Hon. John R. Shook

CriminalDistrict Attorney Opinion NO. o-5682 Re: Bexar County Salaries to be paid to juvenile officers and assistSan Antonio, Texas ant juvenileofficers in
Attention: Bexar County.

Mr. Jay Sam Levey:

Dear Sir:

Your letter of October 18, 1943, requesting the opinion of this department on the question stated thereinreads, in part, as follows:

"A questionhas arisen as to the compensationallowed juvenileofficers and we have been requested to secure an opinion from you relative thereto.
What are the limitations of salaries to be paid to juvenile officers in Bexar County,having a population of 338,176 inhabitantsaccording to the 1940 Federal Census? "Article 5142 of the R.C.S. of Tex., as amended, being Acts of 1937, 45th Legislature,p. 545, ch. 269, Section 1, provides that the salaries of assistant juvenile officers shall be the same as that fixed by the General Law in Article 3902 of the R.C.S. of Tex., 1925, for assistants to other county officials.
"Article 3902 was amended a number of times and no longer applies to countieshaving a population in excess of 190,000 inhabitants. by Article 3912e, Such countiesare now governed of which subdivisionh provides that a first assistant or chief deputy shall be compensatednot to exceed $3500.00 per annum, one assistant or deputy not to exceed $3000.00per annum and other assistants,deputies and employeesnot to exceed $2400.00 per annum. There is a further proviso that chief clerks or chief deputies in countv and district offices shall receive not less than $3000.00 per annum, each, and heads of departments not less tnan $25OO.OO per annum, each."

Bexar Countyhas a population of 338,176 inhabitants according to the 1940 Federal Census. Article 5142,Vernon'sHon. John R. Shook, page 2 (O-5682)

Annotated Civil Statutes,provides, in part:

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"Provided that in countieshaving a population of one hundred and fifty thousand (150,000)or more, and containing a city of onehundred thousand (100,000)or more, the County Judgemay appoint a juvenileofficer, subject to the approval of the County Juvenile Board, to serv,e for a period not to exceed two (2)years from the date 'ofappointment,and whose extra duties 'shallbe tomake 'investigations for the CommissionersCourt on applications for charity, or admittance into detentionhomes or orphanhomes createdby such counties. The salary of such juvenile officer shall not exceed Three Hundred Dollars ($300)per month, his allowance for expensesnot to exceed Two,Hundred Dollars ($200)a year. Such juvenileofficermay select assistant juvenileofficers, subject to the approval of the County Judge and County Juvenile Board, the number of such assistant juvenile officers'not to exceed one assistant to each twenty-five thousand (25,000)population. Thk salaries of such assistant juvenile officers shall be the same as that fixed by the General Law in Article 3902. of the Revised Civil Statutes of Texas. 1925. for assistants to other county officials; Such assistant juvenileofficers may be allowed expensesnot to exceed Two Hundred Dollars ($200)per year each." (Emphasissupplied)

Article 5142, supra,was enacted as a Civil Statute by the 36th Legislature,Second Called Session, 1919. (S.B.No. 48, Ch. 51, ,p.130, General Laws) Apparently, Senate Bill No. 48, supra,was substantiallythe same as Article 1202,Vernon's Annotated Code of Criminal Procedure,1911, which was held void
as to the appointment of salaried,,probation officers in the case of Walsh v. McConnell (Tex.Com.of App.) 273 S.W. 833.Article 5142,Revised Civil Statutes of 1925was amended by Senate Bill No. 138, Acts of the 40th Legislature,Regular Session, 1927. This Act (S.B.138, supra)was held void as ,tothe appointment of salariedprobation officers by the Supreme Court in the case of Hamrickv. Simpler, 95 S.W.(2d) 3,57.Article 5142 of the Revised Civil Statutes of Texas of 1925, as amended by Acts of the 40th Legislature,1927, was again amended by H.B. No. 146, Acts of the 45th Legislature,Regular Session, 1937. The above quoted provision of Article 5142 as it now appears in saidArticlewas contained in both the 1927 and 1937 Acts. Itwill be noted that the foregoingprovision of Article ,5142 expressly provides that the salary of~,thejuvenile officer shallnot exceed $300 per month and his allowance,forexpenses not to exceed $200 a year. Said provisionalso expressly provides that the salary of assistant juvenileofficers shallbe the same asHon. John R. Shook, page 3 (O-5682)

that fixed by the General Law in Article 3902, of the Revised Civil Statutes of Texas, 1925 for assistants to other county officials. Therefore,we must look to Article 3902 of the Revised Civil Statutes of Texas, 1925, to determine the amount of compensation to be paid assistant,juvenileofficers.

Article 3902, of the Revised Civil Statutes of Texas, 1925, is a statute,among other things,prescribing the maximum compensationwhich may be allowed for deputies or assistants to officersnamed in Article 3883 for their services. The juvenile officer is not named in Article 3883. However, Article 5142,
as heretofore stated, expressly provides that the salaries of such assistant juvenileofficers shallbe the same as that fixed by the General Laws in Article 3902, of the Revised Civil Statutes of Texas, 1925, for assistants to other county officials.

