OFFICE OFTHEA'TTORNEY GENERALOFTEXAS
AUSTIN
Etinorable Fred Blundell
Distrlat Attorney
fan bfarcos, Texas
Dear sir; Attentions Hon. Tom G. Oliver, Tr?
Oplnlon NO. O-4034
Ret County Clarke - ex-offlolo can-
pensaticn - esoese fe4e
Your rewest for opinion has boon reooived and
aarefully cone&dared by this &apartment, V?a quote from satd
request ee iollovmr
%on. L. 19. Bopkins, County Clerk of &ye
County, ha8 raquorted me to ~8eoure from you a
ruling with reforenos to excess fess of his
office, ‘whLuh question ie, and arieoe, ae rol-
lower
“Hayrr County is on the isa basis; the
county olerk reoeivse an ex 0rriOio compensa-
tion, wMc.h is paid to him quarterly, by war-
rant on the general fund, and also reoeivae
fees of ofilae. The general fund of Hays
County has been on a defioit bash for aooeral
yaare, and in order for the oounty olsrk ati
other offloere, who reoeive salary payabia out
of t>e general fund, to oash said warranta, it
becomeeneceeaary to take a 8ubstantial tlie-
count, such as, say, lC$.’ DrAer article 3803,
the oountg clerk of Rays County raceives snd
retains 6x otflcio and foes until iii8 oompen-
sation for tho year, in addition to saleriot!
of ds2utles and expenses of conduct of the
office, has amounted to $8400.00, and than,
under art&ale X+91, he rotabE l/33 of th
6208ss until hla tote1 cor;ponsetiosi amounts
to ~3,000.00
Honorable Fred Blundell, Page 2
“Article 5a91 provides: ‘All current fees
earned and colle~cted- - - In excess . OX
. . . ~0%. -the- --
maximum and excesf~ allowed by cnls
shall be ,~aid into the County Treasurer in the
county where the excess accrued.’
"Do:?8 this mean that such county clerk
must pay said BXOBBB fees to the treasurer in
the form of cash, or may he pay seme in the
form in which he reoeived the pay from the
county, namely, the uncashed general fund war-
rant issued to him, r:nU endorsed by Nm baok
to the county?
“01 course, by the time the last quarter-
ly payment is due him by the crounty, he has
completed the year and then know8 whether or
not he will have an exoess and how muoh, and,
as to this last payment he aan reZra1.n from
taking came from the county, and henoe show
that muoh less inoome to the offloe, end that
much lees exoees fee to be paid by him bask
to the county. No trouble is ‘had with this
last payment, since eaoh he and .the county
has a olaim ~agalnsf the other, and the ao-
counts are simply baladoed by Ne refraining
from aooppting his salary for the last quer-
ter,. It’ie believed that the priaoiple or
thia eort of adjuetment or eettlement is sanc-
tioned by the Supreme Court in the ease of
Felts ve. Bell County, 132 S. W. 123.
“But the annual tee report, apart irom
the foregoing paragraph, yet shows en exoess
of fees to be paid baok to the county, and
the alerk has in poesession the oounty warrant
on the goneral fund oovering his salary for
the third quarter, the months of July, August
and September, whioh warrant he has not dis-
counted and cashed 6 can he tender said war-
rant to the county and require the county to
accept same, as payment upon the claim the
oounty has a;::ainst Nm for exoeaa fees of
office? From the standpoint or common eanse,
reason and natural justice, it occurrs to
the wrjter that the clerk should be legally
Honorable Fred Blundell, Page 3
authorized to pay the county In the same
medium in ahia:! the county pays him, an&~
hence I am inclined to answer the forego-
ing qucstlon in the affirmative, However
I have not found any authority preeisaly
on the point, although the reasoning of
the above case supports this oonolusion.w
The population of Hays County, Texes, is leas than
20,000 inhabitants aocordlng to the 1940 Federal Census, and
its county offlcials are compensated on a fee basis.
Article 3895, Vernon’s Annotated Texas civil Stat-
utes, made as follows;
The Commissioners’ Court la hereby
debarred rrom allowing oompensation for
ex-offioio servloes to oounty o.ffiaiale
when the compensation and exoess fess whioh
they are allowed to retain ehall reaah the
maximum provided for in this ohapter. In
oases where the compensation and exaess
leea wbioh the oftioers are allowed to re-
tain shall not reaah the maximum provided
for in this ohapter, the Commiesioner,rrr*
Court ehall allow compensation Sor 81: offi-
oio eervloea when, in their jud ent, auoh
compensaticin is neoeesary prov IT
de&, euoh
compensation for ex ofiioio serviaee allowed
shall not increase the oompensation of the
offioial beyond the maximum of compensation
and exoess fees allowed to be retained by
him under this ohapter. Provided, however,
the ex officio herein authorized shall be
aumea only after an opportunity for a
public! hearing and only upon the affirmative
vote of at least three members of the Com-
mlseioners* Court.”
