### TEE ATTORNEY GENERAL

Aue~w 11.TBxAn Thie Opinion Ovrrruler 0lnion #O-722--O-12&-0-1529

bnorable I. Predecki aounty Auditor &lrerton, Texas Overruled by O-6616

Opinion No.~0.jQ1 Be: Compenmtlon of a 8p8ai8l county 

### judge of 

### Galre8ton county. Your recent requert for an opinioir of thlr dopartment on the above etated matter has been received. 19l&,.and

B. iiolaan of thlr county
‘home for ap roximatel twb pregid.e an udgr of t l

s E

tfon at a 8peeial called t, 1940, elected Hr. hl88el l a8Special Judge hating

tters 

### Inthe

the Countymay rendered by the County Court. ute that author ttention that or the senlaes

stated above. full amount of in January of t Com~iAssi0ner.s' illness.Honorable I. Predecki, Page 2
Hay2Tth, 1939, to Mr. Fred T. Porter, County Attorney, KaufmanCounty, you rtate: ‘A Special County Judge, whether lrervlng in a general capacity or a probate ca rhould be cornenrated on the folr city, only Theannual owing ba8i8:

ra ary of the Judge of the County P Court divided by 365 and the quotiant multlplied bythe numberof da 8 actually rewed by ruch special Juige. Til8 compensation should be paid from the Offlcerr! Salary Fund of ~theCounty.t

“OuOctober Pth, 1940, I wrote andarked for an opinion with reference to the salary or compensation to be paid the Special Judge who wa8nominated by the BarA8sociatlon to act during the abrence, through lllnes8 of the elected County Judge E. B. Holman01thir County.

-“In aietter from you, signed byMr. W.C. Caaon, Admlnistratlve.A88istant I received -boples of Opinions NOS.O-722,-6-123& and O-1529, concerning 

### the quertion submitted In myletter, a oopy of which I al80 l ncl@ae.

‘Judge iiolmanwas detained at his homeuntil the 1st of Jan 1941. Onyesterda ELssell H.harxi Special County Juge presz? hr. ented to mehi8 claL IA the total amount‘of it $$t*$ At

? claiming this a8his compensation from 1940 through Uecember 31st 1940, Inclusive. ‘I enclose s copy of nis bill:

“From the opinions received, I -understan d th:.t tne special Judge is to be paid for each day that he actually serves, and the compensation to be arrived at as stated on Page 2 of 3pinion No. O-722. ASNW.tiarktell renders nis bill for every day, including sundsys and holidays from August 21st, 1940, ne is requesting payment not for the d;:ys tnzt he ?ctuclly served, but for evCry dsy intervening between the first dzy of his appointment until the last day.
ItIunderstand fro:n the ocinions rendered th;t the 3p@cial Judge is entitled to all of thegonorable I. Predeckl, Page 3

compensation received by the dul Judge (in Galveston County, the Eelected ounty Judge receives &,750.00 per annum, and which he 

### received during his ab8enCe) andIt ir necl rlrary formeto establi8h the numberof actual day8 for which he is to be pald.

‘1 therefore respectfully 88kyour
‘

. opinion to aid mein determining the actual day8 that be beWed, ~whether the tinA i8 reprreented a8 8hownin the Hinuter of the Count teria 1Court orwhether it includes anyminisduty that deVOlVe8 on the 

### County Judge and of which there is norecord in the Minute8 

### of the Probate or Civil 

### Docketr. Torubrtantiate 

### or verify his claim, it would be neol 88ary th8t the County Clerk chowthe number bf day8 that wire actually 8erved bythe Special Judge andthat the Clerk certlf to this statement. Theclain that Mr. Mar Ew ell

- has presented is a statement covering the

entire perfod without anyreference to Sundape, holiday8, and whenno Probate 

### or Civil matter8 cameupfcir hearing. At tlmea thr Speelal Judge qpeared at the office ofthe County Judge andwhether any dutle8 were performed or not, I amunprepared to say and it might be that 80m8day8 the Special Judge did not appear at all. In other words, what constitutes in your opinion, aworking day for the Special county Judge.” The claim of Honorable iiussell H. hsrkwell presented the following claimagainst the County of Galveston for service' rendered as special County Judge reads as follow-s:

January 23r&, 1?41.

