Case Information
*1 R-873 TXXE ATTORNEY GENERAL OF TElxAs
PRICE DANIEL
December 12, 1947 F
Hon. Sam Dollahlte op&on Ho. v-453 County Attorney
Falls County * Compensation of,Countg Marlin, Texas Treasurer of Falls County Dear Sir:
:
You have requested an opinion from this office relative-to the llabillty of Falls County on a claim : filed with the Conrmissloners I Court for alleged unpaid
balance on back salary due the county treasurer from "fz~z 1, 1936, to May 1,,1947. Your request is as
:
"The.county treasurer of Fe~lls County, Mr. J. D. Mires, has filed a claim with the commissioners'court of Falls County alleg- ing that the salary of his office Is set by law,at $2000 per year and requesting the un- paid portion of hi's back salary.
"I have rendered the court my opinion on the validity of his claypl and he has filed a memorandum of,authorlties with'the court as the basis of his contentions. My opinion and his memorandum are enclosed.
The court has requested me to ask you for an opinion in this matter.
"Mr. Mires ' claim and the orders on which it Is based are set out in the en- closed opinion s.nd memorandum.
Article XVI, Section 44, Constitu$on of Texas, provides for the election of the county treasurer and that such officer shall have such compensation as may be provided by law. Artlcle~ XVI, Section 61, adopted Aug-, ust 24, 1935, provides that all district officers in the State of Texas and all county officers in counties hav- ing a population of 20,000 or more according to the last preceding Federal Census shall be compensated on a sal- ary basis. Article 3941, V. C. S., provides that the county treasurer shall receive commissions on monies re- *2 Hon. Sam Dollahlte, page 2 (V-453)
ceived and paid out by him. Article 3943 provides that the ~~nnsisslons allowed to any county treasurer shall not exceed $2,000 annually. Section 13 of Article 39128 provides that the Commissioners' Court In counties hav- ing a population of 20,000 inhabitants or more and less than 190,000 Inhabitants shall fix the salary of the treasurer at a sum of "not less than the total sum earn- ed as compensation by him In his official oapaclty for the fiscal year 1935."
Falls County had's population according to the 1930 Federal Census of 38,771 Inhabitants and according to the 1940 Federal Census, a population of 35,984 in- habitants. Therefore, prior to the adoption of Article XVI, Section 61, and the enactment of thw Officers' Sal- ary Law In 1935 (S. B. No. 5, Ch. 465, Acts of the 44th Leg. 9 2nd Called Session, p. 1762), the compensation of the count7 treasurer was governed by the provisions of Articles 3941 and 3943. Since January 1, 1936, the county treasurer of Falls County has been entitled to a salary at a sum "of not less than the total sum earn- ed as compensation by him In his official capacity for the fiscal year 1935."
In determlning the total sum earned by the treasurer for the fiscal year 1935, the primary quos- tlon to be determined is the validity of the Commission- ers’ Court's orders of February 13, 1933, and June 11, 1935. These orders set out In your memorandum are as follows:
"1 . Motion made duly seconded and carried that the County Jailor be allox- -a ed a salary of Seventy Five ($75.00) &
No/l00 Dollars per month, also that the salary of the County.Treasurer be set at Sixty Five ($65.00) and No/l00 Dollars ,per month. Passed at meeting held Feb- ruary 13, 1933, recorded in Vol. 6, page 100, Commlssloners Court Minutes of Falls County, Texas.
"2. Motion made .by G. H. Asbury, se- conded by M. M. Allen, that the salary of the County Treasurer be raised Ten ($10.00) Dollars per month. Passed at meeting held June 11, 1935, recorded in Vol. 6, page 325, CommlssLoners Court Minutes of said *3 Hon. Sam Dollahlte, page 3 (V-453)
County."
