Untitled Texas Attorney General Opinion ( 1940 )

OFFICE OF THE A?TORNEY GENERAL OF TEXAS
AUSTIN
Bon. (kargs H. Shep~aml
CoBlptrollerOf Pub110 kcoounts
Austin, 'bra8
opinion Ro. O-2002
met b%lximum0
?a orricio oomp
a been rsoelred and
iv0quote rr0m
orCollm3tor to gou
rhloh you sncloss
tion under
o the Sheriff,
l-8'court tar
68 or ad 00urt
~a1 0x-0rf i0i0
e Jaonthly Be) author-
a amount wa8 paid
Xn other words
lowed under brt. 25891,but in figuring ths marl-
mum re68 the auaitw for the county 00ntsmIs
Hon. George FL L:hepperd,E'age2
distriot and county court, servlnp all eleo-
tiona notices, etc. as ex officio salery and
paid out of the 7snerel fund of the county
should be figured in along vilth the other fees
or office in oarputlng the raxlmum rees or
.$3000.00rrhloh;rt. 30EZiand art. 3891 author-
izes him to receive. Put the Eherllt, Tax
Assessor and Collector contends thet this
$1000.00 as ax olfloio salary allowed him
under Art. 3934 for performing the duties
speolrled under said article as sherirr should
not be sdded in as a part of the fees author-
ioed under art. 3883 and 3891. In other words
he ccntends that he should reoelve the $1000.00
aa ex officio salary as sherlfl, since it was
allcsvedby the oommiesioners court, End also
the $3000.00 of raxlmum fees allowed under
Artlolo 3883 icr aasesslnfi,
and oolleotlng.
Sheriff, Tax ~aeessor-Colleotor in surrounding
counties under 25,000 populaticn aro receiving
the j1000.00 ex officio, besides xmrlmum fees
for collecting and assessing as ccntended by
this orflce.*
Seotlon I0 of krtlole 8 of the Texas Constitution
reads as follovfe:
"The sheriff of eaoh county, in addition
to his other duties, shall be the ac6essor and
collector of taxes therefor; but, in oountles
having ten thousand (10,000) or more inhebl-
,tants, to be determined by the last preoeding
census of the ;initedYt.ates,an assessor and
collector for taxes shall be elected to hold
ofrice for two (2) years, and until his suooess-
or shall be elected and qualified."
Article 7246, Revised Civil Statutes, reads as
follows:
*In eaah county having less than ten
thousand (10,000) inhabitants, the sherlrf
of such county shell be the assessor and
collector or taxes, and shall have and exer-
cise all the rights, powers snd privileges,
Ron, George I?.Sheppard, Page 3
be subjeot to all the requirements and re-
strictions, and perform all the duties lm-
posed by law upon cIsscmmrs and collectors;
and he shall also glra the same bonds re-
quired of a collector of taxes elected."
Artlols 3883, Revised Civil Statutes, reads
In part as follonsr
%xospt as otherwise provided in thle
act, the annual roes that may be retained
by Rrsoinot, oountg and dlstrlot orflcers
mentioned in this article shall be as fol-
lows:
*I. xn 00~tie8 00ntddng ttdentprir68
(25,000) thousand or less lnhabltsnt8:
County Judge, Mstrlot or Criminal Dlstrlot
Attorney, Sherlrr, County Clerk, County Attor-
ney, Mstrlat Clerk, Tax Collector, Tax
AsBeseor, or the Assessor, or the Astaetmor
and Gol.leotorof Taxes, Twenty-four Eundred
(1)24G@.GO)Uollars eaoh; Justice or the
X'eaoeand Constable, helve hundred ($12OO.OG)
Dollars each."
Artlole 21691,Revised Civil Statutes, reads in
part a8 r0ihm:
*Each uffioer named In this ahapter
shall first out of the eurrent feeo of his
offlae pay or be paid the mount allomsd
him under the pro~lsl~~~? of Artiole 3823,
together with the salarlee of his assistants
t nd d~pUti%8, an@ authorized expenses under
Artiale 3899, and the mount necessary to
aover costs of premium on whatever surety
bond nay be required by law. If th4 arrant
fees of euoh orrfo~ oolleoted in any yeas
be more than the amount:needed to pay the
amounts above speelried, same shall be deemed
8x0~1s~fees, and shall be disposed of in the
manner hereinafter f;rovidsd:
390
Hon. oeorge B. Shepprd, Page 4
*Id counties oontalning twenty-five
thousand (ZS,OC*O)or leas inhabitants, Ma-
trict and County officers named herein shall
retain one-third of such esoess tees until
auoh one-third, together with the amouute
apeoifled in Atilole 3883, alEountoto Three
Thousand Dollars ($3000). Preainot oifioers
shall retsin one-third until such one-third,
together with the accountspsclfiad in Artiole
3889, amounts to fourtan Hundred Dollars
($14001.
9 ....
