Honorable C. H. Cavness
State Auditor
Austin, Texas
Dear Sir:                  Opinion No. o-6652
                           Re: Apportionment to counties
                                under Art. 3912e, Section
                                6 (a), V. A. C. 5.
          We have received your recent communications in re-
gard to the above subject, and we quote same as follows:
         "We are making an audit of the books of
   account and records of the JUDICIARY SECTION -
   COMPTROLLBR'S DEPARTMENT (as maintained and
   administered by the Comptroller of Public Ac-
   counts) for the three-year period ended August
   31st, 1944, which audit includes a general re-
   view of the transactlons for prior years. This
   request for an opinion pertains to the apport-
   ionment to counties, which apportionment Is on
   a per caption basis as provided for in Article
   3912e, Sections 1, 2, 3, 5, and 6a, Vernon's
   Annotated Revised Civil Statutes.
          O'Incollaboration with the personnel of the
    Comptroller's Department we have studied the per-
    tinent Statutes, Opinions rendered by your Depart-
    ment, and the Legislative Appropriation Bills
    relative to the per capita apportionment - in-
    cluding the Appropriations for the payment of the
    apportionments, and the appropriations for fees
    and costs of sheriffs, etc., out of which trans-
    fers are to be made for the payment of a part of
    the apportionment to the respectfve counties.
          "In our audit we find that in the Comp-
    troller's records these apportionment payments
    have been made each year during the months of
    September, December, March, and June, in order
    to conform with the State's fiscal year ending
    each August 31st. In effect this means that the
    first payment for each quarterly apportionment is
    made In September rather than in January, as set forth
Honorable C. B. Cavness, page 2                o-6652


    in the Statutes, and on a fiscal year basis rather
    than on the calender year basis on which the
    counties operate.
         "We also find in our audit that a few trans-
   fers have been made in some of the years from the
   appropriation for fees and costs of sheriffs, etc.,,
   to the Apportionment Fund for the payment of ap-
   portionment to those counties which have currently
   changed from the fee basis to the salary basis,
   and that in many Instances the Comptroller has not
   made the specified transfers. Hence, we have several
   bases of payment over a period of some years.
         "It appears to us that under the existing
   Statutes It would be more practical to predeter-
   mine the exact amounts that each county should
   receive in the way of apportionment as of the
   beginning of each calendar year, based upon the
   preceding tax roll and predicated upon the re-
   ceipt of copies of Commissioners' Court Minutes-
   a schedule could be prepared which would enable
   the Comptroller to make equal quarterly payments,
   the first possibly by February 15th and the three
   succeeding payments quarterly as set forth in the
   Statutes, that is, April lst, July lst, and
   October 1st. This would mean of course that the
   entire schedule of apportionment would be set up
   on a calendar year basis, January 1st to December
   31st - for instance, in setting this up for the
   calendar year 1944, the January 1st payment, the
   April 1st payment, and the July 1st payment, would
   be paid from the 194X-44 appropriation and the
   October 1st payment would have to be made out of
   the 1944-45 appropriation.
         '(Inthe Appropriation Bills, as passed by the
   47th and the 48th Legislatures, we find the follow-
   ing Appropriations for apportionment to counties at
   lO$ per capita, etc.:
       "'Year   Ended   August   31st, 1942    $486,677.60
         Year   Ended   August   31st, 1943     486,677.60
         Year   Ended   August   31st, 1944     400,000.00
         Year   Ended   August   ,31st, 1945    400,000.00'
         In the Appropriation Bills for the same four-
   year period we have appropriations for fees and
   costs of sheriffs, etc., as follows:
Honorable C, H. Cavness, page 3               o-6652


