*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

GERALD C. MANN ATTORNEY GENERAL

Honorable Charles F. Hemphill County Auditor Upton County Rankin, Texas

Dear Sir:

Opinion No. 0-5089 Re: Under the facts submitted were the County Judge, County Attorney, Sheriff, Tax Exceedor Collestor and County and District Clerk placed upon a salary or fee basis for the year 1943, and are such officers entitled to receive any more than the amounts provided by the court to be paid them? And other related questions.

Your letter of recent date requesting the opinion of this department on the questions as stated therein is as follows:

"At the first regular meeting of the Commissioners' Court of Upton County held on Monday, January 11, 1943, the following orders, amongst others, were passed:

"Motion by Commissioner J. O. Currie, duly seconded by Commissioner Burley McCullom, that all Upton County, Texas, officials as follows be placed on a fee basis for the year 1943: Sheriff-Assessor and Collector; County Attorney; County and District Clerk; All Constables; All Justices of the Peace".

"Motion by Commissioner W. E. Tate, duly seconded by Commissioner J. O. Currie, that the following Upton County Official Salaries be set

*2 Honorable Charles F. Hemphill, Page 2

according to the Statutes of the State of Texas for the year 1943: H. G. Yocham, County Commissioner Presinet No. 1, $1,800.00peryear;W.E.Yates,CountyCommissionerPresinetNo.2,$ 1,800.00 per year; J. O. Currie, County Commissioner Presinet No. 3, $1,800.00peryear;BurleyMcCollum,CountyCommissionerPresinetNo.4,$ 1,800.00 per year; Wr. J. E. Rains, County Treasurer, $1,999.92peryear;Chas.F.Hemphill,CountyAuditor,$ 1,875.00 per year.

On this 11th day of January, 1943, there came on for consideration among other matters the Ex-Oficio salaries of the County Judge; County and District Clerk and Sheriff, Assessor and Collector, and it being the desire of the Court that said officers be allowed to make the maximum salaries allowed by law, and in order for them to do so, it is necessary to allow said Officers Ex-Oficio salaries, ON NOTION by Commissioner W. E. Yates, seconded by Commissioner J. O. Currie, the maximum net salaries to be earned by the County Judge; County and District Clerk, and Sheriff and Assessor and Collector, shall not exceed the Statutory limit of $3000.00,each,includingallfeesandex-officiosalary.Andthattheex-officiosalaryoftheCountyJudgebefixedat$ 3000.00; and that the Ex-officio salary of the County and District Clerk be fixed at $3000.00peryear;andthattheEx-OficioSalaryoftheSheriff,AssessorandCollectorbefixedat$ 3000.00, for the year 1943, and same be paid in twelve equal payments.

By order entered passed and entered the same day the meeting was adjourned or recessed until January 13, 1943, on which last mentioned date the following order was passed by the Commissioner, to-wit:

"Motion by Commissioner J. O. Currie, duly seconded by Commissioner Burley McCollum that the maximum net salary to be earned by the County Attorney, John A. Wonefee, shall not exceed $1800.00 per year, including all fees and ex-officio salary, and the ex-officio salary for the County Attorney

