R-873



                           TXXE ATTORNEY            GENERAL
                                       OF TElxAs

        PRICE   DANIEL

                                          December 12, 1947
                                                F
                Hon. Sam Dollahlte           op&on Ho. v-453
                County Attorney
                Falls County                    *
                                                . Compensationof,Countg
                Marlin, Texas                     Treasurer of Falls County
                Dear Sir:
    :                     You have requested an opinion from this office
:               relative-to the llabillty of Falls County on a claim
                                            I Court for alleged unpaid
                filed with the Conrmissloners
                balance on back salary due the county treasurer from
                "fz~z 1, 1936, to May 1,,1947. Your request is as
                       :
                              "The.countytreasurer of Fe~llsCounty,
                         Mr. J. D. Mires, has filed a claim with the
                         commissioners'court of Falls County alleg-
                         ing that the salary of his office Is set by
                         law,at $2000 per year and requesting the un-
                         paid portion of hi'sback salary.
                              "I have rendered the court my opinion
                         on the validity of his claypland he has
                         filed a memorandum of,authorltieswith'the
                         court as the basis of his contentions. My
                         opinion and his memorandum are enclosed.
                         The court has requested me to ask you for
                         an opinion in this matter.
                              "Mr. Mires' claim and the orders on
                         which it Is based are set out in the en-
                         closed opinion s.ndmemorandum.
                          Article XVI, Section 44, Constitu$on of Texas,
                provides for the election of the county treasurer and
                that such officer shall have such compensationas may be
                provided by law. Artlcle~XVI, Section 61, adopted Aug-,
                ust 24, 1935, provides that all district officers in the
                State of Texas and all county officers in counties hav-
                ing a population of 20,000 or more according to the last
                preceding Federal Census shall be compensatedon a sal-
                ary basis. Article 3941, V. C. S., provides that the
                county treasurer shall receive commissionson monies re-
Hon.   Sam   Dollahlte,page 2   (V-453)


ceived and paid out by him. Article 3943 provides that
the ~~nnsisslons allowed to any county treasurer shall
not exceed $2,000 annually. Section 13 of Article 39128
provides that the Commissioners'Court In counties hav-
ing a population of 20,000 inhabitantsor more and less
than 190,000 Inhabitantsshall fix the salary of the
treasurerat a sum of "not less than the total sum earn-
ed as compensationby him In his official oapaclty for
the fiscal year 1935."
          Falls County had's populationaccording to the
1930 Federal Census of 38,771 Inhabitantsand according
to the 1940 Federal Census, a population of 35,984 in-
habitants. Therefore,prior to the adoption of Article
XVI, Section 61, and the enactment of thw Officers' Sal-
ary Law In 1935 (S. B. No. 5, Ch. 465, Acts of the 44th
Leg.9 2nd Called Session, p. 1762), the compensationof
the count7 treasurerwas governed by the provisions of
Articles 3941 and 3943. Since January 1, 1936, the
county treasurer of Falls County has been entitled to
a salary at a sum "of not less than the total sum earn-
ed as compensationby him In his official capacity for
the fiscal year 1935."
          In determlningthe total sum earned by the
treasurer for the fiscal year 1935, the primary quos-
tlon to be determined is the validity of the Commission-
ers’ Court's orders of February 13, 1933, and June 11,
1935. These orders set out In your memorandum  are as
follows:
         "1. Motion made duly seconded and
    carried that the County Jailor be allox-
 -a ed a salary of Seventy Five ($75.00) &
    No/l00 Dollars per month, also that the
    salary of the County.Treasurerbe set at
    Sixty Five ($65.00)and No/l00 Dollars
    ,permonth. Passed at meeting held Feb-
    ruary 13, 1933, recorded in Vol. 6, page
    100, CommlsslonersCourt Minutes of Falls
    County, Texas.
            "2. Motion made .byG. H. Asbury, se-
       conded by M. M. Allen, that the salary of
       the County Treasurer be raised Ten ($10.00)
       Dollars per month. Passed at meeting held
       June 11, 1935, recorded in Vol. 6, page
       325, CommlssLonersCourt Minutes of said
Hon. Sam Dollahlte,page 3   (V-453)


