4 R-904
OF’PICE OF
THE ATTORNEY GENERAL
AUSTIN. TEXAS
PRICE DANIEL
AlTORNEY GENERAL Bovember 21, 1947
Hon. Ben D. (teeslln Opinion Bo. v-430
county Attorney
UcCulloch County Re: Authority of the Commis-
Brady, Texas sionersl Court to grant
ex offlclo salaries to
oounty offioers any tine
in the year.
Dear Sir:
We refer to your request for au opinion from
this office on the above subject matter in which you ask
the following questlone:
“1. May the ConmissionersCourt make an
order granting ex-officio pay to County Offl-
cers at any .tUne hu.r%~~%m ml
“2. Hay the Commlsslonera Court pay to
the Tax Asseasor-Collector of McCullooh Coun-
ty an ex-officio salary?"
Mcculloch County ha.s a population or 13,208
inhabitants acaordlng to the 1940 Federal Census. Its
county officials are compensated on a fee baala and the
maximum compensation allowed under Artlale 3883, V.C.S.,
and Article 3891 V.C.S., as amended by S. B. 123, Acts
49th Leg., p. 244, is $3,750.00. The authority for the
Commissioners1 Court In countlea in which Its county of-
ficials are compensated on a fee basis to allow such
oounty officials ex officio compensation Is found in
Article 3895, V.C.S., which provides as follows:
“The Commissioners1 Court is hereby de-
barred from allowing compensation for ex-
officio services to county officials when the
compensation and excess fees which they are
allowed to retain shall reach the maximum
provided for in this chapter. In cases where
the compensation and excess fees which the
offioers are allowed to retain shall not reach
the mexlmum provided for In this chapter, the
~onerlsslonera’ Court shall allow compensation
. .
Hon. Ben D. Oeeslln - Page 2 (V-438)
for ex -0ffiolo services when, * their judg-
ment, suoh compensation Is necessary, provld-
ed, such compensation for ex officio services
allowed shall not inorease the compensation
of the offlclal beyond the maxbum of compen-
sation and excess fees allowed to be retaln-
ed by him under this chapter. Provided, how-
ever, the ex officio herein authorSzed shall
be alloved only after an opportunity for a
public hearing and only upon the afflrmatlve
vote of at least three members of the Commls-
sioners’ Court .”
It was held In Taylor v. Brewtiter County, 144
3. Y. (26) 314, that the panting of ex officio compen-
sation was entrusted to the discretion of the Con&a-
aloners’ Court by Article 3895 and that there was no
time specified in said Article as to when the Commis-
sioners’ Court could grant ex offiolo compensation. We
quote the following:
” Conditions existing as provided in
Art. 3&,‘lt tight validly make this allow-
ante . It clearly appears from the agreed
statement of fasts that but for the ex-officio
allowance the fees of office would not have a-
mounted to the maxImumof $3,000, which was
the maximum compensation allowed appellant
Taylor. The time when the Commiasloners’ Court
may make this allowanoe is not specified in Art.
3895 . The allowance does seem large. However,
we have not the benefit of the amount realized
In fees of the offlce during preceding years.
Under the conditions named in the statute it
was entrusted to the discretion of the Comula-
aloners I Court. If theae conditions did not
exist or could not exist, the action of the
Commissioners’ Court would be void and COaieP-
red no authority for the payment. ?!he quoted
poo;l;;,;f the stipulation is a8 to an ulti-
. Only acting in the manner provid-
ed for In the quoted statute could it author-
ize the payment. It has power to act in the
premlsea. Aotlon vas taken therein. The oon-
.4zuctlon Is justified, if not compelled, that
It acted lawfully. . . .
