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 of justices 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 of the 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 a justice of the peace.under 

the provisions of Article 3912k, Vernon’s Annotated 

Civil Statutes? 

4. Can the Commissioners Court take any affirmative action to remove a justice of the peace who has 

not satisfied the requirements of Article 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 of Article 3912k, V. T. C. S. (Acts 1971, 62nd Leg. , Ch. 622, 

p. 2019) is set forth in § 1 which provides: 

“Except as otherkise provided by th~is Act and 

subject to the limitations of this 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 in no event shall 

s~uch salaries be set lower than they exist at the 

effective dates of this Act. ” 

The office of justice of the peace is a precinct office (Article 5, 

§ 18, Texas Constitution), and is therefore covered by Article 3912k 

unless otherwise excepted by g 7, subsection 4 which excepts:, 

‘I. . . judges of all courts of record and all justices 

of the peace, and presiding judges of commissioners 

courts in counties having a population of 1, 700,000 

or more, according to the last preceding Federal 

census. ” 

Section 8 of 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 of Article 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. 143 
The Honorable Lynn Cooksey. page 3 (H-351 

Article 3912k. and not Article 3936f-1. determines the compensation 

of a justice of the peace in Bowie County during 1972 and thereafter. 

With reference to your third question, Article 3912k provides 

for the Commissioners Court to establish the amount of office expense 

for justices of the peace and qthersbut a secretary is not an office 

expense. Casey v. State, 289 S. W. 428 (Tex. Civ. App., Texarkana, 

1926, err. ref. ). It provides for compensation, but does not in itself 

authorize the establishment of any 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 in accordance with Article 3912k. which covers 

“county and precinct officials and employees. ‘I (Section 1, supra). 

With reference to removal of a justice of the peace, Article 5, 

$ 24 of the Constitution of the State of Texas provides as follows: 

“County judges, county attorneys, clerks of the 

District and County Courts, justices of the 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 in writing and the :” 

finding of its truth by a jury. ” 

In Childress County v. Sachse, 310 S. W. 2d 414 (Tex. Civ. App. , Amarillo, 

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

“Where the State Constitution prescribes the 

manner of removing a public 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 of the State 

Constitution, however, the Texas Legislature has 

passed laws’ for the removal of county officers from 

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

office and has prescribed the methods for removing 

them if and when desired. Arts. 5970 - 5997, both 

inclusive. Such a procedure must be sworn to and 

conducted in the name of the State of Texas, heard 

in the proper district court with the charges set 

forth in writing and thq, truth of such found by a 

jury. . . . It (310 S. W. 2d at 419) 

It is therefore our opinion that a justice of the peace who has not . 

satisfied the requirements of Article 5972(b), Vernon’s Annotated 

Civil Statutes, may be removed only in accordance with the applicable 

constitutional and statutory provisions, and that the Commissioners 

Court is without authority to take any affirmative action to remove a 

justice of the 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 of January 1, 

1972, is the statute by which the compensation and expenses 

of a justice of the peace of Bowie County and his clerks 

and assistants, are to be determined by the Commissioners 

Court,,which has no authority to remove a justice 61 the 

peace from office. 

Very truly yours, 

u Attorney General of Texas 

Opinion Committee 

p. 145