Untitled Texas Attorney General Opinion ( 1945 )


Menu:
  • GROVER SELLERS
    Honorable Roscoe Runge
    District Attorney
    33rd Judicial District
    Mason, Texas
    Dear Sir:                  .Opinion No. O-6736
    Re: Under the provisions of Senate
    Bill No. 123, Regular Session,
    Forty-ninth Legislature, is the
    Commissioners~ Court of
    Gillgspie County authoriied,to
    allow the dssessor-Collector to
    retain kn increase in his salary?
    And related question.
    We acknowledge receipt of'your request for an opinion on the
    above questions, said request reading as.follows:
    "Kindly give me your opinion on questions pertaining to
    recently enacted Senate Bill No.,l23; which reads in
    part, as followsi
    "'BE IT EXACTED BY TRE LEGISLATURE OF THE STATE OF TEEAS:
    nrSection 1. That Artiole 3891, Revised civil Statutes
    of Texas, 1925, as emended, be and the same is hereby
    amended by adding thereto the following:
    "r (a) The Commissioners Court is hereby authorized when
    in their judgment the financial condition of~the cquntg
    and the needs of the officers justify the increase, to
    enter an order increasing the compensation of the preoinct,
    county and ,district officers in an additional amount not
    to exceed twenty-five (25%) per cent of the sum allowed
    under the law for the fiscal year of 1944, provided the
    total compensation authorized under the law~for the fisoal
    year of 1944 did not exaeed the sum of Thirty-six Bundred
    ($3600.00) Dollars.*
    "The questions are:
    "(a) Is the Commissioners *'Court of Gillespie County
    authorized under S. B, #123, to allow the Assessor and
    Collector of Texas to retain an increase, up to 25% of his
    I   =
    1,   ‘-;
    Hon. Rosooe Runge, page 2,0-6736
    salary for 1944, which was $3,000, from the excess
    fees of office which remain upon oompiletion of his
    annual fee report and which up to this time were paid
    into the County Treasury as excess fees of office?
    "@I   Since Gillespie County remunerates its officials
    on the fee basis, will it be permissible for the Com-
    missioners' Court to order the increase of salary es of
    May 9, 1945, the effective date of S. B. #123?"
    In connection with said request, we also have a
    letter from Honorable Wm. M. Petmeoky, President of the Tax-
    Assessors and Collectors Association of Texas, as well as
    Assessor and Collector of Taxes of Gillespie County, from
    which we quote as follows:
    "The first question is in regard to paying the increase
    out of excess fees. In other words for illustration,
    last year after making my annual fee report my oompense-
    tion permitted me totaled 963,000. I ~then had about
    @202.00 excess fees remaining whichwere paid into the
    County Treasury. My question is whether the Court may
    allow me to retain up to 25$, which would be $750, out
    of these excess fees? It is my opinion that the Court
    could do this as S. B. #123 directs the total compensation
    may be increased and I would think this the most ,feasible
    way to do it for officials on the fee basis.
    "In regard to the second question, as to the date the
    Court might order the increase effective for officials
    on the fee basis, I would think the order could date to
    May 9, 1945. My reason for this is that offi~oiels on
    the fee basis do not actually know until the end of the
    gear what their fees will be and they oennot figure
    their remuneration until then. For that reason I would
    hold that the increase could be declared effective as
    of May 9, 1945, sinoe this would not be beck peg for
    officials on a fee basis. In your opinion to officials
    of counties on salary basis you held that Seotion 44,
    Article 3 of the State Constitution did not permit in-
    areese of compensation for months passed. Woulclnvt the
    fee arrangement be entirely different fromthet  of a
    definite set seleryTv
    Article 3883, Vernon's inotated    Civil Statutes, subdivision
    1, provides in part as follows:
    ."In counties containing twenty five (25,000) thousand
    or less inhabitants:   County Judge, District or Criminal
    District Attorney, Sheriff, County Clerk, County Attorney,
    District Clerk, Tax Collector, Tax'Assessor, or the
    Assessor and Collector of Taxes, Twenty-four Hundred
    Hon. Roscoe Runge, page 3, O-6736
    (qb2400.00) Dollars each; . . .a
    Artiole 3891 of said statutes is in pert es follows2
    "In counties containing twenty-five thousand '(25,000)
    or less inhabitants, District and County officers named