The case of Greer v. Hunt County (Corn. App.) 249 S. W. 831, held that the order of the Commissioners' Court placing the county treasurer on a salary basis was void. In determining that the order before the court actually placed the county treasurer on a salary basis Instead of an effort to limit the maximum amount of commissions the treasurer could earn, the following principle of law was ~announced:
‘There Is no question but that the or- der in the present case was void under this holding. There was no effort to limit the maxlmum amount of cornmissIons which the treasurer could earn; but in lieu thereof a definite fixed salary of $1,200 per annum was substituted. This salary was payable, ,wder the order, whether or not, the consuls:
slona amounted to as much as the salary. We agree with counsel for defendant in error that merely calling the compensation a sal- ary or calling It commlsslons Is not neces- sarily controlling. If the commissioners' court had ordered that the treasurer should receive 'a salary' of $1,200 per ennum with the proviso that, If his lawful commissions should amount to less than the salary, he should not receive In excess of his lawful commissions, this In fact would have been fixing a maximum which the treasurer could earn as commissions. On the other hand, had the commissioners' court ordered that the treasurer should receive the definite sum of $1,200 per annum 'as commissions', regardless of the amount of money passing through his hands upon which he would by statute be entitled to commissions, we think the effect of this order would be to fix a salary basis of compensation, and the order would be void, regardless of the fact that It denominated the compensation as commissions. The controlling element in determining whether the amount to be received is upon a commission or salary basis is whether that amount, by whatever name It may be called, is absolute and fixed regardless of what the lawful Com- missions may be, or Is made contingent UP- *4 Hon. Sam Dollahlte, page 4 (V-453)
on earning that amount as commlsslons." (Emphasis ours)
In the case of Montgomery County v. Tnlleg, Uize;. W. 1141, the court had before It the following
: . "It is hereby ordered by the court
that the salary of the county treasurer, from and after Deoember 10, 1910, shall be, and it is hereby fixed, at the sum of $600.00 per annum, and this a&ion of the court was unanimous." 0
Montgomery County in this case contended that the treasurer's compensation was limited to the amount of $600.00 in accordance with the above quoted order. The county treasurer contended that the Commlssloners~ Court's order was void because it attempted to $1~ the salary of the county treasurer in violation of Article 3873, R. C. S., of 1911 (now 3941) and ho was there- fore entitled to retain the maximum amount of commis- slons allowed by law. The court sustained the county treasurer in these contentions. We quote the follow- ing:
The oPder of March 30, 1910,
before'sk'out, does not fix the cods- slons of the county treaaurer of Jlontgomory county, but rovldes that heW;has$;;lve a salary of % 600 per year.
clear that a statute which directs the oom- missioners' court to fix the compensation of an officer by allowing him commirslonk on moneys handled by him does not author- ize such court to pay the offloers a fix- ed yearly salr but on the contrary, by nrcessary lnpl 9' oation, prohibit8 his being paLd Fo #i# Wag.
"The order of March 30, 1910, being void, the only law, prior to the order of the colmnissloners' court of Juno 8, 1911, before set out, fix1 a~p ollre~s l omp cn- satlon, was article 3 73 of the statute 3 above quoted, and article 3875, whfah pro- vldes that 'the commissions allowed to any county treasurer shall not exceed $2,000.00 annually.s
Hon. Sam Dollshlte, page 5 (V-453)
"The commlsslonerst~ court having fall- ed to fix appellee's commlsslons, he was en- titled to receive the compensation provided by the statute until such compensation was changed by an order of the commissioners' court fixing his commissions. Bastrop Coun- ty v. HearA, 70 Tex. 563, 8 5. W. 302; Hill County V. Sauls, 134 5. W. 267; City of San Antonio v. Tobin, 101 S. W. 269."
For similar holdlngs see Stephens v. Mills County, 113 S. W. (26) 944; Willl~s v. Cass County, 147 S. W. (26) 588; Rusk County v. Hlghtower, 202 9. w. 802; Kaufman County v. Gaston, 250 S. W. 741; Bastrop County v. Iiearn, 70 Tex. 563, 8 s. W. 302.
