Case Information
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DAN MORALES January 281993 ATTORNEY GENERAL
Honorable Eddie Cavazos Opiion No. DM-199 ChGlWl
committee on Insurance Re: Whether the additional money generated Texas House of Representatives from the increase in the motor vehicle P. 0. Box 2910 registration fee authorized by section 4.202(a), Austin, Texas 78768-2910 article 6702.1, V.T.C. S., as amended by House
Bill 2 of the 72d Legislature, must be distributed to the Cameron Countv Tax Assessor-Collector or to the Cameron County general tbnd (RQ-2 14) Dear Representative Cavaaos:
You request this office’s opinion concerning the disposition of fees collected pursuant to section 4.202(a) of the County Road and Bridge Act, V.T.C.S. article 6702-l. Section 4.202(a) was amended by House Bill 2, the omnibus insurance reform bill passed by the 72d Legislature. Acts 1991, 72d Leg., ch. 242, 8 10.07, at 1033. Among its myriad provisions, House Bill 2 added article 6675a-2a, V.T.C.S., which requires the owner of a motor vehicle to submit valid evidence of financial responsibility to a county tax assessor-collector at the time the owner seeks to register the vehicle. Jfthe owner fails to present satisfactory evidence of Snancial responsibility, the tax assessor-collector may not register the motor vehicle. V.T.C.S. art. 6675a-2a(b). As amended by House Bill 2, section 4.202(a) of the County Road and Bridge Act provides the following:
As compensation for services under the laws relating to the registration of vehicles, each county tax assessor-collector shall receive a uniform fee of $1.90 for each of the receipts issued each year pursuant to those laws. The compensation shall be deducted weekly by each county tax assessor-collector from the gross collection made pursuant to this Act and other laws relating to registration of vehicles.
Prior to its amendment, section 4.202(a) authorized collection of a fee of $1.50.
You state that the Cameron County Commissioners Court has advised the Cameron County Tax Assessor-Collector that the additional forty cents authorized by House Bill 2 should be credited to the county’s general find, rather than the tax assessor- *2 (DM- 19 9 ) collectoh office. As a result, you state that the tax assessor-collector does not have suflicient funds to hire the additional staff needed to enforce the linancial responsibiity provisions of House Bill 2.
Your inquiry raises two questions. Fi, you wish to know whether the additional forty-cent fee authorized by House Bii 2 must be deposited in the general iimd of the county. Second, we understand you to ask whether the additional amounts must be used to de6ay the expenses of the county tax assessor-collector in discharging the duties imposed by V.T.C.S. article 6675a-2a We conclude that the entire fee, including the additional forty-cent amount, must be deposited in the general timd of the county. We also conclude that the fee collected pursuant to V.T.C.S. article 6702-1, section 4.202 must be appropriated by the commissioners court to de6ay the county tax assessor- collector’s expenses in administering V.T.C.S. article 6675a-2a.
Although section 4.202(a) states that the $1.50 fee is intended to serve “[a]s compensation for [the county tax assessor-collector’s] services under the laws relating to the registration of vehicles,” the fees so collected are neither compensation for the officer per se nor subject to his personal control. Article XVI, section 61 of the Texas Constitution requires tdl county officers in counties having a population of 20,000 or more, according to the most recent federal census, to be compensated on a salary basis rather than a fee basis.’ W~tb exceptions not relevant here, a county officer paid on a salary basis receives the salary in lieu of fees, commissions and other compensation the officer would otherwise be entitled to keep. Local Gov’t Code 6 154.002. A county is prohibited from paying a salaried officer a fee for the performance of any service by the officer. Id. 8 154.004(b).
Article XVI, section 61 of the Texas Constitution also provides in part that all fees earned by district, county and precinct officers “shsll be paid into the county treasury where earned for the account of the proper tbnd.” Section 4.202 of the County Road and Bridge Act does not designate a special fund for the deposit of fees collected thereunder. Rather, county officers paid on a salary basis are required to deposit all fees allowed by law for the officds services with the county treasurer. Id. 5s 113.021(a), 154.003; see Sta!e v. G@ 167 S.W.2d 296 (Tex. Civ. App.-Galveston 1942), writ refdper curiam, 170 S.W.2d 470 (Tex. 1943); Attorney General Opinion M-624 (1970) (deposit of $1.00 “service charge” collected by county tax assessor-collector to cover cost of motor vehicle registration by mail). The county treasurer, in turn, must deposit the money to the credit of the o5ce?s salary find, which must be kept separate from other county funds.2 Local
lAccording to the most -1 federal cemus, Cameron county has a population of 260,120. U.S. Dw'? OF ChtM!iRCE, BUREAU OF THS CENSUS, I990 &KSLJS OF POPUUTION; .%f?.URY OF POPLLWIONAWD HOUSING Clu~acravsrrcs~ ‘l&a 199O-cPH-145 (Aug. 1991).
%I a county with s population of more than 190,000, an offkeh salaty fund may be used to pey (1) the &cet’s salary, (2) the saleties of the otlicer’s deputies, es&ants, clerks, stenographers, and inwstigstors; and (3) “authorized and approved expenses of the oflice of the offker.” Local Gov’t Code *3 (DM-199) Gov’t Code $4 113.021(b), 154.042(b)(2). However, a commissioners court may, at its iht regular meeting of a fiscal year, abolish officers’ salary fbnds and order that moneys othervke required to be deposited in an officer’s salary fund be deposited in the general iimd ofthe county. Id. $154.007(a).
We are advised by the County Treasurer of Cameron County that the county commissioners court has consolidated officers’ salary !imds with the county general fund pursuant to section 154.007 of the Local Government Code. Accordingly, the entire. fee. collected pursuant to section 4.202 of the County Road and Bridge Act, includmg the additional forty-cent smount authorized by House Bill 2, must be deposited in the general fund of the county.3
We next consider whether the additional forty-cent collection must be used to defray the expenses of the county tax assessor-collector in discharging the duties imposed by article 6675a-2a. Article VIII, section 7-a of the Texas Constitution provides the following in pertinent part:
Subject to legislative appropriation, allocation, and direction, all net revenues. . derived from motor vehicle registration fees. . shall be used for the sole purpose of acquiring rights-of-way, constructing, maintaining, and policing such public roadways, and for the administration of such laws as may be prescribed by the Legislature pertaining to the supervision of trafEc and safety on such roads. .
Article 6675a-2a, V.T.C.S., which relates to the registration of motor vehicles, is undoubtedly a law “prescribed by the Legislature pertaining to the supervision of traflic and safety on [public] roads” within the meaning of article VIII, section 7-a of the Texas Constitution. The legislature has further prescribed in section 4.202(a) of the County (footnote mntinoed) p 154.042(a). Thos, the fees collected by the county tax assessor-wllector onder section 4.202 of the
Couoty Road and Bridge Act M not compensation for the tax asessoruwctor per SC.
sComprising part of the oxmty’s geneml fund, rhe fees colle&d pursoant to section 4.202 may only be spent in strict compliance with the annual budget adopted by the commissioners court or&r the applicable provisions ofchapter 111 ofthe Local Government Code. See Local Go+t Code 05 111.034, 111.039, 111.040, 111.041 (budget provisions applicsble to counties with a population of more than 225,000). The f&a eollcctcd by tbe tax asaesor~lleotor tbcrefore are not under his direct, personal amtml. TIE ccahasioncra anut baa axkkrable discmtion to appropriate county timds as it deems proper. &C Rkcucuk Y. Shw, 628 F.2d 291(5th Cu. 1980), cert. denied, 450 U.S. 931(1981); Borne? v. E&r Colrnly Commh Court, 676 S.W.M 662 (Ten App.-El Paso 1984, tit refd n.r.e.). However, the cmut may be requid by the amstitution, by statute, or by contrsct to budget fends to particular activities, including tbe operation of another county office. See, e.g., Van@ v. Comm’rs Cow? of Uvalde Cow@, 714 S.W.Zd 417,422 flex. App.-San Antonio 1986, wit refd n.r.e.); Comm’rs Court of Harris County v. Fullerton, 5% S.W.Zd 572 flex. App.-Houston [lst Dist.] 1980, tit refd n.r.e.). *4 (DM- 199 )
Road and Bridge Act that the fee collected pursuant to the provision constitute “compensation for services [of the county tax sssessor-collector] under the laws relating to the registration of vehicles.” The fees collected under this section by the tax assessor- collector and deposited in the countyls general lknd are therefore dedicated, both by constitution and statute, to the administration of the laws governing motor vehicle registration, including article 6675a-2a.
