Untitled Texas Attorney General Opinion

Honorable H. D. Glover Opinion No. ~~-675 County Attorney Reeves County Re: Disposition of fees Pecos, Texas received by County Tax' Assessor-Collector for performing assigned duties and for assessing and collecting taxes for Dear Mr. Glover: Independent School District.

Your letter of May 22,,1959, requesting an opinion on the above.subject, reads in.part as follows: L. "Please advise me whether or not the Tax Assessor-Collector in a county with a population of less than 20,000 who is com- pensated on a salary basis in the amount of $6,215.00 and who acts,as Tax Assessor-Col- lector for two Independent School Districts within the County is allowed to retain as fees of office an additional amount of 15 , of currentcollections, l$ of<assessments and 5% of redemptions.from.the Independent School Districts. Also whether or not the. Tax Assessor and Collector would be allowed' to retain either $1.00 per line or 109 which- ever is lesser, from the State and 'County redemption payments. "The facts briefly are as follows: The Tax Assessor and Collector is a separate office in this county and handles the assessment and collection of taxes for two separate Independent School Districts within the county. She de- posits all of the tax money for the two Inde- jI pendent School Districts and the State and County in one bank account and then periodically takes from the cash drawer, in cash, whatever the above figures or percentage would amount to, making rioentry at any~place as .to the money that she takes. "It is my opinion that she is not entitled to retain any of the above-mentioned moneys but

. Honorable H. D. Glover, page 2 Opinion No. w-675 :

that they should all be reported and turned over to the County. . . .' On June 18, 1959, we received an additional letter from you, as foi:ows: "This is a supplemental request to the above numbered~file. Please advlse me whether or not the Tax-Assessor and Collector can retain as her own personal funds the $1.00 that is charged for issu-ingTaw Certificates. %y opinion is that she cannot based upon the reasons as stated in my letter of May 22nd and under your file number above mentioned." The fees which may be,collected by a County,Tax Assessor-Collector in performance of his duties are set ,forth in various Articles of Vernon's Civil Statutes, among which are the foilowing~which we assume to be those you inquire about: (1) Article 7258, as amended, reading in part as follows: "Section 1. On and after October 1, 1953,'the Tax Collector or his deputy of any county in this State, or any city or political subdivision or tax assessing district within any such county shall, upon request, issue a certificate show- ing the.~amountof taxes, interest, penalty and costs'due, if any, on the property described in said certificate. A charge of not to exceed One Dollar ($1) may be made for each such cer- tificate issued." (2) Article 7331, as amended, reading as follows: "For calculating and preparing redemption certificates and receipts, reporting and crediting redemptions, posting Comptroller's ' redemption numbers on the delinquent tax record or annual delinquent list',mailing certificates of redemption to taxpayers after approval by the Comptroller, and for issuing receipts or certifi- cates of redemption for property.shown on the annual delinquent list, the tax collector shall be entitled to a fee of One Dollar ($1) for each correct assessment of Land to be sold, except that if the total amount of said costs so per-

Honorable H. D. Glover, page 3 Opinion No. ~~-675

mitted exceeds ten per cent (10%) of the total amount of the taxes, interest and penalties due before assessing any such costs, then the total cost allowable shall be limited to ten per cent (10%) of such total amount.o~fthe taxes,,interest and penalties, or One Dollar ($1) whichever is the larger, said fee to be taxed as costs against the delinquent. . .' Article 2792, V.C.S., as amended in 1945, provides that the Board of Trustees of an Independent School District, by majority vote, may require the County Tax Assessor-Col- lector to assess and collect, or to collect, only, its taxes. It also states "When the county assessor and collector is required to assess and collect the taxes on independent school districts they shall respectively rece.iveona (1) per cent f;r assessing.and one (1) per cent for collecting same;. . . This is the only compensation currently pro,- vided a County Assessor-Collector who aqsesses and collects independent school district taxes. We are enclosing a copy of ,Attorney General's Opinion No..s-76, holding that the fees collected by the Tax Assessor-Collector, who is on a salary basis, for the issuance of tax certificates under Article 7258a, V.C.S., should be deposited in the Officers' Salary Fund. . The fees collected under Article 7331 should like- wise be paid into the Salary Fund. Article 3912e, V.C.S., Section 5, provides as follows: "Sea..5. It shall be the duty of all officers to charge and collect in the manner ailfhorizedby law all fees and commissions which are permitted by law to be assessed,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 provided in this Act. . .' Section 3 of that same Act provides,that, where county officers are compensated on a salary basis, 11 * . "such officers shall receive said salary in lieu of all other fees, commissions or.compensation which they would otherwise be authorized to retain; provided, however, that the assessor and collector ~of taxes shall con- tinue to collect and retain for the benefit

