ORNEY GENERAL

HQlior&ble

J. E. Fitzgibbon County Attorney Webb County Laredo, Texas OpinionNo. WW-610

Re: Is the Commissioners' Court compelledto pay $2,900.00,or can the Court exercise discretionand pay nothing, or any amount not to exceed $2,9OO,OO,

uuder Section 2A of Senate Bill 78, Acts of the 52nd Legislature, Regular Session, 1951, Chapter 303, Page 485

A Codified as Article 819a-3,Vernon’s Dear Kr. Fitzgibbon: Civil Statutes.)

You have requestedan opinion on the following queetlon: Is the Conmissioners' Court compelled under Seation 2A of Senate Bill 78, Acts of the 52ud Legislature,

Regular Session, 1951, Chapter 303, Page 485 Codified as Article 6819a-3,Vernon's Civil Statutes to pay either $2,9OO.OO,or nothing,

I or can the Court exercisediscretionand pay an amount not to exaeed $2,9OO.OO.

The caption, said Section 2A, and Section 4, being the emergencyclause, of said Act read as follows:

"An Act to amend House Bill No. 805, Acts of the Regular Session of the 49th Legislature roviding for additionalcompensation of Kdges Of Matri t Courts and.Crimi 1 bisCourts in bountieshaving a pnGulation of not less than one hundred fifty-nine.

Hon. J. E. Fitzgibbon, page 2 (~-610)

nor more than six hundred inhabitants,aacordingto the last preceding or any future Federal Census and certain countiesbordering on the International

Doundarvbetween Mexico and the United States;providing the manner of ayment thereof;providi 539~ th t Art1 1

, Revised Civil Stat%es tf TeAi Ef 1925; as amended, and Article 5142a, Revised Civil Statutes as amended by Chapter 27, Acts of 51st Legislature,1949, and Article 5142b, Revised Civil Statutes as amendedby Chapters 66 and 339, Acts of 51st Legislature, 1949, shall not be repealed;,.,prohibiting, however, the payment of any 'salaries to District Judges under those said Articles for any month wherein salariesprovided by this Act are paid, providing that if sny portion of this Act is unconstitutional, it shall not affect the remainderhereof; and dehlaringan emergenay.

"Sec. 2A. That in all counties in this State bordering on the international boundary between Mexico and the United States and having a populationof not less than fiftyfive thousand (55,000)inhabitantsaccording to the last preceding Federal Census, the Judge or Judges of the severalDistrict Courts and CriminalDistrict Courts. as the
case may be, may each receive annually,payable in monthly !rwTh toobe tion, out of the zenera fund thereof, as comnensationfor all judicialand administrativ‘e services,includingthose as members of the JuvenileBoard of said counties,now rendered, and any additional judicialadministrative serviceshereafter to be assigned to it or them, as the case may be, in addition to all sala paid or hereafter to be paid by the Statzof Texas out of the State
revenues.

"Sec. 4. The fact that Judges of the District Courts and Crlml 1 Dl t I t Courts In counties having a poz%atikro: not lessxan oneHon. J. E. Fitzgibbon, page 3 (~~-610)

hundreds

fifty-ninethousand (159,000) nor more than SIX hundred thousand (6OO,OOO)'inhabitants and~certs3.n

countiesbordering on the International

Boun&ry between Mexico and th nitd Stt have heavy judicialduties and haveenume~o~~a

Edbi """, t "7 creates 2:::

atrativeduties They shoul e corn ensa e , aency and an ntsera ve pu i reouirlnzbills the Constitutional Rule ~11~necessity that to be read on three severaldays-in eazh House be suspended;and said~Ruleis hereby suspended, and this Act shall take effect and be in force from and after its passage, and it ,isso enacted." (Emphasisadded)

"may" Your question Is prompted by the use of the word in Section 2A.

Hess and Skinner EngineeringCo. vs Turney et al, 203 S.W.593,594 (Tex.Sup.)states:

'The Intent of a law is the essence of the law, and it is to be gained from the entire context. The words 'may' and 'shall'are not infrequently used interchangeably

in legislativeacts. They are to be given that meaning which will best express the legislativeintent."

