Untitled Texas Attorney General Opinion ( 2008 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
June 30, 2008
The Honorable Hector M. Lozano Opinion No. GA-0639
Frio County Attorney
500 East San Antonio Street Re: Whether the County Assessor-Collector
Box 1 may award additional compensation to her
Pearsall, Texas 78061-3100 salaried deputies from monies collected under
the Certificate of Title Act, section 501.138,
Transportation Code (RQ-0660-GA)
Dear Mr. Lozano:
Section 501.138 of the Transportation Code requires certain applicants for a motor vehicle
certificate of title to "pay the county assessor-collector a fee" of $28 (or in some counties $33) and
directs that the "county assessor-collector shall send ... $5 of the fee to the county treasurer for
deposit in the officers' salary fund." TEX. TRANSP. CODE ANN. § 501.138(a)-(b)(I) (Vernon Supp.
2007). On behalf of the County Tax Assessor-Collector ("TAC"), you ask generally whether the
TAC may award the fee as additional compensation to her salaried deputies. 1
I. Facts
You relate that the Frio County Commissioners Court has set the salary for each position in
the TAC's office. Request Letter, supra note 1, at 2. The TAC's office has sent the $5 portion of
the certificate-of-title fees it collects to the county treasurer for deposit in a special "Frio County Tax
Collector Salary Fund." Id. at 1. Quarterly the TAC has directed the county treasurer to issue a
supplemental payment to TAC employees from the special fund.Id. at 2. Neither the TAC nor the
county treasurer has sought the commissioner court's approval for these supplemental payments.
Id.
II. The Questions
In light of these facts, you ask:
1. Is the Frio County [TAC] authorized to award additional
(extra) compensation beyond the salary approved by [the]
ISee Letter from Honorable Hector M. Lozano, Frio County Attorney, to Honorable Greg Abbott, Attorney
General of Texas, at 2 (Dec. 26, 2007) (on file with the Opinion Committee, also available at http://www
.texasattomeygeneral.gov) [hereinafter Request Letter].
The Honorable Hector M. Lozano - Page 2 (GA-0639)
Commissioners Court to her deputies from the monies ($5.00)
collected from the Certificate of Title Act, Section 501.138[,]
Transportation Code?
2. Whether Ope Atty. Gen. 1951 No. V-1294 provides a sound and
binding legal basis for providing extra compensation to salaried
deputies of the Frio County [TAC]?
3. If the Frio [County TAC] is authorized to provide additional
compensation to her deputies from the monies collected from
the Certificate of Title Act, must she obtain approval of the
Commissioners Court? What procedure must be followed?
4. If the Frio County Treasurer receives a request for extra
compensation from the Frio [County TAC], ... must the Frio
County Treasurer present this matter to [the] Commissioners
Court for [its] approval prior to making the disbursement?
Id. Your questions require consideration of (1) the disposition of fees in a county that compensates
its officers on a salary basis and (2) the roles that a county officer, the county treasurer, and the /
commissioners court play in compensating the county officer's employees in such a county.
III. Applicable Law
Article XVI, section 61 ofthe Texas Constitution generally requires most district and county
officers to be compensated on a salary basis. TEX. CONST. art. XVI, § 61(a). For counties with a
population less than 20,000, such as Frio,2 the constitution allows the commissioners court to
"determine whether county officers shall be compensated on a fee basis or on a salary basis." Id
§ 61(c). You inform us that the Frio County Commissioners Court "has determined that [county]
officers and employees shall be compensated on a salary basis rather than a fee basis." Request
Letter, supra note 1, at 1.
The purpose of article XVI, section 61, enacted in 1935, was to abolish the fee system of
compensating specified officers and to place them on a salary basis. Wichita County v. Robinson,
276 S.W.2d 509, 513 (Tex. 1954). Important here, the "fees of office" of county officers subject to
article XVI, section 61 belong to the county and must be '''paid into the county treasury for the
account of the proper fund.'" Id. (quoting Settegast v. Harris County, 159 S.W.2d 543, 544 (Tex.
Civ. App.-Galveston 1942, writ refd)); see also State v. Glass, 167 S.W.2d 296, 299 (Tex. Civ.
App.-Galveston 1942) (same), writ rel'd, 170 S.W.2d 470 (Tex. 1943). In a county compensating
its officers on a salary basis, "[a]11 fees earned by district, county and precinct officers shall be paid
2Frio County's population in the last preceding federal census was 16,252. See U.S. CENSUS BUREAU, UNITED
STATES CENSUS 2000, available at http://quickfacts.census.gov/qfd /states/48/48163 .html (last visited June 27, 2008).