*3 Hegorable Charles F. Hempflll, Page 3 is herely fixed at $\$1800.00$ , for the year 1943 , to be paid in twelve equal eavments ^[2] . "My construction of the applicable subdivisions of Article 3883 is that the maximum amonnts the County Juge, County Attorney, Sherif-Asgeessor-Ogileotor and Gounty-Distriet Clerk (Uptem County having leas than 20,000 imhabltents) may reeeive would be $\$3,000,00$ , each. An offi. oers' Salary Fund was provided for by the Comisi sioners' Court prior to this year. What I am in a quendary about is whether or not the Comisi sioners' Court of Upton County, by their said aetion taken on the date of their first regular meeting in January, 1943, placed the oledive ounty offieers upon a salary basis as provided by the applicable subdivision of Article 3912, Vernon's Texas Civil Statutes, of whether, by their said action; they merely provided for the payment of ex-offieio salaries and left them under the foe bill. I would, therefore, greatly appreciate it if you will give me your opinion upon "1. Whether the County Juge, County Attorney, Sherifl-Asgeessor and Collector and CountyDistriet Clerk were placed upon a salary or fee basis for the year 1943 and whether they are entitled to reeeive any more than the amounts provided by the court to be paid them in the above orders. "2. Thethor the County Attorney may reeeive lawfully any more than the $\$1,800,00$ per year allowed him in the order passed on January 13, 1943, in view of the first order passed on the 11 th placing him and the others, apparently, on the fee basis, and the one passed on the 13 th giving him $\$1,800,00$ per year and providing that the same should be in 110 u of or 'ineluding all foes and ex-officio salary'. "3. Should all the above mentioned 1888 county officials be required to turn over all foes of office zolledged by them for deposit in the

*4 Honorable Charles F. Hemphill, Page 4

Officers' Salary Fund of the county, or should the County Attorney alone do so insomuch as the order authorizing payment to the others does not say that such salary shall include all fees and em-officio salary."

The population of Upton County is 4,297 inhabitants according to the 1940 Federal Census. The assessed tax valuation of said county for the year 1942 was $14,296,004.00.

Section 2 of Article 3912e, Vernon's Annotated Civil Statutes reads in part as follows:

"... 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 Commissioners' Court, by its order duly made and entered of record at its first regular meeting in January of each ealendar 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 Accounts of the State of Texas, on or before the 31st day of January, a certified copy of said order of said Commissioners' Court."

The motions and orders of the Commissioners' Court as heretofore quoted are so large, contradictory and indefinite, we cannot categorically say whether the county officials of Upton County are to be compensated on a fee basis or an annual salary basis for the year 1943.

This department has repeatedly held that the Commissioners' Court in counties having a population of less than 20,000 inhabitants according to the last preceding Federal Census, in deter-

*5 Honorable Charles F. Heaphill, Page 3 mining whether the oonaty offielals of such oonty (exeluding county surveyors, registers of vital atatisties and notary pab1ies) are to be compensated for the fiteal year on the bea1s of an annual salary or whether they are to be compensated on the bea1s of fees earned by them in the performance of their official duties, the oourt, mat e14eee all of the oonty officers on an annal salary bea1s or on a fee bea1s. In other words, the Coma1sioners' Coart cannot plece some of the ounty officers on an annal salary bea1s and some of the oonty officers on a fee bea1s. That was said above with reference to the fixing of compensation of ounty offiotels is equally applicable relative to the fixing of compensation for preo1net offieers. All preo1net officers must be compensated on an annual salary bea1s or all must be compensated on a fee bea1s. (See Opinion No. 0-516, Conference Opinion No. 3045).

With reference to the salaries of the oonty comn1sioners, we direct year attention to Artioles 2350 and 2350 (II), Vernon's Annotated Civil Statutes. As the aszeesed tax valuation of said oonty is $14,298,004.00fortheyear1942,thesextipumsalaryofeachoontycomissionercannotexceed$ 1800 each per year under the provisions of Article 2350, supra. It is our opinion that the comissionera' oourt fixed the a1ler; : $\therefore$ : :ctty comissioners as authorized by law.

Section 15 of Arti1e 3912e, Verson's Annotated Civil Statutes provides in parts: "The comn1sioners' oourt in oounties having a population of less than twenty thousand ( 20,000 ) inhabitants, aecording to the last preceding federal Census at the first regular meeting in January of each ealender year, may pass an order providing for compensation of all ounty and preo1net officers on a salary bea1s. The comn1sioners' oourt in each of such oounties is hereby authorized, and it shall be its duty, to fix the salaries of Criminal District Attornays. In the event such Court passes such order, they shall pay to each

