Untitled Texas Attorney General Opinion

3, Aus- 11. TEXAS December 5, 1962 Honorable Earl C. Fitts Opinion No. WW-1483 County Attorney Montague County Re: Constitutionality of Montague, Texas the provisions of Arti- cle 1436-1, Sections 57 and 57a, Vernon's Dear Mr. Fitts: Penal Code. In your letter requesting an opinion of this office, you specifically inquire: "DO the amendments to Section 57 and the addition thereto of Section 57a correct the objections set forth in the opinion rendered in the Robinson case above cited? Or are the provisions of Sections 57 and 57a still a violation of Section 61 of Art.XVI Consti- tution of Texas?" (Emphasis ad&dj Article 1436-1, Section 57, Vernon's Penal Code, prior to the amendment of 1955, read in part as follows: n. . .provided further, that in counties in which the designated agent is compensated on a fee basis, he shall be entitled to retain, as added compensation, the fund created by the twenty (20s) percent of the twenty-five (25$) cents above set aside; and in counties where he is compensated on a salary basis, the Commissioners Court shall fix and allow, as additional salary for the duties required.under this Act, a sum annually not less than fifty (50s) percent and not more than the total of the special sala fund created by setting aside one-fifth (I/';5 of such twenty-five (25$) cents fee retained, any excess to be paid into the Road and Bridge Fund of the county." Article XVI, Section 61, Constitution of Texas, pro- vides in part: Ronorable Earl C. Fitts, page 2 (W-1483) "All district officers in the state of Texas and all county off-icersin counties having a pop- ulatlon of twenty thousand (20,000) or more, accord- ing to the then last preceding Federal Census, shall. be compensated on a salary basis. . . . "All fees earned by district, county and precinct officers shall be paid into the county treasury where earned for the account of the prope:r fund, . . .provided that where any officer is com- pensated wholly on a lee basis such fees may be 'retained by such officer or paid into the treasury of the county as the Commissioners Court may direct. 11 . . . In Wichita County v. Robinson, 155 Tex, 1; 276 S.W.2d 509 (1954), the Supreme Court of Texas held that the additional compensation to be paid the Tax Assessors-Collectors under the provisions of Article 1436-1, Section 57, supra, constituted "fees of office" and therefore was in conflict with Article XVI, Section 61 of the Texas Constitution. Ju,sticeCulver, speaking for the Court in the Wichita County case, stated: "l!hilethe Legislature in authorizrng the Commissioners Court to fix a sum not less than fifty per cent and not more than one hundred ?er cent of the salary fund denominates it 'as addi- tional salary' the term used is not controlling. The fund is created by setting aside a part of the fee received for the issuance of title certificates. The compensation is contingent upon collection of the fees paid into that fund. . . ." On motion for rehearing, we find the following: "The Legislature imposed certain additional duties upon the Tax Collector and clearly intended for him to be compensated therefor. The error was in fi.$ng the manner of paying that compensation. . . . From the language found in the Wichita County case, we can conclude that additional compensation for services per- formed by Tax Assessors-Collectors, is not within itself void. Honorable Earl C. Fitts, page 3 (W~-1483) The problem is in the method devised to provide the payment of the additional compensation. B Senate Bill 379, Acts 1955, Cha ter J+52,page 1172, the 5 % th Legislature amended Article 1E36-1, Section 57, pertaining to the additional compensation part, to read: 1, . .~. 'In counties in which the County Tax Assessor-Collector is compensated on a salary basis, he shall turn the Ttienty-fiveCents (25d) over to the County Treasurer for deposit in the Officers' Salary Fund; provided further, that in counties where the County Tax Assessor-Collector is compensated on a salary basis, the Commissioners Court shall fix and allow as additional or supple- mental salary for the duties required of him under this Act not less than the minimum nor more than the maximum provided for in the scale which fol- lows: "'In counties of less than twenty thousand inhabitants, not less than Ten Dollars ($10) nor more than Twenty Dollars ($20) per month; in counties having a population of not less than twenty thousand nor more than forty thousand in- habitants, not less than Twentg Dollars ($20) nor more than Thirty Dollars ($30) per month; in counties having a population of not less than forty thousand and one, and not more than sixty thousand inhabitants, not less than Thirty Dol- lars ($30) nor more than Fifty Dollars ($50) per month; in counties having a population of not less than sixty thousand and