Untitled Texas Attorney General Opinion ( 1963 )

AUSTIN. XB February 159 1963 Hon. Harrell Moore Opinion NO. c-18 County Attorney Midland County Re : Whether the County Clerk of Midland Mldland, Texas County should charge as part of the costs in a probate case the commis- sion provided~forin Article 3926 Dear Mr. Moore: of Vernon’s Civil Statutes. You have requested the opinion of this office as to whether the County Clerk of Midland County should charge as a part of the costs in a probate case I@ commissionprovided for in Section 1 of Article 3926 of Vernon’s Civil Statutes. Section 1 of Article 3926 of Vernon’s Civil Statutes provides as follows: “The county judge shall also receive the following fees: “1* A commission of one-half of one per cent upon the actual cash receipts of each executors administratoror guardian, upon the approval of the exhibits and the final settle- ment of the account of such executor, adminis- trator,or guardian, but no more than one such commission shall be charged on any amount re- ceived by any such executor, administratoror guardian.” Section 16 of the Probate Code reads as follows: “The county clerk shall keep a record book styled ‘ProbateFee Book,t and shall enter therein each item of costs which accrues to the officers of the court, together with witness fees, if any, showing the party to whom the costs or fees are due the date of the accrual of the same, the estate or ‘partyliable there- for, and the date on which any such costs or fees are paid,” Since Midland County has a population of 67,717 inhabi- tants according to the last preceding Federal Census, the -15- Hon. Harrell Moore, page 2 (c-18) provisions of Section 61 of Article XVI of the Texas Constitu- tion, and Section 1 of Article 3912e of Vernon's Civil Statutes, make it mandatory that all the county officials in that county be compensatedon a salary basis. In this connection,we invite your attention to the pertinent part of Section 61 of Article XVI of the Texas Constitution,which providesas follows: :, ~ "All district officers in the State of Texas and all county officers in countieshaving a popu- lation of twenty thousand (20,000) or more, accord- ing to the then last precedingFederal Census, shall be compensated on a salary basis. . o . and in counties'havinga population of less than twenty thousand (20,000),according to the then last pre- ceding Federal Census, the CommissionersCourts shall also have the authority to determine whether county officers shall be compensatedon a fee basis or on a salary basis, with the exception that it shall be mandatory upon the CommissionersCourts to compensateall sheriffs,deputy sheriffs, county law enforcementofficers including sheriffswho also perform the duties of assessor and collector of taxes, and their deputies, on a salary basis be- ginning January 1, 1949. "All fees earned by district, county, and pre- cinct officers shall be paid into the county treas- ury where earned for the account of the proper fund, provided that fees incurred by the State, county, and any municipality,or in case where a pauper's oath is filed, shall be paid into the county treasury when collected and provided that where any officer is compensatedwholly on a fee basis such fees may be retained by such officer or paid into the treas- ury of the county as the CommissionersCourt may direct. m . .I1 Section 1 of Article 3912e of Vernon's Civil Statutes pzuvides in part as follows: -:, "No district officer shall be paid by the State of Texas any fees or commissionsfor any service per- formed by him; nor shall the State or any county pay to any county officer in any county containinga population of twenty thousand (20,000)inhabitants or more according to the last preceding Federal Cen- sus any fee or commissionfor any service by him performed as such officer; D + e provided further, that the provisionsof this Section shall not affect -76- Hon. Harrell Moore, page 3 (c-18) the payment of costs in civil cases or eminent domain proceedingsby the State but all such costs so paid shall be accounted for by the of- ficers collecting the same, as they are required under the provisions of this Act, to account for fees, commissionsand costs collected from priv- ate parties; provided further, that the provisions of this Section shall not affect the payment of fees and commissionsby the State or County for services rendered by County Officers in connection with the acquisition of rights of way for public roads or highways, and provided that such fees and commissionsshall be deposited into the Officers' Salary Fund of the County by the County Officer collecting such fee." Article 3926 of Vernon's Civil Statutes provides that the County Judge shall receive a commissionof one-half of one per cent upon the actual cash receipts of each executor admin- istrator or guardian. Attorney General's Opinion wW-1036 (1961),, Since Section 61 of Article XVI of the Texas Constitution,and Section 1 of Article 3912e of Vernon's Civil Statutes make it mandatory that the County Judge of Midland County be compensated on a salary basis, it is mandatory that the County Judge collect the commissionprovided for in Article 3926 but, at the same time, Section 61 of Article XVI, and Section 1 of Article 3912e make it mandatory that the County Judge place such fees with the County Treasurer to be deposited in the Officers' Salary Fund of the county. Section 1 of Article 3912e prohibits the County Judge of Midland County from collectingfees or commissionsfrom the county and the State of Texas, but at the same time there is nothing in this Article or any subsequentArticle that would repeal Article 3926 insofar as it requires the County Judge of Midland County to collect a comrdissionof one-half of one per cent upon the actual cash receipts of each executor administra- tor or guardian but, as above pointed out, Section &L of Article XVI of the Texas Constitution,and Section 1 of Article 3912e make it mandatory that the Judge deliver these fees to the County Treasurer to be deposited in the Officers' Salary Fund. Under your specific fact situation the County Clerk of Midland County will continue to record the commission upon the actual cash receipts allowed under Section 1 of Article 3926 of Vernon's Civil Statutes, and after the fees are collected by the County Judge of Midland County they should be paid into the County Treasury for deposit to the Officers'Salary Fund. . - Hon. Harrell Moore, page 4 (c-18) Since Section 61 of Article XVI of the Texas Constitu- tion makes it mandatory that all county officials in counties of 20.000 inhabitants or more be compensatedon a salary basis, the principles of law announced in this opinion are applicable to all counties in the State of Texas having a populationof 20,000 inhabitants or more, and also applicable to all counties of under 20,000 inhabitantswhere the CommissionersCourts have elected to compensateall the county officials on a salary basis pursuant to the provisions of Section 61 of Article XVI of the Texas Constitution. SUMMARY The County Judge of Midland County is entitled toreceive a commission of one-half of one per cent upon the actual cash receipts of each executor, ad- ministrator or guardian as prwided in Section 1 of Article 3926 of Vernon's Civil Statutes, and Section 16 of the Probate Code makes it mandatory that the County Clerk record said commissionsas a part of the costs, and when said commissionsare collected they should be paid into the County Treasury and deposited into the Officers' Salary Fund. The principles of law announced in this opinion are applicable to all counties in the State of Texas having a population of 20,000 inhabitants or more, and to those counties of less than 20,000 where the CommissionersCourt has elected to compensateall the county officers on a salary basis.. Section 61, Art. XVI, Tex, Const. Yours very truly, WAGGONER CARR Attorney General of Texas Bill Morse, Jr. BM:wb Assistant APPROVED OPINION COMMITTEE W. V. Geppert, Chairman Brady Coleman Ernest Fortenberrv J. C. Bracewell - Paul Phy APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone -78-