       "'Year   Ended   August jlst,   1942   $195,000.00
         Year   Ended   August 3lst,   1943    1g5,000.00
         Year   Ended   August 3lst,   1944    100,000.00
         Year   Ended   Augu~stxlst,   1945    100,000.00'
          "We also find this wording in both of the
    above mentioned Legislative Bills:
       "'Should any county, by election of the
      Commissioners' Court, change from salary
      to fee basis or vice versa, the Comptroller
      shall make adjustment in the Appropriations
      'bytransferring the correct amount from
      appropriation made for fees and costs of
      sheriffs and other county officials to ap-
      propriation to pag counties on a per capita
      basis or vice versa, as the case may be.'
          "In order to somewhat simplify the complicated
    calcula,tionsnecessary 'todetermine the proper amounts
    to be paid each county quarterly under this apportion-
    ment set-up out of the two above mentioned approprla-
    tions, bearing in mind that the respective counties
    operate on the calendar year, January 1st to December
    31s'c,and the State Appropriations are set up on a
    fiscal year, September 1st to August 31st, we will
    discuss the mechanics of preparing apportionment
    schedules by counties for the calendar year beginning
            i,st,1944, ending December 31st, 1944, which
    Jan.ua:r,y
    appor,tionmentpayments have to be paid out of the
    ,fiscalyear's appropriations ended August 31st, 1944
    and August jlst, 1945.
          “In order to prepare such a schedule on a pre-
    de.terminedbasins,assum,ingthat the $400,000.00
    appropriation for apportionment at 104 per capita
    applies only to those counties with a population
    of 20,000 or more, according to the 1940 Federal
    Census, it is necessary to multiply the per capita
    population of each county by 14# per capita in
    order to arrive at the to,talamollntof apportion-
    ment due such counties at the Statutory maximum
    amount of 14d per capita. In addition to this
    computation, however, we have to consider certain
    counties which had a popula,tionof less than
    5o,,i7OO
           according to the 1930 Federal Census and
    which had at lea& a 50% increase in ad valorem
    valuations (according to the last approved tax
    roll) over the 1930 tax roll because for those
    count,iessuch in~c,reases
                            raise the per capita rate
Honorable C, H. Cavness, page 4        o-6652


    to 25$.  Still assuming that only those counties
    would participate in the $400,000.00 appropria-
    tion we have to prepare another schedule to pro-
    vide apportionment for those counties which had
    a population of under 20,000 according to the
    1940 Federal census but which elect to operate on
    the Salary basis. This schedule would be prepared
    on a basis similar to that outlined above by mul-
    tiplying the county per capita population by the
    144 rate and/or the 25# rate as the case may be.
          "Supposing these calculations resulted in a
    schedule showing a total apportionment due all
    counties of $~oo,ooC.OO for the calendar year 1944
    but the Legislature has only appro riated $400,000.00
    (or 50% of the total amount neededP , we could pay
    each county only 50s of the amount due under the
    Statutory maximum per capita of 14d and 254.
          "Then we apply the same plan to the second
    schedule which would mean that if the total appor-
    tionment due all participating counties with a
    populatton of under 20,000 totaled $50,000.00 and
    we could only pay them 50% of the amount due, or
    a total of $25,OOO.OO - we assume that this
    $25,OOO.OO would have to be transferred from the
    appropriation for fees and costs of sheriffs, etc.,
    to the Apportionment Fund before such couties could
    receive their quarterly payments. However, the
    quarterly payments as shown to be due in the sec-
    ond schedule would have to be based upon the pre-
    determination of tax valuations as shown by the
    October 1943 tax rolls, together with the obtain-
    ing, during January, of copies of the Minutes of
    the Commissioners' Courts for all participating
    counties, before any proration could be made to
    these under 20,000 population counties. Obviously,
    the October 1st payment under the second schedule
    would also have to be made out of the 1944-45
    appropriation for fees and costs of sheriffs.
          "We wish to present the following questions:
          "1 D Are we correct in assuming that the
    $400,000.00 appropriation for the fiscal year
    ended August 31st, 1944 should be apportioned as
    outlined above to &    those counties which had
    a population of 20,000 and over, according to
    the 1940 Federal Census, and in quarterly pay-
    ments on the First of January, April and July
Honorable C. H. Cavness, page 5         o-6652


    1944, based upon the October 1943 ad valorem
    valuations per approved tax rolls?
          "2 . Are we correct in assuming that the
    October lst, 1944 payment would have to be made
    out of the 1944--45 appropriation?

          “3 . Should the $400,000.00 apportionment
    appropriation for the year ended August 31st,
    1944, and as a matter of fact all fiscal year
    appropriations, be disbursed in equal quarterly
    payments, in this case $lOO,OOO.OO each quarter?
          “4 . Are we correct In assuming that all
    annual apportionments due participating counties
    which had population of under 20,000 (according
    to the 1940 Federal Census) are not to be paid
    out of the $400,000.00 apportionment appropriation
    but are to be paid only out of funds transferred
    to it from the appropriation for fees and costs
    of sheriffs?
          “5 . If it is found that some counties have
    been overpaid or underpaid apportionment by the
    Comptroller over a period of say five or six years,
    could such errors be corrected from the remaining
    apportionment balance or by adjustments in payments
    under future appropriations, both for apportionment
    and for fees and costs of sheriffs, etc.?
          “6 e In the event a county had received an
    overpayment of apportionment over a period of years
    and then elected to operate on the fee basis, what
    procedure should be followed by the Comptroller to
    secure refund of such overpayment?
           "7 . Supposing it would be necessary to make
    a transfer from the apportionment appropriation to
    the appropriation for fees and costs of sheriffs,
    etc ",,as set forth in the Appropriation Bills, upon
    what basis should the amount of such transfer be
    calculated?
          “8 . In the event a county ad valorem valuation
    increased more than 50$, placing such county in the
    25# per capita rate and then the following year the
    valuations decreased to where the actual increase
    was less than 50$, would such county remain on the
    25+!per capita basis or would it revert to the 14$
    per capita basis? In other words, are the ad val-
Honorable C, H. Cavness, page 6         o-6652