     County."
          The case of Greer v. Hunt County (Corn.App.)
249 S.W. 831, held that the order of the Commissioners'
Court placing the county treasurer on a salary basis was
void. In determiningthat the order before the court
actually placed the county treasurer on a salary basis
Instead of an effort to limit the maximum amount of
commissionsthe treasurer could earn, the following
principle of law was ~announced:
         ‘There Is no question but that the or-
    der in the present case was void under this
    holding. There was no effort to limit the
    maxlmum amount of cornmissIons which the
    treasurer could earn; but in lieu thereof
    a definite fixed salary of $1,200 per annum
    was substituted. This salary was payable,
   ,wder the order, whether or not,the consuls:
    slona amounted to as much as the salary.
    We agree with counsel for defendant in error
    that merely calling the compensationa sal-
    ary or calling It commlsslonsIs not neces-
    sarily controlling. If the commissioners'
    court had ordered that the treasurer should
    receive 'a salary' of $1,200 per ennum with
    the proviso that, If his lawful commissions
    should amount to less than the salary, he
    should not receive In excess of his lawful
    commissions,this In fact would have been
    fixing a maximum which the treasurer could
    earn as commissions. On the other hand,
    had the commissioners'court ordered that
    the treasurer should receive the definite
    sum of $1,200 per annum 'as commissions',
    regardless of the amount of money passing
    through his hands upon which he would by
    statute be entitled to commissions,we
    think the effect of this order would be to
    fix a salary basis of compensation,and
    the order would be void, regardless of the
    fact that It denominatedthe compensation
    as commissions. The controllingelement
    in determiningwhether the amount to be
    received is upon a commission or salary
    basis is whether that amount, by whatever
    name It may be called, is absolute and
    fixed regardless of what the lawful Com-
    missions may be, or Is made contingentUP-
Hon. Sam Dollahlte,page 4    (V-453)


      on earning that amount as commlsslons."
      (Emphasisours)
          In the case of Montgomery County v. Tnlleg,
Uize;. W. 1141, the court had before It the following
     :
  .       "It is hereby ordered by the court
     that the salary of the county treasurer,
     from and after Deoember 10, 1910, shall
     be, and it is hereby fixed, at the sum
     of $600.00 per annum, and this a&ion of
     the court was unanimous."             0
          Montgomery County in this case contended that
the treasurer'scompensationwas limited to the amount
of $600.00 in accordancewith the above quoted order.
The county treasurer contended that the Commlssloners~
Court's order was void because it attempted to $1~ the
salary of the county treasurer in violation of Article
3873, R. C. S., of 1911 (now 3941) and ho was there-
fore entitled to retain the maximum amount of commis-
slons allowed by law. The court sustained the county
treasurer in these contentions. We quote the follow-
ing:
                  The oPder of March 30, 1910,
      before'sk'out, does not fix the cods-
      slons of the county treaaurer of Jlontgomory
      county, but rovldes that heW;has$;;lve
      a salary of %600 per year.
      clear that a statute which directs the oom-
      missioners' court to fix the compensation
      of an officer by allowing him commirslonk
      on moneys handled by him does not author-
      ize such court to pay the offloers a fix-
      ed yearly salr but on the contrary,by
                     oation, prohibit8 his being
      nrcessary lnpl9'
      paLd Fo #i# Wag.
           "The order of March 30, 1910, being
      void, the only law, prior to the order of
      the colmnissloners'court of Juno 8, 1911,
      before set out, fix1 a ~p o llr e~ls
                                         o mp c n-
      satlon, was article 3 73 of the statute
      above quoted, and article 3875, whfah pro-     .
      vldes that 'the commissionsallowed to any
      county treasurer shall not exceed $2,000.00
      annually.s
Hon. Sam Dollshlte,page 5   (V-453)