The Honorable Hector M. Lozano - Page 3 (GA-0639)
into the county treasury where earned for the account of the proper fund." TEX. CaNST. art. XVI,
§ 61(d); see also TEX. Lac. Gav'T CaDE ANN. §§ 113.021(a) ("The- fees, commissions, funds, and
other money belonging to a county shall be deposited with the county treasurer by the officer who
collects the money."), 154.003 (requiring district, county, and precinct officers paid an annual salary
to "dispose ofthe collected money as provided by Subchapter B, Chapter 113") (Vernon 2008).3 The
constitutional "proper fund" for fees of office, called the "appropriate special fund" in the statutes,
"is the applicable salary fund created under Chapter 154." TEX. CaNST. art. XVI, § 61(d) (requiring
fees earned by district, county and precinct officers to ,be paid into the county treasury "for the
account ofthe proper fund"); TEX. Lac. Gav'TCaDEANN. § 113.021(b) (Vernon 2008) (stating that
for depositing fees "collected by an officer who is paid on a salary basis, the appropriate special fund
is the applicable salary fund created under Chapter 154"). Thus, county officers' fees of office are
generally required to be deposited in the county's salary fund.
Under chapter 154 ofthe Local Government Code, a county's salary fund is used to pay "(1)
salaries of district, county, and precinct officers; (2) salaries ofthe officers' deputies, assistants, and
clerks; and (3) the authorized expenses of the offices of those officers." TEX. Lac. Gav'T CaDE
ANN. §§ 154.023(a) (Vernon 2008) (counties with a population of 190,000 or less); 154.042(a)
(counties whose population exceeds 190,000). The county treasurer disburses county funds,
including the county's salary fund, but only "as required by law and as the commissioners court may
require or direct." Id. § 113.041(a). Thus, the commissioners court is ultimately responsible for the
proper allocation of county money in the salary fund to the payment of county officer and employee
salaries and expenses. Id. §§ 113.041(a), 154.023(a).4
The commissioners court is required to set the amount ofcounty compensation for its officers
and employees as part of the county budget approval process. Id. §§ 152.011, .013. And the
commissioners court's fiscal responsibilities require it to "audit and settle all accounts against the
county and [to] direct the payment o/those accounts." Id. § 115.021 (emphasis added). Thus, the
county treasurer, under the direction of the commissioners court, disburses county funds to
compensate county officers and employees. See id §§ 113.041(a), 115.021. 5
The Local Government Code authorizes "an officer in a county with a population of 190,000
or more [to] draw checks on the county treasurer to disburse the funds as payment for a salary or
3As an ,exception to section 113.021(a), the tax-assessor collector may be subject to different procedures for
depositing money "prescribed by or under the Tax Code and other law." TEX. Loc. GOV'T CODE ANN. § 113.021(a)
(Vernon 2008).
4The commissioners court is responsible for the sufficiency of the fund and, at the end of the fiscal year, may
transfer any surplus in the salary fund to the general fund. Id §§ 154.006, .026, .046. Alternatively, a commissioners
court may decide to dispense with the county's salary fund and utilize the general fund instead. Id. § 154.007(a). When
that is the case, references to the "salary fund" in other statutes are to be understood as referring to the general fund. Id
§ 154.007(b).
5See also Tex. Att'y Gen. Ope No. JC-0370 (2001) at 2-3 (determining that commissioners court has
nondelegable duty to approve county payrolls and issue warrants for their payment).
The Honorable Hector M. Lozano - Page 4 (GA-0639)
expenses authorized by law." Id. § 113.047. But, as this office has previously observed, for counties
whose population is less than 190,000, no statute authorizes a county officer or entity other than the
commissioners court to payor direct the county treasurer's disbursement of county funds for
employee compensation. See Tex. Att'y Gen. LO-95-002, at 1 (concluding that the commissioners
courts in counties whose population is less than 190,000 have sole authority to approve payment of
employee salaries).
Thus, to summarize, the fees of office of county officers subject to article XVI, section 61
ofthe Texas Constitution must be deposited in the county officers' fund (or the county general fund);
monies in such funds may be disbursed by the county treasurer only upon approval by, and at the
direction of, the commissioners court. And in counties whose population is less than 190,000, such
as Frio, county officers other than the commissioners court are not authorized to payor direct the
county treasurer to pay county funds as employee compensation.
IV. Analysis
Your first question is whether the Frio County TAC is authorized to award the fee collected
under section 501.138 ofthe Transportation Code to the TAC' s deputies as compensation in addition
to the salary approved by the commissioners court. Request Letter, supra note 1, at 2. Section
501.138 directs the TAC to send "$5 ofthe (certificate oftitle application) fee to the county treasurer
for deposit in the officers' salary fund" without restricting or directing its disposition. TEX. TRANSP.
CODE ANN. § 501.138 (Vernon Supp. 2007). When the Legislature has determined that a particular
fee is not county money as a "fee of office" or otherwise not subject to commissioners court general
fiscal authority, the Legislature has said SO.6 The fee in Transportation Code section 501.138 is to
be deposited in the officers' salary fund. Id. The Commissioners Court, not the Frio County TAC,
has the general authority and responsibility to set employee compensation in the county budget and
to utilize monies in the county salary fund to pay salaries and expenses. See TEX. Lac. GOV'T CODE
ANN. §§ 113.041(a), 115.021, 152.011, 154.003 (Vernon 2008). To answer your first question, the
Legislature has not authorized the Frio County TAC to award the fee in Transportation Code section
501.138 to her employees as compensation in addition to their salaries approved by the
Commissioners Court.
