Untitled Texas Attorney General Opinion ( 1952 )

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Januaq 29, 1952
Hon. Sam W. Davis opinion RO. v-1398
Mstrict Attorney
Civil Courts Bldg. Re: Maximum compensation OS
Houston 2, Texas the County ~Trsasurerof
Harris County from all
sources,'including the
Dear Sir: navigation distPl.ict.
You have requestea,an opinion on the maxl-
mum compensation of the coudy treasurer of Rarrls
county.
House Bill 265, Acts of the 52nd Leg., R.S.
1951, ch. 391 p. 675, pasied by the.Legi&lature on
Hay 15, 1951 [Article 39438, V.C.S..);prescribes the
salaries of tillcounty treasurers compensated on a
salary basis. Section 5 provides:
*In each county in the State of Texas
having a population of at least three hundred
thousanc?and one (300,001) inhabitants, or
more, according to the last preceding Federal
Census, the Commissioners Court shall fix the
salary of the county treasurer at any reason-
abLe sum, providing such salary is not less
than Forty-eight Hundred Dollars {$4800).*
House Bill 206, Acts of the 52nd'Leg., R.S.
1951, ch.
April 19,
salary to De pala 'tne county treasurer 1n counties nav-
ing a population 61 six hudred thousand (600,000) in-
habitants or more. Section 1 provides:
"That the connnlsslonersoourt in each
county 5.n the State of Texas having-a popu-
lation of six huuaFeclthousand (600,000) in-
habitants or more according to the last pre-
ceding Federal Census, or any future Federal
- Census, shall determine annually the salary
to be paid to the oounty tlreasurerat a rea-
sonable sum of not less than Five Thousand
Hon. Sam W. Davis, page 2 (v-13981
Dollars ($5,000) nor more than Eight
Thousand Dollars ($8,000) per annum,
and the maximum salary and compensa-
tion of said treasurer shall not exceed
Eight Thousand Dollars ($8,000) in the
aggregate~for any one calendar year.
Said treasurer shall be allowed to ap-
point such assistants as said commis-
sioners court may deem necessary at
reasonable salaries, tp be determined
by sala commissioners court. Said as-
sistants shall,h&e: the authority to do
Iandperform in the'name of such county
such acts, either clerical or mlnlster-
la1 in character; as may be required of
him by sala county~treasurer."
Under
- the .provisions of ._..
House Blll.206,
the maximum saLary tnat may oe alo tne treasurer
of Harris County is limited to % 8,000, while under
the :provisions.of House Bill 255 the maximum salary
that 'maybe paid.the c,ount,ytreasurer of Harris'
County is unlimited. At.t'geen. .O,"+ V-1320 (~1951)
and V-1327 (1951).
Thus at the same session of the Legisla-
ture there were :enacts,dtwo statutes dealing with
the ~compensa'tiouof county treasurers.‘ The .first
act passed is restricted in applltiatlbnto c'ounties
b&ving.over 600,000 inhabitants,:and the second act
$.sa,comprehenslve.one concerning the compensation
for :all.countytreasurers paid on a salary basis.
In 1 Sutherland Statutory Construction (3rd Ed. 1943)
475-77; the rule in thld'regard is stated as follows:
"The intent to repeal all former laws
.:&on ~the subject is made apparent by the
enactment of:subsequent comprehensive leg-
lslation establishing elaborate inclusions
and exclusions of the persons, things and
relationships ordlnarily'associated with
the,subject. Legislation of this sort
,which operates to revise the entire subject
~to which it relates, by its very comprehen-
.s'iQenessgives strong implication of a leg-
~,.:'isla'e.ive
intent not only to repeal former
statutory law'upon the subject, but also
'Z, -.
.
Hon. ~a.mW. Davis, page 3 (V-1398)
to supersede the common law relatlng to
the same subject."
In passing upon a somewhat similar ques-
tion, it was held in,Attorney General's Opinion V-
472 that House Bill 501, Acts of the 50th Leg., 1947;
dealing with traveling expense of sheriffs generally,
repealed the provisions of Section 19 of Art. 3912e,
subdivision (1) provlaing for traveling expense of
sheriffs In counties having in excess of 190,000 in-
habitants, stating:
"The Legislature is presumed to have
had knowledge of all existing laws dealing
with the same subject matter and could have
excluded those counties having a~population
in excess of 190,000 Inhabitants, If ',thad
not Intended that such counties be Included
wfthin the Act. This It did not do. Would
it not be just as reasonable to say that the
Act is not applicable to counties operating
on a fee basis or to those counties operat-
ing on a salary basis and having a popula-
tion of not over 190,000 inhabitants as it
would to say that it does not apply to those
counties having a population in excess of
190,000 inhabitants? In that event the Act
would not apply to any county in the State
and would be meaningles~s. It would be at-
tributing to the Legislature the Intention
of having done a meaningless thing in passing
such a bill."
For like reasoning, it is our opinion that
House Bill 255, being a later enactment prescribing
the salaries to be paid all county treasurers who are
compensated on a salary basis, repealed House Bill 206
dealing with the salaries to be paid the county treas-
urers in counties having a population of 500,000 in-
habitants or more.
