OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS 

JOHN CORNYN 

June 19,200l 

The Honorable Kaye Messer 

Donley County Attorney Pro-Tern 

220 South 10th Street 

Memphis, Texas 79245 

Opinion No. JC-0389 

Re: Whether a commissioners court is required 

to pay the same salary to each of the county’s 

constables (RQ-0337-JC) 

Dear Ms. Messer: 

You ask whether the Donley County Commissioners Court may set a salary for the constable 

of precincts 1 and 2 based on the actual needs of those precincts, and whether the salaries for 

different constables in the same county may differ. The salary of a constable must reflect the duties 

imposed upon him or her by statute, even if the sheriff is expected to serve process in the constable’s 

precinct. In some cases, the responsibilities of the constable in one precinct of the county are more 

extensive than those of a constable in another precinct because the first constable has been assigned 

duties in addition to a constable’s statutory duties, or because one precinct has a greater need for law 

enforcement activities than does another precinct. Under such circumstances, the salaries may vary 

to reflect those differences in workload, as long as each salary is reasonable. You also ask whether 

the salary set by the commissioners court for the constable of precincts 1 and 2 is reasonable. The 

specific amount that constitutes a reasonable salary is a fact question within the discretion of the 

commissioners court, subject to judicial review for abuse of discretion. 

Donley County has two justices of the peace, one elected to precincts 1 and 2 and the other 

to precincts 3 and 4. See TEXAS STATE DIRECTORY 339 (44th ed. 2001) [hereinafter DIRECTORY]. 

There are also two constables, serving respectively in precincts 1 and 2 and precincts 3 and 4. See 

TEX. CONST. art. V, 9 18 (in each county with a population of less than 18,000, commissioners court 

may divide county into not more than four precincts); DIRECTORY, supra, at 339 (population of 

Donley County is fewer than 4,000). 

You inform us that in the last general election the position of constable for precincts 1 and 

2 was filled for the first time since 1969, when the commissioners court set an annual salary of 

$1 .OO.’ After the election, the commissioners court set an annual salary of $3,170, plus a vehicle 

allowance of $100 per month and retirement, for the constable of precincts 1 and 2.2 The constable 

for precincts 1 and 2, however, wishes to receive the same compensation as the constable for 

‘Letter from Honorable Kaye Messer, Donley County Attorney Pro-Tern, to Ms. Susan Gusky, Chair, Opinion 

Committee (Jan. 5,200l) (on file with Opinion Committee) [hereinafter Request Letter]. 

21d. 
The Honorable Kaye Messer - Page 2 (JC-0389) 

precincts 3 and 4, whose annual salary is $1 7,146.9L3 You explain that the sheriffs office has 

performed the duties of the constable for precincts 1 and 2, serving the warrants and citations that 

both a constable and sheriff are required to serve when directed to that officer by legal authority. 

See TEX. LOC. GOV’TCODEANN. $9 85021(a), 86.021 (Vernon Supp. 2001) (sheriff and constable 

shall execute and return process that is directed to the constable or sheriff by a lawful officer); see 

also TEX. R. CIV. P. 15 (writs and process shall be directed to any sheriff or constable within the 

state); Tex. Att’y Gen. Op. No. H-595 (1975) (sheriff does not have exclusive authority to execute 

process). Thus, you suggest that the constable for precincts 1 and 2 will serve no process during his 

tenure. The constable “shall attend each justice court held in the precinct,” TEX. LOC. GOV’T CODE 

ANN. 8 86.021(e) (V emon Supp. 2001), but based on information provided by the justice of peace 

for precincts 1 and 2, you believe that the constable may be required to attend justice court for no 

more than 24 hours per year.4 

You state that the position of constable for precincts 3 and 4 has been filled and utilized for 

over 20 years. 5 “The constable for precincts 3 and 4 is a ‘first response’ officer,” that is, the sheriffs 

dispatcher notifies him immediately in every matter requiring a law enforcement officer in the area! 

Unlike precincts 1 and 2, precincts 3 and 4 cover a rural area some distance from the sheriffs office, 

and the constable located in this precinct performs many duties in addition to serving process and 

attending justice court hearings. 

You ask whether the Donley County Commissioners Court may set a salary for the constable 

of precincts 1 and 2 based on the “actual needs” of that precinct. You also ask the following 

questions: 

2. Can the salaries for different constables in the same 

county differ? 