one inhabitants nor more than one hundred thousand inhabitants, not less than Fifty Dollars ($50) nor more than Seventy- five Dollars ($75) per month; in counties having a population of not less than one hundred thousand and one inhabitants and not more than one hundred sixty-five thousand, not less than Sevent -five Dollars ($75) nor more than One Hundred ($ 100) Dollars per month; in counties having a population of not less than one hundred sixty-five thousand and one inhabi- tants and not more than two hundred thousand, not less than One Hundred Dollars ($100) nor more than Two Hund- red Dollars ($200) per month; in counties having a pop- ulation of two hundred thousand and one inhabitants or more, not less than Two Hundred Dollars ($200) nor more than Two Hundred Fifty Dollars ($250) per month. Honorable Earl C. Fitts, page 4 (WW-1483) "'The added or supplemental salaries for administering the Certificate of Title Act in counties where the County Tax Assessors-Collec- tors are compensated on a salary basis shall be paid out of the Officers' Salary Fund of the res- pective counties. The last preceding Federal, Census shall govern as to population in all cases under the provisions of this Act.'" In Section 2 of Senate Bill 379, supra, which is now codified as Section 57a of Article 1436-l supra, the Legis- lature stated: "Sec. 2. It is the .intentionof the Legis- lature that the compensation provided for Tax Assessors-Collectors by this Act shall be in addition to their regular compensation regardless of whether they are compensated on a fee or salary basis." Section 3 of Senate Bill 379 reads in part: "Sec. 3. The fact that the 52nd Legis- lature in 1951 sought to provide additional compensation for County Tax Assessors-Collectors for their services in administering the Certifi- cate of Title Act and the fact that the present law has been held invalid, resulting in confusion in the administration thereof and imposing many hardships on County Tax Assessors-Collectors, create an emergency and an imperative public necessity. . .' The very language used by the Legislature in Section 3 quoted above reflects that they were cognizant of the holding in Wichita County v. Robinson, su ra and is clear evidence of -+ a statute by which additional the Legislatures' intent to enac compensation could be legally paid Tax Assessors-Collectors for duties performed under Article 1436-1, supra. In order to accomplish this objective, the Legislature adopted in Senate Bill 379, supra, a scale by which .addltional compensation would be paid the Tax Assessors-Collectors. This salary scale provides compensation which ". . .is fixed and certain, irrespective of work done, labor performed, or money collected" and it is not !'afee for particular work done and contingent upon being earned." See Wichita County v. Robinson, supra, at page 514. Honorab:tcEarl C. Fitts, page 5 (:Ck!-l~48;) 831 (Comm.App., In Greer v. Hunt County, 249 S.J:J. 1923), which was cited by the Supreme Court in Wichita County v. Robinson, supra, the following is set forth: :? , . . .Thc controlling element in determining whether the amount to be received is upon a com- mission or salary basis is whether that amount, by whatever name it may be called, is absolute and fixed regardless of what the lawful commissions may be, or is ?adc contingent upon earning that amount as c0meissione.f" It is the opinicn of this office that the salary scale contained in krticle 1436-1, Section 57, supra,". . . is absolute and :fixedregardless of what the lawful commissions may be . . .I! We are thenci"oreof the opinion that Senate Bill 379, Acts 1955, 54th Izgislature now codified as Article 1436- 1, Sections 57 and 5’[n, is not in con.?lictwith Article XVI, Section 61, ConstituKon o-iTexas, and is constitutional as to the additional w si:p!,TLemental salary provided for Tax-Assessors- Collectors who are compensated on a salcry basis. Further, WC are of the opinion that the provisions contained in Lrticlc 1436-1, Section 57, providing for supple- mental compensation :?or Tax Assessors-Ccllectcrs who are com- pensated on a fee basis, is in conformity with Article XVI, Section 61 of the Texas Constitution and is therefore valid. SUMMARY The provisions for additional o.?supplemental compensation payable to Tax Assessors-Collectors for services rendered in performance oC their fiuties under Article 1436-1, Vernon's Penal Code, contained in Sec- tions 57 and 57a of Article 1436-1, sl;pra,is not in conflict with Article XVI, Section 61 of the Texas Constitution and is therefore a valid exercise of legis- lative power. Honorable Earl C. Fitts, page 6 (~‘~-1483) Sincerely, WILL ULSON 0LB:ms:mkh APPROVED OPINION COMMITTEE W. V. Geppert, Chairman John Reeves L. P. Lollar Tom Peterson Bob Shannon REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore