GROVER   SELLRRS            AUSTIN PI.TEXAS


                                       This Opinion Overrules Opinion
                                       #o-834 and Overrules o-1447 In
                                       part.
     Honorable R. C . Neaves
     County Auditor, Grayson County
     Sherman, Texas
     Dear Sir:                    Opfnion No. O-5951
                                  Re: Salaries of various deputies of
                                       the County Tax-Assessor Collec-
                                       tor.
             Your letter of April 7, 1944, requesting the opinion
     of this department on the questions stated therein, is, in
     part, as follows :
               “1 o May the County Auditor approve’warrants
           drawn on the Grayson County OffLcers’ Salary Fund,
           payable to the deputy or deputies working in the
           branch office of’the Assessor and Collector of Taxes
           in excess of an aggregate total of $1,200.00 for any
           one calendar year?
               “For your consideration I submit the following
           lnformation :
               “‘The Assessor and Collector of Taxes of Grayson
          County, Texas, with the consent and approval of the
          Commissioners’ Court, maintains a branch office in
          Denison, a city in Grayson County other than the county
          seat. The city of Denlson is located about ten miles
          from  Sherman, the county seat, and a great volume of
          business is handled by the deputies stationed in the
          branch office there. Their work consists of collect-
          ing and issuing receipts for property taxes,  issuing
          poll tax receipts, registering motor vehicles and is-
          suing license plates therefor. According to the last
          Federal census, Grayson County had a~population of
          69,499 inhabitants, and the city of Denison had a
          population of 15,581 inhabitantsa’
               “At the January 1944 Term of the Commissioners’
           Court, the Assessor   and Collector of Taxes of Gragson
           County, Texas,   submitted his application for deputy
           hlre for the operation of the above mentioned branch
           office for the year 1944, same being approved as pre-
           sented by the Commissioners’ Court as follows:
                                           ‘.
Honorable R.C. Neaves, page 2          o-5951


    "One   full time deputy at an annual salary of $1,440.00
    "One   deputy for four months @ $85.00 per month 340.00
    "One   deputy for month of January                150.00
    "One   deputy for half of month of January
    "One   poll writer for month of January            782$E
    "One   poll writer for half month of January       41:25
    "Total deputy hire approved for the branch
    office for the year                           $2,128.75
         "In other words, would it be mandatory upon the
    County Auditor to refuse to sign a county warrant drawn
    on the County Officers' Salary Fund, in payment of com-
      ensation to the above'mentioned deputies, after the
    $ 1,200.OO has been exhausted, regardless of what portion
    of the year is left?
        "2. May the County Auditor approve a county war-
    rant in payment of daily travel expense for a deputy
    tax assessor and collector going from Sherman, the
    county seat, to Denison and return, while working in
    said branch office? * * *'
        Article 7256, Vernon's Annotated Civil Statutes, among
other things, provides, in effect, that in all counties contain-
ing a city or town, other than the county seat, which has in
excess of 7,000 inhabitants according to the last Federal Census,
the assessor and collector of taxes, withthe consent and ap-
proval of the commissioners' court, may appoint a deputy assis-
tant collector of taxes in such town or city,"who shall have the
right to collect taxes from all persons who desire to pay their
taxes to him, and to issue a valid receipt therefor, and that
such deputy is authorized to receive a fee of not exceeding
twenty-five cents when receipt issued covers property taxes, and
that such deputy shall receive no other compensation for his
services, and that such deputy shall not retain more than $1,200
for any one calendar year, and the balance, if any, shall be
deposited to the credit of the General Fund of the county.
         Section 61, Article 16 of the State Constitution, pro-
vides:
        "All district officers of the State of Texas
    and all county officers in counties having a popula-
    tion of twenty thousand or more, according to the
    then last preceding Federal Census, shall from the
    first day of January and thereafter subsequent to
    the first regular or special sessi~onof the Legisla-
    ture after the adoption of this resolution, be com-
    pensated on a salary basis. In all counti~esin
Honorable R. C. Neaves, page 3        o-5951



    this State, the commissioners court shall be au-
    thorized to determine whether precinct officers shall
    be compensated on a fee basl.sor on a salary basis;
    but in counties having a populati,,on
                                        of less than
    twenty thousand, according to the then last preced-
    ing Federal Census, the commissioners’ Court shall
    also have the authority to determine whether county
    officials shall be compensated on a fee basis or on
    a salary basis.
        “All fees earned by district, county and pre-
    cinct officers shall be paid i.ntothe county treasury
    where earned for the a,ccountof the proper fund, pro-
    vided that fees incurred by the State, county and any
    municipality, or in case where a pauper’s oath is filed,
    shall be paid into the county treasury when collected
    and provided that where any officer is compensa,ted
    wholly on a fee basis such fees may be retained by
    such officer or paid into the treasury of the county
    as the Commissioners’ Court may direct. All Notarles
    Public, county surveyors and public weighers shall con-
    tinue to be compensated on a fee basis.”
        Section 1 of Article 3912e, Vernon’s Annotated Civil
Statutes, prov:,des:
        “No district officer shall be paid by the
    State of Texas any fees or commission for any serv-
    ice performed by him; nor shall the State or any
    county pay to any county officer in any county con-
    taining a population of twenty thousand (20,000)
    inhabitants or more according to the last preceding
    Federal Census any fee or commission for any service
    by him performed as such officer; provided, however,
    that the assessor and collector of taxes shall continue
    to collect and retain for the benefit of the Officers’
    Salary Fund or funds hereinafter provided for, all fees
    and commissions which he is authorized under law to
    collect; and it shall be his duty to account for an to
    pay all such monies received by him into the fund or
    funds created and provided for under the provisions
    of this Act; provid,edfurther, that the provisions of
    this Section shall not affect the payment of costs In
    civil cases by the State, but all such costs so paid
    shall be accounted for by the officers collecting the
    same, as they are requ.iredunder the provisions of this
    Act to account for fees, commissions and costs collected
    from private parties .”
        Section 5 of Article 3912e, Vernon’s Annotated Civil
Statutes, reads, in part, as follows:
                                                          .   --




Honorable R.C, Neaves, page 4          o-5951



        "It shall be the duty of all officers to charge
    and collect in the manner authorized by law all fees
    and commissions which are permitted by law to be as-
    sessed and collected for all official service performed
    by them. As and when such fees are collected they shall
    be deposited in the Officers' Salary Fund, or funds pro-
    vided in this Act, * + *'
        Article 3902, Vernon's Annotated Civil Statutes, is a
general statute ~regardingthe appointment of deputies, assis-
tants or clerks of any district,county or precinct office, and
applies to all counties within the population bracket therein
contained. This statute sets out the przedure to be followed
whenever a district, county or precinct officer shall require
the services of deputies, assistants or clerks in the perform-
ance of his duties, and Section 4 of this Article reads as
follows:
       "In counties having a population of sixty
    thousand and one 60,001) and not more than one
    hundred thousand I100,000) inhabitants, first as-
    sistant OP chief deputy not to exceed Twenty-four
    Hundred ($2400,00) Dollars per annum; other assist-
    ants, deputies or clerks not to exceed Twenty-one
    Hundred ($2100,00) Dollars per annum each."
        In view of the foregoing statutory and constitutional
provisions, it is the opinlon of this department, that the
deputy assessor and collector of taxes in the branch office
mentioned in your inquiry, mst pay in all fees collected under
Article 7256 to the Officers' Salary Fund. The deputy in the
branch office must be paid out of the Officers' Salary Fund of
said county, and the maximum amount of his compensation cannot
exceed $2,100 per annum.
        It is our further opinion, in view of the foregoing
statutory provisions and Section 61, Article 16 of the Consti-
tution, that Article 3902 supersedes Article 7256 insofar as
the salary of the deputy in the branch office is concerned.
        The full time deputy in the branch office can receive
any compensation for his services as set by the commissioners'
court provided, of course, that his compensation does not ex-
ceed $2,100 per annum. The County Auditor would have no legal
right to refuse to sign a county warran,tdrawn on the Officers'
SalaryFund in the payment of compensation to such deputy whose
salary or compensation has been fixed by the commissioners'
court at $1440 per annum.
         Article 2971, Vernon's Annotated Civil Statutes, pro-
vides:
Honorable R.C. Neaves, page 5        0 -5951



        "In all counties containing a city of ten
    thousand inhabitants or more, other then the county
    seat, such collector shall have a duly authorized
    and sworn deputy to represent him for the purpose
    of accepting poll taxes and giving receipts therefor,
    who shall keep his office for such purpose at some
    convenient place in such city during the entire
    month of January of each year, and he shall publish
    four weeks notice of the authority of such deputy
    and the location of the office."
        The foregoing statute authorizes the county tax assessor
and collector to have duly authorized and Sworn deputy to rep-
resent him for theourpose of accepting poll taxes and giving
receipts therefor in a city of ten thousand inhabitants or more,
who shall keep his office for such purpose at some convenient
place in said city during the entire month of January. With
reference to the compensation of this deputy, or deputies; it
is our opinion that such deputy or deputies, acting under the
provisions of Article 2971, would.be compensated under the ap-
plicable provisions of Article 3902, Vernon'3 Annotated Civil
Statutes. The compensation of these deputies for the month of
January would be payable out of the Officers' Salary Fund.
        In answer to your question regarding the traveling ex-
penses of the deputy assessor and collector of taxes in the
branch office mentioned in your letter, who travels daily be-
tween Sherman and Denison, you are advised that it insour opin-
ion that the county is not legally authorized to pay such travel-
ing expenses. Stated another way, we have failed to find such
statute authorizing such expenses to be paid out of county funds.
        All other expenditure of county funds for the compensa-
tion of various deputies employed in the branch office az set
forth in the order of the commissidners' court are unauthorized
and the County Auditor has no legal authority to approve such
claims. In other words, the deputy in the branch office and
the deputy or deputies performing the duties mentioned in Arti-
cle 2971 can be paid from the Officers' Salary Fund. The other
deputies in the branch office cannot legally be paid.
        Our Opinion No. O-834 is hereby expressly overruled and
our Opinion No. O-1447 is overruled insofar as it conflicts with
this oplnion.
Honorable R.C. Neavas, page 6            o-5951


                                 Yours very truly
                           ATTORNEY GENERAL OF TEXAS

                                 By s/Ardell Williams
                                      Ardell Williams
                                      Assistant
AW:EP:wc

APPROVED APR'25, 1944
s/Gee. P. Blackburn
(Acting) ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By   s/BwB   Chairman