    herein shall retain one-third of such excess fees until
    such one-third, together with the amounts specified in
    Artiole,,38839 amounts to Three Thousand Dollars ($3,000)
    . . . .
    Senate Bill No. 123 is in part es follows:
    "Section 1. That Article 3891, Revised Civil Statutes
    of Texas, 1925, as amended, be and the same is hereby
    amended by adding thereto the following:
    "*(a) The Commissioners Court is hereby authorlied,
    when in their judgment the financial condition of the
    county and the needs of the officers justify the increase,
    to enter an order increasing the compensation of the
    precinct, county and district officers in an additional
    amount not to exceed twenty-five (25%) per cent of the
    sum allowed under the law for the fiscal year of 1944,~
    provided the total compensation authorized under the law
    for the fiscal year of 1944 did not exceed the sum of
    Thirty-six Hundred (Qb3600.00) Dollers.cs
    The above quoted provision of Article 3883 authorizes the
    Assessor and Collector of Taxes '       of Gillespie County to
    retain from the fees collected by him the sum of $2,400.00 es
    his annual compensation. The quoted provision of Article ~3891
    authorizes him to retain from one-third of the excess fees
    collected by him an additional sum until such sum, added to the
    amount specified in Article 5883, amounts to $3,000.00, which
    would be the aum of $600.00. The quoted amendment of said
    Article 3891 by Senate Bill No. 123 authorizes the Cotnmissionersr
    Court, in their distiretion and when~ in their judgment the
    financial condition of the county end the needs of the Assessor
    and Collector of Taxes justify the increase, to enter an order
    'koreasing his annual compensation in an additional amount not
    to exceed 25% of the sum allowed under the law for the fiscal
    year 1944, provided the total compensation authorized under the
    law for the fiscal year of 1944 did not exceed the sum of
    #3,600.00.  This increase, however, if authorized by the Com-
    missioners' court and required to be paid from fees of office
    only, would have to be paid from one-third of the excess fees
    over and above the excess fees necessary to authorize a compen-
    sation of $3,000.00.  In other words, the base pay of the
    Assessor and Collector of Taxes of Gillespie County is $2,400.00.
    .   .
    Hon. Roscoe Bunge, page 4, O-6736
    If he we8 paid $3;000.00 in 1944, the Commissionersr court is
    now authorized to allow him as much es $3,750.00 under the
    provisions of Senate Bill No. 123; but, if all of then
    compensation over and above $2,400.00 is to be paid from
    exo6ss fees only, it must be paid from one-third of the'excess
    fees as no change has been made in the original provisions of
    Articles 3883 and 3891.
    Mr. Petmecky is in error in the contention made by him that,
    if Senate Bill No. 123 had been in force and had applied to
    his salary for 1944 and he had had $1,202.00 in excess fees
    remaining after having deducted from such excess fees an
    amount sufficient for him to be paid compensation of $3,000.00,
    the Commissioners* Court could have authorized him to retain an
    additional sum of $750.00 from said $1,202.00 in order to make
    up the total sum of $3,750.00 authorized by Senate Bill No.
    123. He had already retained the one-third of said excess fees
    required to raise his compensation to $3,000.00, and the remain-
    ing two-thirds of said excess fees belonged to the county. In
    order for him to have been paid the additional~ sum authorized
    by Senate Bill No. 123 from fees of office only, he would'have
    had to have collected additional excess fees over and above the
    remaining .$1,200.00 and from these additional excess fees he
    could have retained only one-third until he had retained the
    additional sum of $750.00, if authorized by the Commissioners~
    Court, or such part thereof es the Commissioners' Court might
    have authorized.   In other words, if such increase in campensa-
    tion was to have been paid from fees of office only, before he
    could have retained the additional sum of 96750.00 authorized
    by Senate Bill No. 123, he would have had to have colleoted an
    additional $2,250.00 in excess fees over and.ebove the amount
    he had to collect in order to be paid the $3,000.00 oomp&setion
    from fees of office only.
    This rule will apply, however, only to oompensetion for 8 full
    year and where all of said offioiel~s compensation is paid from
    fees of office. If any part of said compensation is'not paid
