Untitled Texas Attorney General Opinion ( 1967 )

RNEY GENERAL OFTEXAS. September 14, 1967 Honorable Robert S. Calvert Opinion No. M-133 Comptroller of Public Accounts Austin, Texas Rer Constructionof Section 6 of Article 3912e, Vernon's Civil Statutes (providing for apportionmentfrom the State to the various counties) fn view of the provisions of Section 2 of House Bill 80, Acts of the 60th Le islature, Regular Session, 19t7, Chapter Dear Mr. Calvert: 681, Page 1789. Your request for an opinion on the above subject matter reade aa follows; "The Comptrollerwould like your offlclal opinion concerning the proper method of apportionmentof state appropriationsto the Officers Salary Funds under Artl- cle 3912(e),' Previously, in lieu of the payment of fees or commissionsto county officials,the State of Texas would pay an apportionmentbased on the population of the county to the county for the services rendered the State by the county. However, the 60th Legislatureadopt- ed H.B. 80 providing for fees to be paid county clerks and county recorders. The Bill provided as follows: "'And the fees provided for county clerks and all other laws, and parts of law, in aonfllct with the provisions of the Act are hereby repealed as to county clerks, including but not limited to: . . . sections 1 through 7, Chapter 465, Acta of the 44th Legislature, Second called ,.' Seiwion, 1935, as amended (Articles3912er ; Vernon's Texas Civil Statutes).' "Apparently,,the Legislative intent was to remove the County Clerk from the benefits of the apportionment of Article 3912(e) and to provide for payment of fees in lieu thereof. Inasmuch as Article 3912(e) was changed * Bon; Robert S ,Calvert,page 2 (M-133) 'wlthout~ being re-enaoted or published at length and without the Leglelatureproviding a method by which the apportionment,may be made to exclude the,county clerk, may the Comptrolleradministrativelyadopt a method for such an apportionment? If 80. .lsthe following method authorized: ., : ,_. i ,‘, '-fore ,eaohquarterly apportionment ,I 'y ,’ paymentcould _ -, be made by the State, the Chni@roller~'nould reqthe a, refund,~ iron! the.countg of that portion .ofthe county alerk's or oounty recorder’s salary fund which would normally have been paid from State funds.. The amount of.refund is to be'determl,nedby deducting a percentage, from the county,clerk's or county recor’d- er's ,offlcerssalary. Such percentage Is to be derived by ~multlplyingthe sa1ary.b~ the ratio of the State appropriationto the total Officer's Salary Fund.(the State apportionmentwould be the numerator and the Offlcerls total Salary Fund would be the denominator). Such refund to be,made to the State by the Commissioner'sCourt ,' " on or before the last day of February, May, August and November of each year (approximatelythirty days after each quarterly apportionmentby the State)." Section 2 of 'HouseBill 00, Acts of the 60th Legislature, Regular Session, 1967, Chapter 681, Page 1789, reads In part: "Article3930a, Revised Civil Statutes of Texas, '1925, as added by Section 1, Chapter 495, Acts of the 57th Legislature,Regular Session, 1961, Is repealed; and the fees provided for County Clerks in all other laws, or parts of laws, In conflict with the pro- visions of this Act are hereby repealed as to County ??lerksonl lncludln but not limlted to8 Section 10(b) Cha$er 340 A%e of the 49th Legi-slature, Regul& Session, l$I (Article 912a-10, Vernon's ~' z!xas Civll'Statutes; Sections 1 through 7, Chapter Acts of the 44th Legislature,2nd Called Session, x95$, as amended (Article 3912e, Vernon's Texas Civil Statutesl_;. . . .- (Emphasisadded,) Section 1 of ,HouseBill 80 amends Article 3930, Revised .615'- : Hon. Robert 8. Calvert, page 3 (M-133) :' Civil Statutes of Texas, 1925, as amended, so as to pr6vlde the fees that the oounty clerks and county recorders are "authorlxddand re- qulred to collect . for services rendered by them to governmentalagenclea and/or governmentalrepreeentatlves:" Item 9 of the approprlatlonfor the year ending August 31, 1968, to the Judiciary Section of the ComptrollerDsDepartment reads as follows: "ApFortlonmentto counties where county officers are paid salaries (Chapter 465, Section 6 (a), Second Called Session, Acts, Forty-FourthLegislature). Should any county by election of the Commissioners Court, ahange from a salary to a fee basis, the Comptroller shall make adgustmentsIn the approprfa- tions by transferringthe correct amount from this appropriationto the appropriationmade for paying fees and costs of sheriffs and other count officials ...'.~.D....0*...~..*.*~...**.~e.~.....