Vhe compensations, llmltatlons and mari-
muus herein fixed in this Aot ior ottloers
shall lnalude end apply to 811 otiioers men-
tioned herein in aaoh and every county of thle
State, and it 1s hereby declared to be the
IntentIon or the Legislature that ~the provi-
siona af this Aat shall apply to each or said
oiiioers, aad any special or general law in-
aonslstent with the provisions hereof Is
hereby expressly repealed in so rar as the
me my be Inconsistent with this sot,
The compensation, llmltations and tvarl-
mum8 herein fixed shall also apply to all
fees and co=pensatlon whatsoever oolleated
hy said orfieers in their orricial oapaaltp,'
whether accountable as fees or orrloe under
t.hepresent law, and any law, general or
speofal, to the contrary is hereby expressly
repealed. The only kind and aharaoter of
compensation exempt from the g~~~isions ol'
this Act shall be rewards received by Sheriffs
ror apprehension of crimluals or fugitives
irolEjustlae and ror the reooverp of stolen
groserty,.and ~sroneya
reaelved by county judges
aud justices of the peaoe tor perromlng marriage
oerauionles,which sum shall not be acaountable
for and not required to be reported as fees OP
orrice.*
391
Hon. George H. Sheppard, Page 5
tilcle 5895, Tevlsed Civil Statutes, reads
as r0il0wt3:
satlon for dx orficio aenioes when, in their
judgment, such aontpensatlonis neee6sary, pro-
vfded. suoh oomeneatfon r0r e2 0frici0 aer-
yloea~allowed a&all not Increams the owpaa-
sation or the oiiiclal beyond the marlmuf#
of ompenaation and exoem fee6 allowed~$o be
retained by hia under tbi h pt P ~ldd
however. the ex officio h% a~dorl~e~ shall
ii allowed only after in op+tunltf for a
public hearing and only upon the effinnatlve
vote of at leaat three members of the aceale-
slonere * aourt.m (undetsoorlng oura)
Art&la S92%, Revised Civil Statutes, reads a8
*Sheriffa shall alrroreeelve the tollow-
lag aonqmmationat
*l. For all prooess iscruedfrom the
Supmxw Court or dourts.oi Civil Appeals and
served by theai,the same rees a8 are allowed
them ror slatilarseryioe upcm prooesa issued
from the dlstrlat court.
"I?,For stamaoaingjurcea in district and
corliit'g'eourt13,
serving all deation notloea,
notloee to overaeera OS roads and doing all
other publio business sot otherwise provided
for, not ezeeedlng one thousand dollars per
annum to.be fixed by the ocmml8elonera* oourt
392
Zen. Qeor&e R. Sheppard, Page 6
at the,sane time other ex oifiolo ealaries
are fined. and to be paid out of the aenarel
funds of the county: -rovided. that no such
ex officio salary sha
Sheriff who had reoel!~db~~lary
allowed by law.* [underscoring ours)
This department has repeatedly held that the
offioe Of Sherlfi ena Tax GoUeotor in oounties having
a population of less than lO$NO Inhabitants is one ln-
separable ortlce under the Constitution. See oplnlon
Xo. 1715, dated Uaroh 2, 1917, written by Hon. 0. '19.
Taylor and Hon. C. 1:. Cureton, Awietante dttotiey General,
moorded in Vol. 49, Page 12, Reaords of the Attorney
Oeneml of Texas.
Thin department baa repeatedly held that In
counties having a population OS less tha,n10,000 lnhabl-
tents when, the offloe of Sheriff-Tax %aeeeaor-Colleotor
Is combined In one offloe and held byeOne officer that
said officer la entitled to retain only one marlmum
salary and is not entitled to three UBX~IINUW. See opinion
of thle department, dated June 29, 1956, written by Eon.
Joe J. Alsup, Assistant d-ttorney General, and reoorded
In Vol. 372, page 458, Letter Opinions of the Attorney
General of Teras.
The aase oi $errant County vs. %lth (CIT. App.-
BYit or Error rerueed) ;Bl SW 26 559, holds that a eherlrr
who had already earned the m.axtium oomp8n8atlon allowed
by law was required to return amount aolleated as ex
offlalo oapensatlon, although such ~UIQhad been ordersd
paid by eontnlesloners~oovrt. Vi%qUOt8 iTOm said OaS8
as followsr
"The Sheriff was paid in advknoe In
192S by the conw&ealonerat court $300 as
%I 0rri0i0 reef8for summoning jurors. R.S.
Al-t.3934. That year he mde h%s max5mus1
oompensation or $6000 exolu6Llveof that
$800. In such event it was his duty, under
suoh above statute, to return the $SOO to
the county. He did not do so. This holding
393
Ron. George B. Sheppard, Page 7
does not amount to setting aside the Judg-
ment Gf the oomnissioner6~ oourt whioh order-
ed the $000 paid. Me a86ume that judgvient
t7 be valid. By the SUb6OqUent @vents),to-
wit, the collection otherwise and thereafter
of the maximum pay, IQ. <h beoame obligat-
ed to return that 1110ney.~
You are respeotrullg adviaed that it is the
o inion of this department that the sum of Three ThoUsand
(%SOOO.OO).Collars i6 the maximum amount that the Sheriff-
Tax A6seSaOr~OlleCtOr or Crane County is allowed to ro-
taia for the year 1939 Under the faots et&ad in your
latter. The sherlfr would not be entitled to any ex
affiaio salary in suoh inatande but if ft had been pald
to him he would be required to rettlrnit to the oounty.
Any and all 6m6 In exoess of #SOOO.OO rsosived by the
6heriff should be returned to the county.
Trusting that thie sati6faatorily anBwer8 yOaUr
inquiry, we are
Very truly yours
A!lT’OW-RAlOFTBXdS _
APPROVECMAR 22, 1340
---+-Md
ATTORNEY GEWERAL OB TEXAS