Untitled Texas Attorney General Opinion ( 1970 )

May 5, 1970
Hon. Martin D. Eichelberger Opinion No. M- 624
District Attorney
McLennan County Courthouse Re: Disposition of the $1.00
Waco, Texas service charge collected
by county tax assessor-
collectors as authorized
by Article 6675a-11,
Dear Mr. Eichelberger: Vernon's Civil Statutes.
By recent letter you have requested an opinion from
this office in regard to the above stated matter. Accompanying
your request, you enclosed a letter from your county auditor,
and we quote from the auditor's letter as follows:
"There Is some disagreement between the County
Auditor and the County Tax Assessor and Collector
regarding the proper handling and accounting for a
$1.00 service charge now provided for the handling
and mailing of automibile license plates in McLennan
County.
"The Tax Assessor-Collector has been collecting
the service charge as provided in Article 6675a-11
but has not been reporting such collections to the
County Clerk and discharging himself from the
accountability by delivering such funds to the
County Treasurer and receiving therefor the County
Treasurer's receipt. Instead, the Tax Assessor-
Collector has been paying these moneys directly
to the Postmaster for postage to the extent of
the postage Incurred in the mailing of automobile
license plates, with the unused balance of collec-
tions being retained by the Tax Asstssor-Collector
for disposition at some later date.
"1. Is it permissable for the County Tax
Assessor-Collector to spend these funds for postage
by a method which excludes the approval of the
County Auditor and the Commissioners Court as well
-2984-
Hon. Martin D. Elchelberger, page .2 (M-624)
as the signature of the County Treasurer and the
County Clerk and the counter-signature of the
County Auditor which is normally required on other
payments by the county?
"2. Is the Tax Assessor-Collector required to
report service charges to the County Clerk and de-
liver the moneys to the County Treasurer for deposit
in the County Treasury?
"3. If Question One is answered in the affirma-
tive, is it within the scope and authority of the
County Auditor to require that such funds be de-
posited in the County Treasury and warrants be
drawn on the County Treasurer for the payment of
the postage and handling in connection with the
mailing of auto license plates if he deems it
necessary to the proper checking and accounting
of these fees?"
your question necessitates an analysis of Article 6675a-
11, Vernon's Civil Statutes, which was amended by the Texas Legis-
lature in 1969.
Article 6675a-11 is quoted as follows:
"As compensation for his services under the
provisions of this and other laws relating to the
registration of vehicles, each County Tax Assessor-
Collector shall receive a uniform fee of sixty-five
Cents (65k) for each of.the first five thousand
(5,000) receipts issued by him each year pursuant
to said laws; he shall receive a uniform fee of
Fifty-five cents (55qi)for each of the next ten
thousand (10,000) recei ts so issued. and.a uniform
fee of Fifty Cents (504P for each of the balance of
said receipts so issued,during the year. Said com-
pensation shall be deducted weekly by each County
Tax Assess&-Collector from~the gross collection
made pursuant to this Adt and.other laws relating
-2985-
Hon. Martin D. Eichelberger, page 3 (M-624)
applicant desiring to register or reregister by
mail. This service charge shall be used to cover
the cost of handling and postage to mail the regis-
tration receipt and insignia to the applicant. Th
Highway Department may issue and promulgate procedkes
to cover the timely application for and issuance of
registration receipts and insignia by mail." (Bm-
phasis added.)
The above quoted Article represents an amendment ~of
Article 6675a-11 by House Bill 768, Acts of the 61st Legislature,
1969, pages 1657 and 16.58.
Section 4 of said House Bill reads as follows:
"The fact that the number of motor vehicle
registrations made by the County Tax Assessors-
Collectors has steadily increased, and the fact
that labor and material costs and other adminls-
,trative expenses which are necessary in the is-
suance of such registrations have materially ln-
creased, and the fact that there has been no
Increase hin t e
11 t for performing this service . . .v
(&p``s~?added.)
Section 4 Indicates a general intent on the part of the
Legislature to increase the fees of the Tax Assessors and Col-
lectors to meet the ever rlslng costs of issuing license plates
over the counter or through the mall.
