Untitled Texas Attorney General Opinion ( 1951 )

THEATTORNEY GENERAL’
QPTEXAS
AUWTIN m.ITrcxAe
PRICE DANIEL
ATTORNEY
GENERAL
August 28, 1951
Han, W. A. Hadden Opinion No. V-1262
County Attorney
Pecos County Re: Maximum compensation of
Fort Stockton, Texas the County Judge of Pecos
County under the submitted
facts.
Dear Sir:
You have requested an opinion relative to the compen-
sation of the County Judge of Pecosi~County.,.who is also ex of-
ficio county superintendent of public instruction. The county of-
ficers of Pecos County are compensated on a salary basis.
Pecos County has a population of 9,939 inhabitants
and its county, officers were compensated on a salary basis in
1948. Therefore, the maximum compensation allowed the county
judge under Articles 3912e-12 and 39128, V.C.S., is $6750.00
($5400.00plus $1350.00, or 25% of $5400.00).
Under the provisions of Article 3888, V.C.S., as amend-
ed by Senate Bill 108, Acts 52nd Leg., 1951. ch. 200, p. 329, where
the county judge acts as superintendent of public instruction, the
county board of school trustees is authorized to pay the county
judge a maximum of $2600.00 per year.
You-desire ‘to know ‘if the compensation provided in
Article 3888 is to be included in the salary set by the Commission-
ers” Court under Articles 3912e-12 and 39128, or in addition to
such salary. In determining the answer to this question, we deem
it advisable to review the’legislative history of Article 3888.
Article 3888 was originally enacted in 1897. It was cod-
ified in the 1911revision as Article 3886, and provided:
“In counties where a county judge acts as super-
intendent of ~public instruction, he, shall receive such
other salary as may be provided by the commissioners’
court, not to exceed the sum of six hundred dollars per
annum. ID
Hon. W. A. Hadden, page 2 (V-1262)
In construing this provision, it was held in Attor-
ney General’s Opinion 2310 (1921), Report and Opinions of At-
torney General 1920-22, p. 497:
“Article 3886 provides that in counties where
a county judge acts as superintendent of public in-
struction. he shall receive such other salary as may
be provided by the commissioners court, not to ex-
ceed the sum of $600 per annum.
“Article 3893 provides that the commissioners
court is debarred from allowing compensation,for ex-
officio services to county officials when the compensa-
tion and excess fees which they are allowed to retain
shall reach the maximum provided for in Chapter 4 of
Title 58.
“Article 2763 provides that in each county in
this State, having no school superintendent, the county
judge shall be ax-officio county superintendent of pub-
lic instruction, and shall perform all the duties required
of the county superintendent.
“It is clear, therefore, that the compensation
provided for the county judge, when acting as county
superintendent, is ex-officio compensation within the
meaning of Article 3893. Therefore, the county judge
is not entitled to such compensation over and above
his maximum compensation and excess fees provided
for in Articles 3881 et seq. The county judge could not,
under the Constitution, hold two offices (with certain
exceptions, not including county superintendent), and
hence his duties, when acting as county superintendent
are simply additional duties as county judge, and the
compensation for such services will be considered in
arriving at his maximum by reason of Article 3893.”
This compensation of the county judge acting as county
superintendent was increased to $900 in 1920 (Acts 36th Leg.,
3rd C.S. 1920, ch. 57, p* 100). The statute was codified in the 1925
revision as Article 3888, which read:
“In a county where the county judge acts as su-
perintendent of public instruction, he shall receive
for such services such salary not to exceed nine hun-
dred dollars a year as the commissioners court may
provide.”
Hon. W. A. Hadden. page 3 (V-1262)
Article 3888 was again amended in 1935 by House
Bill 66. Acts 44th Leg., 2nd C.S. 1935, ch. 447, p. 1732, so as
to provide:
“In a county where the County Judge acts as
superintendent of public instruction, he shall re-
ceive for such services such salary not to exceed
Nine Hundred Dollars ($900) a year as the County
Board of School Trustees of the respective counties
may provide. The amount shall be paid in the man-
ner specified in Chapter 49, Acts of the Forty-first
Legislature, Fourth Called Session,
115 * A cts of the Forty-second Legislature, Regular
Session.” (Emphasis added.)
Chapter 49, Acts 41st Leg., 4th C.S. 1930 (Art. 2700d-1.
V.C.S.), referred to in Article 3888, provides in part:
“Section 1. That from and after August 31.
1930, the salary and office expenses of the county
superintendent of public instruction and such assis-
tants as he ‘may have shall be paid out of the school
funds of the common and independent school dis-
tricts of the county.
“Sec. 2. That the County Board of Trustees
shall annually on or before the first (1st) day of
August hereafter order a scholastic per capita
assessment against each school district within
the County in sufficient amount to provide for the
payment of the salary and office expenses of the
County Superintendent and any office assistants
he may have, as is now provided by law. or may
hereafter be provided. And the said assessment
when legally made and certified to the school dis-
tricts of the County shall be paid by them for the
purpose herein specified.“’
Chapter 175, Acts 42nd Leg., R.S. 1931 (Art. 2827a,
V.C.S.), referred to in Article 3888, provides in part:
“Section 1. That, from and after August
31. 1931, it shall be the duty of the County Board
of Trustees in each county in this State having
an elective County Superintendent of Public In-
struction to notify the State Superintendent and
the State Board of Education. not later than Sep-
tember 1, of each scholastic year, of the amount
of the State Available School Fund that should be
Hon. W. A. Hadden, page 4 (V-1262)
set, aside from the per capita apportionment for
said county for the ensuing scholastic year for
the maintenance of the office of County Superin-
tendent in accor.dance with Law; provided;‘that
the amount to be set aside fr~om the per capita .,
apportionment for said county shall include ~the”,.
per .capita apportionment for the districts of the
county~that are noti lawfully required, or that
may hereafter:, by General Law, be required, to’
contribute to said County .Administration”Ex- ~.
pense Fund.