    orem valuation increases to be considered each
    rear in arriving at the basis of apportion%    for
    those counties which had a population of less than
    60,000 inhabitants according to the 1930 Federal
    Census?
          "Should you desire any further information
    we may have relative totie above, please advise.
          "Under date of June 8th, 1945, we requested
    an opinion with reference to our current audit of
    the Judiciary Section - Comptroller's Department
    (assigned Opinion No. 6652). We ask that you
    kindly incorporate this supplemental request with it.
          "Since making this request to you we find that
    the Federal Government released a Special Census for
    Jefferson County, Texas, as of June 15th, 1943 show-
    ing a population of 191,942, whereas the last pre-
    ceding Decennial Federal Census of 1940 showed a
    population of 145,329,
          "Question No. 9. (a) Are we correct in as-
    suming that a Federal Suecial Census taken sub-
    sequent to the regular census of 1940 would super-
    sede the 1940 Decennial Federal Census insofar as
    per capita apportionment is concerned, and also if
    this is correct, would the same interpretation
    applg in all instances where the "preceding Federal
    Census" is a governing factor under the Judiciary
    Section appropriations?
          "(b) If such Federal Special Census is the
    census which should be used in allocating State
    apportionment, would new allocations resulting
    take effect as of the beginning of each calendar
    year (that is, January 1st) subsequent to the date
    of such Special Census, or would they take effect
    as of the date of the census, which in the case of
    Jefferson County was June 15th, 1943?"
          We have carefully considered your statement of
facts and conclusions of law submitted with your questions
and find same to be a very able and informative discussion
on the question of apportionment to coun,tiesunder the Salary
Law (Art, 3912e, V, A. C. S.). We hereinafter setout the
various sections of the laws pertinent to your inquiry.
          Sections 2 and 6 (a) of Art, 3912e, V. A, C. S.,
provide as follows:
Honorable C. H. Cavness, page 7        o-6652


          "Sec. 2. The Commissioners' Court of each
    county in the State of Texas, at its first regular
    meeting in January of each calendar year, shall, by
    order made and entered in the minutes of said court,
    determine whether precinct officers of such county
    (except public weighers and registrars of vital
    statistics shall be compensated on a salary basis
    as provided for in this Act, or whether they shall
    receive as their compensation, such fees of office
    as may be earned by them in the performance of the
    duties of their offlces, and it shall be the duty      .
    of the county clerk of each county to forward to
    the Comptroller of Public Accounts of the State of
    Texas on or before the 31st day of January a cer-
    tified copy of such order. In counties having a
    population of less than twenty thousand (20,000)
    inhabitants according to the last preceding Federal
    Census, it shall likewise be the duty of the Com-
    missioners' Court, by its order duly made and en-
    tered of record at its first regular meeting in
    January of each calendar year, to determine whether
    county officers of such county (excluding county
    surveyors, registrars of vital statistics and
    notaries public) shall be compensated for the fiscal
    year on the basis of an annual salary or whether
    they shall be compensated on the basis of fees
    earned by them in the performance of their official
    duties, and it shall also be the duty of the county
    clerk to forward to the Comptroller of Public Ac-
    counts of the State of Texas, on or before the 31st
    day of January, a certified copy of said order of
    said Commissioner's Court.
          "SetD 6. (a) In counties 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 of 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 ap-
    portioned to such county under the provisions of
    this Act, out of the available appropriations made
    by the Legislature for such purposes provided,
    however, that in counties wherein the Commissioners'
    Court is authorized to determine whether county
    officers shall be compensated on a salary basis,
    no apportionment shall be made to such county until
    the Comptroller of Public Accounts shall have been
    notified of the order of the Commissioners' Court
    that the county officers of such county shall be
    Honorable C, H. Cavness, page 8        o-6652