*6 Honorable Charles F. Hemphill, Page 6 of said district and county officers in money an annual salary in twelve (12) equal install- ments of not less than the total sum earned as compensation by said officer in his said offi- cial capacity for the fiscal year of 1935 and not more than the maximum allowed such officer under lawe existing August 24, 1935, " " " provided, that in counties having a population of less than twenty thousand $(20,000)$ inhabitants according to the last preceding Federal Census, and having an assessed valuation in excess of ten million $(20,000,000)$ dollars according to the last pre- ceding approved tax roll of such county, the maximum amount allowed such officers as salaries may be increased one (1) present for each one million ( $1,000,000) dollars valuation, or free- tional part thereof, in excess of said ten mil- lion ( $10,000,000) dollars valuation over and above the maximum provided and allowed such of- fieers under laws existing on August 24, 1935; provided, however, no salaries covered by this section shall exceed the sum of four thousand five hundred ( $4,500.00) dollars regardless of the percentage of increase in population and the valuation " " "."

In the event the county officials of Upten County are to be compensated on an annual salary basis, their sale arles must be fixed in compliance with section 15, Article 3912c. On the other hand, if the county officials of said county are to be compensated on the basis of fees earned by them in the performance of their official duties, under the applicable provisions of articles 3883 and 3891, Vernon's Annotated Civil Statutes, the maximum annual fees that may be retained by the county officials mentioned in Article 3883 cannot exceed three thousand ( $3,000.00) dollars each. In counties where the county officials are compensated on an annual salary basis, the commi and oners' court has no au- thority to allow any ex-officio compensation. (Paragraph (b) of Section 6, Article 3912e, Vernon's Annotated Civil Statutes).

*7 Honorable Charles F. Hemphill, Page 7

Article 3895 of Vernon's Annotated Civil Statutes prohibits the commissioners' court from allowing compensation for ex-officio services to county officials where the compensation and excess fees which they are allowed to retain shall reach the maximum provided for, but provides that, where the compensation and excess fees do not reach such maximum, the court shall allow ex-officio compensation if in their judgment it is necessary. In other words, this statute authorizes the commissioners' court to allow an officer compensation for ex-officio services provided that such compensation, together with the fees retained by him under Articles 3883 and 3891 does not amount to more than the limit fixed by them. The making of the allowance for ex-officio compensation is discretionary with the commissioners' court, within the limits prescribed. The commissioners' court can allow ex-officio compensation only to the extent that such compensation together with the fees retained by each of the officers heretofore mentioned provided the amount does not amount to more than the limit fixed by Articles 3883 and 3891.

The Sheriff of Upton County also performs the duties of tax assessor-collector for said county. This department has repeatedly held that where the duties of the tax assessor-collector are imposed upon the Sheriff under the laws of this State, the Sheriff holds only one office, that is the office of Sheriff, and performs the additional duties of tax assessor-collector. In no event can the commissioners' court allow the Sheriff ex-officio compensation in excess of one thousand dollars per annum. (See Article 3934, Vernon's Annotated Civil Statutes).

Apparently the commissioners' court in attempting to fix the ex-officio compensation of the County Judge, the Sheriff Assessor and Collector of taxes and the County Clerk, who also performs the duties of district clerk at the maximum of three thousand ( $3000.00)dollarseachperyearuponthebasisthatnoneoftheseofficialswouldearnanyfees,whatsoever.ThesamecanbesaidwithreferencetotheCountyAttorney,exceptthathisex-officiocompensationwaslimitedtoeighteenhundred($ 1800.00) dollars per year. It is also apparent that the commissioners' court attempted to limit the

