$25,214,915.00, and such roll for 1944 showed said valuation
of that year to be $25,239,425.00 Therefore, the maximum
salary that the said County Treasurer could have been paid for
the years 1944 and 1945 is the sum of $2,000.00 plus one per
cent for each $1,000,000.00 valuation, or fractional part there-
of, in excess of $20,000,000.00, which would be six per cent
or $120.00 per annum, making such maximum salary that could
have been allowed under the laws above referred to the sum of
Hon. W.A. Johnson, page 3         O-6810


$2,120.00 per annum.

       Your attention is directed to the fact, however, that
the last Legislature passed Senate Bill No. 123 which author-
izes the Commissioners' Court to increas- the salary of the
County Treasurer of Tom Green County as much as 25 per cent.
This law is now in effect and such increase could be allowed
for the balance of this year if a proper order therefor is
entered by the Commissioners' Court. Our Opinion No. O-6677,
a copy of which is enclosed herewith, contains a full discus-
sion of this law and how and when it can be applied to the
salary of the County Treasurer of your county. We also hand
you for your information a CODV of OUP Opinion No. 0-6646
which deals with .theapplicability of Senate Bill No. 123 to
the salary of the treasurer of Galveston County.
       Article 3902 of V,A.C.S. authorizes the appointment of
a deputy, assistant or clerk by the County Treasurer to assist
in the performance of his duties when the provisions of said
ArtFcle are complied with, as held in our Opinion No, O-4454,
a copy of which is enclosed herewith. Therefore, it is our
opinion that the County Treasurer of Tom Green County is en-
titled to a deputy, assistant or clerk when the provisions of
said Article are complied with.
       Article 432 of the Penal Code of Texas is as follows:
      "No officer of this State or any officer of
   any district, county, city, precinct, school dis-
   trict, or other municipal subdivision of this State,
   or any officer or member of any State, district,
   county, city, school alstrict or other municipal
   board, or judge of any couPt, created by or"under
   authority of any general or special law of this
   State, or any member of the Legislature, shall
   appoint, or vote for, or confirm the appointment
   to any office, position clePkship, employment or
   duty, of any person related within the second ae-
   gree by affinity or within the third degree of
   consanguinit-rto the person so appointing or so
   voting, or to any other member of any such board,
   the Legislature, or court of which such person so
   appointing OP voting may be a member, when the
   salary, fees, OP compensation of such appointee
   is to be paid for, directly or IndiPectly, out of
   or from publlc funds or fees of office of any kind
   or character whatsoever."
       The method of computing the degPee Of COnSangUinity and
of affinity IS fully discussed in our Opinion No. O-2383, a
Hon. W.A. Johnson, page 4         O-6810


copy of which is enclosed herewith. In view of this opinion
and the authorities mentioned therein, there is no question but
that the niece of the County Treasurer of Tom Green County is
within the prohibited degree, and that the County Treasurer
cannot legally appoint her as his deputy, assistant OP clerk,
as such appointment would be in violation of the above article
of the Penal Code. This being true, the Commissioners' Court
of Tom Green County cannot legally authorize a refund to the
County Treasurer for the amount paid by him to said niece for
her services, neither can they authorize payments for her ser-
vices in the future as such deputy, assistant or clerk.
       We think such payment would also be in violation of
Article 3, Section 53, of the Constitution of Texas, which is
as follows:
       "The Legislature shall have no power to grant, or
    to authorize any county or municipal authority to grant,
    any extra compensation, fee OP allowance to a public of-
    ficer, agent, servant or contractor, after service has
    been rendered, or a contract has been entered into, and
    performed in whole or in part; nor pay, nor authorize
    the payment of, any claim created against any county or
    municipality of the State? under any agreement or con-
    tract, made without authority of law."
                                   Yours very truly
                                ATTORNEY GENERAL OF TEXAS

                                   By s/Jas. W. Bassett
                                        Jas. W. Bassett
                                        Assistant

J-WB:fb:wc
Enc.
APPROVED SEP 18, 1945
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