Therefore, the commissioners' court of Har-
ris County may fix the salary of the county treasurer
at any reasonable sum provided such salary shall not
be less t%!: $4800.00 per annum. Att'y Gen. Op. V-1320
(1951).
Section 51 of Article XVI of the Constitution
of Texas provides that all county officers in counties
Hon. Sam W. Davis, page 4 (V-1398)
having a population of 20,000 inhabitants or more
shall be compensated on a salary basis and that all
fees earned by such officers shall be paid into the
county treasury for the account of the proper fund;
In Settegast v. Harris County 159 S.W.28 543 (Tex.
Civ. App. 1942, error ref.) tie court was consider-
ing whether the county treasurer, in view of the
above-mentioned constitutional provision, had the
right to retain the compensation provided for in Arti-
cles 8148 and 8221, V.C.S. The court held that the
compensation of the county treasurer was limited tom
the amount provided for in Section 19 of Art. 3912e,
V.C.S. (officers' salary law) and that the compensa-
tion received pursuant to Articles 8148 and 8221 for
handling funds of the Drainage and Navigation Districts
could not be retained, stating at page 546:
"Under said Article 8148 it was made the
duty of the treasurer of Harris County to re-
ceive and disburse the funds of said Drainage
Districts, and under said Article 8221 It was
made his duty to receive and disburse the Mavi-
gation District funds. There is no provision
in either of said articles that the treasurer
shall or may retain either the compensation
from the Navigation District or the commis-
sions from said Drainage Districts, as his
personal property and there is nothing in
either article which indicates that the func-
tions of the county treasurer in the service
of these two agencies were imposed by virtue
of an office separate and distinct from the
office of the County Treasurer. They were, we
think, additional duties required of the coun-
ty treasurer of Harris County by the leglsla-
ture under the rule that the legislature may
q
re uire u ice ona
duties not inconsistent with the duties per-
formed by them.
*The question here presented has, we
think, been decided by OUP Supreme Court in
the case of Nichols vi Galveston County, 111
Tex. 50, 228 S.W. 547. In the Nichols case,
the assessor relied upon a statute which spe-
cifically authorized the payment to him of
ex-officio compensation. The statute under
which he claimed additional COmpenSation in
.
Hon. Sam W. Davis, page 5 (V-1398)
the assessment of certain drainage taxes
was a part of the statute under which ap-
pellants herein claim commissions on Drain-
age District funds paid to the treasurer.
The court hel% that the assessor was re-
quired to account for the 'compensation'
pal% by the commissioners' court In connec-
tion with the assessment of drainage taxes
and the ~co~isslonst on the assessment of
independent school %istrict taxes.
"This holding is strengthened, in the
instant case, by the fact that Subsection
(s) of said Section 19 expressly exempts
Notaries Public, public weighers and county
surveyors from the provisions of said Sec-
tion 19. It does not except therefrom the
office of county treasurer.
*Under above facts, we think that both
the constitutional amendment and the legis-
lative act under consideration definitely
and specifically limited the amount of the
salary which could be paid to the county
treasurer and to his assistants . . ."
While the Legislature has at various times
raised the maximum that may be paid the county offl-
cers (see Art. 3912g, V.C.S.), it has not change% the
method of compensation and has not amended Articles
8148 and 8221.. Therefore, it is our opinion that the
construction placed on Article 8221 in the Settegast
case is not applicable to the compensation of the
county treasurer of Harris County and he is limited
to the compensation provide% for in House Bill 265,
supra, and as fixed by the commissioners' court. You
are therefore advise% that the county treasurer may
not retain the compensation provide% for in Article
8221. We are supported in this conclusion by the
fact that Article 3943c, V.C.S., applicable to county
treasurers in counties having a population of not less
than 145,000 inhabitants and not more than 300,000,
was enacted in 1.947and provides:
* . . . Where such Treasurer acts also
as Treasurer of any Navigation an% Drainage
Districts, he is to receive and be entitled
Hon. Sam W. Davis, page 6 (v-1398)
to retain such compensation from such Dis-
tricts as is provided by Articles 8221 and
8148, Revise% Civil Statutes of Texas, 1925.
. . ."
We know of no similar statute applicable
to Barris County which has been enacted subsequent
to the Settegast case.
SUMMARY
The compensation of the county treas-
urer of Barris County is governed~by the
provisions of Section 5, H.B. -265, Acts 52nd
R.S. 1951, ch. 391, p. 675 [Article
;;&;A V C S ) which repealed House Bill
206, Acti ;21;ukeg., R.S. 1951, ch. 122, p.
207 (Article 3943%, V.C.S.), and the commls-
sioners' court is authorize% to set the
salary at any reasonable sum provided such
salary is not less than $4800.00 per annum.
,The salary of the county treasurer will be -
limited to the amount fixed by the commis-
sioners' court and he is not entitle% to re-
tain compensation provided for in Article
8221, v.c.s., for receiving and %is;k;;;ng
funds of the navigation district.
gast v. HarrisCounty 159 S.W.2% 54Jix.
Civ. App. 1942, error'ref.).
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
J. C. Davis, Jr.
County Affairs Division
E. Jacobson
Reviewing Assistant "&eV
Assistant
Charles D. Mathews
First Assistant
JR:mh