Honorable H. D. Glover        Opinion No. ~~-675
County Attorney
Reeves County                 Re:   Disposition of fees
Pecos, Texas                        received by County Tax'
                                    Assessor-Collector for
                                    performing assigned
                                    duties and for assessing
                                    and collecting taxes for
Dear Mr. Glover:                    Independent School District.

         Your letter of May 22,,1959, requesting an opinion
on the above.subject, reads in.part as follows:
                                                         L.
             "Please advise me whether or not the
         Tax Assessor-Collector in a county with a
         population of less than 20,000 who is com-
         pensated on a salary basis in the amount of
         $6,215.00   and who acts,as Tax Assessor-Col-
         lector for two Independent School Districts
         within the County is allowed to retain as
         fees of office an additional amount of 15        ,
         of currentcollections, l$ of<assessments
         and 5% of redemptions.from.the Independent
         School Districts. Also whether or not the.
         Tax Assessor and Collector would be allowed'
         to retain either $1.00 per line or 109 which-
         ever is lesser, from the State and 'County
         redemption payments.
          "The facts briefly are as follows: The Tax
        Assessor and Collector is a separate office
        in this county and handles the assessment and
        collection of taxes for two separate Independent
        School Districts within the county. She de-
        posits all of the tax money for the two Inde-         jI
        pendent School Districts and the State and
        County in one bank account and then periodically
        takes from the cash drawer, in cash, whatever
        the above figures or percentage would amount
        to, making rioentry at any~place as .to the
        money that she takes.
           "It is my opinion that she is not entitled
         to retain any of the above-mentioned moneys but
 .




Honorable H. D. Glover, page 2      Opinion No. w-675          :


         that they should all be reported and turned
         over to the County. . . .'
         On June 18, 1959, we received an additional letter
from you, as foi:ows:
           "This is a supplemental request to the
         above numbered~file. Please advlse me whether
         or not the Tax-Assessor and Collector can retain
         as her own personal funds the $1.00 that is
         charged for issu-ingTaw Certificates.
           %y opinion is that she cannot based upon
         the reasons as stated in my letter of May 22nd
         and under your file number above mentioned."
         The fees which may be,collected by a County,Tax
Assessor-Collector in performance of his duties are set ,forth
in various Articles of Vernon's Civil Statutes, among which
are the foilowing~which we assume to be those you inquire
about:
         (1) Article 7258,   as amended, reading in part
as follows:
           "Section 1. On and after October 1, 1953,'the
         Tax Collector or his deputy of any county in
         this State, or any city or political subdivision
         or tax assessing district within any such county
         shall, upon request, issue a certificate show-
         ing the.~amountof taxes, interest, penalty and
         costs'due, if any, on the property described
         in said certificate. A charge of not to exceed
         One Dollar ($1) may be made for each such cer-
         tificate issued."
         (2) Article 7331,   as amended, reading as follows:
           "For calculating and preparing redemption
         certificates and receipts, reporting and
         crediting redemptions, posting Comptroller's      '
         redemption numbers on the delinquent tax record
         or annual delinquent list',mailing certificates
         of redemption to taxpayers after approval by the
         Comptroller, and for issuing receipts or certifi-
         cates of redemption for property.shown on the
         annual delinquent list, the tax collector shall
         be entitled to a fee of One Dollar ($1) for each
         correct assessment of Land to be sold, except
         that if the total amount of said costs so per-
Honorable H. D. Glover, page 3     Opinion No. ~~-675


         mitted exceeds ten per cent (10%) of the
         total amount of the taxes, interest and
         penalties due before assessing any such
         costs, then the total cost allowable shall
         be limited to ten per cent (10%) of such
         total amount.o~fthe taxes,,interest and
         penalties, or One Dollar ($1) whichever
         is the larger, said fee to be taxed as
         costs against the delinquent. . .'
         Article 2792, V.C.S., as amended in 1945, provides
that the Board of Trustees of an Independent School District,
by majority vote, may require the County Tax Assessor-Col-
lector to assess and collect, or to collect, only, its taxes.
It also states "When the county assessor and collector is
required to assess and collect the taxes on independent
school districts they shall respectively rece.iveona (1)
per cent f;r assessing.and one (1) per cent for collecting
same;. . .   This is the only compensation currently pro,-
vided a County Assessor-Collector who aqsesses and collects
independent school district taxes.
         We are enclosing a copy of ,Attorney General's
Opinion No..s-76, holding that the fees collected by the
Tax Assessor-Collector, who is on a salary basis, for the
issuance of tax certificates under Article 7258a, V.C.S.,
should be deposited in the Officers' Salary Fund.              .
          The fees collected under Article 7331 should like-
wise be paid into the Salary Fund. Article 3912e, V.C.S.,
Section 5, provides as follows:
           "Sea..5.  It shall be the duty of all
         officers to charge and collect in the manner
         ailfhorizedby law all fees and commissions
         which are permitted by law to be assessed,and
         collected for all official service performed
         by them, As and when such fees are collected
         they shall be deposited in the Officers' Salary
         Fund, or funds provided in this Act. . .'
         Section 3 of that same Act provides,that, where
county officers are compensated on a salary basis,
           11
            * . "such officers shall receive said
         salary in lieu of all other fees, commissions
         or.compensation which they would otherwise be
         authorized to retain; provided, however, that
         the assessor and collector ~of taxes shall con-
         tinue to collect and retain for the benefit
Honorable H. D. Glover, page 4    Opinion No. WW-675