In the aase of Tarrant County V. Hollls, 76
9. W. (26) 198, aft dlsmlased, the Court was conslder-
Hon. Ben D. Qeeslin - Page 3 V-438)
lng an order of the CoIIIpIssionersl Court a!+thoplzing the
Payment of 8x officio compensation, and it announced the
following rule of law coverlag the payment of such aom-
perrrrstion:
“The order was entered just thirty-one
days after appellee took offlce and at a time
when the commlsslonersl court did not know
what servioe ‘es-officio1 the appellee would
render or what amouut he would oollect in
fees of offioe, i. e., what his compensation
therefrom would be. The fact that In that
one order the oommLsaloners’ court fixed the
same ex offlclo oompensatlon of $1,500 for
the constable, the justices of the peaae, the
amessor, the oolleotor, and the dlatrlot
tlerk 1s strongly suggestive that the aourt
did not consider seriously just what ‘ex
officio’ servloes these offlclals would ren-
der, but slnae It Fs not neaesrrary to our
deolsion to do otherwise, we Indulge the pre-
sumptlon of aorrectness, whleb Is ordlnarlly
due a court judgment. We do call to the at-
tentlon of the eomulssloners’ court that not
only must the ex offiaio services be rendered,
but that such compensation therefor must be
‘neee8aary.1 It violates the spirit of the
act for a coxahsiontmf court to make such
order merely to enable the petitioner to make
the m8ximumallowed by law., The record Is
wholly silent as to what, lf any, servlcea
those various offloisls were to perform, each
in his different line of work; but each none
the less of the same value to the county. If
the purpose waa only to increase the pay oi
those officials without any ex officio ser-
vioe eontraoted for, then the order was im-
proper. Xe are unwllllng to give the order
a oonstruatlon which its language does not
warraat, and whloh, If so construed, would
suggest imTrudenaeWon the part of the ooa-
miaeloners couct.
In view of the foregoing, It Is our opinion
that the CoIpIasloneral Court of McCulloch County Is
authorized to allow ei offlolo compensation at any time
during the year.
Your attention is directed to the fdct that
Hon. Ben D. Geeslin - Page 4 (v-438)
anyallowance of ex officio compensation would be sub-
ject to the Budget Law. 68912-11, V.C.S.
Article III, Section 53, Constitution of Texas,
provides’:
“The Legislature shell have no power to
grant, or to authorize any county OF munlol-
pal authority to grant, any extra compensa-
tion, fee or ellowanoe to a public officer,
agent, servant or oontraotor, after service
has been rendered, or a contract has been en-
tered into, and performed in whole or in part;
nor pay, nor authorize the payment of, any
claim created against any county or munlcl-
pallty of the State, under any agreementRor
contract, made without authority of law.
In view of this provision of ‘the Constitution,
it is our opinion that If the Commissioners' Court of
McCulloch County deoldes to grant ex offlclo compense-
tlon, suah oompeneatlon can only be for aervlces,,pender-
ed from the date of the order of the Coani~si~~i%~
Court grantlag the same.
In answer to your second question, Tarrant
County vs. Hollls, iPfre, held that the Oommlssioners’
Court may allow ex offiolo compensation to those offi-
cers who perfoma “ex offioio servioesn provided the
Court finds such oompensation~necessery. Therefore, If
the Commissioners1 Court of XcCulloch County finds that
the tax assessor-collector performs nex offioio servl-
aes” and compensation for such services Is necessary, it
ls’onr opinion that the Commimloners* Court may allow
the tax arsesaor-collector ex offlclo salary.
The Conmissioners’ Court of MoCulloch
County (operating on a fee basis) la author-
ized to grant ex officio compensation to its
tax assessor-collector If it finds that the
tax aesesaor-collector performsHex atfld.0
services” and that compensation for such a--
: vice8 is necessary. Rx offioio c~ensatlon
may be granted by the CommlaaZoners’ Court at
any time during the year, but such compensa-
tion must be for services rendered subsequent
V ci
Hon., Ben D. [ieeslin - Page 5 (V-438)
to the date of the order of the Commis-
slonersl Court granting the same.
Yours very truly
ATTORREffERERALOF TEXAS
JR:djm:mv