March 25, 1949.
Hon. Joe J, Newman Oplnlon No. o-79&
County Attorney
TrlnltJ County Rer The m~xlmum compenaatlo8 oi
Cfroveton,Texss County AttorneT, Couuty Clerk,
County Tax Assessor-Colleotw,
and County Treasurer au& qubs-
tions relating to the duties
0r County Treamrer.
Desr Sir:
You have requested aa opinion on several quos-
tiOnB, the first tV0 of vhlch are:
"1. Uhat Is the maximum compensaW3n
that the County Attorney, County Clerk, and
Count? Tax Collector-Assessor may retain as
rees of orrlce in Trinlt~ County? Each of
said officers vere alloved to retain the mm
of Three Thousand Dollars in 1944.
n2. What is the maximum amount 0r roes
that the CoyAy Treasurer rsr retain In Trin-
itg County? _. ,’ j
,
Trlnltq County has a population, aooordlng to
the 1940 Federal CenSUS, Of 13,075 inhabitants. we -0
informed bg the Comptroller that the Commlssloners' Court
ha8 placed all County and preclaet officer8 (vlth the
exoe$&lon of the Sheriff and Constables, vha are on a
,Salary basis by virtue of Article XVI, Section 61 of the
Texas Constitution) on a ree basis, Therefore, the COB-
pens&ion of the County Attorney, County Clerk, and Couu-
ty Tax Assessor-Collector is goveweb by the p~ovl8lon8
of Article 3883 and 3891, It vas held In Attorney Gen-
eral** Opinion Boo V-13 that the nsximum compensation 0r
such orrloers ia counties of 10s~ than 25,000 Inhabitant8
vas $3,7%
The compensation or the County Treasurer of
Trinity County Is govornod by the provisions of Artlolo
., ::
.
Eon. Joe J. %nnan, page 2 (V-792)
3943,~and your second question 58 ansvered by ittdrney
Benoral's Opinion lo. V-231, a copy of wh5ch Is enclosed.
Th5e Opinion, which construed H, B. 258, A&a of the ~'
50th Legislature, 1947, amending brtlole 3943, held that
upon the effective date of that bill, .the 00~~588i~6neP~'
Court8 of thoeo Counties governed by the Act were au-
thoriced to 5ncPease the max5mum amount of lavrul con-
nirsion the County Treasurer.map retain in an additlanYl
amount not to exdebd 25 per cant of the maximum 8um al-
lovetiunder the lavafor 'the fircal yosr of 1944. Sin00
the maxImum compensation the County %easurer of !h-5n$ty
in 1944 under the proVl8lOn8~of AP-
. ,’ $2,000, hle maxislumcompeneatlon nov 513 ,.
&ool*
.I
.
Your third‘question read8 a8 r0iuhfai ."
.a Hov are the above named officer8
paid,.ketheP by Patartion of foe8 or by
voucher duly approved by tha order or the
Coam.lss5~nersCotmt?"
It val) held In Attortiy Oenbaltr Opinion lo.
O-6360, a copy of vh5oh
. 58 enclosodt
.
?b&w the abovo ve'are forced to the
8onclas5o~ that all the tax money collected
br the tax collector and U8088or for the
Gnty *ireel.reserving his comm5riioa r0r
leetor is paid ror-the ~ssewmeat of the
tuoe out of the rirrt tax money collected,
in aooordanoo vlth the statuto wblah former-
3~ applied only
vblch lo *et out
tax collector 5s
oollooting the tax m&o7 oollieteb by him
ia ~oocudame vith the stat&i rhioh, priar-
t* the coamliaation or t& twwtu OffiOOB,
led only to the tax oolfootor (Art1c4.
'%IV answer to hour qia&n, thmwf&*,
ir that the tu colleotor 8nd lmea a o rrhall
. ,.
Hon. Joe J. Hewman, page 3 (V-792)
pay into the county treasury all the county
tax money collected by him except such as he
reserve8 as his commission for the sw
of same, on the total amount collected, and
that he has no authority of law to resewe
any payment out of the tax money oollectod by
him vhlch vould go to himsblr by va$ of com-
pensation for hi8 aasossment 0r taxes.