The percentage fee authorized to be collected was in-
creased by this amendment and the Tax Assessors-Collectors were
authorized to collect a $1.00 'service charge" In addition to the
percentage fees to cover costs of mailing the license plates.
The collection of "service charge" appears to be discretionary
with the Tax Assessors-Collectors since the Legislature provided,
"the County Tax Assess$rs-Collectors rns collect an additional
service charge. . . e , however, the use of such money is not
discretionary since the Legislature further provided:
"This service charge shall be used to cover
the cost of handling end postage to mall the regis-
tration receipt . . . (Bmphasls added.)
The mere legislative designation of the $1.00 charge as
a "service charge" rather than a 'fee" will not control the de-
termination of the character of the charge. ffreerv. Hunt County,
-2986-
Hon. Martin D. Elchelberger, page.4 (M-624)
249 S.W. 831, 832 (Ctmm.App. 1923, opinion adopted by Sup.Ct.),
wherein it was said . . . that merely calling the compensation
a salary or calling it commissions is not necessarily controlling."
Fees are defined as "compensation for particular services
rendered at Irregular periods, payable at the time the services
are rendered." See Wichita County v. Robinson, 155 Tex. 1, 276
S.W.2d 509, 513 (1955).
Article 6675a-11, when read as a whole, evidences an
intent to provide for an %ddltlonal service charge by the colifnty
tax assessors-collectors as compensation for his services.
This is clearly distinguishable from his salary compensation.
Article XVI, Section 61 of the Constitution of Texas,
provides, in part:
"All district officers in the State of Texas
and all county officers in counties having a pop-
ulation of twenty thousand (20,000) or more, accord-
ing to the then last preceding Federal Census, shall
be compensat,ed,ona salary basis. '. .'
"All fees earned by dlstrlct, county, and pre-
cinct officers shall be paid into the county treasury
where earned for the account of the proper fund. . .
The purpose of the above constitutional amendment was
to abolish the fee system of compensating the officers named and
to place them on a salary basis , and consequently as to all officers
on a salary basis all types of fees of office other than salary
would become mvable to the treasura out of which salaries are
paid. Wichita County v. Robinson, supra; Banks Administrator v.
State of Texas, 362 S W 2d 134 Tex. Civ. App. 1962 f)
State 170 S:W:2d 470 Tex. Civ. App. 1943: %zg Ezf:,'
lb7 S.W.2d 96 * Settegast v. Harris County, 159 S.W.2d 543
(Tex.Civ.Api. $2, error ref.).
It is our opinion that the service charge type of fee
must be handled in the same manner as the other fees collected
by the Tax Assessor-Collector pursuant to Article 6675a-11.
Such fees must be deducted weekly and deposited in the proper
fund of the county. See Attorney General Opinion No. O-5453
~;``~)f``;ling with the procedure for handling certificate of
.
In our construction of Article 6675a-11, we must give
effect to the rule that where a statute is subject to two
-29 8-l-
Hon. Martin D. Eichelberger, Page 5 (M-624)
constructions, one of which would~favor the claim that the
charge in question is a fee to be placed in the treasury and
the other to the contrary, the former construction must be
adopted. Modden v. Hardy, 92 Tex. 613,'50 S.W. 926, 928 (1899);
Allen v. Davis, 333 S.W.2d 441, 444 (Tex.Civ.App. 1960, no writ);
Eastland County v. Hagel, 288 S.W. 518 (Tex.Clv.App. 1926, error
ref.).
In the light of the above discussion.and conclusions,
we would answer your first question "No", and your second ques-
tion "Yes", and in light of our answer to your first two ques-
tions we believe the third question to be moot.
SUMMARY
Article 6675a-11 as amended in 1969 authorizes
an increase in fees for the Tax Assessor-Collector
including a $1.00 service charge for handling mall-
in orders. Such fees including the $1.00 fee must
be weekly deducted from the gross sales and accounted
for as a fee of office and deposited in the proper
county fund, and the expenses incurred paid as are
the other expenses of the
Ve
Prepared by James C. McCoy
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Acting Co-Chairman
David Longoria
Bill~Cralg
MEADE F. GRIFFIN
Staff Legal Assistant
ALFREDWALEER
Executive Assistant
NOLA WHITE
First Assistant
-2988-