“Sec. 2. That the State Superintendent of ‘,
Public Instruction shall, on the order:of the State
Board of Education, remit to the County Depos-
itory of each such county the amount of said
Available School Fund, to be deposited to the’ ‘#
credit of the Administration Fund of the County
for the purpose set forth in Section 1 of this Act;,
provided, that the payments to the~various coun;
ties may be made in two equal installments, the
first, on or before October ~1.and the second, on
or before March 1, of each successive school
year. w
In construing Article 3888, as amended in 1935, it
was stated in Attorney General’s Opinion O-3026 (1941):
U Nith reference to Article 3888, supra, we
direct your attention to the fact that this article
has been long construed by this department,as
being accountable as part of the maximum the of-
ficer could retain under the provisions of Article
3891, supra, and the county judge ,is not entitled ,.
to the compensation provided by Article 3888 over
and above his maximum compensation arrived at
by reasons of said Article 3891.”
Article 3888 has been subsequently amended by Sen-
ate Bill 252, Acts 50th Leg., 1947, ch. 305, p. 519., and Senate
Bill 108, Acts 52nd Leg., R.S. 195,1,ch. 200. p. ,329. However,
these amendments contain no provision which altars the hold-
ing in Attorney General’s Opinions 2310 and o-3026.
The,refore, in a Yee”‘co@y, the’couiity judge can-
not ret.ain.compensation provided in Articie ,3888. V;k.S.. in
addition to the maximum set by Articles 3883 and.3891. V.C.S.
It is our opinion that this construction of Article 3888 is equally
Hon. W. A. Hadden, page 5 (V-1262)
applicable to “salary” counties, for the following reasons:
Section 3 of Article 3912e, V.C.S.. provides:
“In all cases where the Commissioners’
Court shall have determined that county officers
or precinct officers in such county shall be com-
pensated for their services by the payment of an
annual salary, neither the State of Texas nor any
county shall be charged with or pay to any of the
officers so compensated, any fee or commission
for the performance of any or all of the duties of
their offices but such officers shall receive said
salary in lieu of all other fees, commissions or
compensation whrch they would otherwise be aui-
orrzed to retam; provrded, however, that the asses-
sor and collector of taxes shall continue to collect
and retain for the benefit of the Officers’ Salary
Fund or funds hereinafter provided for all fees and
commissions which he is authorized under law to
collect; and it shall be his duty to account for and
to pay all such monies received ‘by him into the
fund created and provided for under the provisions
,of this Act; provided further, that the provisions of
this Section shall not affect the payment of costs
in civil cases by the State but all such costs so
paid shall be accounted for by the officers collect-
ing the same, as they are required under the pro-
visions of this Act to account for fees, commissions
and costs collected from private parties.” (Em-
phasis added.)
By virtue of the underlined provision of Section 3 of
Article 3912e, the salary prescribed by the commissioners’
court is “in lieu of all other . , . compensation which they
[county officers or precinct officers] would otherwise be auth-
orized to retain.”
The court, in Settegast v. Harris County, 159 S.W.2d
543 (Tex. Civ. App. 1942,error ref.), ‘had before if a similar
question to the one presented in yours request, Jn that case the
county treasurer was seeking to retain compensation received
under the provisionsofArticles 8148 and 8221, V.C.S., earned
as treasurer of Drainage Districts and Navigation Districts in
addition to the salary set by the commissioners’ court under
Section 19 of Article 3912e. The court held that the county treas-
urer could not retain the compensation received from the Drain-
age Districts and Navigation Districts, as the amount of salary
- .
Hon. W. A. Hadden, page 6 (V-1262)
which could be.pid the county treasurer was limited to the max-
imum salary provided in Section 19 of Article ,3912e.
Although different statutory provisions were involved
in the Setteg.ast case. it is our opinion that the principle of law
stated therein controls the question to be determined here. We.
therefore, agree with your conclusion that the county judge can-
not retain the compensation provided by Article 3888, V.C.S.. in
addition to the salary prescribed by the commissioners’ court
pursuant to Articles 3912t-12 and 3912g, V.C.S.
The compensation provided in Articlt’388S,
V.C~.S.. to a county judge acting ss ex officio c,oun-
ty superintendent cannot be retained by the county
judge in addition to the salary set by the commis-
sioners’ court pursuant to Articles 3912e-12 and
3912g. V.C.S. Art. 3912e, Sec. 3, V.C.S; Sette ast
v. Harris County, 159 S.W.Zd 543 (Tex. cl&c-
1942, error, rtf.fi.Att’y Gen. Ops. 2310 (1921), O-3026
(1941).
,
Yours very truly,
PRICE DANIEL
APPROVED: Attorney General
J. C. Davis, Jr.
County Affairs Division
Byi!i52veh
Everett Hutchinson Assistant
Executive Assistant
Price Daniel
Attorney General
JR:b