Therefore the Aasossor-Colleator may rotaln
his commlssIons for the collection of county taxes and
deposit the remainder of the tax money In the treasury,
pueF cannot retain compensation due him for.asseeslng
.
Articles 2549, 3883 and 3890 provide:
Article 2549:
“As soon a8 ,saldbond be given and ap-
roved by the CommIssloners Court, and the
, an order shall be made and en-
E omptlroller
tered upon the minutes of said Court deslg-
natlng such banking corporation, association
or Individual banker, as a depository for
the funds or said county until sixty (60)
days after the time flx6d for the Wxt,se-
lectlon of a depository; and thereupon, it
shall be the duty of the county treasurer of
said county Immediately upon the making of
such order, to tranafep to said depository
all the funda’belbnglng to said county, as
well as all fund8 belonging to any district
or other munlolpal .s~bdivlslonthereof not
selecting Its ovn depository, and immedl-
ately upon receipt of any money thereafter,
to deposit the same with said depository to
the credit of tiald~gounty,district and mu-
nlclpalItle8. O e .
Article 3883s
‘Except a8 otherwise provided ln this
Act, the annual fees that may be retained
by proclnot, county and district.officer8
mentioned In this Article shall be as fol-
lows: * 0 *”
Ron. Joe J. Bevman, page 4 (v-792)
Article 3890:
'%e amouuts alloved t6 each officer
mentioned In Artlole 3883 may be retained
out of the fee8 collected by him under ex-
isting lave; but In no case shall the State
or county be responsible for the payment of
any sum vhen the fees Collected by any of-
ficer are less than the'maxlmuiucompensation
alloved by this chapter, nor be respon6f;ble
for the pay of any deputy or assists&.
In ~construing the above statutes the cOmQ158--
slbn of Appeals In Oreer v. Hunt county, 249 S. W. 831;
stated:
*When this statute (nov Art. 2549) la
complied with, county funds are carried on
the books of the depository in the name of
the county, and the treasurer has no lntor-
est In these funds f%rther than that he ha8
authority, by virtue of his official duties,
to check on~the account to di8ChargO county
warrants drawn by the proper authtirltlesand
resented to hIdpror payment B.S. aPt. 2449
Pnov Art. 2554). This authority necesssrlly
ceases, Ipso facto, upon the election and
qualification of his successor0 Ho change
Is required or made in the aCcount, as it
remains In the name of the County, The
treasurer upon suprendeplng hi8 office, 18
therefore not required to pay over or de-
liver to his 8uccessor any county fund8 If
he has complied vith the lav and deposited
all moneys received to the account of the
count From the exprees lenguage 0r Axtl-
cle 2%*44 (nov Art. 2549) It would seem to
be the duty of the treasurer to deposit to
the credit of the county all sums collected
by him. which would include his COULts58SlOn8~
be think the Intention of the depository
statutes vas to require this to be done and
to require the payment of the treasuPer'8
Comml8slon~ upon warrants regularly issued
as In the case of other clalam against the
county. It may be noted In this regard that
article 3888 (nov Art. 38gO), wh5oh appears
Hon. Joe J. Revman, page 5 (V-792)
to bo the only statutory provision authori8-.
lng aounty OffiCiS~S to retain their fees
i';rntv collooted by them, expPossly.l5m-
lvilege to the officers named 5n
artlele 3IG1 (now Art; 38831, vhliehdoes not
include the tr&asuPer. There Is'thoPeforo
no oxprees authority for his dPav5ng on the
depoeltory to’pay them vlthout a properly
dravn varrant. . i:.*
In vlev of thd SoPogolng the County ‘heasuror
mU8t deposit all 8~88 oolloatod by him for the CoMty-,
in the County Depdsitoryr Ze canndt vlthhold his com-
mi88ion8, but mu&t be paid said comd.8sioa8 by varraatr
Poguliwly 5ssued. The C&inty Attorne a&l County,Cl&k
are authorlriodunder Artloles 3883,,$90 Snd 3891, V.C.
S 0, to retain their foes room moneys .colloctodby them.
we quote JOllPfifth snd Sixth queBtlOn8:
"5. %at authority does the Count+
Treasurer hsve in lssulng cbeaks for cash
without ehowlng authority or puPpoBe for
tho same?
