Honorable G. A. Walters
County Attorney
San Saba County
San Saba. Texas
Dear Sir: Opinion No. O-1450
Re: To what fund should the
county treasurer deposit
the excess commissions
received by him over and
above his $2.000 maxi-
mum compensation earned
as commissions on the pro-
ceeds of the sale of ‘Road
Bonds voted by the county.
By your letter of September 14, 1939, you submit for the
opinion of this department three questions, which we quote as follows:
-1. To what fund should the County Treasurer
deposit the excess commissions received by him over
and above his $2.000.00 maximum compensation earned
as commissions of the proceeds of the sale of road bonds
voted by the county?
-Z. Is he required to deposit these excess com-
missions in the general fund 7
“3. Or, is the Commissioners’ Court authorized
to use these excess commissions in the road districts
for which the bonds were voted and sold? *
The County Treasurer, under the provisions of Articles
~1709 and 1710. is authorized and required to receive all moneys belong-
ing to the County, irrespective of the source from which they are de-
rived, and to disburse and account for all moneys which shall come into
his hands by virtue of his office. For performing his official duties, he
is allowed. under Article 3941. stipulated commissions on certain moneys
.received and Raid out by him. Within the statutory limits. the Commis-
sioners’ Court sets the percentage which shall be paid him as commis-
sions~.
Hon. G. A. Walters, Psge 2 (o-1450)
Subject to certain exceptions, which do not concern us
here, Article 3943 provides that the maximum compensation to be al-
Towed the county treasurer in a county such as San Saba shall not exceed
$2.000.00 annually.
Our Supreme Court in Harris County v. Charlton, 243 S.W.
460, 112 Tex. 19, held:
“The commissions accrued to the benefit of the
county treasurer as he handled the various funds en-
trusted to his care . . . When his limit of $2,000 was
reached in collecting and disbursing these funds, in
whatever month, then his right to collect and retain
further commissions . . . ceased.”
If, as your letter intimates, the commissions specified
in Article 3941 were set aside or collected and retained by the County
Treasurer even after the maximum allowable had been earned, such set-
ting aside or retention was not authorized by law.
It is provided in Article 7523 that moneys realized from
the sale of road district bonds “shall be placed in the county treasury of
such county to the credit of such political subdivision or road district of
such county. . . . * This means that such moneys belonging to the road
districts of the county constitute a special fund in the county treasury,
separate and apart from the county funds.
These road district funds can never become part of the
county general fund. Certainly the fact that a portion of them have been
retained by the County Treasurer under the mistaken impression that
such portion constituted commissions to which he is entitled by law does
not change their character as road district funds. Red River County v.
Graves (Civ. App.. Texarkana, 1926) 288 S.W. 54. See also Watson v.
El Paso County (Civ. App.. El Paso, 1918). 202 S.W. 125.
~The Red River County case was a suit by the county to re-
cover excess commissions collected and retained by the County Treas-
urer. The court held that the county could not recover that portion of tbe
excess commissions which came from the Road district fund since it did
not allege that it sought recovery of that portion for the use and benefit
of the road district.
In answer to your first question, therefore, it is the opin-
ion of this department that under the statutes above noted and under the
decision in Harris County v. Charlton. supra, no occasion should arise
Hon. G. A. Walters, page 3 (o-1450)
for the County Treasurer in San Saba County to receive any commissions
whatsoever after he has earned his maximum compensation of $2.000.00
for any fiscal year.
However, if due to a misinterpretation of the law, the
County Treasurer collected commissions in excess of that maximum,
such excess must be returned to the fund, or funds, from which it
came.
U all of the excess commissions. that is. that portion of
the total commissions which was received after the maximum had been
earned, came from funds belonging to the road districts for which the
bonds were voted and sold, all of such excess must be returned to the
road districts. This answers your third question.
In answer to your second question, if a11 of the excess
came from the road district fund, such excess cannot lawfully be placed
in the county general fund.
Trusting that the above sufficiently answers your inquiry,
we are
Yours very truly
.ATTORNEY GENERAL OF TEXAS
APPROVED NOV 10. 1939
/s/ Gerald C. Mann
By /s/Robert E. Kepke
ATTORNEY GENERAL Robert E. Kepke
OF TEXAS Assistant
By /s/ Peter Maniscalco
Peter Maniscalco
PM:BT/cm
APPROVED
Opinion Committee
By BWB
ChaIrman