The orders of the Commissioners1 Court of Falls County quoted above made the compensation to be received by the county treasurer an absolute and,fixed 9 amount regardless of what the maximum commlsslo~s would have been. Therefore, under the ruling of the above cited cases, the orders vere void as attempting to change the basis or plan for compensating the county treasurer. Since the orders were void, and In view of the holws in Montgomery County v. Ts,lley and Greer v. Hunt County, the county treasurer was. entitled to receive in 1935 the compensation provided In Article 3941, V. 0. S. AOt to exceed the maximum of $2000.00 set by Article 3943 V. C. S. Since January lst, 1936, the minimum salary set by Article 3912e, section 13, * v. c. s., has been the amount officially earned In 1935. It was held in the case of Nacogdoches County v. Jinkins, 140 5. W. (26) 901, writ refused, that the Commisslon- ers' Court was without authority to fix the salaries of those officers covered by section 13 of Article 3912e at a sum less than the prescribed minimum (the official earnings In 1935) and that an order fixing a salary be- low the minimum was vlthout authority and void. We quote the following:
"Article 39120, section 13, fixed the salary of District Clerks in the class in which Nacogdoches County fell, at not less than the total sum earned as comPensation by him in his official capacity for the fis- cal year 1935 and not more than the maximum amount allowed such officer under laws exist- . . lng on August 24, 1935. The legislature hav-
ing prescribed the minilnum (the official earn- *6 Hon. Sam Dollahite, page 6 (V-453
ings In 1935) and that being shown to have been $3,241.93, the Commlsslonersl Court did not have the authority to ig- nore this statutory provision of minl- mum salary e~nd fix the sa.lary at $2,750.
The terms of the statute authorieing the Collllllisslonerst Court to fix the salary at any sum not less than a certain mini- mum end not more than a certain maximum, were mandatory and could not be ignored by the members of the court at their dls- cretion. The order fixing appellee's sal- ary at $2,750 was without authority and void."
Therefore,~ It is our opinion that the county treasurer has been entitled to a minimum s~nnual salary since January lst, 1936 equal to'the amount of commis- sions he was.authorizeQ to retain in 1935 under Artl- cles 3941 end 3943 (his official earnings in 1935). In other words, if he received and paid out in 1935 such amounts of money that the commissions he would have been entitled to therefor under Article 3941 would amount to $2800.00, then his minimum salary hss been, since Janu- ary.lst, 1936, $2000 per year. On the other hand, If the county treasurer did not hsndle sufficient money In 1935 to entitle him to.commissions totaling $2080, his minimum salary since January lst, 1936 would not be $2000 but the sum equal to the amount of commissions he wss entitled to in 1935 under Articles 3941 and 3943. The amount of commisslcnsthe county treasurer was en- titled to in 1935, is, therefore, dependent upon the a- mount of moniesreceived and paid out by him in that year, a factual question upon which this office cannot pass.
This opinion is not to be construed as passing upon the question of whether a plea of limitation could or should be.pleaded or claimed by the Commissioners' Court if a suit were brought to collect the unpaid por- tlon of back salary due the county treasurer.
SUMMARY The orders of the Commissioners' Court of Falls County passed prior to the Offic0rs' Selary Law (Art:XJlPe, See. 13, V. C. S ) attempting to change the basis of compensa- tion for the county treasurer are void and the county treasurer was entitled to receive *7 Hon. Sam Dollahite, page 7 (V-453)
connnisslons in 1935 as provided for by Articles 3941 and 3943 V. C. 9. Sub- sequent to 1935 the county treasurer of Falls County has been entitled to a mini- mum salary equal to the amount of his of- ficial earnings in 1935. Arts. 3941, 3943, 3912e, Sec. 13, V. C. 3.; Montgom- ery County v. Talleg, 169 3. W. 1141; Greer v. Hunt County, 249 8. W. 831.
Very truly yours ATTORNEY GEXERAL OF TEXAB John Reeves JB:djn:mw