Case Information
[4] *1 R-904 OF’PICE OF THE ATTORNEY GENERAL AUSTIN. TEXAS PRICE DANIEL Bovember 21, AlTORNEY GENERAL
Hon. Ben D. (teeslln Opinion Bo. v-430 county Attorney
UcCulloch County Brady, Texas Re: Authority of the Commis-
sionersl Court to grant ex offlclo salaries to oounty offioers any tine in the year.
Dear Sir:
We refer to your request for au opinion from
this office on the above subject matter in which you ask the following questlone:
“1. May the Conmissioners Court make an order granting ex-officio pay to County Offl- cers at any .tUne hu.r%~~ %m ml “2. Hay the Commlsslonera Court pay to the Tax Asseasor-Collector of McCullooh Coun- ty an ex-officio salary?" Mcculloch County ha.s a population or 13,208 inhabitants acaordlng to the 1940 Federal Census. Its county officials are compensated on a fee baala and the maximum compensation allowed under Artlale V.C.S., and Article 3891 V.C.S., as amended by S. B. 123, Acts 49th Leg., p. 244, is $3,750.00. The authority for the Commissioners1 Court In countlea in which Its county of- ficials are compensated on a fee basis to allow such oounty officials ex officio compensation Is found in Article 3895, V.C.S., which provides as follows:
“The Commissioners1 Court is hereby de- barred from allowing compensation for ex- officio to county officials when the compensation and excess fees which they are allowed to retain shall reach the maximum provided for in this chapter. In cases where the compensation and excess fees which the offioers are allowed to retain shall not reach the mexlmum provided for In this chapter, ~onerlsslonera’ Court shall allow compensation *2 . .
Hon. Ben D. Oeeslln - Page 2 (V-438) services when, * their judg-
for ex -0ffiolo ment, suoh compensation Is necessary, provld- ed, such compensation for ex officio
allowed shall not inorease the compensation of the offlclal beyond the maxbum of compen- sation and excess fees allowed to be retaln- ed by him under this chapter. Provided, how- ever, the ex officio herein authorSzed shall be alloved only after an opportunity for a public hearing and only upon the afflrmatlve vote of at least three members of the Commls- sioners’ Court .”
It was held In Taylor v. Brewtiter County, 144 3. Y. (26) 314, that the panting of ex officio compen- of the Con&a- sation was entrusted to the discretion aloners’ Court by Article 3895 and that there was no time specified in said Article as to when the Commis- sioners’ Court could grant ex offiolo compensation. We quote the following:
” Conditions existing as provided in Art. 3&,‘lt tight validly make this allow- It clearly appears from the agreed ante .
statement of fasts that but for the ex-officio allowance the fees of office would not have a- mounted to the maxImum of $3,000, which was the maximum compensation allowed appellant Taylor. The time when the Commiasloners’ Court may make this allowanoe is not specified in Art. However,
3895 . The allowance does seem large. we have not the benefit of the amount realized In fees of the offlce during preceding years.
Under the conditions named in the statute it was entrusted to the discretion of the Comula- aloners I Court. If theae conditions did not exist or could not exist, the action of the Commissioners’ Court would be void and COaieP- red no authority for the payment. ?!he quoted poo;l;;,;f the stipulation is a8 to an ulti-
. Only acting in the manner provid- ed for In the quoted statute could it author- It has power to act in the ize the payment.
premlsea. Aotlon vas taken therein. The oon- .4zuctlon Is justified, if not compelled, that It acted lawfully. . . .
In the aase of Tarrant County V. Hollls, 9. W. (26) aft dlsmlased, the Court was conslder- *3 Hon. Ben D. Qeeslin - Page 3 V-438)
lng an order of the CoIIIpIssionersl Court a!+thoplzing the Payment of 8x officio compensation, and it announced the following rule of law coverlag the payment of such aom- perrrrstion:
“The order was entered just thirty-one days after appellee took offlce and at a time when the commlsslonersl what servioe ‘es-officio1 court did not know
the appellee would render or what amouut he would oollect in
fees of offioe, i. e., what his compensation therefrom would be. The fact that In that one order the oommLsaloners’ court fixed the same ex offlclo oompensatlon of $1,500 for the constable, the justices of the peaae, the the oolleotor, and the dlatrlot amessor,
tlerk 1s strongly suggestive that the aourt did not consider seriously just what ‘ex
officio’ servloes these offlclals would ren- der, but slnae It Fs not neaesrrary to our
deolsion to do otherwise, we Indulge the pre- sumptlon of aorrectness, whleb Is ordlnarlly due a court judgment. We do call to the at- tentlon of the eomulssloners’ court that not only must the ex offiaio be rendered, but that such compensation therefor must be ‘neee8aary.1 It violates the spirit of act for a coxahsiontmf court to make such order merely to enable the petitioner to make the m8ximum allowed by law., The record Is wholly silent as to what, lf any, servlcea
those various offloisls were to perform, each in his different line of work; but each none the less of the same value to the county. If the purpose waa only to increase the pay oi those officials without any ex officio ser- then the order was im- vioe eontraoted for, proper. Xe are unwllllng to give the order a oonstruatlon which its language does not warraat, and whloh, If so construed, would suggest imTrudenaeWon the part of the ooa- miaeloners couct.
In view of the foregoing, It Is our opinion that the CoIpIasloneral Court of McCulloch County Is authorized to allow ei offlolo compensation at any time during the year.
Your attention is directed to the fdct that *4 - Page (v-438) Hon. Ben D. Geeslin
anyallowance of ex officio compensation would be sub- ject to the Budget Law. 68912-11, V.C.S.
Article III, Section Constitution of Texas, provides’:
“The Legislature shell have no power to grant, or to authorize any county OF munlol- to grant, any extra compensa- pal authority fee or ellowanoe tion, to a public officer, agent, servant or oontraotor, after service has been rendered, or a contract has been en- tered into, and performed in whole or in part; nor pay, nor authorize the payment of, any claim created against any county or munlcl- pallty of the State, under any agreementRor contract, made without authority of law. In view of this provision of ‘the Constitution, it is our opinion that If the Commissioners' Court of McCulloch County deoldes to grant ex offlclo compense- tlon, suah oompeneatlon can only be for aervlces,,pender- ed from the date of the order of the Coani~si~~i%~ Court grantlag the same.
In answer to your second question, Tarrant iPfre, held that the Oommlssioners’ County vs. Hollls, Court may allow ex offiolo compensation to those offi- cers who perfoma “ex offioio servioesn provided Court finds such oompensation~necessery. Therefore, If the Commissioners1 Court of XcCulloch County finds that the tax assessor-collector performs nex offioio servl- aes” and compensation for such services Is necessary, it ls’onr opinion that the Commimloners* Court may allow the tax arsesaor-collector ex offlclo salary.
The Conmissioners’ Court of MoCulloch County (operating on a fee basis) la author- ized to grant ex officio compensation to its tax assessor-collector If it finds that the tax aesesaor-collector performsHex atfld.0 services” and that compensation for such a-- Rx offioio c~ensatlon : vice8 is necessary.
may be granted by the CommlaaZoners’ Court at any time during the year, but such compensa- tion must be for services rendered subsequent *5 V ci - Page (V-438) Hon., Ben D. [ieeslin
to the date of the order of the Commis-
slonersl Court granting the same.
Yours very truly ATTORREffERERAL OF TEXAS JR:djm:mv