April 2.7, 1973

The Honorable Lynn Cooksey Criminal District Attorney “’ Bowie County 412 Texas Boulevard Texarkana, Texas 75501
_ Dear Mr. Cooksey: Opinion No. 

### H- 35 Re: Questions concerning salaries, expenses and removal ofjustices 

### of the peace.
.Your request for our opinion poses the following questions:

1. Is the dommissioners Court of Bowie County limited by Article 3912i, Vernon’s Annotated Civil Statutes, in setting justices’ oi the peace salarks beginning January 1, 1973, or does Article 3912k, Vernon’s Annotated Civil Statuter, apply? 2. Does Article 3936f-1, Vernon’s Annotated Civil Statutes, limit the amount of fees that a

.. justice ofthe peace in Bowie County, paid on a .:+r fee basis, can retain as his compensation for the 

### year of 1972, or does Article 3912k. Vernon’s Annotated Civil Statutes, apply? 3. scan the Commissioners Court of Bowie County provide a secretary for ajustice ofthe peace.under the provisions ofArticle 3912k, Vernon’s Annotated Civil Statutes? 4. Can the Commissioners Court take any affirmative action to remove ajustice ofthe peace who has not satisfied the requirements ofArticle 5972(b), Vernon’s Annotated Civil Statutes, 

### or withhold payment of his compensation absent an adjudication of incompetency and removal by a district court judge?

p, 142. I

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. , *

The Honorable Lynn Cooksey, page 2 (H-351

The scope ofArticle 3912k, V. T. C. S. (Acts 1971, 62nd Leg. , Ch. 622, p. 2019) is set forth in §1which provides:

“Except as otherkise provided by th~isAct and subject to the limitations ofthis Act, the commissioners court,,of each county shall fix the amount of compensation, office expense, travel expense, am all other allowances for county and precinct officials and employees who are paid wholly from county funds, but inno event shall s~uchsalaries be set lower than they exist at the effective dates ofthis Act. ” The office ofjustice ofthe peace is a precinct office (Article 5, §18, Texas Constitution), and is therefore covered by Article 3912k unless otherwise excepted by g7, subsection 4which excepts:,

‘I. . . judges of all courts of record and all justices of the peace, and presiding judges of commissioners courts in counties having apopulation of 1, 700,000 or more, according to the last preceding Federal census. ” Section 8of Article 3912k provides: .p

“To the extent that any local, special or,general law, including Acts of the 62nd Legislature, Regular Session, 1971, prescribes the compensation,. office expense, travel expense, or any other allowance for any official or employee covered by this Act, that law is repealed. ” .

.

It is our opinion that the Commissioners Court of Bowie County, in setting justices’ of the peace salaries beginning January 1, 1973, is / governed by the provisions ofArticle 3912k, and not Article 3912i.

As to your second question, $9 of Article 3912k, Vernon’s Annotated Civil Statutes, provides that the Act was effective January 1, 1972. In conjunction with the discussion above, it is therefore our conclusion that

.’

.. p. 143The Honorable Lynn Cooksey. page 3 (H-351

Article 3912k. and not Article 3936f-1. determines the compensation of ajustice ofthe peace in Bowie County during 1972 and thereafter. With reference toyour third question, Article 3912k provides for the Commissioners Court to establish the amount of office expense for justices ofthe peace and qthersbut a secretary is not anoffice expense. Casey v. State, 289 S.W. 428 (Tex. Civ. App., Texarkana, 

### 1926, err. ref. ). Itprovides for compensation, but does not in itself authorize the establishment ofany office or position. However, Article 3902 does allow the Commissioners Court to authorize an assistant. Once such an assistant has been authorized, hia compensation should be,set inaccordance with Article 3912k. which covers
“county and precinct officials and employees. ‘I (Section 1, supra). With reference to removal of ajustice ofthe peace, Article 5, $24 ofthe Constitution ofthe State of Texas provides as follows:

“County judges, county attorneys, clerks ofthe District and County Courts, justices ofthe pcet constables, and other county officers, may moved by the Judges of the District Courts fo incompetency, official misconduct, habitual drunkbe rei r enness, or other causes defined by law, upon the cause therefor being set forth inwriting and the :” finding of its truth by ajury. ” In Childress County v. Sachse, 310S.W. 2d 414 (Tex. Civ. App. , Amarillo, 1958) 

### writ ref., n.r. e., 312S.W. 2d 380 (,Tex. 1958), the court held:

“Where the State Constitution prescribes the manner of removing apublic official, neither, the Legislature, Executive. officers nor the Judiciary can act beyond the limitations of the Constitution. Travelers’ Ins. Co. v. Marshall, 124 Tex. 45, 76 S.W.2d 1007, 96 A.L.R. 802.

“In compliance with the provisions ofthe State Constitution, however, the Texas Legislature has passed laws’ for the removal of county officers 

### from

p. 144The Honorable Lynn Cooksey, page 4 (H-35)

office and has prescribed the methods for removing them ifand when desired. Arts. 5970 - 5997, both inclusive. Such a procedure must be sworn toand conducted inthe name of the State of Texas, heard in the proper district court with the charges set forth inwriting and thq,truth of such found by a jury. . . .It (310 S.W. 2d at 419) It is therefore our opinion that ajustice of the peace who has not . satisfied the requirements ofArticle 5972(b), Vernon’s Annotated Civil Statutes, may be removed only inaccordance with the applicable constitutional and statutory provisions, and that the Commissioners Court is without authority to take any affirmative action to remove a justice ofthe peace or to withhold payment of his compensation, . absent an adjudication of incompetency and removal by a distrSct ’ court judge. SUMMARY

Article 3912k, V. T. C. S., effective as ofJanuary 1, 1972, is the statute by which the compensation and expenses of ajustice ofthe peace of Bowie County and his clerks and assistants, are to be determined by the Commissioners Court,,which has no authority to remove ajustice 61the peace from office. Very truly yours,



# u Attorney General of Texas

Opinion Committee p. 145