Honorable Robert S. Calvert Opinion NO. M-37
Comptrollersof Public Accounts
Austin, Texas Re: Whether the Comptroller
of Public Accounts can
include King County in
the apportionment payment
under Article 3912e, V.C.S.,
when all County officers
will be paid on a salary
'basis and the County and
District Clerk; in addition
to the salary payment, will
retain the fees of office
Dear Mr. Calvert: ana related question.
Your request for an opinion of this office reads, in
part, as follows:
"King County is a County under 20,000
population and for several years the Com-
missioners Court has elected to place all
of the County officers on a salary basis.
. . .
1,
. . .
"This County submitted an amended order
placing the County and District Clerk on a
salary basis of $340.00 per month and to re-
tain the fees of office.
I,
. I shall appreciate your opinion
. .
as to whether this department can include
King County in the apportionment payment for
the year 1967 under these orders. In the
event you hold that King County is entitled
to the apportionment; could this department
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Hon. Robert S. Calvert, page 2 (K-37)
pay the District Clerk any fees of office.
There is no litigation peridingwhich would
have a bearing in this'matter."
In order to clearly"set out the facts, in regard
to this particular question, we are quoting the pertinent
portions of the order of the Commissioners Court of King
County, Texas, made January 11, 1967:
"SALARIES AED FEES OF CODRTY ELECTED OFFICIALS
A motion was made by J. C. Moorhouse and
duly~seconded by Louis Burfiend to place Sybil
Z.'Hensley, County and District Clerk of King
County, Texas, on fee basis for the year 1967.
All other County Officials of King County,
Texas, to be retained on Salary Basis for cal-
endar year 1967. A vote was called and all
members voted in favor of said motion."
Thereafter under date of February 13, 1967, the
Commissioners Court of King County, Texas, passed the follow-
ing order:
"AMENDMENT TO ORDER PASSED JANUARY 11, 1967
A motion was made by J. C. Moorhouse and
duly seconded by Louis Burfiend to amend the
Minutes of an Order passed January 11, 1967,
which shall read as follows: All County
Officials shall remain on a Salary Basis as
set out in that order, with the exception of
the County and District Clerk, who is hereby
placed on a salary of $340.00 per month and
retain the fees of office. A vote was called
and all members voted in favor of said motion."
Section 61 of Article XVI of the Texas Constitution
provides as follows:
"Sec. 61. All district officers in the
State of Texas and all county officers in
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Hon. Robert S. Calvert, page 3 (R-37)
counties,having a population of twenty thou-
sand (20,000) or more, according to the then
last preceding Federal Census, shall be com-
pensated on a'salary basis. In all counties
in this State, the Commissioners Courts shall
be authorized to determine whether precinct
officers shall be compensated on a fee basis
or on a salary basis, with the exception that
it shall be mandatory upon the Commissioners
Courts, to compensate all constables, deputy
constables and precinct law enforcement officers
on a salary basis beginning January 1, 1949;
and in counties having a,population of less
than twenty thousand (20,000), according to the
then last preceding Federal Census, the Com-
missioners Courts shall also have the authority
to ~determinewhether county officers shall be
compensated on a fee basis oreon a salarv basis,
with the exception that it shall be mandatory
upon the Commissioners Courts,to compensate
all sheriffs, deputy sheriffs, county law en-
forcement officers including sheriffs who also
perform the duties of assessor and collector
of taxes, and theirdeputies, on a salary basis
beginning January 1, 1949.
“All fees earned by district, county and
precinct officers shall be paid into the county
treasury where earned for the account of the
proper fund, provided that fees incurred by the
State, county and any municipality, or in case
where a pauper's oath is filed, shall be paid
into the county treasury when collected and pro-
vided that where any officer is compensated
wholly on a fee basis such fees may be retained
by such officer or paid into the treasury of the
county as the Commissioners Court may direct.
All Notaries Public, county surveyors and public
weighers shall continue to be compensated on a
fee basis." Added Aug. 24, 1935, as amended Nov.
2, 1948. (Emphasis added.)
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Hon. Robert S. Calvert, page 4 (M-37)
The Judiciary Section - Comptroller's Department
Appropriation (H.B. 12, Acts 59th Legislature, p. 1690) pro-
vides the following on pages 1690-91:
For the years
Ending
August August
31, 1966 31, '1967
"9. Apportionment to counties
where county.officers are paid
salaries. . . . Should any
county by election of the Com-
missioners Court, change from
a salary to a'fee basis during
this biennium, the Comptroller
shall~make adjustments in the
appropriations by transferring
the correct amount from this
appropriation to the appropria-
tion made for paying fees and
costs of sheriffs and other
county officials. 611,397 611,397
"10. Fees and Costs paid to
sheriffs, attorneys and clerks
in felony cases, and fees of
county judges, county,attorneysi
justices of the peace, sheriffs
and constables in examining
trials where indictments are
returned. . . . $ 15,000 $ 15,000"
Since Section 10, above quoted, is appropriated
for the purpose of paying fees, said section could not be
used for payment of any salaries. Section 9, however, is
appropriated for the purpose of apportionment to counties
where the county officers are paid on a salary basis. The
apportionment is to be made by Sec. 6(a) of Article 3912e
which provides:
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Hon. Robert S. Calvert, page 5 (M-37)
"In counties 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 of
this Act there shall be deposited therein . . .