``~ 612,586" a: The pre-existing law for the above quoted Item of appro- priation Is Section 6 of Article 3912e which provides: "Sec. 6. (a) Incounties wherein the county officials are on a salary basis, In addition to the monies deposited In said Officers" Salary Fund or funds under the provisions of Sections 1, 3 and 5 ?p this Act there shall be deposited therein quarterly on the first day of January, April, July and October of each year, such sums as may be apportionedto suah county under the provisions,ofthis Act, out of the available approprlatfonsmade by the Legislature for such purposes, provided, however, that in counties whereln the Commissioners'Court ,lsauthorized to determine whether county officers shall be compensated on a salary basis, no apportionmentshall be made to such county until the Comptrollerof Fubllc Accounts shall have been notified of the order of the Com- missioners' Court that the county officers of such county shall be compensatedon a salary basis for the fiscal year, and In that case the first quarterly pay- ment of such apportionmentshall be made in fifteen (15) days after the receipt of such notice by the Comptroller,and the remaining payments on the 'dates hereinabove prescribed. It shall be the duty of the Comptrollerof Public Accounts to annually apportion to all counties in which the county officers are to be compensatedon the basis of a salary any monies, ap- proprfated for said year for such apportionment:each county entitled to participate In such apportlo~ent . HOti. Robert S. Calvert, page 4 (M-133) shall"reoelvefor the benefit of Its Offloer'a Salary Fund or funds Its proportionatepart of the appropria- tion which shall be distributedamong the several counties entitled to participatetherein, on the basis of the per capita population of each county according to the last preceding Federal Census; provided that the annual apportionmentfor such purposes shall not exceed fourteen (149!)cents per capita of said popu- lation of each county where county officers are com- ~;;&;g on a salary basis under the provisions of Provided that in all counties,whlohhad a populatl& of less than sixty thousand (60,000) ln- habitants in 1930 according to the last preoedlng Federal Census and which now have ad valorem valuations for all purposes according to'the last approved tax roll of such county, which have Increasedat least fifty (50) per cent over the valuatloh for 1930, the amount to be paid to each of said counties for its salary fund shall be the sum not to exceed twenty- five (25#) cents per capita based on the 1930 popu- lation. The quarterly payment of such apportionment of such appropriationshall be mad,eon warrants drawn by the State Comptrollerupon,the State Treasury payable to the county treasurer of the'oounty In whose favor the apportionmentIs made and said warrants shall be~regis- 'teredby.the Comptroller.and the Treasurer and shall be mailed by the Comptrollerto the Treasurer of the county. "(b) No officer receiving a salary shall hereafter receive any ex offlclo compe&ation; provided, however, the Commissioners'Court shall transfer from the General Fund of the county to the Officers' Salary Fund or funds of such county such funds as may be necessary to pay the salaries and other claims chargeable against the same when the monies deposited therein are lnsufflclent to meet the,clalms payable therefrom. F(c) Any monies remaining In the Officers' Salary Fund or funds of any county at the end of any fiscal year after all salarles and authorized expenses Incurred against said fund for said year shall have been paid may be, by order of the Commissioners'Court, trtnsferred to the credit of the aeneral Fund of the county. Section 6 of Article 3912e does not provide any fee for the county clerk and Is not In conflict with any provision of House Bill 80, Acts of the 60th Legislature. The provisions of Article -617. Hon. Robert S. CalvePt, Page 5 (M-1331 3912e in eonfllct with the provisions of House Bill 80 are Sections 1 and 3 rather than 2, hlr, 5, 6 and 7. Therefore, it 1,sour opinion that Section 6 of Article 3912e has not been repealed or .amendedby the provlslons of House Bill 80, Acts of the 60th ,Leglslature. You are therefore advlsed that the countles~wlll,tiontlnue to receive the apportionmentfrom the State, appropriated~:bgItems9 of the Judlclary Section of the Comptroller'sOffice, Andythe' Comp- troller Is to continue to make the apportionmentprovfded for in Section 6 of Article 3912e. SUMMARY House Bill 80, Acts of the 60th Legislature, Regular Session, 1967, Chapter 681, Page 1789, re- lating to fees to be charged by county clerks does not amend or repeal Section 6 of Ar%fcle 3922e9 Vernon's Civil Statutes, rela'tingto apportfonment by the Sta%e to the varfous e Att&ney General of Texas. Prepared by John Reeves Assistant Attorney General APPROVED: OPINION COMMITTEE Hawthorne PhlPllps, Chalrman Kerns Taylor, Co-Chairman W. V. Geppert James Broadhurst Alan Minter Jack Sparks Marvin Sante11 Ae J, CARUBBI, JRRO STAFF LEQAL ASSISTANT