The applicable portion of Article 3902, of theRevised Civil Statutes of Texas, 1925, reads as follows:

Vrovided, that in countieshaving a po$iiationinexcess of one hundred thousand inhabitants themaximum compensation thatmay be allowed such deputies or assistants for their services shall be as follows, to-wit:
"Firstassistant or chief deputy not to exceed twentyfour hundred dollars per annum, provided the commissioners' courtmay increase said amount to not exceed to rate of three thousanddollars per annum,where a necessity therefor is shown,and where the person to be appointedhas been previously thehead of a department for not less than
one year, or has been in the continuous service of~the county for a period of not less than twoyears.
"Head of departmentsmay be allowed by the court, when in their judgment such are necessary,not to exceed
a rate of twenty-fourhundred dollars per annum,when such heads of departments sought to be appointed shallhave previously served the county for not less than two continuous years. Otherheads of departments shall receivenot to exceed twenty-onehundred dollars per annum; provided, that no head of a department shallbe created exceptwhere the person sought to be appointed is to be in actual charge thereof,with deputies or assistantsunder his supervision,
or a department approved by the court and only in offices capable of a bona fide subdivisioninto departments. "Deputies or assistants other than those above provided for may be allowed, the number to be determinedbyHon. John R. Shook, page 4 '(O-5682)

the commissioners'court, and their salariesbased as far as possible on a graduated scale according to service, ability and qualifications. Fifty per centof the number so appointed may be authorized at a rate not to exceed twenty-onehundred dollars per annum, provided such rate shall be allowed only to deputies in service for two years or more, and all other so appointed at a rate not to exceed eighteenhundreds dollars per annum.
"Provided further, that in determining the number of inhabitants in each of the instancesheretoforementioned, the number of inhabitantsas shownby the last United States census shall control.

In view of the foregoing statutes,you are respectfully advised that the salary of the juvenile officer~ofRexar County cannot legally exceed the sum of $300 per month, and his allowance for expenses cannot legally exceed the sum of $200 per year. (Article3142) It is our further opinion that the salaries of assistant juvenile officersare expressly fixed by Article 3902, of theRevised Civil Statutes of Texas, 1925. Stated anotherway, themaximum compensation of the assistant juvenile officers cannot exceed the amounts set forth in Article 3902, of the Revised Civil Statutes of Texas, 1925.

We have carefully considered Subsectionh, Section 19, Article 3912e, Vernon's Annotated Civil Statutes,and it is our opinion that this statutehas no application to the question under consideration in thatArticle 5142, supra, expressly provides that the compensation of assistant juvenile officers shallbe the same as that fixed by the General Laws in Article 3902, of the Revised Civil Statutes of Texas, 1925, for assistants to other county officials. It is true thatArticle 3902 has been amended several times and is not now applicable to counties containinga population of more than one hundred and ninety thousand inhabitants,according to the last Federal Census
. However,Article 5142, supra,has not been amendedwith reference to the above quoted provision fixing the compensation of assistant juvenile officers. Article 5142, supra, in fixing the compensation of assistant juvenile officersmerely used Article 3902 of the Revised Civil Statutes of Texas, 1925, as a yardstick to determine ,the maximum compensation that could be paid such assistant juvenile officers,and as heretofore stated, it is our opinion that themaximum compensationof such assistant juvenile officers cannot exceed the amounts set forth in Article 3902, of the Revised Civil Statutes of Texas, 1925.1 -

Hon. John R. Shook, page 5 (O-5682)

In connectionwith the foregoing conclusion,we want to point out that it is well established ir this State that "an officermay not claim or reach any money without a law authorizinghim to do so, and clearly fixing the amount towhich he is entitled." (Tex.Jur.,Vol. 34, p. 507)

It is stated in Texas Jurisprudence,Vol. 34, p. 508:

"Statutesprescribing fees for public officersare strictly construed;and hence the right to feesmay not rest in implication. Where this right is left to construction, the language of the law must be construed in favor of the government. structions, Where a statute i,scapable of two conone of which would give an officer compensation for his services in addition to hitssalary,and the othernot, the latter construction should be adopted. It is no concern of an officer that the Legislaturemay have been toward other officersmore liberal than towardhim in thematter of compensationfor services;nor does this fact justify the courts in upholdinghis claim. for compensation for servicesas against a fair and reasonable interpretationof the statute.

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Article 3902,Vernon's Annotated Civil Statutes, is a general statute applicable to countieshaving a population of 190,000 inhabitants or less, authorizingdistrict, county or precinct officers of such counties to appoint deputies, assistants or clerks in themanner prescribed thereinand said statute fixes themaximum compensation of such deputies, assistants
or clerks. Article 5142, supra, is a "reference statute"as it refers to Article 3902 of the Revised Civil StatutesofTexas, 1925, for the purpose of determining themaximum compensation of assistant juvenileofficers. Article 5142 is a statuteauthorizing the appointment of assistant juvenileofficers and prescribes the mode of making such appointmentsand said statute also prescribes themaximum compensationof such assistants by stating "that the salaries of such assistant juvenileofficers shall be the same as that fixed by the General Laws in Article 3902, of the Revised Civil Statutes of Texas, 1925, for assistants to other county officials." Generally speaking, it iswell established that a statute giving authority to do a particular thing,and prescribing the mode of doing it is mandatory in the sense that all othermodes are excluded. (Weaver
v. Robinson, 268 S.W. 133; Ellis v. Holcombe, 69 S.W.(2d449) Therefore,as heretofore stated, themaximum salary of the juvenile officer of Bexar County cannot legally exceed the sum of $300 per month, and his allowance for expenses cannot legally- .

Hon. John R. Shook, page 6~' (O-5682)

exceed the amount of $200 per year. The maximum salaries of the assistant juvenile officers are expressly fixed by Article 3902, of the Revised Civil Statutes of Texas, 1925.

Yours very truly

ATTORNEY GEMERAL OF TEXAS 

## BY/s/ Ardell Williams Ardell Williams, Assistant

APPROVED OCT 29, 1943 /s/ Grover Sellers FIRST ASSISTABT ATTORNEY GENERAL

APPROVED: OPINION COMMITTEE BY: BWB, CHAIRMAN
AW:EP:wb

Encl.