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THEATTCDRNEYGENERAE

OPTEXM33 Ausm~.T-s

December 21, 1948

Hon. Dennis Zimmermann OpinionNo. v-749 CountyAttorney Swisher County Re: Authority of the CodsTulia, Texas sioners' Court to fix .thesalary of the Constable at $1.00 per year where other precinct officers are on a *fee basis."
Dear Sir:Your,request for an opinion is as follows:

"The County Judge and Commissioners of this county have requestedme to get your opinion on the following question: "Chapter 381, H.B. No. 785, 50th Regular Session, provides that-in fixing the salaries of county officials that 'no salary shall be set at a figure lowerthan that

_ paid for the CalendarYear 1946.'

"SwisherCounty did not have any constable for 1946, 1947 or 1948. Hence no salarywas paid in 

## 1946 for a constable. However, at the rece,nt election one got his name on the ticketwithout the county desiring or needing one, as we got along without this extra expense the past three years. "Can the~commissionerscourt fix the salary of this.new e~lected constable at $1.00 a year, in view of the fact that therewas no salary paid in 1946 to limit them to not less then that amount?"
H. B. 765, Acts of the .50thLegislature, is not applicable to sa.laries of precinct officers. See: Attorney General's OpinionNo. V-329, enclosed.Hon. Dennis Ziamermsnn, page 2 (V-749)

H. J. R. 

## 36,of the 50th Legislature, recently adopted by the people, amendedArticle XVI, Section 

## 61,of our State Constitution so aXi-tFppfsce---the~constable,among other officers, an a salarybasis beginning January 1, 1949.

In answer to our recent request for additional informationyou stated that the Commissioners'Court of Swisher Countyplans to pay the constablea salary of $1.00 per year beginning January 1, 1949, and compensate all other precinct officers on a "feebasis.-

The minimum salary of a constablewhere the Commissioners'Court has placed all the precinct officers on a "salarybasis" is not less than the total sum earned.

by such officer in.his official capacity for the fiscalyear 1935. Article 3912e, Sets. 15 and 17, v. c. s. Article 3912e, Sec. 13, V. C. S. is only spplicable to countieshaving a population of 20,000 inhabitants and less than 190 000 inhabitants. Articles &$ %ej891, V. C. S. are ipplicable only to county or precinct officerswho are compensatedon a "fee basis.*

At the present time there is no statutoryprovision fixing the salarybf a constable in a county where the Commissioners1Cburt has placed the other precinct officers on a "fee basis." Therefore,until such time as the Legislature enacts some provision 'applicable to such officer,~wemust look solely to the provisions of Article XVI, Section 

## 61,of our State Constitution, as-amended, for the authority'~of the Commissioners' Court of those~countieswhere the other precinct officers are compensated on a "fee basis" to pay the constable a salary. Article XVI, Sec. 

## 61,as amended, provides, in part:

"In all counties in this State, the Commissioners Courts shallbe authorized to determinewhether precinct officers shallbe compensstecl.on

a fee basis or on a salary basis,with the exception that it shallbe mandatory.upon the CommissionersCourts, to compensateall constables,deputy constables and precinct law enforcement,officerson a salary basis beginning January 1, 1949.

. .nEon. Dennis Zimmermann, page 3 (V-749)

The above quoted Constitutionalprovision manifests a clear intentioh on the part of the framers of thisAmendment that the.Conmissioners’Court oft this State must pay allythe constablesa reasonable salary. Until such time as3he Legislature fixes a’ minimum and a maximum to the salaries to bc :,-.id those constables inscountieswhere the other preciuct Dfficers are compenmted on a “fee basis”, it is;our opinion the amount of salary to be paid constables~in such counties is left to the‘sounddiscretion oftthe Coamissioners’ Courts. dhether the Comnissionerd’Courts’ fixing the salary of a constable at $1.00 a year wouldconstitutean abuse of discretion in view of the provisions of Article V, Section 18, of ourStrte.Constitution, requiring at least four constables iii each county, is a fact question depending upon the circumstances of each case.

Beginning January 1, 1949, and until such time as the Legislature fixes a minimum and a maximum to the salaries to-be paid those constables’in countieswhere the precinct~officersother.than the constable are compensated on a “fee,basis,” the amount of salaries to be paid the constables in such counties is left to the sound discretion of the Commissioners’ Courts.
Yours very truly,
ATTORNEY GENdRAL OF TEXAS

Assistant JR: bh