11 days in August - - - - - - - - 4143.11-- y%

honorable 1. Predecki, Page 4

4months at $395.83 per month- - - - - $ 1583.32

Total amountof claim a8 provided byStatute .- - - - - $ 1726.43

Section 1 vides In part a8 P fo Article 5of the State Conetitution prolonr: "* * *. Whenthe judge of the County C&t ir di8qwlifird in anycane pending in the~county Court the partier intere8ted ma point a proper person 

### to.try 1’ by consent, apra dcare, or upon their falling to do 80a competent perron maybe appointed to try the muse

### In the county when It 18 ending in such mPnnera8nay be prerorlbed by aw.” PArticles 1930, 19313 1932, 1933and 1934, Vernon's .¬ated Clril Statutes, read a8 follows:~

“Al%. 1930. Whenajudge of the county oourt 18disqualified, the partIe may, by consent, app.oint a-proper. peroon. tom try-ruch oa8e.

“Art. 1931. Whenever ajudge of the xounti Court 18dirqualifled to try a civil oa8e pending In the oounty oourt, andthe parties shall fail at the first 

### term of the court to agree upon a epeolal judge, the judge 8hall certify his disquallfioation to the Governor and the failure to agree upon another to try the same, whereupon the Governor shall appoint some person, learned in the law to try such case.

“krt. 1932. Whena county judge is disqualified to act in any probate matter, he shall forthwith certify his disqualification therein to the Governor, whereupon the Governor shall appoint some person to act as special judge in said case, wno snall act’ from term to term until such disqualification ceases to exist. Aspecial judge so appointed shall receive the same compensation as is now or maygonorable I. Predeckl, Page 

### 5

hereafter be provided by lar for regular judges in similar cases, andthe commlsdonero' Court shall, at the beginning of each fiscal year, Include In the budget of the county, asufficient sus 

### for the payment of thr special judge or judges l p- pointed by the Governor to 

### act for the regular county judge.

.tryiG a casi, ghe parties or tihelr counsel mayagree upon anattorney Sor the trial thereof; and, if 

### the shall fail to apse upon an attorney at or i:eforr the tins it Is called for trial, .or if the trial of the Casei8 pending andthe county judge should become unable to act, or is absent, and a special judge is selected whoIS disqualified to prooeed with the trial, and the parties thrn fail to aeleot or 

### agree upon a special judge whoIs pual%fied, the county judge or special judge presiding shall certify the fact to the ~Governor Immediately whereupon the governor shall appbint a specjal judge, qualified to ttXer2 or%~e2i~0,~~"m~ ~L~lrn~gF shall prooerd to the trial or dispoe tion 

### of such case. Anyspecial udge agreed upon or appointed to try cases sLl 1 receive the same pay for his services as is provided by law for county judges. "Art. 

### 1934. If a county judge fails to appear at the time appointed for holding the court, or should he be absentduring the term or unable or unwilling to hold the court, a special county judge may be elected in like manner as is provided for the election of a special district judge. Tnespecial county judge so elected shall have all tne autnority of the county judge while in the trial and disposition of any case pending in said court 8Y'+B EbPn&~Sjft8~&.in3Ulif$J' ef~cfY~&r~$~sSi held at any time during the term, t0 SUpi<lythe absence, failure or inability of the county judge, or any special judge, to perform the duties of tile office. ivhen a special county-- 

## 380

honorable I. Predecki, Page 6

judge She.11have been so elected, the clerk shall enter upon the minutes of the court, a record Suchas is provided for in like cares in the district court.W Articles 554, 555, 556and 557, Vernon’s Codeof Criminal Procedure, read as follows: *

@Art. 554. 

### Whenthe judge of ~thecounty court or county court at lax is di8qualified in any criminal case pending in the court of which he is judge, the parties may, by consent, 

### agree upon a special judge to try such case. Ifthey fail to agree upon aspecial judge to try such ca6e? on or before the third day of the term at wnich such~case maybe called for .trial the judge ‘presidin certiiy that fact to the i50 shall forthwith vernor, whoshall forthwith appoint somepracticing attorney to try such ease.