Seation 1 of Article 3883, 8. A. T. C. S., reads
aa roilore:
“Except a0 otnerwise provided in tNe
Act, the annual fees that may be retained
by precinct, county and distriot offioers
mentioned In this Article shall be as follows:
Honorable Fred Blundell, Page 4
In counties oontaining twenty five
(23,Oi%j thousand or less inhabftantsr County
Judge, Distriot or Criminal Distrfot Attor-
ney, Yherifr, County Clerk, County Attorney,
Distriot %rk, Tax Colleotor, Tax Assessor,
or the A:zaessor and Collector of Taxes, Twenty- ..,:
four Hundred ($2400.00) Dollars each; Justiae
of the Peace and Constable, Twelve Hundred
($1200.00) Dollar8 eaoh.“.
Article 3891, v. A. T. C. S., reads in part as fol-
lows :
“Paoh offiaer named in th5.a Chapter shall
firet out of the current fees of Ns office
pay or be Paid the amount allowed him under
the provisions or Article 3883, together with
the salaries of Ns assistants and deputies,
and authorizad expenses under hrtlals 3889,
and the amount nsaeesary to cover costs of
premium on whatever surety bond may be required
by law. IX the current fees of such offioe
collected in any year be more than the amount
needed to pay the amounts above speoifled,
same shall be deemed exoess f’eos, and shall
be disposed of In the manner hereinafter pro-
vlded.
“In counties containing twenty-five thousand
(26,000) or less inhabitants, Distriot and
County officers named herein shall retain one-
third of such excess fees until suah onepthfrd,
touether with the amounts aneoified in Arti-
cle. Z&33, amounts to Three Thousand Dollars
(Q3,OOO). . . .”
Opinion No. O-3896 of this department contains a
pertinent disauesion relative to 8x088s fees and ex-offioio
compensation. r;e quote from said opinion as follows:
“In answer to your inquiry, you cre aa-
vie,ed that it is the opinion of’ tNs department
that the ex-officio compensation oi the county
clerk must be considered and aoaounted for in
arriving at the maximum annual corn-penaatlon of
said clerk. The alerk shall first out of the
current Sees of his office pay or be paid the
Honorable Fred Blundell, Page 5
.(,.
>*
s,
amount allowed him undar the 2rovlsions
of Article 3883, together with the salaries
of hisassistants and deputies, and author-
ized ex2ansn.e under Article 3299, and the
amount necessary to cover the cost of premium
on whatever surety bond day be reqllired hy
law. If the ourront fees of such office
collectea in any year be more than the amount,
needed to pay the amounts above speoified
the same shall be deemed excess fees and
the clerk is permitted to retain one-third
of nuch excees fees until suoh one-thlrd,
together with the amounts spooifled ln.Arti-
cle 3883, arcounts to $3,000.00) In other
words, the county olerk is sntitlod to retain
all the cozpeneation allowed by Article
3883, together with the one-third oxuess
fees allowed by Article 3891, until euoh one-
third together with the amount speaified in
Article .3883, amounts to $3,000.00 per annum. :
If the compensation allowed undar Article
3333 and the 8x088s fees allowed under Artl-
ale 3891 do not reach the maximum of $3,OOO,OO
per annum, the Commissioners* Court is au-
thorized to pay the clerk an ox-officio com-
pensation, Provided such oompen&+ation, to-
gether with the fees retained by him under
Articles 3883 and 3891, doe8 not amountto
more than $3,000.00. Thare~aan be no excess
fees until the amount of $2,400.00 is reach-
ed and the deductions which are allowed by
law are made. To illustrate, the county olerk
oarnot take $1,400.00 as fee8 under Article
3883 and then add the $l,OOO.OO ex-officio
compensation to make a total of $~2,400.00 and
then say rll fees coming into the office as
are authorized by law are exoass fees, and
that he ia entitled to one-third of the same.
