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 this department on the above stated question, You have informed us 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 (bj of 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 officials when 

the compensation and excess fees which they are allowed to 

retain shall reach the maximum provided for in this chapter, 

In cases where the coslpensation and excess fees which the 

officers are allowed to retain shall not reach the maximum 

provided for in this chapter, the Commissioners' Court shall 

allow compensation for ex officio services when, in their 

judgment, such compensation is necessary, provided, such compensation of the officials for ex officio services allowed 

shall not increase the compensation of the official beyond 

the maximum of compensation and excess fees allowed to be 

retained by 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 above quoted article does 

not authorize a commissioners' court to pay a justice of the peace 

for ex officio services. For your reasons in reaching such a 

conclusion we quote in part from your letter as follows: 
Honorable Joseph H. Mims, page 2 O-5470 

n . . ..Article 3895 speaks of 'county officials'; other articles 

dealing with fees of office distinguish between county officials and precinct officers. Therefore it would seem that 

the maxim, 'The expression of one thing excludes the other,' 

applies here." 

In other words , you are segregating the officers named 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 

construction used in interpreting statutes 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 constuction when their application will 

defeat the purpose of the statute. 

The primary query presented by your request is whether 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 much emphasis should be 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 designated ascounty officers. 

i;Je cannot say or conclude that this change of language was intended 

or designed by the Legislature to alter the scope of Article 3895, 

supra, which has long been on the statute books, in the absence of 

some specific expression to that effect. 

We have diound no authority naming those who are within the purview 

of this article or directly on the question if a justice of the 

peace is included thereunder. It was held in Conference Opinion 

No. 2166, dated December 12, 1919, approved by former Attorney 

General C.M. Cureton, that justices of the peace were county officials within the meaning of Article 3893 (now Article 3895). The 

reasons for so holding are fully stated in the opinion, a copy 

of which is herewith enclosed. Since the writing of that opinion, 

the Legislature has not materially altered the statute providing 

for compensation for ex officio services; in fact, the only change 

that has been made thereto was by the 43rd Legislature in adding 

the proviso requiring an opportunity for public hearing and the 

affirmative vote 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 the writer therein elucidated upon the nature of ex 

officio services and that compensation therefor should only be 

allowed when such services have been performed. 
- . . - 

Honorable Joseph H. Mims, page 3 O-5470 

It is, therefore, the opinion of this department that the commissioners' court of Midland County, 

of Article 3895, supra, 

by complying with the provisions 

may allow compensation to its justices of 

the peace for ex officio services rendered by them. 

Very truly yours 

APPROVED AUG. 11, 1943 

GROVER SELLERS 

ATTORNEY GENERAL 

ATTORNEY GENERAL OF TEXAS 

BY Fred C. Chandler 

Assistant 

ROK:db:ml 

Enclosures 

Robert 0. Koch