“APti 555. Theattorney agreed upon-or appointed shell, before he enters upon his duties as special jud e, fice required by the 8 take the oath of ofonstitution.

“Art. 556. ‘Whena speoial judge is agreed upon by the parties or appointed by the Governor, as above providrd, the clerk shall enter in the minutes as a plrt of the proceedicgs in such cause, a record siiowing:
"1. That the judge of tne court was disqualified to try the cause.

“2. That such special judge (naming iAm) was by consent of the parties aFreed upon or was appointed by the Governor to try the cause.

“3. That tne oath of office prescribed by law has been d.lly a&inistered ts such special judge.

“Art. 5j7. A%

special judge selected or ap;oir,ted in accorcznce witri tile preceding articles shall receive tne saffie conFenssti3n
as provided by law for regular judges in similar cases."honorable I. Fredecki, Page 7

314, that: It is stated in Texas Jurisprudence, Vol. 25, p.

"There are three modes Inwhich a judge maybe selected totake the plao8 

### of a regular county or district judge: Plrrt, if the regular judge fails to appear 

### at the appointed time and plaoe for holding hlr court, an

### election of a special judge lust be held in accordance with ths StatUtO~ prOViSiOnS; judge is from an second, if'the regular

a case, the 

### I cauer dl8quallfied to try

@rt es thereto may

### byagreeaent appoint 8special trial judge; third, should the parties fail to agree on a spa&l judgr, anappointment maybe 

### made by the governor. Thespecial judge selected in any of these mode8should possess the necessary qualifications, andshould take the oath 

### of offioe.n It is further Stated in Texas Jurisprudence, Vol. 25, pp. 325, 326and 327, as follows:

"&ring the. continued ~absence of- the regular judge, or his continued unwillingness to serves a special judge elected b torneys is, within the meaning of trAthe ate constitution and laws, ajudge of the court. Oenerally speaking, he has all the authority of a regular judge with respect to cases that proper&y come before him, or, at least, he has such of the regular judge's powers as are necessary to enable him to transact the business of the 

### court. Anelected special judge may preside --even at a special term of court--in all cases in which he is not disqualified; his authority is not limited to the trial of cases in whir3 the reguiar judge is not disqualified. tie may dispose of tne unfinished business of the rewlar incumbent or of another special judge; he mayrdjourn court from day to day; and nt;mayvalidate acts of ;lis predecessor. It sems, Iioiiever, tllat a sFecia1 judge Aas no autllority beyond We particular court wAcn he is elected to nold.”goa. I. Pradaokl, Pago 8

It Is further stated In Taxaa Jurlsprudenoe, Vol. 

### 25, p. 

### 309, that:



### t 308# qnder the oonstlthtlon and statutes

there Is but one **00oaSiOn UpOll**  whloh tb parties, through mutual oonsant, may‘appoint a psopar person to try the oaaa’; auoh ocoaslon arises whentha ragular judge Is legally dIaqualIiIad. Tha 4bsanoa of the regular judge ior anyraaaon doer not authorize suoh appointment; In auoh a oaao tha apeolal judge Is to be eleoted bytha bar, or appointed by the governor. Onthe other hand, the dIsquallf~oatIon of a Judge Is not ground-ror tha elaotian **or** a apaoial judge by attorneya, unlesa, It adams, tha parties or the governor should id1 to daaIgnata 8judge to sit’ in the plaoa of tha ona whoI4 disquallrlad. n Wequota rurther tr’omTexan JurIaprudanoa, Vol. 25,~. OS**r0ii0wi3:** *The seleotlon or appointment cUa speolal judge is proper only uponthe oondltions epeoirled In the constitution end atetutea. Aooordlng to suoh oondltlons a speolal oounty or distilot judge mayba seleoted by oonsent of the parties whenthe regular judge Is dlaquallrled; and anelaotion of a special judge by attorneys Is proper should e district judge ‘fail or reruse to hold the court ,’ or, In tha ease or oounty judges, Ii the judge ‘falls to appear et the tire appointed ior hcldlng the court,, or should he be absent during the term or unable or unvrillinc to hold the court. The foregoing ere the only circumstances In whioh the selection of a special county or district judge Is autho:Ized. As we shall see presentlY, a special Judge may not be seleotcd to riii avacancy in the judicial ofrlce. The statutes Drovidlng ror the election of e special jufige in She event that the regular jurlre is akent or U:T.T;.LIIJGTO331.LCCUXT I-TJ.V-5. 33.:: FjlLLTOI32C3::“TITUT- OMiL
, ..”gon. I. -PredeokI, Page 9

