THEAT~FORNEYGENERAL
OF TEXAS
August 21, 1950
Hon. Adrew P. Johnson opinion 100. v-1093.
County Attorney
Mmuit County Re: The right of a County
carriao Springs, Texas Attorney who Is com-
pensated on a salary
basis also to retain a
commission on money
collected for the coun-
Dear Sirt ty.
Your reoent request for our opinion is In part
as Pollowsn
"Upon investigation it was found that>
a former Commissioner of Precinct Rumber 4,
DUmnit County, Texas, had appropriated ~to
his own use funds belonging to Dimmlt Cona-.
tg In the amount of $6,203.20. The CosunZq-
sioners' Court of Mmmlt County lnstro&e(l
the County Attorney of mt County to make
collection from the Commissioner and allow
him a small amount of salary due to him. On
June 5, 1950, the Commlsslonerst Court of .
Mmmlt County met'in Special session and
entered the follxnrl.ng order in the minutes.
"The Court lixstruoted the County Attorney
to make collection from the Comnissioner
for the amount due the County within nine-
ty (90) clays; in the event this amount .~+~a
not paid to DUmnLtCounty within the s
fied time, Hr. Johnson was further ins Y'- Ilpct-
ed by the Court to file suit.'~ Volume 6,
page 263..Couanlssionara~ Court Blnutes, Dim-
tit County, Texas.
*Through the efforts of the County At-
torney of Dinrmit County, the funds due to,
the county have been collected and placed
in trust ready for delivery to Mnrmit Ooun-
ty.
*The County Attorney of Dlmmlt County
is compensated on a salary basis.'
- .
Roni Andrew P. JOhnSon, page 2 (V-1093)
In connection with the above facts, you ask:
Where a county attorne is compensated
on a salary basis is he entl 9,led to receive
the commlssl,on on funds collected by him for
the county a8 provided for by law?"
Article 335, V.C.S., provides:
“Whenever a district or county attorney
has collected money for the State or for any
county, he shall within thirty days after re-
ceiving the same, pay it into the treasury of
the State or of the county in which it belongs,
after deducting therefrom an8 retaining the
commissions .allowed him thereon by law., Qach
dlstrlat or county attorney shall be e&&lea
to ten per cent commissions on the ftist thou-
sand dollars collected: by him in any one case
for the State or county from any Individual or
company, and five per cent. on all sums over
one thousand dollars, to be r&aineQ out of
the money when collected, and he shall also
be entitle& to retain the same comml.sslons
on all collections made for the State or for
any county, This article shall also apply
to money realized for the State under the
escheat law.'
Article 339, V.C.S., providess
%hen it shall come to the kr$owledge of
any district or county attorney that any of-
ficer In his district or county entrusted with
the collection or safe keeping of any public
funds is in any manner whatsoever neglecting
or abusing the trust confide& in him, or in
any way failing to discharge his duties uuder
the law, he shall institute such proceedings
as are necessary to compel the perf&mance of
such duties by such officer and to preserve
an8 protect the public interests."
It was held In Bexar County v. Davis,223 S.W.
558 (TwKJXV.APP. 1920, error ref.) that no member of
the Commissioners8 Court is such an officer as is "en-
trusted with the collection or safe keeping of any pub-
lic funds” and that Article 339 does not empower the
Mstrict or County Attorney to bring an action against
such an official.
- .
Hon. Andmw F. Johnson, Page 3 (v-1093)
We fail to find any statute making it the duty
of the County Attorney to file suit in such an ipstance
as submItted by you.
In Attorney General's Opinion Ho. o-5306, dat-
ed May 22, 1943, we quoted tith~approval fras a confer-
ence opinion of this department dated April 6, 1921, as
fOllowS$
(I0 . . There Is no constitutional or
statutory provision making it your duty to
bring such a suit. That being true, you,
as county attorney, are not entitled to
conm~%ssions under Article 363 (now Art.335"s .
The commlsslons therein provided for are for
services rendered In the collection of money
by the counts attorney in the performance of
d&y reqaire~ of him 6y law. %he county at-
torney is not entitled to the commissiaus
provided by Article 363 (now Art. 335) upon
honeys which the law does not require him to
collect. A county officer alaimlng compensa-
tion orofees must be able to show not an'ly
that the services were performed for the duty
as such, but also a statute or constitutional
provision authorizing compensation for the
particular services In question.' (Y@phasls
added.)
Therefore, since there is no duty..$mpoged upon
the County Attorney to bring such a suit, It 1s~ our opin-
ion that he is not entitled to receive a cormnlssion under
Article 335.
In Attorney General's Opinion Ho. O-3656, dated
June 15, 1941, however, it is stated%
'It is our further opinion that it is
not the duty of the County Attorney to re-
present the County in any civil case unless
expressly made so by statute. 'If the above
mentioned services were performed in the ab-
sence of a contract between the County Attor-
ney and Ccmunissioners~ Court, but upon the
request of said Court, the County Attorney is
entitled to reasonable compensation on a quan-
turnmerult basis."
- .
HW. Andrew P. Johnson, page 4 (v-1093)
The county Attorney is not entitled to
the commission provided for in Article 335,
V.C.S., 0n money oollected from a county com-
missioner and his bondsmen even the
Commtssionerst Court authofised himT o the
bring
suit for its colleotion. Bexar County v.- Davis,
223 S.U. 558 (Tex.Civ.Ap 920, error ref 4) ;
A.Q. Opinion Ho. O-5306 P'1943).l The County
Attorney Is entitled to a reasonable compensa-
tion on a quantum meruit basis. A.Q. Opinion
Ho. O-3656 (1941).
APPROVED: Yours very tNly,
J. C. Davis, Jr. PRICE IUUIEL
County Affairs Mvlsian Attorney Qeneral
Everett Rutchinson
Executive Assistant
Charles D. HLathews Bruce Allen
First Assisttint d'sslstant
BA:SlW
Untitled Texas Attorney General Opinion
Combined Opinion