Untitled Texas Attorney General Opinion ( 1939 )

TE~~A~~~RNEY GENERAL
OFTEXAS
Honorable Richard 3. Morris
County Attorney
Armstrong County
Claude, Texas
Dear Sir: Opinion No. O-1153
Re: Under the facts set forth should
the sheriff report es fees of of-
fice the compensation he receives
as tax collector for the Claude
Independent School District? If
so, what is the proper method of
adjusting the error of not having
reported such fees for the years
1936, 1937 and 1939
Your request for an opinion on the above stated ques-
tlons has been received by this office.
Your letter reads, in part, as follows:
"In Armstrong County, having a population
of 3';329,the Sheriff also acts as Tax Asses-
sor and Collector for the State and County.
For convenience herein this officer will be
hereafter designated as the sheriff. The pre-
sent in cumbent assumed the duties of this of-
fice January 1, 1935. There are three lnde-
pendent school districts in this county, of
which the Claude Independent School District
alone has its taxes collected by the sheriff.
The Board of Trustees of the Claude Independ-
ent School District appoints the Sheriff to
collect the taxes for such district, an asses-
sor being another person. The tax rolls of
the school district being prepared by the
assessor and turned.over to the sheriff who
collects the school taxes from such tax rolls.
The School District pays the premium on the
bond of the sheriff es tax collector for the
School District and other necessary expenses
in connection with his duties as tax collec-
tor for the School District. The compensation
for such servkes Is 1% of the taxes col-
Honorable Richard 3. Morris, page 2 O-1153
1eCted for the School District. The other
independent school districts in the county
have their own tax essessors and collectors.
"In the year 1935 the~'sheriffincluded
in his annual fee report as Sheriff and Tax
Assessor and Collector for the State end
county, the compensation he had received dur-
lng that year as tax collector for the Claude
Independent School District, paying some ex-
cess fees to the county. Before making-up
his annual fee report for the year 1936, the
sheriff asked the county attorney whether
or not he should-,enterthe compensation he
received as Tax Collector for the Claude
Independent School District in his annual fee
report end show same es e fee of office es
Sheriff and Tax Collector end Assessor for
the State end county. The County Attorney
being of the opinion that, since the sheriff
wes not elected to the offfce of Tax Collec-
tor for the Claude Independent SchoolDis-
trict but appointed by the school board which
had the power to grant or deprive him of the
duty or office of Tax Collector for the
School District according to their prefer-
ence, such compensation he received es tax
collector for the school district should not
be reported in es much as the office of Sher-
iff end tax essessor and collector for the
state and county was separate and distinct from
that of tax collector for the school dis-
trict. The sheriff, following the advice of
the county attorney, did not report the com-
pensation he received as tax collector for
the school district in his annual fee report
as sheriff and tax collector for the state
and county for the years 1936, 1937, and
1938. Each annual fee report was approved
by the Commissioners' Court. The matter of
such compensation not being included in the
annual fee report by the sheriff was ques-
tioned by the auditor and taken before the
grand jury in the October term of District
Court, 1938, and also before the grand jury
of the April, 1939, Dlstrlct Court, both
juries approving the action of the Commission-
ers' Court. The office of Sheriff and Tax
Assessor and Collector for State end county
ran excess fees for the years 1936 and 1938
Honorable Richard 3. Morris, page 3 o-1153
of the years the compensation received by such
officer as tax collector for the School Dis-
trict were not Included in such fee report. ~ .
"1. Under the facts end circumstances re-
lated above, should the sheriff report as fees
of office in his annual fee report the compen-
sation he receives as tax collector for the
Claude Independent School District.
"2. In the event such fees or compensa-
tion should have been reported, then whet is
the oroner method of ad.iustinnthe error of
not havingreported such fees-for the years
1936, 1937, end 1938?”
Section 16 or Article VIII of the Constitution reeds
as follows:
"The sheriff of each county; in addition to
his other duties, shall be the assessor end col-
lector of taxes therefor- but, in counties hav-
ing ten thousand (10,OOOj or more Inhabitants, to
be determined by the last preceding census of the
United States, an assessor and collector for taxes
shell be elected to hold office for two (2) years,
end until his successor shall be elected and
qualified."
Article 7246, Revised Civil Statutes, reads as fol-
lows:
"In each county having less than ten
thousand (10,000) inhabitants, the sheriff of
such county shell be the essessor and collec-
tor of taxes, and shall have end exercise all
the rights, powers and privileges, be subject
to all the requirements and restrictions, and
perform all the duties imposed by law upon as-
sessors end collectors; end.he shell also give
the seme bonds required of a collector of tex-
es elected."
Articles 3896 and 3897, Revised Civil Statutes, read
es follows:
"Article 3896. Each district, county and
precinct officer shall keep a correct statement
of all fees earned by him and all sums coming
Into his hands es deposits of costs, together
Honorable Rlcherd 3. Morris, pege 4 o-1153
with all trust funds placed in the registry of
the court, fees of office and commissions in a
book or.ln books to be provided him for that
purpose, in which the officer, at the time when
such deposits ere made or such fees and commis-
sions are earned and when any or all of such
funds'.shallcome Into his hands, shall enter
the same; and it shall be the duty of the county
auditor in counties having a county auditor to
annually examine the books and accounts of such
officers ana to report his findings to the next
succeeding grand jury or district court.~ In
counties having no county auditor, it shell be
the duty of the Commissioners'.Court to make the
examination of~saia books end accounts or have
the same made and to make report to the grand
jury as hereinabove provided.
"Article 3897. Each district, county and
precinct officer, at the close of each fiscal
year (December 31st) shall make to the district
court of the county in which he resides a sworn
statement in triplicate (on forms designed and ap-
proved by the State Auditor) a copy of which
statement shall be forwarded to the State Auditor
by the clerk of the district court of said county
within thirty (30) days after the same has been
filed in his office, and one~copy to be filed
with the county auditor, if any; otherwise said
copy shell be filed with the Commissioners' Court.
Said report shall show the amount of all fees,
commissions and compensations whatever earned
by said officer during the fiscal year; and
secondly, shell show the amount of fees, commis-
sions end compensations collected by him during
the fiscal year; thirdly, said report shall con-
tain en itemized statement of all fees, commis-
sions and compensations earned during the fiscal
year which were not collected, together with the
name of the'perty owing said fees,'~commissions
and compensations. Said report shall be filed.
not later then February 1st following the close
of the fiscal year and for each day after said
date that said report remains not flied, said
officer .she'llbe liable'to a penalty of Twenty
Five ($25.00) Dollars, which may be recovered
by the~county in e suit brought for such put'-
poses, and in aaaltion sala officer shell be
subject to removal from offlce."
Honorable Richard 3. Morris, page 5 o-1153
The last two paregraphs of Article 3891, Revised C~vll
Statutes, read es follows:
"The compensations, limitations and maximums
herein fixed in this Act for officers shall in-
clude and apply to all officers mentioned herein
in each and every county of this State, and it
is hereby declared to be the intention of the
Legislature that the provisions of this Act shall
apply to each of said officers, and eny special
or general law inconsistent with the provislons
hereof is hereby expressly repealed in so far as
the same may be inconsistent with this Act.
"The compensation, limitations and maximums
herein fixed shall also apply to all fees end
compensation whatsoever collected by seld of-
ficers In their official capacity, whether ac-
countables as fees of office under the present
lav, and any law, general or special, to the
contrary Is hereby expressly repealed. The only
kind and character of compensation exempt from
the provisions of this Act shall be rewards rs-
ceived by Sheriffs for apprehension of criminals
or fugitives from justice and for the recovery
of stolen property, and moneys received by County
Judges and Justices of the Peace for performing
marriage ceremonies, which sum shall not be ac-
countable for and not required to be reported es
fees of office."
It appears that the terms of the lest above quoted
Article are inclusive to the extent that In order for fees
to be exempt thereunder, they must be specifically excluded.
This contention Is borne out by the following prior opinions
of this department:
To William B. Love, Carrizo Springs, Texas, dated
June zg,lig36.
To Honorable Moreland, State Auditor, dated
2. Octo-
ber 9, 1931.
3. TO J. D. Looney, Boston, Texas, dated May 29,
1935 0
TO Honorable Moreland, State AUditOr, dated fk?
6, lg32."
The conclusions presented in the above opinions are
Honorable Richard 3. Morris, page 6 O-1153
further borne out by the case of Nichols vs. Galveston County
(3upreme Court of Texas, 1921) 228 S.W. 547. In this case
Galveston County sued the appellant to recover certain fees
and commissions received by him es Tax Assessor end Collector
of Galveston County, who also performed the duties of asses-
sor and.collector of a drainage district for which latter
services he received the compensation for which recovery was
sought. The court, In considering the case, compared the
Articles under which compensation is allowed to tax assessors
and collectors for their services in assessing and collecting
taxes of drainage districts to the Article under which the tax
assessor and collector of a county may be designatea assessor
and collector of an independent school district, end receive
in return for acting as such certain commissions. The court
consldered situations arlsing under each Article with respect
to accountability of commissions received thereunder to be
completely analogous. The~court cited the cese of Ellis County
vs. Thompson, 66 S.W. 49, quoting from such case in the fol-
lowing language:
"The phrase 'fees of all kinds' embraces every
kind of compensation allowed by law to e clerk of
the county court, unless excepted by some provi-
sion of the statute. 0 a The exceptions are so
definite that by implication all fees not mentioned
in the exceptions are excluded therefrom, end there-
by included within the requirements of the act."
Article 2792, Revised Civil Statute, reads as fol-
lows:
"When the majority of the Board of Trustees
of en Independent District prefer to have the
taxes of their District assessed end collected
by the County Assessor and Collector, or col-
lected only by the County Tax Collector, same
shall be assessed and collected by said County
Officers and turned over to the Treasurer of the
Independent School District for which such taxes
have been collected. ~The property of such dis-
tricts having their taxes assessed ?nd collected
by the County Assessor and Collector may be as-
sessed at a greater velue.than that assessed for
County end State purposes, end in such ceses the
County Tax Assessor end Collector shall assess
the taxes for said district on separate essess-
ment blanks.furnished by said district and shall
prepare the rolls for said district In accordance
with the assessment values which have been equal-
ized by a Board of Rquallzation appointed by the
Honorable Richard 3. Morris, page 7 O-1153
Board of Trustees for that purpose. If said
taxes are assessed by's Special Assessor of the
Independent district and-are collected only by
the County Tax Collector, the County Tax Col-
lector in such cases shall accept-'therolls
prepared by the Special Assessor and approved by
the Board of Trustees es provided In the proced-
ing Article. When the~~countyAssessor end Col-
lector 1s required to assess and collect the
taxes of Independent School Districts he shells
respectively receive one per cent (1%) for as-
sessing, and one per cent (19 for collecting
same.'
The case of Nichols, et al. vs. Galveston County,
supra. further holds, in effect, that where the county esses-
sor did not account for the portion of the fees received for
which the county was entitled under the statutes prescribing
the maximum amount of fees that may be retained byethe county
assessor, the county could bring en ection on the assessor's
bond; the duty of accounting for the assessor's fees being
within the condition of the bond.
You are respectfully advised that it Is the opinion
of this department that the sheriff who~is also assessor end
collector of taxes for Armstrong County, and tax collector
for the Claude Independent School District is required to re-
port as fees of office, the compensation he receives as tax
collector for the Claude Independent School District.
Insanswer to your second questlon, you are further
advised that the fees or compensation received by the sheriff
and essessor and collector of taxes for collecting the taxes
of the Claude Independent School District should be properly
accounted for, end he should pay to the county all such fees
or compensation in excess of the maximum compensation allowed
by law.
Trusting that the foregoing answers your inquiry, we
remain
Honorable Richard 3. Morris, page 8 o-1153
Yours very truly
ATTORNEYGRNRRAL OF TEXAS
.
By s/Ardell Williisms
Ardel~~Williams
Assistant
AW:FG:wc
APPROVED AllG.10,1939
s/Gerald C. Mann
ATTOFNEYGXNEFUL OF TEXAS
Approved Opinion Committee By s/km Chairman