Seotlons 67, 68 and 69, Vol. 25, pp. 314, 315, 316 as&317, Texaa’JurIsprudanoa, read In part se iollowar

Wee. 67. Vlth respect to both dlstrlot and county judges, the statutes provide for the eleotlon of a spaolal judge whenthe regular judge Is absent or unable to preside. Although not aIpreaaly authorlzad In the constitution, the prooadure ao

### prorldad la not objaotIonabla upon oonstItutIonal grounda; andIt la applloable to both regular and speolal terms. Vhi purpose oi the eleotlon oi aspaolal Judge $ato prevent a faIlura to hold aterm
or the court baoausa of the absanoa of the regular judge. Aasbova stated,’ anl laotlon maybe held whenthe regular judge t8118 to appear or Is unwilling to hold oourt; but this 

### Is not the proper procedure whahthe reguler judge 

### Is dlaqualIrIed, or when a vaoanoy has ooourdd In the orrloa Itselr. %eo. 68. Asreolsl judge maybe alaotad by the bar either at a regular or a spaolal term. ‘A’herethe regular judge fells to appear at the beginning of the terr+, one day maybyallowed to elapse before resort la hadto an eleotlon; but this delay Is not neorasary; the attorneys attending the oourt my proceed at once to the seleotlon of a speolal jubga. However, If etter the eleotlon, either on the rlrst or saoond day, the regular judge puta In anappearance, he assumes oontrol oi the court and ouats the special judge of jurlsdlotion. Where the court has been adjourned from day to day for three deys, because of the tsllura or the judge to appear, or vdere oourt

‘Ies been convened end has not been edjourned for the term, the election maybe held upon the r.ornlng of the fourth day, unless the regular judge on that Feornlng puts In en appeerance.

“‘Like elections maybe held fror;, time ta tire fiurin- the tCrrl 0T tie c3Ct to supply the absence, reilure or Inability oi’ the jutige, or of eny special judge, to perform the duties
or the orrioe.'~

“:Cec. 69. An election 0r special juage Is to be held by the prfictlcing attorneys of the oourt, and the person to be selected 8s judge must be one of their number. The manner of conducting the election--the proclamation,.

. 

## ,384

non. I. Predeokl, Paga 10

the duties of the aherlrf, oonatabla and olerk, andthe voting--are preaorlbed by statute. * l *.I)

“The only 1ImItetIon with reepeot to the right of an attorney to vote at the election la that he shall bee preotlolng lawyer of the oourti he mayvote although haresides outalda the oounty and QIstrIot, andmayoust his ballot ior himselr. Themajority whloh la aufflolent to l laot la amajority of thou* partIoIpatIng In the eleotlon andnot amajority or the attorneya preaant In.oourt.

Seotlona 2and

### 3of Artlolcl 

### 3926, Vernon’s Annotated
- -. . _ -- oirii stat.utea, raaa 44roliowa:



### “2. For eaoh oaaa or lunaoy dIapoaad or byhim, ~threodollara~ to be paid out of the county trea.4ury. For eaoh oIrI1 aausa f ’inaliy dIaposad of byhimby trial or otherwise, .threr dollars, to bs taxed agelnst (agaInat the party oaat In the suit; provided that If said party

- has riled his oath of Inability to pay ooats

- during the-progress of the- osusa, or be unable to pay ooats, then the oountg judge ahall be allowed by the oommIssIonera oourt suoh oaapenaatlon It maydaamproper, not to rxoaed three dollar8 for eaoh gtata oasa. 

### “3. For presiding over the oommIsaIonera~ oourt, ordering l leotlona end makingreturns thereof, hearing anddetermInIng oIvll oausea, Ii any, and transacting all other ofrloIal buslness not otherwise provided ior, the County Judge shall reoelve suoh salary irom the County Treasury as the oommIssIonersf tiourt may allow him by order, payable monthly rrom the general tunds of the county, provided, that In counties having $29O,OoO,OOO.OO assessed valuation, or more, end which heve established therein Institutions for the care of both dependent end delinquent boys end Clrls, the County Judge shall receive as ex-officio salary, not to be accounted for es rees 

### or orfloe, and in e6dItIon to all amounts allowed under the MaximumFee Bill, the further sumoi $3,000.00 per 

### BMW, payable monthly out of

. the general funds of the county.”
Sections 3or ktiole 

### 3926, supre, no longer applies to oountles whose oftloers are compensated on a salary basis under ArtIole 3912e, Vernon’s Annotated Civil Statutes. Sec-. gon. I. Predeckl , Peg0 11 

## - 3%

tion 2 of aald atatuta la applIoabla to all oountlea whether aaa salary or rue beala, but In oountles whose oounty orrIoIala l ra oompenaated on

### l alary baala, the f8a I4 oolleoted end paid snto the *OrrIoers~ Sslary Fund ”, while In iea counties tha faes oolleoted are paid to the County Judge to be eooounted ror byhimunder appropriate stetutaa.

Artlola 1052, Oodaor CrIm.lnal Prooedure, provIdaa aafallows I

Ybrea Dollars ahall be paid bythe oounty to the County Judge, or Judge of the Court at Law, andTwoDollar8 and ility oenta ahall br paid bythe oounty to the Juatlor of the Peaok, 

### ror eaoh orlminal notion tried’ andilmlly dIsposad of boron him. Provided, however, that In all ooua-~ tlaa having a population of 20,000 or laaa, the Jaa6Ioo ai the Pee00 shall rooolvo a trial iaa of Three Dollars. Such Judge or Juatloe ah411 present to the ConsaIssIoners~ Court of hla oow&tyet a regular term theraof awritten looount 

### apaoISyIng eaoh orImIna1 ao4Ion-In whloh he olaims suoh roe, oertliled bysuoh Judge or Justloa to be oorreot, andfiled 

### with the-County Clerk. !lheCoamIaslonera’ Oourt shell approie auoh aooount for auoh amountas they rind to ba oornct andfiled with the County Clerk. Ihe CommlaaIoneral Court shall approve auoh aooount ior suoh amount aathey rind to ba oorraot, and order 4 drart to be Issued upon thr County Treeaurar In ravor of auoh Judge 6r 

### Justloo for the amountaoapproved. Portided the ConmlsaIonera~ Court shall not pay eny account or trio1 rees In sny oaae tried andIn whloh an aoqulttal Is had unless the State of Teres waarepresented In the trial of seld o4use by the County Attorney, or his assistant, Criminal Dlstrlct Attorney or his esslstent, end the certllloste of said Attorney Is stteched to said aooount certifying to the faot that said ceuse was tried, end the Stete of Texas was represented, end that In his judgment there was surricient evidence in said oeuse to demand a trial of same.” Articles 1887 and 6821, Vernon’s knnotsted Civil Statutes, reed es follows:

“Art. 1887. Should the 1udge oi a dlstrlot court onthe firsti or eny future day of a term, fell or refuse to hold the oourt, the practicing lewyers of the court.-. 

## 336

. . Bon. I. Predaokl, Page 12
praaant mayaleot from amongtheir number a apaoIal judge whoshall hold the oourt andprooaad with the buaIneaa thereof.”

“Art. 6821. The aalerIes of speolal Judges oommlsaIoned bythe Governor In obedlanoe to Seotlon 11, Artlole 

### 5, of the Constitution, or elrotsd bythe practlolng lawyera or agreed upon bythe parties au provided by law, shall be determined on& paid aa rollowe:
*1. Eaoh apeoial judge ahall raoelva the sum, pay es dietriot judges for ovary day that he maybe oooupled In performing the duties or judga andthose ooimaIaaIoned by the Governor rhail also reoelve the sum) payaa dietriot u&gasfor avery day they maybo naoaasari 1. y oooupled In going to end returning rrom the plao ewhere they maybe required to hold. oourt.

