Untitled Texas Attorney General Opinion

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-