       compensated on a salary basis for the fiscal
       year, and in that case the first quarterly
       payment of such apportionment shall be made
       fin fifteen (15) days after receipt of such
       notice by the Comptrolle??,and the remaining
       payments on the dates hereinabove prescribed,
       It shall be the duty of the Comptroller of
       Public Accounts to annually apportion to all
       counties in which the county officers are to
       be compensated on the basis of a salary any
.      monies, appropriated for said year for such
       apportfonment; each county entitled to parti-
       cipate in such apportionment shall receive
       for the benefit of its Officers' Salary Fund
       or funds its proportionate part of the ap-
       propriation which shall be distributed among
       the several counties entitled to participate
       therein, on the basis of the per capita popu-
       lation of each county according to the last
       preceding Federal Census; provided that ,the
       annual apportionment for such purposes shall
       not exceed fourteen (14d) cents per capita
       of sard population of each county where
       county officers are compensated on a salary
       basis under the provisions of this Act,
       Provided that in all counties which had a
       population of less than sixty thousand (60,000)
       inhabitants in 1930 according to the last
       preceding Federal Census and which now have
       ad valorem valuations for all purposes accord-
       ing to ,thelast approved tax roll of such
       county, which have increased at least fifty
        (50) per cent over the valuation 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 population. The quarterly
       payment of such apportionment of such appro-
       priation shall be made on warrants drawn by
       the State Comptroller upon the State tieasury
       payable to the county treasurer of the county
       in whose favor the apportionment i.smade and
       said warrants shall be registered by the Comp-
       'troller and the Treasurer and shall be mailed
       by the Comptroller to the treasurer of the
       county.'I
              Section 10 of the Judiciary Section - Comptroller's
    Department of the appropriation act of the 48th Legislature
    provided as follows:
Honorable C. H. Cavness, page 9          o-6652


                                        For the Years
                                   Beginning      Ending
                                  September 1, August 31,
                                     1943          1945
          "10s Apportionment to
               counties a$ lo+
               per capita where county
               officers are paid sal-
               aries (per Ch. 465,
               Sec. 6a, 2d C. S.,
               Acts, Forty-fourth
               Legislature. Should
               any county, by election
               of the commissioners
               court, change from
               salary to fee basis or
               vice versa, the Comp-
               troller shall make
               adjustment in the
               appropriations by
               transferring the cor-
               rect amount from
               appropriation made
               for fees and costs
               of sheriff and other
               county officials to
               appropriation to pay
               counties on a per capita
               basis or vice versa as
               the case may be. . .$400,000.00 $400,000.00"
          Section 18 of the Judiciary Section - Comptroller's
Department of the appropriation act of the 47th Legislature
had substantially the same provisions as said Sec. 10, supra,
although the amount appropriated for such purposes was dif-
ferent.
          The hereinafter numbered paragraphs answer the COP-
respondingly numbered questions submitted by you.
          1. No. It is our belief that the $400,000.00 ap-
propriation was intended to cover all counties then on a
salary basis, I. e., those which had a population of 20,000
inhabitants, or over, according to the 1940 Federal Census,
and those which had a population of under 20,000 inhabi-
tants according to the 1940 Federal Census, and which had
elected to operate on a salary basis on or prior to January
31st, 1943. The 48th Legislature met in January of 1943
and enacted the appropriation for apportionment to counties
Honorable C. H. Cavness, page 10        0 -6652


for the yea'rbeginning Sept, 1, 1943 and ending Aug. 31,
1944, and the year beginning Sept. 1, 1944 and ending Aug.
31, 1945. It is only reasonable to believe that such ap-
propriations were intended to cover all counties on the
salary system at the time such appropriations were passed.
          2. Yes, but such payment would include the por-
tion for the month of September, 1944, also. In other
words, the quarterly payments should be as follows: 1st
payment for the months of January, February and March 1.944;
2nd payment for the months of April, May and June, 1944;
3rd payment for the months of July and August, 1944, (Sep-
tember cannot be included in this payment out of the ap-
propriation ending August 31, 1949; and the 4th payment for
the months of September, October, November and December,
1944"  The lst, 2nd and 3rd of such payments would be pag-
able out of the appropriation for the fiscal year ending
August 31, 1944, and the 4th payment out of the appropria-
tion for the fiscal year beginning September 1, 1944. The
statute directs t,batthese payments be made on the first
day of January, April, July and October of each year.