In your second question, you ask if Attorney General Opinion V-1294 provides a basis for
awarding extra compensation to TAC salaried deputies. See Request Letter, supra note 1, at 2. That
opinion considered the propriety of a statutory provision allowing a TAC to receive a fee as
6See, e.g., TEX. Loc. GOV'T CODE ANN. § 154.005 (Vernon 2008) (authorizing certain officers to receive, in
addition to salary, certain fees such as a fee for performing a wedding ceremony or delivering an eviction notice); TEX.
T AX CODE ANN. § 23 .122(c) (Vemon 2008) (authorizing the TAC to retain interest generated by a prepayment escrow
account to defray the office's administration costs); Tex. Att'y Gen. Op. No. JC-0348 (2001) at 3 (concluding that Tax
Code section 23.122 was intended to grant the TAC autonomy with respect to retained interest, limiting the
commissioners court's general authority over county funds); see also TEX. Loc. GOV'T CODE ANN. §§ 113.021(a)
(Vernon 2008) (providing that TAC must deposit "money in accordance with the procedures prescribed by or under the
Tax Code and other laws"), 154.004(d)(I) (stating that the statutory prohibition against paying a county officer a fee for
services rendered does not apply to the fees and commissions that a TAC is authorized, to collect by law).
The Honorable Hector M. Lozano - Page 5 (GA-0639)
additional compensation for administering the Certificate ofTitle Act. See generally Tex. Att'y Gen.
Ope No. V-1294 (1951); Act of June 6,1955, 54th Leg., R.S., ch. 452,1955 Tex. Gen. Laws 1172,
1173 (amending article 1436-1, section 57 of the Revised Civil Statutes). Opinion V-1294
considered whether the fee could be paid to the TAC, not to TAC employees, and therefore is only
tangentially related to the issue ofcounty employee compensation. Moreover, the opinion concluded
that the statutory provision for a fee as extra compensation for the TAC did not offend article XVI,
section 61 ofthe Texas Constitution. See Tex. Att'y Gen. Ope No. V-1294 (1951) at 8. Three years
later, however, in 1954, the Supreme Court ofTexas held that the statute was unconstitutional to the
extent that it allowed the fee as extra compensation to a TAC compensated on a salary basis. See
Wichita County, 276 S.W.2d at 514 (also concluding that article XVI, section 61 of the Texas
"Constitution is not to be circumvented by calling the compensation additional salary or by providing
that the fees be paid into the salary fund and then paid out to the officer in a lump sum or
otherwise"). Thus, because the statute upon which Opinion V-1294 was "based was declared
unconstitutional, the opinion does not provide a valid "legal basis for providing extra compensation
to salaried deputies of the Frio County" TAC. See Request Letter, supra note 1, at 2.
Because a TAC does not have authority to award the certificate oftitle application fee to the
offices' employees, we do not answer your third question. Your final question is whether a county
treasurer must present a request from the TAC for extra compensation to the commissioners court
for its approval. See ide The county treasurer may not disburse county money "without a certificate
or warrant from an officer who is authorized by law to issue the certificate or warrant." TEX. Loc.
GOV'T CODE ANN. § 113.041(c) (Vernon 2008). As discussed above, in counties with a population
of less than 190,000, only the commissioners court has authority to approve payment of county
employee salaries. Under Local Government Code section 113.041 (d), "[i]fthe treasurer doubts the
legality or propriety ofan order, decree, certificate, or warrant presented to the treasurer for payment,
the treasurer may not make the payment. The treasurer shall Feport the matter to the commissioners
court for the court's consideration and direction." Id. § 113.041(d).7 Thus, a county treasurer.
receiving a request from the TAC for extra compensation for TAC employees must present the
matter to the commissioners court for its consideration and direction.
7Th ere are also constitutional limits on a commissioners court's authority to grant county employees
compensation not included in the county budget. For example, article III, section 53 ofthe Texas Constitution denies
counties the authority to grant "any extra compensation, fee or allowance to a public officer, agent, [or] servant ... after
service has been rendered." TEX. CONST. art. III, § 53. That provision precludes a county from paying its employees
a bonus unless the commissioners court has approved a bonus plan as part of a compensation before the services are
rendered. See, e.g., Tex. Att'y Gen. Ope Nos. GA-0562 (2007) at 3 n.5 (advising that "while the commissioners court
may accept donations for the purpose of prospectively supplementing the salaries of the district attorney's employees,
the funds may not be paid as a bonus for services previously rendered"); JM-1253 (1990) at 2-3 (opining that a "bonus
may be paid to a county employee only ifthe commissioners court has approved the bonus plan as part ofcompensation
before the services are rendered").
The Honorable Hector M.Lozano - Page 6 (GA-0639)
SUMMARY
A county tax assessor-collector is not authorized to award the
fee in section 501.138, Transportation Code, to office employees
as compensation in addition to their salaries approved by the
commissioners court. A county treasurer presented with a request for
such compensation must report the matter to the commissioners court
for the court's consideration and direction.
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee