Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN
GROVER SELLERS ATTORNEY GENERAL
Honorable B. F. McKee County Auditor Hidalgo County Edinburgh, Texas
Dear Sir:
Opinion No. 0-2002 Re: Disposition of money collected by county clerk for helping off an open after regular hours to allow examinati on of food proorers.
We have received your reoony request for an opinion and quote same as follows:
"For several years, it has been the practice of the County Clerk of this county to keep the office open after a whole in the evening, on Saturday afternoon and Sunday for various oil companies, who have been anxious to have access to the food reoork after hours in order to com- plete investigations of ethics, so that lease blocks would be complete."
The this service, the oil companies have said some, which is understand to be approximately two ( 84 ) dollars per hour to the County Clerk. He has maintained a deputy on duty during these exhers hours and has paid this deputy generally one ( 91 )dollar per hour. He has retained for his personal use the sum of one ( 91 ) dollar per hour. Some of this money has come into the hands of the County, and actually the County has not had anything to do with the arrangements.
"Recently there has been some discussion as to the legality of the matter and a recent grand Jury requested that it be investigated by the re- sponsible heads of the County and a determination made as to whether or not this money constitutes fees of office and should be turned over to the County."
*2 Honorable B. F. McKee, Page 2
"Obviously, it is a benefit to have the office kept open for these companies, since it enables the oil companies to prepare for mineral development, and likewise, it is obvious that the Clerk is not bound to keep the office open at nights and on Sunday.
"We have not previously gone into the matter because we assumed that under these circumstances, the County would have no control and would not be entitled to the money, however, in view of some discussion, it appears that we might be in error and that the County might be entitled to this money.
"We would like to know if under these circumstances, the payment by the oil companies for keeping office open on other than usual office hours is a fee of office, and therefore, the Clerk is accountable to the County for same, or if it is the money of the County Clerk and the Deputy."
The population of Hidalgo County is 106,059 inhabitants according to the 1940 Federal Census. Consequently said county operates under the salary system in regard to its county offices.
Article 1945, R. C. S. 1925, provides as follows:
"The clerk shall keep such other doubts, books and indexes as may be required by law; and all books, records and filed papers belonging to the office of county clerks shall at all reasonable times be open to the inspection and examination of any citizen, who shall have the right to make copies of the same."
From the foregoing quoted statute we see that the county clerk is charged with the duty of keeping his office open only "at all reasonable times". For the purpose of this opinion, it is not necessary for us to consider whether keeping of the county clerk's office open at the times stated in the request needs the requirement of the statutes.
*3 Honorable B. F. McKee, Page 3
Article 3904, R. C. S. 1925, provides as follows:
"He clerk or justice of the peace shall be entitled to any fee for the examination of any paper or record in his office, nor for filing any process or paper issued by him and returned into court, nor for motions or judgments upon motions for security for costs, nor for taking and approving a bond for costs. A judgment containing several orders shall be considered as one judgment, and only one fee shall be charged by said clerk or justice for entering or rendering the same."
The next above quoted statute prohibits the charging of any fee for the examination of any record of said Clerk's office. This restriction is applicable whether during office hours or at other times.
In the case of Nusces County v. Currington et al., 162 S. W. (2) 687, the Supreme Court of Texas in its opinion said the following:
"... a fee paid a public officer for the performance of a duty enjoined by statute is a fee collected in an official capacity. It is equally true that unless a fee is provided by law for an official service required to be performed and the amount thereof fixed by law, none can lawfully be charged therefor. It does not follow however that a county whose official collects a fee wrongfully, but under color of office, is not entitled to have same deposited and paid over in the same manner as is required for disposition of fees rightfully collected."
The keeping of the county clerk's office open so that the records thereof may be inspected and examined at all reasonable times is a duty enjoined by statute, but it is not the duty of the clerk to keep same open after his regular reasonable office hours. Furthermore, not only is there no fee provided by law for such services, either during office hours or after office hours, but it is expressly provided that the clerk shall not be entitled to any fee for the examination of said records.
*4 Hegorable B. F. Hokee, Iage 4
It is apparent that the real purpose for which the ounty clerk was paid was to permit an examination of the records in his office. This being so, we believe that any fee collected by the clerk for the examination of the records of his office, whether during office hours or after office hours, would be collected under color of office and, although wrongfully collected by him, it would be his duty to account for and pay same into the ounty treasury for the benefit of the office salary fund.
Presting the above fully answers your inquiry, we are
Yours very truly
ATTORNEY GENERAL OF TRIAS
By Robert L. Lattimore, Jr. Assistant
RII: 182