Section 154.007 of the Local Government Code, the provision that allows a commissioners court to consolidate 05cers’ salary 5nds with the general timd states that in a county where the commissioners court has consolidated these timds any reference to a salary fimd means the general l’hnd. Section 154.042 of the Local Government Code provides that in a county with a population of more than 190,000, an 05cet’s salary tknd may be used to pay (1) the 05cer’s salary; (2) the salaries of the 05cer’s deputies, assistants, clerks, stenographers, and investigators; and (3) “authorized and approved expemes of the office of the officer.” Local Goti Code 8 154.042(a). It is therefore clear that fees formerly deposited in 05~~s’ s&try 8mds sre available to timd the 05ce of the county officer who collected the funds even s&r their deposit in the county general Smd. Because motor vehicle registration fees collected by the county tax assessor-collector are dedicated by statute to that officer’s “compensation,” the commissioners court is not authorized to divert these timds to other uses. C! Attorney General Opinion JM-321 (1985) (interest on constitutionally dedicated motor vehicle registration fees may not be diverted to state general revenue fund). Accordingly, we believe the commissioners court is required to appropriate fees collected under section 4.202 of the County Road and Bridge Act sole& to the purposes specifkd in section 154.042 of the Local Government Code. However, the commissioners court may budget only as much timds as it determines are reasonably necessary to “compensate” the 05ce. of the tax assessor-collector for its expenses in administering the motor vehicle registration laws.’ The commissioners court’s decision is subject to review by the courts on an abuse of discretion standard. See Attorney General Opinion DM-158 (1992); Letter Opinion No. 92-22 (1992) (and authorities cited therein). Whether a particular decision of the court constitutes an abuse of discretion is a question of fact that camrot be resolved in the opinion process. Id.
‘In Glass, 167 S.W.Zd 2%. the court determined that the potion of the fee wllected by the cwntytaxassessor-collcctorundcrthefonncrCntificae~TiUeActaaddedicatcdbythcacttopaymnt toetficientlypcrformthcdutiarctforthbadn’muldkuxdonlyfor~ of”apcnses- incarryingout~legislatun’spuposcin~dutiaonthetlucaJsasor- fi=cxpe-aaasary cellccbr. We believe a siadlar conclusion is warranted here. Tk legislature has clearly expressed its intent that the fee mlkcted purwant to section 4.202, if it stxictly applicable as “compensation” to the aunty tax z3aaewr~llcctor, be dedicated to the urpensg of the 05ce of the tax as.uasor-cdktor in enforeing tbe provisions of the laws relating to vehicle regishation, including V.T.C.S article 6675aA. *5 Honorable Eddie Cavazos - Page 5 (DM-199)
SUMMARY Fees wllected by the county tax assessor-wllector pursuent to V.T.C.S. article 6702-1, section 4.202(a) must be deposited in the gened limd of the wunty. The fees so deposited are dedicated to the 0512 of the county tax assessor-wllector to wmpensate that office for eqxmses relating to the administration of the motor vehicle regktmtion laws. The wmmissioners court may not divert such fees to other purposes. The wmmissioners court must appropriate as much of these funds as it determines are reasonably qecesury to compensate the 05ce of county tax usessor-coUector for that 05&i administration of motor vehicle m&ration laws.
DAN MORALES Attorney Geoeral of Texas WILL PRYOR
Fii Assistant Attorney General
MARYKELLER
Deputy Assistant Attorney General
RENEAHICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opiion Committee
prepared by Steve Arag6n
Assistsnt Attorney General