                                 RNEY      GENERAL
                           OFTEXAS.




                      September 14, 1967

Honorable Robert S. Calvert       Opinion No. M-133
Comptroller of Public Accounts
Austin, Texas                     Rer   Constructionof Section 6
                                        of Article 3912e, Vernon's
                                        Civil Statutes (providing
                                        for apportionmentfrom the
                                        State to the various counties)
                                        fn view of the provisions of
                                        Section 2 of House Bill 80,
                                        Acts of the 60th Le islature,
                                        Regular Session, 19t7, Chapter
Dear Mr. Calvert:                       681, Page 1789.
          Your request for an opinion on the above subject matter
reade aa follows;
         "The Comptrollerwould like your offlclal opinion
    concerning the proper method of apportionmentof state
    appropriationsto the Officers Salary Funds under Artl-
    cle 3912(e),' Previously, in lieu of the payment of
    fees or commissionsto county officials,the State of
    Texas would pay an apportionmentbased on the population
    of the county to the county for the services rendered the
    State by the county. However, the 60th Legislatureadopt-
    ed H.B. 80 providing for fees to be paid county clerks
    and county recorders. The Bill provided as follows:
             "'And the fees provided for county
         clerks and all other laws, and parts of
         law, in aonfllct with the provisions of
         the Act are hereby repealed as to county
         clerks, including but not limited to:
         . . . sections 1 through 7, Chapter 465,
         Acta of the 44th Legislature, Second called          ,.'
         Seiwion, 1935, as amended (Articles3912er           ;
         Vernon's Texas Civil Statutes).'
          "Apparently,,the Legislative intent was to remove
     the County Clerk from the benefits of the apportionment
     of Article 3912(e) and to provide for payment of fees
     in lieu thereof. Inasmuch as Article 3912(e) was changed
                                                                    *




Bon; Robert S ,Calvert,page 2 (M-133)


     'wlthout~
             being re-enaoted or published at length and
     without the Leglelatureproviding a method by which
     the apportionment,may be made to exclude the,county
     clerk, may the Comptrolleradministrativelyadopt a
     method for such an apportionment? If 80. .lsthe
     following method authorized:
                                                          .,
                                        :   ,_. i   ,‘,

               '-fore ,eaohquarterly apportionment ,I 'y       ,’




          paymentcould
          _ -,          be made by the State, the
          Chni@roller~'nould reqthe    a, refund,~ iron!
          the.countg of that portion .ofthe county
          alerk's or oounty recorder’s     salary fund
          which would normally have been paid from
          State funds.. The amount of.refund is to
          be'determl,nedby deducting a percentage,
          from the county,clerk's or county recor’d-
          er's ,offlcerssalary.     Such percentage Is
          to be derived by ~multlplyingthe sa1ary.b~
          the ratio of the State appropriationto
          the total Officer's Salary Fund.(the State
          apportionmentwould be the numerator and
          the Offlcerls total Salary Fund would be
          the denominator). Such refund to be,made
          to the State by the Commissioner'sCourt ,' "
          on or before the last day of February,
          May, August and November of each year
          (approximatelythirty days after each
          quarterly apportionmentby the State)."
          Section 2 of 'HouseBill 00, Acts of the 60th Legislature,
Regular Session, 1967, Chapter 681, Page 1789, reads In part:
          "Article3930a, Revised Civil Statutes of Texas,
    '1925, as added by Section 1, Chapter 495, Acts of the
     57th Legislature,Regular Session, 1961, Is repealed;
     and the fees provided for County Clerks in all other
     laws, or parts of laws, In conflict with the pro-
     visions of this Act are hereby repealed as to County
     ??lerksonl lncludln but not limlted to8 Section
     10(b) Cha$er 340 A%e of the 49th Legi-slature,
     Regul& Session, l$I (Article 912a-10, Vernon's ~'
     z!xas Civll'Statutes; Sections 1 through 7, Chapter
          Acts of the 44th Legislature,2nd Called Session,
     x95$, as amended (Article 3912e, Vernon's Texas Civil
     Statutesl_;. . . .- (Emphasisadded,)

          Section 1 of ,HouseBill 80 amends Article 3930, Revised

                                  .615'-


                                                                :
Hon. Robert 8. Calvert, page 3 (M-133)
                                                             :'