"6. ' Does the County depository have
authority to honor cheaks drawn by the
county ‘heasursr payable to cash and not
shoving by what authority OF for vhat pur-
PO80 SO dl'.¶Vn?"
Artlclo 1713 provides:
"The aounty treasurer 8hall not pay any
money out of the county treasury except la
pUr8UMCe 0r a certificate or varrant':trom
some'offlcer author58ed by law to 588~ the
same; and, ir Buah'tPoasuror shall~have any
doubt-of'tho legality or propriety of any
order, decree, certlflcato or varrant prossnt-
ed to him for payment, ho shall not ay the
same, but shall make report thereof eo the
comm5ssloners oomt for the5P coneldoration
and dlrectIon."
It was hold In the oaso of Gu8sett V. llueaos
County; 235's. Y. 857:
Hon. Joe J. Revman, page 6 (V-792)
*
. payments by a county treasurer
for thi ienerit and purposes of the couuty
in pursuanob 0r his deslgaatlon and capacl-
ty a8 puPcha85ng agent, made under order
of the ooms58810nerat court or upon the re-
qU585tiOA Of the COUJZIty jUd@ OP~COrmriSSiOU-
dr8, 5netead of in pursuance 0r certiri-
cates or vamanta, are poper credits In fa-
voiror'eueh trbasuPor, lr.thereaftoP, In duo
COUPBe, they be approved and rbtlfied by the
@XWml58S10~P8 COUPt. Or, in other voPds,
pose: and. that bolna true. ve think it
could ratify the manner ln~which they vere
made That I t d fads like
these, the co&t"l%$f?o~d corro0t any
IrregulrYIltlesIn the manner of,payment by
approving the expenditure ltter, and ratlfy-
lng the troa8urer1a action.
It va8 held In Attorney General's Opinion go.
0-2807:
*
unless the county treasnror snd
00mln58&4P8’ couct or the county judge have
acted In the manner as above stated, the
county treasurer cannot lawfully pay money
out or the oouu$y treasury e5theP for corn-
mlssIons due himself or for principal and ln-
terest paymonta,on bonds, vlthout first ob-
taining vsrrants or cer~lflcates as required
by Artlole 1713, supra.
In viev 0r the foregoing it is our opln5on
that the County 'PreasuPerdoe8 not have authority to le-
sue check8 fO* a&y purpose except iA pUPBUam0 Of a CeP-
tlflcate or wafiant from some officer authorlxed by lav
to 58sU61 the same as required UAdOr &tiCle 1713. This
doe8 not mean, hovever, that such authority nIU8tappear
on the face of the check. If, hovever/the Couutr,De-
posltory ha8 any doubt &S to the authority Of tke COUU-~
ty tieasurer 5ssu5ng BUph check, the'county Doposlt,ory
ha8 the right and it la its duty to check to 8ee whether
Hon. Joe J. Hewnan, page 7 (V-792)
the check 5s dravn In pu~suanoe of a cortlflcate or war-
rant from 808~ officer authoriced by lav to issue the
MIfIebofoPe honoring eaid cheek.
Your seventh, olghth, ninth, and tenth.qUe8-
tlons are as follows:
"7. Uhat 5s the meanlng or,Artlcle 2554
relative to the depOBitOPy making a monthly
report to the hmmi88ioners Court advi8hg
such court as to the dally balances ror th8
preceding quarter,of the var5ous oounty fund87
"8. Should the depository Bend its
monthly statements vlth its oancelled ohecks
to the county %!easurer QP to the &nIIIIiS-
aloners Court ror the Comm58sloner8 lnspec-
tlon under srtlcle 25541
“9. thder the eXiBthg EtatUt does
ths County Treasurer have any authority to
refuse to eubmit cancelled checks to the Corn-
mlssloners OouPt foP their inspection?
"10. In the event ho should Pefu8o to
submit such cheeks for their 5nSpOtMon by
the Comm5ssloners Court vhat action 08n be
taken by the Commls8loners Court?'
Article 2554, V. C. S., proiid68:
" It shall be the duty Of 8\lch do-
posltoiy*& make a detailed monthly statement
to the Comm5sslonor8 C&uPt at each regular
term of said Court shoving the dally balanoos
to t% credit of each of the f%lnd8on deposit.