3. Is the salary set by the Donley County Commissioners 

court for the newly-elected position reasonable?7 

Article V, section 18 of the Texas Constitution provides for the office of constable, and 

article XVI, section 61 requires the commissioners courts of all counties to compensate constables 

on a salary basis. TEX. CONST. art. V, 8 18; art. XVI, 9 61; see also TEX. LOC. GOV’T CODE ANN. 

ch. 152 (Vernon 1999 & Supp. 2001) (authority of commissioners court to set salaries of district, 

county, or precinct officer of employees). The Texas courts have issued a number of opinions on 

31d. at 2. 

Vd. 

Vd. 

‘Id. 
The Honorable Kaye Messer - Page 3 (JC-0389) 

the commissioners courts’ responsibility to set salaries for county constables. See E&or County v. 

Stringer, 843 S.W.2d 477,479 (Tex. 1992); Vondy v. Comm ‘r-s Court of Uvalde County, 620 S.W.2d 

104, 108 (Tex. 1981); Douthit v. Ector County, 740 S.W.2d 16,17 (Tex. App.-El Paso 1987, writ 

denied); Vondy v. Comm ‘r-s Court of Uvalde County, 714 S.W.2d 417 (Tex. App.-San Antonio, 

1986, writ refd n.r.e.); Bomer v. Ector County Comm i-s Court, 676 S.W.2d 662 (Tex. App.-El Paso 

1984, writ ref d n.r.e.). In its most recent opinion on constables’ salaries, the Texas Supreme Court 

summarized the law as follows: 

One of the duties the constitution entrusts to the discretion of 

the commissioners court is the setting of constables’ salaries. Tex. 

Const. art. XVI, 8 61. In Vondy v. Commissioners Court, 620 S.W.2d 

104 (Tex. 198 l), we held that this provision imposes a mandatory, 

ministerial duty on the commissioners courts to set a reasonable 

salary. Id. at 109. Thus, while the district court may order the 

commissioners court to carry out its constitutional duty to set a 

reasonable salary, the district court cannot substitute its discretion for 

that of the commissioners court by making that determination itself. 

Id. Once the commissioners court acts, the district court may review 

the commissioners’ orders to determine if they are arbitrary, or 

otherwise constitute an abuse of discretion. Id. 

Stringer, 843 S.W.2d at 479-80. 

Thus, the commissioners court has broad discretion to set constables’ salaries, but there are 

limits on the court’s discretion as indicated by judicial decisions finding that the cornmissioners 

court had abused its discretion in setting the constable’s salary. In Vondy v. Commissioners Court 

of Uvalde County, 620 S.W.2d 104 (“Vondy l”), the constable, Mr. Vondy, sought a writ of 

mandamus against the commissioners court to compel it to set a reasonable salary for his office as 

constable of precinct 6, Uvalde County. Id. at 104-05. The Texas Supreme Court found that the 

commissioners court could not refuse to set a salary for the constable. Id. at 109. It determined that 

the district court should have granted the mandamus sought by Vondy. Id. 

The trial court issued a writ of mandamus ordering the commissioners court to set a 

reasonable salary and the commissioners court set a salary of $40.00 per month. Vondy, 7 14 S. W.2d 

at 419. It thereafter sought to be discharged from any further duties under the writ and was 

discharged by the district court. Id. Vondy’s appeal of this ruling was heard by the San Antonio 

CourtofAppealsin Vondyv. Commissioners Courtof Uvalde County,714S.W.2d417(“VondyII”). 

Id. The commissioners court argued that $40.00 per month was a reasonable salary “under the 

circumstances,” which included (1) the lack of funds available to pay Vondy; (2) that Vondy knew 

when he sought the job that there was no salary; (3) that the precinct 6 area had adequate law 

enforcement protection so there was no need for Vondy’s services; and (4) that Vondy’s concurrent 

involvement in a private security business presented a conflict of interest in having him serve as 

constable. Id. at 42 1. 
The Honorable Kaye Messer - Page 4 (JC-0389) 

The San Antonio Court of Appeals rejected these factors as not providing an adequate basis 

for determining a reasonable salary. Id. at 425 (motion for rehearing). It pointed out that constables 

are peace officers, with many duties imposed upon them by the Code of Criminal Procedure, in 

addition to their duties of serving process and attending upon the justice court under section 

86.02 1 (e) of the Local Government Code. Id.; see TEX. CODE CRIMPROC. ANN. art. 2.12(2) (Vernon 

1977 & supp. 2001) ( constables are peace officers); see also id. arts. 2.13 (Vernon 1977) (duties of 

peace officers); 6.05 - -07 (Vernon 1977 & Supp. 2001) (prevention ofthreatened injuries and death). 