*8 Honorable Charles F. Hemphill, Page 8 compensation of the County Attorney to the sum of eighteen hundred ( $\$1800.00$ ) Dollars, Where the county officials are compensated on a fee basis, the commissioners' court has no legal authority or righg to limit their fees that may be earned by such offlelale in the performance of their official duties. The statutes (Artioles 3883 and 3891) fixo the maximum fees and compensation that may be earned and retained by such officers. With reference to ex-offlelo compensation the law preseribes no time when the somelasioners' court may fix the ex-offieio compensation of the oounty offlelale; nor is there any inhibition to the ohanging the amount thereof whenever the somissioners' court coneludes, for any reason, that such allowances are teo great or too amell. They have the right and power, at any time before the money is setually paid out to the offieor, to ohange, modifg, or even entirely repeal or revoke the order allowing ex-offleio compensation, provided the compensation of ex-offlelo serviees allowed shall not increase the compensation of the official beyond the maximum of the compensation and exsess fees allowed to be retained by him by law. (See the ease of Collingworth County v. Myers, 35 S.W. 414).

In view of the foregoing you are respectfully advised that it is our opinion that the somissioners' court can legally fix the ex-officlo compensation of the County Judge, County Clerk, and the County Attorney in compliance with and as authorized by Article 3895 at any amount so long as the amount of ex-offieio compensation allowed together with the fees retained by each offieor under the above mentioned statutes does not amount to more than the limit fixed by them.

The order of the somnigaloneers' court reflects that the salary of the County Auditor was fixed at the sum of eighteen hundred seventy-five ( $\$1875.00$ ) dollars per year. For the purpose of this opinion we assume that said compensation was fixed in compliance with and as authorized by Article 1645, Vernon's Annotated Civil Statutes as amended, and that the salary of the County Auditor was fixed by the District Judge and approved by the Commissioners' Court in compliance with said Article 1645, provided the facts required the approval of the commissioners' court under said statute.

*9 Honorable Charles F. Hemphill, Page 9

It is noted that in one of the orders that the commissions' court heretofore quoted that the compensation of the County Treasurer was fixed at $1999.92 per year. Articles 3941 and 3942, Vernon's Annotated Civil Statutes preseribe the maximum commissions for the County Treasurer in receiving and paying out funds. The commissicers' court may not change the plan for compensating the treasurer from a fee to salary basis, and any attempt to fix a definite salary in lieu of commissions is void. (Greer v. Hunt County, 249 S.W. 831; State v. Jerdon, 26 S.W. (2d) 1211; Tex Jurisprudence, Vol. 11, p. 600 and authorities cited therein).

The treasurer is entitled to receive compensation at the rate fixed by statute, until changed by an order fixing his commissions. (Rank County v. Hightower, 202 S.W. 802; Montgomery County v. Talley, 169 S.W. 1141). If a salary is provided with a proviso that, if the lawful commissions amount to less than the salary, he shall receive no more than his lawful commissions, the order in effect fixes a maximum which may be earned as commissions. On the other hand, an order providing for a certain sum as commissioa, payable regardless of the amount of money passing through the treasurer's heads, has the effect of fixing a salary basis of compensation, and is invalid under the statutes. (See Greer vs. Hunt County, 249 S.W. 831). In a county containing a population of less than twenty thousand inhabitants according to the last preceding Federal Census, where the county officials are compensated on a fee basis, the commissioners' court has no authority to place the county treasurer on a salary basis. The only authority the commissioners' court has in this instance is to fix the rate of commissions within the statutory limit. The commissioners' court may fix the treasurer's commission at any rate, not to exceed the statutory rate, and may also reduce the maximum sum to be paid on the rate as fixed to any amount less than the statutory maximum. If the commissioners' court has not fixed the commission, by order of said court, the county treasurer is entitled to receive the maximum fees or rather commissioas as fixed by the statutes. (Baxter v. Ruak County, 11 S.W. (2d) 648).

*10 Hecorable Charles F. Hemphill, Page 10

An we have heretofore atated that we cannot eategorically say whether the conal asioners' court has pleced the county officials of Upton County on a fee basis or a salary basis, we believe the foregoing disequsion dis- poses of the questions submitted under the facts and air- sumstances.

Yours very truly ATTORNY GENBRAL OF YEZAS Dutell Williams Ardell Williams Assistant

AN INW