Honorable H. D. Glover, page 4 Opinion No. WW-675

of the Officers' Salary Fund or funds herein- after provided for all fees and commissions which he is authorized under law to collect; and it shall be his duty to account for and to pay all such monies received by him into the fund created and provided for under the provisions of this Act,. . ." Article 3883(i)(Acts 1955, 54th Leg.,p. 1137, ch.427) provides in Section 1 as follows: "In each county in the State of Texas having the population of less than twenty thousand (20,000) inhabitants according to the last preceding Federal Census where all counwand district officialsare compensated on a salary basis, the Commissioners Courts shall fix the salaries of the officials named in this Act at not more than Six Thousand, Seven Hundred and Fifty Dollars ($6,750.00) per annum; pro- vided, however, that no salary shall be set at a figure lower than that actually paid on the effective date of this Act." (According to the 1950 Federal Census the population of. Reeves County was 11,745.) The assessor and collector of taxes is named in Section 6 as one of the officials to whom Section 1 applies. Section 14 provides that, "All of the fees and commissions earned and collected by the officials named in this Act shall be paid into the County Treasury in accord- ance with the provisions of Section 61 of Article XVI of the Constitution of Texas." The ci.tedSection of the Constitution provides in. part that "all fees earned by district, county and precinct officers shall be paid into the county treasury where earned for the account of the proper fund,. . .' For earlier cases dealing with the accountability of fees earned under this article, as fees of office under Maximum Fee Bill, see Burke v. Bexar County 271 S.W. 132 (Tex 1925) err ref'd. and Came&n County v. Fox, 42 S:t?zdA&' affld' Com:App 61 ,S.W.2d 483 Reh.Den., Com.App., 64 S.W.2d 140. See'Also Attorney Gineralls Letter Opln~ionon Request R2094, a copy of which is enclosed. As to fees paid under Article 2792: In Nichols v. Galveston County, 111 Tex. 50, 228 S.W. 547 (1921),

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Honorable H. D. Glover, page 5 Opinion No. ~-675

appellant County Assessor contended that fees paid him for assessing and collecting~independent school district taxes were for ex officio service and as such not accountable as fees of office. In overruling this contention, the Court said (p.549): "After the statutes were enacted providing for drainage districts and independent school dis- tricts, and tb.atwh.enordered to do so by the . properly constituted authority the county assessor of taxes shall assess these taxes, the assessment of such taxes by him become the usual and general duties of his office; Andythe performance of these duties by him is made mandatory." The same reasoning would apply to the collection of these taxes. It was therefore held that such fees were account- able as fees of office. (We note in passing that officers receiving a salary are specifically prohibited from receiving any ex officio compensation by Sec. 6(b) of Art. 3912e. Sec. 11 of Art. 38831 provides, however, three instances in which extra compensa,tionmay be paid, none of which-are material here.) The Nichols case was cited by the court as controlling authority in Ta lor v. Brewster Count , 144 S.i#.2d314 (Tex. Civ. App., 194R+j+&r. 4 which held appellant County Tax Assessor-Collector was aA;ing-as an officer oftthe, County in collecting taxes for independent school districts under Art. 2792, and therefore his fees for such service were accountable as official fees. The theory and intent of,a salary basis of compensation for county officers, as opposed to a fee basis, are-well expressed in Attorney General's Opinion No. 0-3664,'from which we quote: "In a salary county the fees to which the officer would be entitled personally if'he were on the fee system belong to the county. The officer must collect them for the county and place them in the Officer's Salary Fund. It was clearly contemplated by the Legislature that the salaries of county officers should be paid largely from fees of office deposited in the Officers' Salary Fund." SWMARY A County Tax Assessor-Collector who is compensated on a salary basis must account

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Honorable H. D. Glover, page 6 Opinion No. ~~-675

for and turn over to the County the fees collected under Articles 7258a and 7331, V.C.S., and also'the 15 of assessments and 1% of collections provided by Art. 2792, V.C.S., for assessing and collecting inde- pendent school district taxes. Yours very truly, WILL WILSON Attorney General of Texas

JRI:cm APPROVED: OPINION COMMITTEE: Geo. P. Blackburn, Chairman W. R. Scruggs Gordon C. Cass a.,, Linward Shivers L. P. Lollar REVIEWEDFOR TRE ATTORNEYGENERAL By: LEONARD PASSMORE