Civil Statutes of Texas, 1925, as amended, so as to pr6vlde the fees
that the oounty clerks and county recorders are "authorlxddand re-
qulred to collect .     for services rendered by them to
governmentalagenclea and/or governmentalrepreeentatlves:" Item 9
of the approprlatlonfor the year ending August 31, 1968, to the
Judiciary Section of the ComptrollerDsDepartment reads as follows:
         "ApFortlonmentto counties where county officers
    are paid salaries (Chapter 465, Section 6 (a), Second
    Called Session, Acts, Forty-FourthLegislature).
    Should any county by election of the Commissioners
    Court, ahange from a salary to a fee basis, the
    Comptroller shall make adgustmentsIn the approprfa-
    tions by transferringthe correct amount from this
    appropriationto the appropriationmade for paying
    fees and costs of sheriffs and other count officials
    ...'.~.D....0*...~..*.*~...**.~e.~.....~~~ 612,586"
                                              a:
          The pre-existing law for the above quoted Item of appro-
priation Is Section 6 of Article 3912e which provides:
         "Sec. 6. (a) Incounties wherein the county
    officials are on a salary basis, In addition to the
    monies deposited In said Officers" Salary Fund or
    funds under the provisions of Sections 1, 3 and 5 ?p
    this Act there shall be deposited therein quarterly
    on the first day of January, April, July and October
    of each year, such sums as may be apportionedto
    suah county under the provisions,ofthis Act, out of
    the available approprlatfonsmade by the Legislature
    for such purposes, provided, however, that in counties
    whereln the Commissioners'Court ,lsauthorized to
    determine whether county officers shall be compensated
    on a salary basis, no apportionmentshall be made to
    such county until the Comptrollerof Fubllc Accounts
    shall have been notified of the order of the Com-
    missioners' Court that the county officers of such
    county shall be compensatedon a salary basis for the
    fiscal year, and In that case the first quarterly pay-
    ment of such apportionmentshall be made in fifteen
    (15) days after the receipt of such notice by the
    Comptroller,and the remaining payments on the 'dates
    hereinabove prescribed. It shall be the duty of the
    Comptrollerof Public Accounts to annually apportion
    to all counties in which the county officers are to be
    compensatedon the basis of a salary any monies, ap-
    proprfated for said year for such apportionment:each
    county entitled to participate In such apportlo~ent
                                                                   .




HOti.   Robert S. Calvert, page 4 (M-133)


        shall"reoelvefor the benefit of Its Offloer'a Salary
        Fund or funds Its proportionatepart of the appropria-
        tion which shall be distributedamong the several
        counties entitled to participatetherein, on the basis
        of the per capita population of each county according
        to the last preceding Federal Census; provided that
        the annual apportionmentfor such purposes shall not
        exceed fourteen (149!)cents per capita of said popu-
        lation of each county where county officers   are com-
        ~;;&;g on a salary basis under the provisions of
                   Provided that in all counties,whlohhad a
        populatl& of less than sixty thousand (60,000) ln-
        habitants in 1930 according to the last preoedlng
        Federal Census and which now have ad valorem valuations
        for all purposes according to'the last approved tax
        roll of such county, which have Increasedat least
        fifty (50) per cent over the valuatloh   for 1930, the
        amount to be paid to each of said counties for its
        salary fund shall be the sum not to exceed twenty-
        five (25#) cents per capita based on the 1930 popu-
        lation. The quarterly payment of such apportionment
        of such appropriationshall be mad,eon warrants drawn by
        the State Comptrollerupon,the State Treasury payable
        to the county treasurer of the'oounty In whose favor the
        apportionmentIs made and said warrants shall be~regis-
        'teredby.the Comptroller.and the Treasurer and shall be
        mailed by the Comptrollerto the Treasurer of the county.
             "(b) No officer receiving a salary shall hereafter
        receive any ex offlclo compe&ation; provided, however,
        the Commissioners'Court shall transfer from the General
        Fund of the county to the Officers' Salary Fund or funds
        of such county such funds as may be necessary to pay
        the salaries and other claims chargeable against the
        same when the monies deposited therein are lnsufflclent
        to meet the,clalms payable therefrom.
             F(c) Any monies remaining In the Officers' Salary
        Fund or funds of any county at the end of any fiscal
        year after all salarles and authorized expenses Incurred
        against said fund for said year shall have been paid
        may be, by order of the Commissioners'Court, trtnsferred
        to the credit of the aeneral Fund of the county.
          Section 6 of Article 3912e does not provide any fee for
the county clerk and Is not In conflict with any provision of House
Bill 80, Acts of the 60th Legislature. The provisions of Article


                                    -617.
Hon. Robert S. CalvePt, Page 5 (M-1331


3912e in eonfllct with the provisions of House Bill 80 are Sections
1 and 3 rather than 2, hlr,
                          5, 6 and 7. Therefore, it 1,sour opinion
that Section 6 of Article 3912e has not been repealed or .amendedby
the provlslons of House Bill 80, Acts of the 60th ,Leglslature.
          You are therefore advlsed that the countles~wlll,tiontlnue
to receive the apportionmentfrom the State, appropriated~:bgItems9
of the Judlclary Section of the Comptroller'sOffice, Andythe' Comp-
troller Is to continue to make the apportionmentprovfded for in
Section 6 of Article 3912e.
                             SUMMARY
         House Bill 80, Acts of the 60th Legislature,
    Regular Session, 1967, Chapter 681, Page 1789, re-
    lating to fees to be charged by county clerks does
    not amend or repeal Section 6 of Ar%fcle 3922e9
    Vernon's Civil Statutes, rela'tingto apportfonment
    by the Sta%e to the varfous e




                               Att&ney General of Texas.
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne PhlPllps, Chalrman
Kerns Taylor, Co-Chairman
W. V. Geppert
James Broadhurst
Alan Minter
Jack Sparks
Marvin Sante11
Ae J, CARUBBI, JRRO
STAFF LEQAL ASSISTANT