          3‘ No, it is obvious from our answer No, 2 that
this would be impossible.
          4, No, While your assumption would be true in
cases where such counties of under 20,000 population accord-
ing to the 1940 Federal Census had elected to operate on the
salary system since Jan, 31st, 1943, as they would then not
be included in t,he1943-1944 apportionment appropriation, we
do not believe such assumption correct in regard to those of
such courkies that changed to the salary system on OP prior
to Jan, 3lst of the calendar year in which the biennial ap-
portionment appropriations were passed, In such cases the
Comptroller would be notified of such change of the system of
paying the counties' officials on OP before Jan. 31st of such
year,,as required by Set, 2 of Art. 3912e, supra, and in time
to be included in the apportionment appropriation for the en-
suing biennium, In cases where such counties elected to
operate on a salary basis G or prior to Jan. 31st of the year
in which the biennial apportionment appropriations in question
weye passed, and since Jan. 31st of the next preceding year
in which the Legislature met in Regular Session, then until
Sept, 1st of the yeap in which the biennial apportionment ap-
propriations in question were passed the apportionment to
such counties would be made by the Comptroller from transfers
of the proper amount hpom the appropriation made for fees
and costs of sheriffs and other county officials to the appro-
priation to pay counties on a per capita basis. On Sept, 1st
of said year such counties would then come under the apportion-
Honorable C. H, Cavness, page 11         o-6652


ment appropriation and thereafter, as long as such counties
remained on a salary basis, their apportionment on a per
capita basis would be paid from the current appropriations
to pay counties on a per capita basis, and &   from trans--
fers from the appropriations made for fees and costs of
sheriffs and other county offlclals. Regardless of the source
of the funds by which the apportionment on a per capita
basis is made to the counties, i. e., either from the sums
appropriated for apportionment on a per capita basis or by
transfer to such appropriation from the sums appropriated
for fees and costs of sheriffs and other county officials,
the apportionment payments should be made on a calendar year
basis, as suggested by you.

            5. We are unable to find any statute authorizing
the Comptroller to make adjustments of these apportionments
where there   have been overpayments or underpayments in past
years, It is our opinion that where any county or counties
have been overpaid or underpaid in allocations prior to the
calendar year 1945, such error or errors cannot be adjusted
out of a current or future apportionment, as all such appro-
priations must be used for the year for which they are appro-
priated.
          6.   This question Is answered by our answer No. 5,
supra.

          7. If the necessity for the transfer of funds
from the apportionment appropriation to the appropriation
for fees and costs of sheriffs and other county officials
is occasioned by a county's changing from a salary basLs to
a fee basis then the amount to be transferred would be a sum
equal to the amount such county would have received from the
apportLonment appropriation had it remained on a salary basis.
We are unable to conceive of any other equitable method of
determining such amount.
          80 We believe the practice (if such has been the
practice) of the Comptroller basing the apportionment to par-
ticipating counties on the sum of fourteen (14) cents per
capita and, in instances where such participating counties
had a population of less than sixty thousand inhabitants in
1930 according to the last preceding Federal Census and which
now have ad valorem valuations for all purposes according 'CO
the last approved tax rolls of such counties which have ln--
creased at least fifty per cent (50%) over the valuation for
1930, basing the apportionment on the sum of twenty-five
cents (25$!)per capita according to the 1930 population, to
beauthorized    by law. Section 6(a) of Art- 3912e, supra,
is merely a pre-existing law authorizing an appropriation
Honorable C. HU Cavness, page 12          o-6652


not to exceed such sums. The 48th Legislature in its ap-
propria'tionfor the biennium beginning September 1, 1943,
and ending August 31, 1945, apportioned such sums to all
the participating counties on the basis of ten cents (1Od)
per capita, and the 47th Legislature also designated the
basis of ten cents (lO#) per capita in Fts appropriation
for such purposes. Thus, while the Legislature could have
raised its apportionment of such sums to a per capita basis
of not to exceed fourteen cents (14$), and twenty-five cents
(25#) in certain counties, without a change of pre-existing
law, it did not do so in the appropriation bills in question,
and there is no authority for the Comptroller to make an ap-
portionment to     participating county in an amount exceed-
ing ten cents (   ) per capita.

          9. Yes. We are enclosing a copy of our opinion
No. O-6499 which answers part (a) of your question,
          In regard to part (b) of your question, It is our
opinion that the first quarterly payment to said county
immediately following such Federal Special Census, in this
case the July payment, should be based on the per capita
population of said county as shown by such Federal Special
Census.
          T:rustingthe foregoing fully answers your questions,
we are
                                   Yours very truly
                             ATTORNEY GENERAL OF TEXAS


                                   By s/Robert L, Lattimore, Jr,
                                        Rober,tL, Lattimore, Jr,,
                                        Assistant



APPROVED NOV 17, 19%
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/J.C.D. Chairman
