Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

GERALD C. MANN ATTORNEY GENERAL

Honorable R. Jackson Balch County Attorney Bagler County Seymour, Texas

Dear Sir:

Attention: No. 3. Donnell Dickson

Opinion No. 0-4473 Re: Is the sheriff-tax wasessor-collector of Baylor County required to report as fees of office the compensation he receives as tax collector for the city of Seymour?

Your letter requesting the opinion of this department on the above stated question reads as follows:

"The sheriff, tax assessor-collector of Baylor County, Texas, under and by virtue of Article 1042b, R. C. S. also collects the taxes for the city of Seymour, as incorporated town.

He said Shexiff, tax assessor-collector of Baylor County, Texas, required to report as fees of office the compensation he receives as tax collector for the city of Seymour.

Article 1042b of Revised Civil Statutes became effective May 8, 1941, and I have been unable to find any authority touching on the fees received from an incorporated city.

"Article 2792, R. C. S. and your opinion No. 0-1153 covers fees received by such officer from an Independent School District. 144 (2) S. W., Taylor, et al V. Brewster County is to the same effect."

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Honorable H. Judaon Balch, Page 8

We thank you for your brief subaitted with your inquiry on the above atated question and agree with the conelusion therela atated.

Baylor Couaty has a population of 7,956 iahabitants aesording to the 1940 Federal Census and the county officials of said ounaty are compensated on a fee basis.

Section 16 of Article 8 of the State Constitution provides: "The sheriff of each ounaty, in additios: to his other duties, shall be the assessor and collector of texes therefor; but, in cousties having ten thousand ( 10,000 ) or more inhabitants, to be determined by the last preceding census of the United States, an assessor and collector for texes shall be alected to hold office for two (2) years, and until his successor shall be elected and qualified."

Article 9246, Vernon's Annotated Civil Statutes, provides: "In each ounaty having leas than ten thousand ( 10,000 ) iahabitants, the sheriff of such ounaty shall be the assessor and collector of taxes, and shall have and exercise all the rights, powers and privileges, be aubject to all the requirements and restrictions, and perform all the duties imposed by law upon assessors and collectors; and he shall also give the same bonds required of a collector of taxes oleoted."

As Baylor County has a population of less than 10,000 iahabitants the sheriff of said ounty is the assessor and collector of taxes therefor, under the provisions of the Constitution and the atatute above quoted.

Article 1042b, Vornon's Annotated Civil Statutes, authorizes an incorporated city, town or village, ete., to secure the services of the ounaty tax asessor-collector, in complieace with said statute, to perform the duties therein mentioned. This statute further provides compensation for the county tax asessor-collector for services performed thereunder.

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Honorable R. Judson Ralch, Page 8

The last two paragraphs of Artic18 8991, Vernon's Annotated Civil Statutes, provide: "The compensation, limitations and maximums herein fixed in this act for officers shall inslude and apply to all offieers mentioned herein in each and every oquaty of this state, and it is hereby declared to be the intention of the Legislaturo that the provisions of this act shall apply to each of said officers, and any special or general law insonsistent with the provisions hereof is hereby expresaly repealed in so far as the same may be inconsistent with this Act. "The compensation, limitations and maximums herein fixed shall also apply to all foes and compensation whatsover collacted by said of ficers in their official capacity, whether accountable as foes of office under the present law, and any law, general or special, to the contrary is hereby expreasly repealed. The only kind and character of compensation exempt from the provisions of this act shall be rewards received by sheriffs for apprehension of oriminals or fugitives from justice and for the reo- covery of atolea property, and noneys received by County Judges and Justiees of the Peace for performing marriage ceremonies, which sum shall not be accountable for and not required to be reported as foes of office."

It appears that the terms of the last above quoted article are inclusive to the extent that in order for foes to be oxapt thereunder, thegfment be specifically excluded. We dires your attention to the case of Hiehols vi. Galveston County, (Sup. Ct. of Tex.) 288 S. W. 847. In this case Galveston County sued the appellant to recover certain foes and commissions received by him as tax assessor and collector of Galveston County, who also performed the duties of assessor and collector of a draimage district for which latter services he received the compensation for which recovery was sought. The court, in considering the case, compared the article. under which compensation is allowed to tax assessors and collectors for their services in assessing and collecting taxes of drainage districts to the article under which the tax

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Honorable R. Judson Raleh, Page 4

assessor and collaotor of a ounaty may be designated asaessor and collaotor of an independent oehool distriet, and receive in return for aeting as such oartain ommiesions. The oourt considered situations arisigg under oash article with respect to acountability of commi asions receivel thereunder to be completely analogous. The oourt alted the oase of allis County 9. Thompson, 66 8. 4. 49, quating from such ease in the following language: "The Phrase 'fees of all kinds' onbraces overy kind of compensatio: allowed by law to a olork of the county court, unless oxcepted by some provision of the atatute . . . The oxceptions are so definite that by implication all foes not mentioned in the exoeptions are axcluded therefron, and thereby included within the requirements of the act."

The above mentioned case further holds, in offect, that where the ounaty asaessor did not aecount for the portion of the foes reoolved for which the oourty was entitled under the atatutepresoribing the maximum amount of foes that may be retained by the oourty asaessor, the oourty could bring an action on the asaessor's bond; the duty of acoounting for the asaessor's foes being within the condition of the bond.

Fo also direct your attention to the ease of Tay102, ot al v. Brewster County, 144 S. W. (24) 314, whioh, anong other thinga, holds thet foes reoeiwd by a sheriff and tax collector for asaessing and collecting taxae for sohool distriots tentatively belong to the sheriff and tax collector, aubject to his duty to acoount therefor th the oourty under the fee bill.

In view of the foregoing authorities, we respectfully answer the above atated question in the affirmative.

Ardoll willaas Assistant