         of the Officers' Salary Fund or funds herein-
         after 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,. . ."
         Article 3883(i)(Acts 1955, 54th Leg.,p. 1137, ch.427)
provides in Section 1 as follows:
           "In each county in the State of Texas having
         the population of less than twenty thousand
         (20,000) inhabitants according to the last
         preceding Federal Census where all counwand
         district officialsare compensated on a salary
         basis, the Commissioners Courts shall fix the
         salaries of the officials named in this Act
         at not more than Six Thousand, Seven Hundred
         and Fifty Dollars ($6,750.00) per annum; pro-
         vided, however, that no salary shall be set
         at a figure lower than that actually paid on
         the effective date of this Act."
(According to the 1950 Federal Census the population of.
Reeves County was 11,745.)
         The assessor and collector of taxes is named in
Section 6 as one of the officials to whom Section 1 applies.
         Section 14 provides that, "All of the fees and
commissions earned and collected by the officials named in
this Act shall be paid into the County Treasury in accord-
ance with the provisions of Section 61 of Article XVI of
the Constitution of Texas."
         The ci.tedSection of the Constitution provides in.
part that "all fees earned by district, county and precinct
officers shall be paid into the county treasury where earned
for the account of the proper fund,. . .'
         For earlier cases dealing with the accountability
of fees earned under this article, as fees of office under
Maximum Fee Bill, see Burke v. Bexar County 271 S.W. 132
(Tex           1925) err ref'd. and Came&n County v. Fox,
42 S:t?zdA&'   affld' Com:App   61 ,S.W.2d 483 Reh.Den.,
Com.App., 64 S.W.2d 140. See'Also Attorney Gineralls Letter
Opln~ionon Request R2094, a copy of which is enclosed.
         As to fees paid under Article 2792: In Nichols v.
Galveston County, 111 Tex. 50, 228 S.W. 547 (1921),
.   .    .




        Honorable H. D. Glover, page 5     Opinion No. ~-675


        appellant County Assessor contended that fees paid him for
        assessing and collecting~independent school district taxes
        were for ex officio service and as such not accountable as
        fees of office. In overruling this contention, the Court
        said (p.549):
                   "After the statutes were enacted providing for
                 drainage districts and independent school dis-
                 tricts, and tb.atwh.enordered to do so by the      .
                 properly constituted authority the county assessor
                 of taxes shall assess these taxes, the assessment
                 of such taxes by him become the usual and general
                 duties of his office; Andythe performance of these
                 duties by him is made mandatory."
        The same reasoning would apply to the collection of these
        taxes.
                 It was therefore held that such fees were account-
        able as fees of office. (We note in passing that officers
        receiving a salary are specifically prohibited from receiving
        any ex officio compensation by Sec. 6(b) of Art. 3912e.
        Sec. 11 of Art. 38831 provides, however, three instances in
        which extra compensa,tionmay be paid, none of which-are
        material here.)
                 The Nichols case was cited by the court as controlling
        authority in Ta lor v. Brewster Count , 144 S.i#.2d314 (Tex.
        Civ. App., 194R+j+&r. 4        which held appellant County
        Tax Assessor-Collector was aA;ing-as an officer oftthe,
        County in collecting taxes for independent school districts
        under Art. 2792, and therefore his fees for such service
        were accountable as official fees. The theory and intent
        of,a salary basis of compensation for county officers, as
        opposed to a fee basis, are-well expressed in Attorney General's
        Opinion No. 0-3664,'from which we quote:
                   "In a salary county the fees to which the
                 officer would be entitled personally if'he
                 were on the fee system belong to the county.
                 The officer must collect them for the county
                 and place them in the Officer's Salary Fund.
                 It was clearly contemplated by the Legislature
                 that the salaries of county officers should
                 be paid largely from fees of office deposited
                 in the Officers' Salary Fund."
                                SWMARY
                      A County Tax Assessor-Collector who is
                 compensated on a salary basis must account
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        Honorable H. D. Glover, page 6      Opinion No. ~~-675


                 for and turn over to the County the fees
                 collected under Articles 7258a and 7331,
                 V.C.S., and also'the 15 of assessments and
                 1% of collections provided by Art. 2792,
                 V.C.S., for assessing and collecting inde-
                 pendent school district taxes.
                                   Yours very truly,
                                   WILL WILSON
                                   Attorney General of Texas




        JRI:cm
        APPROVED:
        OPINION COMMITTEE:
        Geo. P. Blackburn, Chairman
        W. R. Scruggs
        Gordon C. Cass                                           a.,,
        Linward Shivers
        L. P. Lollar
        REVIEWEDFOR   TRE ATTORNEYGENERAL
        By:   LEONARD PASSMORE