          "The commlsslonerst~court having fall-
     ed to fix appellee'scommlsslons,he was en-
     titled to receive the compensationprovided
     by the statute until such compensationwas
     changed by an order of the commissioners'
     court fixing his commissions. Bastrop Coun-
     ty v. HearA, 70 Tex. 563, 8 5. W. 302; Hill
     County V. Sauls, 134 5. W. 267; City of San
     Antonio v. Tobin, 101 S.W. 269."
          For similar holdlngs see Stephens v. Mills
County, 113 S. W. (26) 944; Willl~s v. Cass County, 147
S. W. (26) 588; Rusk County v. Hlghtower, 202 9. w. 802;
Kaufman County v. Gaston, 250 S.W. 741; Bastrop County
v. Iiearn,70 Tex. 563, 8 s. W. 302.
          The orders of the Commissioners1Court of
Falls County quoted above made the compensationto be
received by the county treasurer an absolute and,fixed9
amount regardless  of what the maximum commlsslo~swould
have been. Therefore,under the ruling of the above
cited cases, the orders vere void as attempting to
change the basis or plan for compensatingthe county
treasurer. Since the orders were void, and In view of
the holws     in Montgomery County v. Ts,lleyand Greer
v. Hunt County, the county treasurerwas.entitled to
receive in 1935 the compensationprovided In Article
3941, V. 0. S. AOt to exceed the maximum of $2000.00
set by Article 3943 Va. C. S. Since January lst, 1936,
the minimum salary set by Article 3912e, section 13,    *
v. c. s., has been the amount officiallyearned In 1935.
It was held in the case of Nacogdoches County v. Jinkins,
140 5. W. (26) 901, writ refused, that the Commisslon-
ers' Court was without authority to fix the salaries of
those officers covered by section 13 of Article 3912e
at a sum less than the prescribedminimum (the official
earnings In 1935) and that an order fixing a salary be-
low the minimum was vlthout authority and void. We
quote the following:
          "Article39120, section 13, fixed the
     salary of District Clerks in the class in
     which NacogdochesCounty fell, at not less
     than the total sum earned as comPensation
     by him in his official capacity for the fis-
     cal year 1935 and not more than the maximum
     amount allowed such officer under laws exist-
..   lng on August 24, 1935. The legislaturehav-
     ing prescribed the minilnum(the official earn-
    Hon. Sam Dollahite,page 6   (V-453


        ings In 1935) and that being shown to
        have been $3,241.93, the Commlsslonersl
        Court did not have the authority to ig-
        nore this statutoryprovision of minl-
        mum salary e~ndfix the sa.laryat $2,750.
        The terms of the statute authorieingthe
        Collllllisslonerst
                       Court to fix the salary
        at any sum not less than a certain mini-
        mum end not more than a certain maximum,
        were mandatory and could not be ignored
.       by the members of the court at their dls-
        cretion. The order fixing appellee's sal-
        ary at $2,750 was without authority and
        void."
              Therefore,~It is our opinion that the county
    treasurerhas been entitled to a minimum s~nnualsalary
    since January lst, 1936 equal to'the amount of commis-
    sions he was.authorizeQto retain in 1935 under Artl-
    cles 3941 end 3943 (his official earnings in 1935). In
    other words, if he received and paid out in 1935 such
    amounts of money that the commissionshe would have been
    entitled to therefor under Article 3941 would amount to
    $2800.00, then his minimum salary hss been, since Janu-
    ary.lst, 1936, $2000 per year. On the other hand, If
    the county treasurer did not hsndle sufficientmoney In
    1935 to entitle him to.commissionstotaling $2080, his
    minimum salary since January lst, 1936 would not be
    $2000 but the sum equal to the amount of commissionshe
    wss entitled to in 1935 under Articles 3941 and 3943.
    The amount of commisslcnsthe county treasurerwas en-
    titled to in 1935, is, therefore,dependent upon the a-
    mount of moniesreceived and paid out by him in that
    year, a factual question upon which this office cannot
    pass.
              This opinion is not to be construedas passing
    upon the question of whether a plea of limitationcould
    or should be.pleaded or claimed by the Commissioners'
    Court if a suit were brought to collect the unpaid por-
    tlon of back salary due the county treasurer.
                          SUMMARY
             The orders of the Commissioners'Court
        of Falls County passed prior to the Offic0rs'
        Selary Law (Art:XJlPe, See. 13, V. C. S )
        attempting to change the basis of compensa-
        tion for the county treasurer are void and
        the county treasurerwas entitled to receive
Hon. Sam Dollahite, page 7   (V-453)


    connnisslonsin 1935 as provided for by
    Articles 3941 and 3943 Va. C. 9. Sub-
    sequent to 1935 the county treasurer of
    Falls County has been entitled to a mini-
    mum salary equal to the amount of his of-
    ficial earnings in 1935. Arts. 3941,
    3943, 3912e, Sec. 13, V. C. 3.; Montgom-
    ery County v. Talleg, 169 3. W. 1141;
    Greer v. Hunt County, 249 8. W. 831.
                                   Very truly yours
                               ATTORNEY GEXERAL OF TEXAB



                                   John Reeves
JB:djn:mw