“2. The amountof suoh adlary shall be kaoertalned by QIiIdIng the aalary allowed adlstrlot judge by three hundred end sixty-rive, andthen tiultlplylng the quotient by the number of days ectuelly served by tha speoia& judge.

: (I 

### 3. Ajudge aooommIsaIoned ahall, In order to obtain his s01ary, present his sworn aooount to the Comptroller, ahowIng the number or days neoesserlly oooupled In going to and returning rrom auoh place, aoocaapanIed by evldenoa that he wqsduly oommlssIoned. Suoh aooount shall be oertliled to be oorreot by the judge of the district, or by the clerk of the court In whloh the services were per

### romea.

“4. :. judge so elected or egreed upon ah811 be paid for his services on presentation to the Comptroller of the oertlfioete of the clerk of the court in which such services were performed, showlnC- the record of such election or appointment end strvIces, 5d accompanied by the sworn account of such :udy_e sliming. the nunber of days, ectually served by him as such special judge."
It will be noted that Artlole 6821, supra, provides oompensatlon for s?eclal district judges, whoere appointed by the Governor, or elected, or agreed upon. There is no such provision for paying special oounty judges In the above article. Artlole 1933, supre, provides oompensatlon for speolal county

### .- 387

. '.aon. I. 

### Predeokl,Page 13
j0ages appointed or agrerd upon, but does not mention or proTl4e oompcnsatlon for speolal ooudy judges whoare eleoted by the bar as euthorlzod byArtiole 1934, supra.

The above mentioned statutes, In both the Code oi &idnal Prooedure and the Civil Statutes, prwldlng oompensation rtx speolsl oounty judges, apparently apply in oaacs where tha regular oounty judge Is oompensated ona

### tee basis. The regular oounty judge 

### 0r Gliteston County Is ocunpensets4 on an snnual salary baslr. Seotlon 4, Artlolr 39120, provides In arreot thst whom thr oounty ofilolals are oompensated on an snnual salary basls It shall br the duty or all oitloera to ahargo andoolleot in the mnner ruthorlzed bylaw all rers en4 samlesIons whloh rrr permitted by law to be assessed an4 oolleot04 ror all oftidal aerrlors perfOrms bythem. As andwhensuoh revs are oolleoted they shall be deposited In the Offloors’ Salary run4 or runds provided in 

### the Aot. Wehare bern unable to rlnd 

### a4 Statute providing e.ompensatlon 

### ra speolal oounty judgeseening ln that oapaolty in oountles where the regular oounty ju4ge 1s oompensated. on anannual salary barls.

It la awell settled law that statutes presoribing fees ror pub110 ofrloeis are strlotly oonstrued;~snd henoe aright to rees maynot rest In lmplloatlon. (Tax. Jur. Vol. 34, p. 508; MoCalla v. Clty of Rookdale, son, 244S. W. 807). 246 S. W, 654; B&or4 v. RoblnAdofrloer n~3y

-not~olalin or reeoh anymoneywlthout~ alaw authorizing himto‘do so, and olearly flxlng the amount to whloh he Is entItled. (Tex. Jur., Vol. 34, v. Robinson, 244 5. PI.807; MoLennanCounty 1. 

### &5;;; -34 S. W. 347; Duolos 1. Harris County, 291 S. VI.611, arrirmeb 298s. w. 417).

Asabove stated, wehare found no stdtute authorlzing the peyment of oompenaetlon to 8 special county judge in acounty where the regular county judge Is oompenseted or. an annual salary basis. Therefore, in dew Ofthe absence of such statutory authority, weare of the opinion that no compensation is provided for a speoial county judge in counties where the rsgular county judge is oompensated on an annual salary basis.

Our Opinion Nos. O-722, O-1234 and O-1529 are hereby expressly overruled in so far as they conflict vilth this opinion. Trusting that the foregoing fully answers your inqulry, we are A:::R9:jrb Yours very truly A’PTORNXY

GiWflAL OFTEXAS

mIs Opinion andapprove4 By /a/ Ardell Williams

Considered Assistant in limited conferenoe