Smlssenvs State, 9 s.w.112,118 (Tex.Sup.) states:

"The word tmayl in the connectionused in the sixteenth sectionwas doubtlessly'used in the
sense of 'shall'and thereforewas mandatory. Such is the settled construction when the subject-matter

is one in which the public have an interest to be proteoted or promoted by the exerciseof a power, or performance of a prescribedduty, by a public officer, unless the context shows that the word was used in its primary slgnificatlon."

When there be doubt as to the Intent of a' provision of an act, the entire act, including the caption and any emergencyclause, are to be considered.. -

Hon. J. E. Fitgibbon,page 4 (~-61.0)

We conclude from the caption.andemergency

. . . of said aeti whicn we nave

._ _ _ set out in full above, that the legislaturelntedded a peremptory finding'offact and decision that said judges "'have heavy judfcialduties and have numerous administrativE duties for which they shouldbe compensated, ereatlng "an imperFftiVf? publicnecessity, and intended an act providing for additionalcompensation of judCl;es" and "providingthe manner of payment thereof, and~enablingsuch judges to receive such additional compensation, and fixing the amount thereof, and authorizingand requiring same "to be paid by the countyhaving such populatfonout of the general~ fund thereof,'and to be "payablein monthly installments,"

and that It was not the intent of this act to vest any dfscretfonin the CommisaloneratCourt. clause and Section 2A

Another similaract passed by the same legislature is House Bill 395, Acts of the 52nd Legislature,Regular Session, 1951, Chapter 252, Page 394 (Codifiedas Article 681ga-7, Vernon's Civil Statutes). It contains in Its caption "an act providing for the fixing of compensation of judges” and "establishing

a lim%tat%onof the amount of such compensation." It contains in its emergency clause "the fact that judges of the district courts ---- have numerous judicialduties and numerous administrative duties for which compensation is not now received, creates an emergency----."
Section 1 of said Act provides in part II---- district judgesmay receive annuallypayable fn monthly Installments, a salary to be fixed by the Commissioners~

Court, of each county, by said county out of the general fund

We conclude that, if the 52nd Legislature had intended that Section 2A of its S. B. 78 provide for the Commissioners' Court to exercisediscretion, that instead of its merely stating "$2,9OO.OO,to be paid by the county," the Legislature would have stated "a salary to be fixed by the Commiasloners~ Court of the county, to be paid by said county,"
as it did in H. B. 395, or simflarwords, and that the caption and emergencyclause of said S. B. 78 would have contained statementssimilar to those quoted from the caption and emergencyclause of Its H. B. 395.- .

Hon. J. E. Fitzgibbon, page 5 (Wf-610)

It is our opinion that the Act requires the county to pay said $2,900.00annually in monthly installments,

and that It does not empower or authorize the Commissioners' Court to exercise its'dlscretion

and pay a lesser amount or nothing.
Accordingly,the answer to your question shouldbe that the Commissioners' Court is com-
$elled under Section 2A of said S. B. 78 to pay 2,9OO.OOannually,and such Court cannot exercise discretionand pay a lesser amount or nothing.

SUMMARY

Section 2A of Chapter 303, page 485, Acts of the 52nd Legislature, Regular Session, 1951, (Article6819a53, V.A.C.S.) reading In part: ---- (District)

Judges ----may eaoh receive annually,payable in monthly installment s, $2,9OO.OOto be paid by the countyhaving such populatior+, out of the general fund thereof----, does not merely permit such county to make such payments, or to pay less, or to pay nothing, as its Commissioners' Court may in its discretiondetermine, but said provisionboth authorizesand requires such county to make such payments.

Very truly yours

WILL WILSON Attorney General of Texas

Willism R. Hemphlll Assistant

WRH:jlwHon. J. E. Fitzgibbon, page 6 (~~-610)

APPROVED:

OPINION COMMITTEE George P. Blackburn,Chairplan

Milton Richardson

L. P. Lollar

Leonard Passmore

Jack Goodman

REVIEMEDFORTHE ATTORNEXGENERAL

BY: W. V. Geppert