**THE** 

### ATTORNEY GENERAL OFTEXAS

Honorable Joseph H. Mims County Attorney Midland County Midland, Texas
Dear Sir: Opinion No. O-5470 Re: Is the commissioners'court of Midland County authorized to allow ex officio salary to the justice of the peace? This will acknowledge receipt of your letter of recent date requesting the opinion of thisdepartment on the above stated question, You have informedus that justices of the peace of Midland County are compensated on a fee basis; therefore not being salaried officers, they are not affected by subsection (bjof Section 6 of Article 3912e, Revised Civil Statutes, inhibiting compensation for ex officio services. Article 3895, Revised Civil Statutes,provides as follows:
"The Commissioners'Court is hereby debarred from allowing compensation for ex officio services to county officialswhen the compensationand excess fees which they are allowed to retain shallreach themaximum provided for in this chapter, In caseswhere the coslpensation and excess fees which the officers are allowed to retain shall not reach themaximum provided for in this chapter, the Commissioners'Court shall allow compensation for ex officio serviceswhen, intheir judgment, such compensation is necessary, provided,such compensation of the officials for ex officio services allowed shall not increase the compensationof the officialbeyond the maximum of compensationand excess fees allowed to be retainedby him under this chapter. Provided, however, the ex officio herein authorized shall be allowed only after an opportunity for a public hearing and only upon the affirmative vote of at least three members of the Commissioners' Court."
You have expressed the opinion that the abovequoted articledoes not authorize a commissioners'court to pay a justice of the peace for ex officio services. For your reasons in reaching sucha conclusionwe quote in part from your letter as follows:Honorable Joseph H. Mims, page 2 O-5470

n

....Article3895 speaks of 'countyofficials'; other articles dealingwith fees of office distinguishbetween county officials and precinct officers. Therefore itwould seem that the maxim, 'The expression of one thing excludes the other,' applies here."
In otherwords, you are segregating the officersnamed under the articles pertaining to fees of office into groups, and by applying the above maxim quoted from your letter are limiting the scope of Article 3895, supra, to one of these groups. Maxims or rules of constructionused in interpretingstatutes are not arbitrary rules, but are merely used by the courts as a means of ascertaining the legislative intent of the law makers. Such rules will not be adhered to in statutory constuctionwhen their applicationwill defeat the purpose of the statute. The primary query presentedby your request iswhether or not justices of the peace are "county officials"within Article 3895, supra. In arriving at an answer to this question,we do not think too muchemphasis shouldbe placed upon the fact the articles dealing with fees of office speak of officers, "county,precinct and district

"for up to 1934 these same officers named in our present articles on fees of office were all designatedascounty officers. i;Je cannot say or conclude that this change of languagewas intended or designedby the Legislature to alter the scope of Article 3895, supra,which has long been on the statutebooks, in the absence of some specific expression to that effect.
We have diound

no authority naming those who arewithin the purview of this article or directly on the question if a justice of the peace is included thereunder. It was held in ConferenceOpinion No. 2166, dated December 12, 1919, approved by formerAttorney General C.M. Cureton, that justices of the peace were county officialswithin the meaning of Article 3893 (nowArticle 3895). The reasons for so holding are fully stated in theopinion, a copy of which is herewith enclosed. Since thewriting of that opinion, the Legislaturehas not materially altered the statute providing for compensation for ex officio services; in fact, theonly change that has been made theretowas by the 43rd Legislature inadding the proviso requiringan opportunity forpublic hearing and the affirmativevote of at least three members of the commissioners' court. We held in our Opinion No. O-125 that ex officio compensation may be allowed justices of the peace. is also enclosed. A copy of that opinion

Your attention is called to that portion of the enclosed conference opinion where thewriter therein elucidated upon the nature of ex officio servicesand that compensationtherefor should only be allowed when such serviceshave been performed.- .. -

Honorable Joseph H. Mims, page 3 O-5470

It is, therefore, the opinion of thisdepartment that the commissioners' court of Midland County, of Article 3895, supra, by complyingwith the provisions may allow compensationto its justices of the peace for ex officio services renderedby them. Very truly yours APPROVED AUG. 11, 1943 GROVER SELLERS ATTORNEY GENERAL ATTORNEYGENERAL OF TEXAS

BY Fred C. Chandler

Assistant
ROK:db:ml Enclosures Robert 0. Koch