. . .
we quote the rollovlng from Attorney Oeneral's
Opiaion MO. O-6459:
"Artlole 2554 of Qe~non's huotated
Civil.Statutos roqulros the County Deposlt-
ory to make to the.Colnsriislon~re*
Court
monthly statement8 at each regular tollnof
said court showing the dally balancJo8to the
&n. Joe J. Hewman, page 8 (v-792)
credit of eaoh or the funds on deposit. Ac-
cordingly, It Is our opliilon,In ansver to
our secoiidquestion, that the Commlselonera~
E ourt Is authorized to consider the bank's
statements iesued by the Beposltory &mk
as evidence upon which to base Its aotlon
In approving the County 'Piieasurer'sSnd
County hdl~or~a report8 as to the cash on
hand, . . .
In vie; of the foregoing It Is our opinion
that it Is the mandatory duty of the County Depository
to make to the CosnUssloners' Court monthly statement8
at each regular term of said Court shoving the dally
balances to the credit of each or the funds on deposit.
There is no provision requiring that the cancelled
cheeks of the County accompany said statemente. There-
fore, the Couuty D%posltory may send such MAC8lled
ohecks to the County Treasurer to aid hIa in his report
to the Comm58sloners~ Court as required by Article 1711,
v. c. s., vh5oh provides:
'He shall render a detailed report at
ovary PegU&;tarterIII Of the COdBBiOAerB COW%
of hi8 county of all the moneys received and
disbursed by him, of all debts due to and
from his county, and of all other prooeodlngs
In his office, snd ~shall exhibit to said
court at every such term all his books and
accounts for their Inspection and all vouch-
ers rel&dng to the 8ame, to be audited and
allowod. . . ."
It Isour opinion that v&n the County Depoa-
ltory deliver8 the csncelled check8 to the County 'i+ea-
surerthey become a part of the County RedsWer'a re-
cord &nd subjeot to inspection by the Colpmlsaloners~
Court.
Since the County Treasurer Is required to ex-
hlblt,his records to Inspection by the C0nrmi8810ner8~
Co-t, it la presumed that suoh office@ will not refuse
to perform a etatutory duty, and vo therefore deollno
to ansver your tenth question at this time.
.
Bon. Joe J. Revman, page 9 (v-792)
s-
The maximum oomponaatlon of the County
Attorne County Clerk, and County Tax As-
seasoP-Es
ollector in Countioa under 25,000 in-
habitants, vhere the County officials, vith
the exceptIon of Sheriff8 and Constables, aro
compensated on a fee baBi8 la $3,750. hti-
cles 3883 and 3891; A. 0. 6plnlon Ho. Q-13.
The maxlmum compensation of the County Rea-
8uPer In said countlee 18 $2 500. Article
3943; A. 0. Opln5on Q-231. 4he County ‘boa-
swer cannot withhold his o6mm5sslons, but
mwt be paid b warrants pegal- laeued:
Greir v. Hunt Eounty (Comm App 3.249 S.W.
831. The Tax Assessor-Coll;ator'IPsy retain
his comm58slon for the collection of county
taxes, but he csnnot retaln'oompeaaatlon due
him for assessing taxes. A. G.~Oplnion Ho.
O-6360. The CoiantyClerk and County Attor-
ney are authorlsed to retain their feea.and
money aollectod by them..'Articles 3883,
3890, 3891. It i8 the mandatory duty of tho
County Depository to lMk8 monthly statements
to the Commlsa50ners1Court at each regular
term of said Court, showing the dally bal-
ances to the credit of each of the funds on,
deposit. It may, hovevor, send the Wincelled
check8 to the county 'measurer to aid him In
his report to the CommissionerB* Court, and
the County Treasurer must submit Said oan-
celled checks to the Comm5sslonere1 COtAPt’S
ln8pectlon. h=tiGleB’25!%, 1711, Q.C.S.; A.
0. Opinion Ho. O-6459.
Yours very truly,
APPROQED ATTOBllEPGHUERAL OF TEXAS
%42--L@
IRST ASSISTLLBT
ATTORWA3! Gl?ZiERAL
JRtbh