Untitled Texas Attorney General Opinion ( 1942 )

OFFICE OF TNE A’ITORNEY GENERAL OF TEXAS
AUSTIN
s- 0.mAan
mTaeavQOUUS
Honorable L. L. RistJert8
county Auaifor
Iiutchlneon County
Stlnnett , Texas
Dear Sir:
"AHlo1e 6674q
utm any moneys out of.:t
<
lowed by ths Commiesioaers* Zourt for 0th~ !
county funds7 a
Articles 1709, 3941, 3948 and 3943, Vernon'8 AMOP
tated Texse.Civil Statutes, read as follow6r~
Honorable L. L. Robortr, Page e
*Art. 1709. The county treasurer shall
reaeive all moseys belongl~ to the aounty from
whatever aoume they may be dsrived, and’pay
and appl.y,ths ssme as required by law, in suoh
IpcLIuIer
as the oomaissloners oourt o? his oounty
may require and airrot.
*Art. SQ41. Tha oounty tre6surar shall
reoelre oommlsslons on the moneys reoeivsd and
paid out by him, said oomsissio~s to be fixed
by order of ths OaPrmLluSionerSOourt as tollms:
Bor raosiviA6 all moneys, other than sohool
funde, for the oountp, not exceeding two and
one-half per oent, and not sxoesdina two and
one-halr per oent ror paying out the same;
provided, Mstt he shall reaeiro AD oonmissions
for reosiving money frcu-6his predeosssor nor
for paying wep money to his suooessor in
OtflCe.
"Art. 3942. The treasurers of the sereral
oounties shall be treasurers of the available
jmblio frea school. fund aad also of the perman-
ent oounty school fund Sor their nspeotire
0 ountl es. The treasurers of the several oouA-
ties shall be allowed for reaelving and dls-
bursing the sohool funds one-halr of on6 per
OttAt for reoelvlng, ana one-hati:oi 0130 per
OSAt for 8&3bU~SrriA~, said COmraiSsi~M to be
paid out of the available sahool fund of the
oountyi provided, no CAmmlssions shall be paid
ror reoei~l~g the balanoe transmitted to him
bg his pradedessor, or for turnlag over'the
balaaoe in-~h%s hands to his 8uooes8or; and pro-
*ided, that he shall rsoeiva AO oeuamiasions on
monsy transferred.
"Art. 3943. The oommissions allowed to any
County Treasurer shall not exoesd Two Thousand
Dollars ($2,000) aAntlally.yt provided, that iA
s3.l OOUAtiSS In *hIoh the assessed value oi the
property of suoh oountles shall be One Hundred
&Jllllon Dollars (Q100,000,000) or more as'shown
by the prsosdlng assessment roll, the Treasursrs
thereof shall receive as their commissions a
SUBI not exoeeding Two Thousand, Seven Hundred
.Dollars ($2,700) annually; . . l .*
95
Honorable L. L. Roberts, Page 3
Jirtiole 6674q-Bo. Veraoa's AAnotated Tens Clril
Statutes, reads as r0ii0tt8t
*It shall be unlawful for any County Judge
or any County Conmissloner, while aotiAg in his
offloial oapaoity or otherwise, to use any
money out of the Lateral Road Aooeunt for any
purpose emept the purpases lAUserated in this
Aot . I? any County Judge or Amy County Commis-
SiOAW Shall kOOrin&y @X&WUld Or US@, OX' Vote
for the use or agree to expend or use any sum
of mosey aoorui~g to any county in this State
Omn the lateral Road Aooount, for any purgose
not authorized by this Aot or shall kpowlngly
make any falss statement aoncernlng the elpen-
dlture of any suoh money, he shall be deemed
guilty of a felony and upon oonviotioo shall
be punishsd by eonflnement iA the State PeAi-
tentia for not less, than two (2) nor more than
rive (57 years."
Opinion No. O-lob8 Of this departm6iAt held that the
County Treasurer of a fe6 county was satitled to rsoeioe ocis-
missions for reoeiring and disbursing monies reoelred tram
the Bedsral Ooverment and onmoniee red.lMd from the eaxs
of aountp bonda issued for the purpoee ot conatruoting a
oounty jail. We quote from said opinion as follower
"The money she (referring & the County
Treasurer) has reoelred from the Federal Gsv-
ernmaAt, wa8 l videAtly,a dlreot girt or grant
to the oounty for.the purposs of defraying a
part of the expense inourred by ,the county in 4
';:
t
i building~a jail. fr 80, it beosme ooaulty ruAd8
and for r~osiving and paying it out, she is
entitled to reoeive the oommlsslo~ f’ixed 1A
the eourtts order. The money reaeived tran the i
sale of the 3ai.lbonds are likewise OOUnty
funda for which ah6 is entitled to ~eoelvs the i
~.* atated oommlsslon for rsoelvlng end disbursing
them. Z)resltlloCsuotp 0, Walker, (Sup. Ct.)
69 S.W. 97; Wall Y. McConnell, 65 Tex. 397;
Trinity County v. Vlokary, 65 Tex. 354; Bastrop
County Y. Hearn, 70 Tex. 383, 6 S, W. 302."
Hoh@rabls L. L. Robert*, Page 4
It ie true that the act referrad to in Artlole
6674q-80, V. A. C, S., supra doea not ilpnoifiaally in so
mtmy words authorize ~omabs i ona to the County Treasurer
for reoeivlng and disbur8ing fund8 and the striat letter of
suah statute would apparently prohibit the Treaeursr in a
fee oounty from reosloing oo``1ls63lon~for rooc4iving and
dlabuming suoh funds. However, there ie 8 w8bu known rule
of statutory oonrtruotion whiah we Qaemapplicable to this
eituatlon. In the oama of Uel@h v. State, 14S 5. W. (2d)
690 (writ refuaed), this rule of statutory oonrtruotion was
applied. In the P&oh cam the pleintiffm sued the State
far the tort of the Btate*s agent for the Wrongful death
of plaintiffa* &w&tar, a mlnori plaintiffs oontended that
the term %unloipel corporation 7 in the wrongful death stat-
ute (Article 4671) inoluded the Stata and that therefore
the Stats was liable. We quota Iran the court'0 opinion
a6 followst
While In a latitudinoum taense the State
may be found within the letter of the phmre
'munioipal corporation.' Yet, a6 gsnerally
ursd In law literature and legislation, we do
not think euah 18 truei srpsolally, in view
of the elsarly indioatad eonrtitutlonel men-
lng of the phram, we do not think It 16 true
with reference to legislation in thl8 State.
We think the situation here is soaewhet analogous to
the right of the Treasurer to rocsive oonmissione on monies
received and disbursed from bond issues. The oourts hers
..-.
97
Honorable L. L. Roberts, Page 6
held repeatedly thet 8uch bond monis8 sgst be faithfully
a?plled to the purposes for whloh t$e9 wem voted and mis-
ed, yet it bar been un.lf0rml.yconosded and bald as pointed
out in opinion No. O-1088, supra, that the County Treas-
urer in a ree dounty is entitled to his statutory oommls~
sions on same.’ Tae paying out of tha Trezwurer~s consui~-
sions is not em unlawful diversion of the funde of the bond
money but is merely a statutory 8harge BgafI&st said fund to
compensate’the Treasurer for handling sazne. ‘:,
St’18 our opinion that %h%le the purpose of
Artiale 6674~410, V. A. C. S., SUpm, 18, to provent un-
lawful diversioncr froze the Lateral F&I AOOount for pur-
;;osesnot authorized by the sot suoh artlole doer not
oonteaplate the denial and prohibition Of the statutory
con``issio~ of the oounty Tneesurer in e fee county for re-
ceiving and disbursing suoh funds.
It is thereforr our opinion that your question
should be answered In the erfiraative, and it is so ens-
wored.
Very truly youre
ATTORNEY OElcERAL 09 TEXAS
.