such sums as may be apportioned to such county
under the provisions of this Act, out of the
available appropriations made by the Legislature
for such purposes, provided, however, that in
counties where the Commissioners' Court is
authorized to determine whether county,officers
shall be compensated on a salary basis, no
apportionment shall be made to such county until
the Comptroller of Public Accounts shall have
been notified of the order of the Commissioners'
Court that the county officers of such county
shall be compensated on a salary basis for the
fiscal year, and in that case the first quarterly
payment of such apportionment shall be made in
fifteen (15) days after receipt of such notice
by the Comptroller, and the remaining payments
on the dates hereinabove,prescribed. It shall
be the duty of the Comptroller of Public Accounts
to annually apportion to all counties in which
the county officers are to be compensated on the
basis of a salary any monies, appropriated for
said year for such apportionment; each county
entitled to participate in such apportionment
shall receive for the benefit of its Officers'
Salary Fund or funds its proportionate part of
the appropriation which shall be distributed
among the several counties entitled to partici-
pate therein, on the basis of the per capita
population of each county according to the last
preceding Federal Census."
Section 2 of Article 3912e, V.C.S., provides, in
part, as follows:
II
. . . In counties having a population
of less than twenty thousand (20,000) inhabi-
tants according to the last preceding Federal
- 176 -
Hon. Robert S. Calvert, page 6 (M-37)
Census, it shall likewise be the duty of the
Commissioners 1 Court, by its order duly made
and entered of record at its fir& regular
meeting in January of each calendar year, to
determine whether county officers of such
county~ (excluding county surveyors, registrars
of vital statistics and notaries public)
shall be compensated for the fiscal Year on
the basis of an annual salarv or whether thev
shall be compensated on the basis of fees
earned bv them in the performance of their
official auties, and it shall also be the
duty of the county clerk to forward to the
Comptroller of Public Accounts of the State
of Texas, on or before the 31st day of January,
a certified copy of said order of said Com-
missioners' Court." (Emphasis added.)
Section 3 of Article 3912e, V.C.S., provides, in
part, as follows:
"Sec. 3. In all cases where the Commissioners
Court shall have determined that county officers
or precinct officers in such county shall be
compensated for their services by the payment
of an annual salary, neither the State of Texas
nor any countv shall be charsed with or oav to
any of the officers so compensated, any fees
or commission for the performance of any or
all of the duties of their offices but such
officers shall receive said salary in lieu
of all other fees, commissions or compensation
which they would otherwise be authorized to
retain: . . .ll (Emphasis added.)
In the case of Wichita County v. Robinson, 155 Tex. 1,
276 S.W.2d 509 (19541, the Court, in construing Section 61,
Article XVI, Constitution of Texas, held that an Act (Art.
1436-1, Section 57, Vernon's Penal Code) passed by the Legis-
lature to allow additional compensation in the form of fees
of office for a County Tax Assessor-Collector who was paid on
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Hon. Robert S. Calvert, page 7 (M-37)
a salary basis was unconstitutional.
In conformity with the holding in the above case
that portion of the Commissioners Court order,passed on
February 13, 1967, whereby the C,ommissionersCourt authoriz-
ed the County and District Clerk to retain the fees of of-
fice as part of her compensation isvoid and unconstitutional
and she is only authorized to receive the salary as authoris-
ed by such order.
Therefore the King County officials are'on a salary
basis and your department can include King County, Texas,
in the apportionment payment for~the year of 1967.
Your department is not authorized to pay the Dis-
trict Clerk any fees of office, by virtue of the provisions
of Section 3 of Article 3912e.
SUMMARY
Under the facts submitted the Comptroller
of Public Accounts is authorized to include
King County in the apportionment payment under
Section 6(a), Article 3912e, V.C.S.
The Comptroller of Public Accounts is not
authorized to pay the County'and District Clerk
of King County, Texas, any fees of office, by
virtue of the provisions of Section 3, Article
3912e, V.C.S.
truly yours,
tT22zF-
rney General of Texas
Prepared by John H. Banks
Assistant Attorney General
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Hon. Robert S. Celvert, page 8 (M-37)
APPROVED:
OPIIUION COMMITTEE
Hawthorne~Phillips, Chair-n
W. V. Geppert, Co-Chairman
Bill Craig
Neil Williams
Houghton Brownlee
Lewis Berry
STAFF LEGAL ASSISTANT
A. J. Carubbi, Jr.
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