    from fees of office, but is paid es ex officio oompensation,
    then.you are referred to the rules of law set out in our
    Opinion No. O-6749, a copy of~which is enclosed herewith.
    gx officio compensation is neither e fee of offiae nor an
    excess fee. Every service a county officer is required by law
    to perform,,for which no fee or charge is specified; is an ex
    officio servioe, for which the Commissionersf.Court, in its
    discretion, may allow ex officio oompensation, payable out of
    the General Pund of the county.
    By way of illustration of the rules of law above announced, we
    refer you to the following examples:
    If the fees collected in one year are sufficient to pay only
    .   _
    Hon. Roscoe Runge, page 5, O-6736
    the base compensation of $2,4OO.OO~allowed under Article-
    3883, together with the salaries of assistants and deputies
    and all authorized expenses, the Commissioners* Court, under.
    said rules of law, has authority to allow ex offioio compen-
    sation In an amount sufficient to make up the maximum amount
    that could be paid under Senate Bill No. 123 to-wit,
    $3,750.00, or an ex officio compensation of b 19350.00, or such
    part thereof as said court may determine.
    If the fees collected in one year are sufficient to pay the
    base compensation of $2,400.00 allowed under Article 3883,
    together with the salaries of assistants and deputies and all
    authorized expenses, and there remains $1,800.00 additional in
    excess fees, said official would be entitled to retain one-
    third, or $600.00, of said excess fees in addition to the base
    compensation of $2,400.00, making a total of $3,000.00 retain-
    ed by him from fees of office. The Commissioners' Court would
    then be authorized to allow him ex officio compensation in an
    amount sufficient to make up the maximum amount that could
    be paid under Senate Bill No. 123, to-wit, #3,750.00, or an
    ex officio compensation of $750.00, or such part thereof as
    said court may .detsrmine.
    If the fees collected in one year are sufficient to pay the
    base compensation of $2,400.00 allowed under Article 3883,
    together with the salaries of assistants and deputies end all
    authorized expenses, and there remains #4,050.00 additional
    in excess fees said official would be entitled to retain
    one-third, or 4 1,350.00, of said excess fees in addition to
    the base compensation of #2,400.00, making a,total of $3,750,
    00 retained by him from fees of office. In this event the
    CommissionersP Court could not allow .My ex offioio oompen-
    setion and, if ex officio compensation had been allowed end
    paid in any amount, the official receiving same would be
    liable to the county for repayment thereof. See Taylor et al
    vs. Brewster County, 144 S. W. (2d) 314, writ dismissed.
    Article 3, Section 53 of the Constitution of Texas, is es
    follows:
    "The Legislature shall have no power to grant, or to
    authorize any county or municipal authority to grant,
    s;,;;;ra   oompensetion, fee or allowance to e public
    agent, servant or contractor, after service
    has bee; rendered, or a contract has been entered into,
    and performed in whole or in part; nor pay, nor authorize
    the, payment of, any claim created against any county or
    municipality of the State, under any agreement or
    contract, made without authority of law."
    In view of this provision of the Constitution, it is our
    opinion that, if the Commissioners 1 Court of Gillespie County
    Hon. Roscoe Runge, page 6, O-6736
    decides that the compensation of the Assessor and Colleotor
    of Taxes of saLd county should be increased under the rules
    of law above set forth, any increase thereof for the year
    1945 must be in the proportion as the balanoe of the year
    1945 relates to the total annual increase that may be allowed
    under Senate Bill No. 123. If the annual increase of $750.00
    should be allowed and the order is made on August 1, 1945,
    then the increase would be 5/12ths of the $750.00, as the
    compensation for the months already passed cannot be increased.
    Yours very truly,
    ATTORNEY GWERAL   OF TEXAS
    s/ Jas. W. Bassett
    BY
    Jas. W. Bassett
    JWB:LJ/cg                                       Assistant
    encl.
    APPROVED AUGUST 13, 1946
    s/ Carlos C. Ashley
    FIRST ASSISTANT ATTORNEY GENERAL
    Approved opinion committee
    By BWB, Chairmsn
    

Document Info

Docket Number: O-6736

Judges: Grover Sellers

Filed Date: 7/2/1945

Precedential Status: Precedential

Modified Date: 2/18/2017