In short, before the clerk is entitled to any
excess fees under Article 3891 he must first
receive as fees the amount of $2 400.00 not
inaluding any part of the ax-ofi&io co?rqen-
aatlon after making the legaldedmtlons a8
allowed by law and after this amount has been
reached then the alerk is entdtled to one-third
Bonombla Fred Blundell, Pago 6
of such emess fees as provi4ed by &?tiola
3891 and as above stated if this does not
reach the totalmaxLmun of $3,000.00 per
annum, the Covuuissionersl Court may in its
discretion legally allow an ax OffiOio
compensation provided such com@csation,
together with the fees retained under the
above mentioned artioles, door not exoeed
#3,000.00 per annum.”
We enolose herewith a copy of said opinion for
your lnfonaation.
There oan be ‘no ox~oss fees for the oou5ty clerk
of Eays Gounty until the amount or $2,400.00 is reaohed and,
I the deduotione which are allowedd by law are made. And us-
ing the Illustration giv85 In opinion Ho, O-3896, eupra
i :f~ the county olerk oannot take $1, 400.00 as fees undar &i-
/ ‘,a ale 3883 and then add’s $1,000.&I sx-offioio compensation
to make a total of i;2,400~00 an&.thrJn eay that all fees
coming Into the. offioe aro exooss fees and say that he ir
entitled to one-third of the same. Ae pointed out in 6ald
opinion, before the olezk ie entltleU to any axeesr fees
undsr~drticla 3291, he must ffr~etreaelve aa fees the amount
or b2,roo.oo arteq, making the legal arduotiona allowed by
law and not lnoludying any part of his ex-officio ocmpen-
i” satfon and artar this amount has been reaoh6d, then the
alerk is eutitled to one-tNra of auoh exoess foes as pro-
\, vided by Artial3 3891 and that if this does not reach
$3,000.00 por anhum, the Commleaionerst Court may in It8
disoretion legally allow an ex-officio oomponsation pro-
vided such eom eneation tol;ether~ with the ieas retained
do not omeod P3,000.OO.
‘The case 0s l%lts, ‘et al v;~ Bell County, 132
3. W. 123, (Supreme Court of Texas), aited by you, hold8
that where a county judge, by purehaaing property at a
aheriffte sale, was acoountable to the county for the pur-
ohase price, the oountyts crediting itself 05 e dobt owing
him to the extent of tho ptiohaso ha& the same effeot as
if the money was paid him, and that the settlenunt aas a
valid 0n0. ‘Jyequote from said ease as r0n0m I
Cbt evlaanao shows that the oounty de-
clined to aocept ~a aonveyanou frolc Belts (the
County Judga)~, but alrote& to raoeirs from
him the prioe of the land whlah he paid in
settlement by whioh the oounty got aredit
On a debt dur to Felts iOr tho sum bid for
the lend, ~,A oredit on the county*8 debt was
(I paymant and had the same eifaot as fi. the
money had been paid by Felta." (Bracket
insertion ourrr)
"'; . . The colIlmlesi0nsre* court had
jurisdiction over the finanolal~aifairs of
I the ooupty and had the authority to make an
adjustmept between it and any person where
there' W&s mutual alai-o; Lt is the same
thlog'as.lS Beltr had paid the amount of his
bid to %ll County and the oounty had then
paid the aama money to Felts, We therefore
hold that tha settlament batween Bell County
and Felts was valid and binding upon the
aouuty. It le not sought in thie aotion to
sot the settlement aside, nor ia there any
svidenoe to justify ouch aetlonrW
You do not state the amount of fsaa earned and
oollacted by the clerk. If, for example, the olark earn-
ed and oollected tees aiaountLng to $4,S!O0.00 after deduot-
fng the expenses allowed by law and exclusive of any
ox-oifioio compensation, he would bs mtltled-to retain
fiT3fX.00 and would hava to yay the county #1,200.00 axeaas
. If he had been paid any ex-offioio oompen$;to&k
r0u.M have to return all of it to the county.
oashed or sold hismrrants for said ex-officio oompenaation,
he would hzve to pay the County in money, but it ha had
not oashed or sold his warrants he would be aut&oriead to
return them to the oountg la settlement or his obligation
under the authority or Felts, et al V. Bell County, euprar
If the clerk earned and oollected $2 700.00 in
fees after deducting his letgal expeneee he woui d be en-
titled to retain ~2,500.00 and would owe the oounty $800.00
exoess fees. If the county had allowed him, say #200,00
ex-officio conpensetlon and paid him with general fund
warrants we think thet he awld return the warrant8 (if
Eonorable rSrd BlUrtdoll, we 8
he still had th-1 to the aounty in 8ottlemnt oi the $800.00
ha owed the aounty for OXOOE~teem under the authority or
Felta, et al v. Bell county, 6tip-8.
Truatlng that this satlsfaotorily answer8your in-
quiry, and with bs8t regards, we are