The commissioners court did not consider the duties imposed upon the constable by statute, evaluate 

the work performed by or required of Vondy or otherwise deliberate about what would be a 

reasonable compensation for him, but considered only the four factors rejected by the court, in 

particular, the county’s lack of need for Vondy’s services. Vondy II, 714 S.W.2d at 422. 

The commissioners court may not “attempt to restrict or abolish a constitutionally established 

office by refusing to reasonably compensate the holder of such office,” nor may it “attempt to 

abolish or restrict the office of constable by refusing to allow or by preventing the elected official 

from performing those duties required of him.” Id. at 422. In view of the numerous duties imposed 

by law upon the constable, the court found that the salary of $40 per month, or $.20 an hour was 

unreasonable as a matter of law. Id. at 42 1; see also Douthit, 740 S. W.2d at 17 (where constable did 

not serve process or attend court sessions but responded to summons concerning thefts, murders and 

breaches of the peace, commissioners court abused its discretion in setting salary of $1 .OO per year); 

Comm ‘rs Court of Houston County v. Rodgers, 691 S.W.2d 753, 756 (Tex. App.-Tyler 1985, no 

writ); (constable’s salary of $1 .OO per year was the equivalent of no salary at all); Bomer, 676 

S.W.2d at 664-65 (where constables performed no work, no issue was raised as to reasonableness 

of salary of $20.00 a month). 

We turn to your first question, whether the Donley County Commissioners Court may set 

a salary for the constable of precincts 1 and 2 based on the “actual needs” of that precinct? Vondy 

II tells us that the commissioners court must be able to articulate a reasonable basis for the salary it 

sets for the constable. Furthermore, it rejects as inadequate the four factors relied upon by the 

Uvalde County Commissioners Court in setting the constable’s salary, that is, (1) the lack of funds; 

(2) the constable’s knowledge that no salary had been set for the office; (3) the adequacy of law 

enforcement protection such that the constable’s services were not necessary; and (4) the constable’s 

involvement in a private security business. The fact that the sheriffs office has performed the duties 

of the constable for precincts 1 and 2 so that the constable’s services are unnecessary is not an 

adequate basis for setting the constable’s salary. Vondy II, 7 14 S.W.2d at 425. To the extent that 

you base the “actual needs” of precincts 1 and 2 on the understanding that the sheriff and not the 

constable will serve process, the “actual needs” of precincts 1 and 2 are not relevant to setting the 

constable’s salary. The constable’s salary must reflect his statutory and constitutional duties. Id. 

at 421. 

If the commissioners court could authorize the sheriff to serve all process in precincts 1 and 

2, removing that function from the constable and transferring it to the sheriff, we believe it could 

Vd. 
The Honorable Kaye Messer - Page 5 (JC-0389) 

overlook the constable’s duty to serve process in setting his salary. See id. at 422, n.3 (noting that 

the Uvalde commissioners court did not attempt to assign any of Vondy’s duties to other law 

enforcement agencies and questioning whether the commissioners court had authority to do so). The 

commissioners court has some authority to decide which county officer should perform a specific 

county function, but if the legislature has exclusively delegated a particular duty to a constitutional 

county officer, the commissioners court may not transfer it to another officer. See Comm ‘rs Court 

of Titus County v. Agan, 940 S. W.2d 77’80 (Tex. 1997). Although both the sheriff and the constable 

have a statutory duty to serve process, the commissioners court may not assign all service of process 

to the sheriff, because the district and county courts, and not the commissioners court, choose the 

officer who serves process. See TEX. R. CIV. PROC. 15; Tex. Att’y Gen. Op. Nos. JC-0214 (2000) 

at 4; DM-273 (1993). Only when the commissioners court issues the process necessary to execute 

its powers and duties, may the court choose whether to direct the process to the sheriff or a constable 

of the county. See TEX. Lot. GOV’T CODE ANN. 0 81.022(a) (Vernon 1999). 

It is however possible that the constable of precincts 3 and 4 may have more extensive duties 

than the constable in precincts 1 and 2 because he has been assigned duties in addition to his 

statutory duties, such as being a “first response” officer, or because precincts 3 and 4 have a greater 

need for law enforcement activities than do precincts 1 and 2. In setting the salaries of constables, 

the commissioners court may consider these differences in duties assigned to and performed by 

constables of different precincts. 

You next ask whether the salaries for different constables in the same county may 

differ. This office has recognized that circumstances might exist “in which certain precinct officials 

holding equivalent positions might be compensated in differing amounts.” Attorney General 

Opinion JM-770 determined that the commissioners court might prescribe different salaries for the 

constables of different precincts if the circumstances in each precinct reasonably required different 

salaries and if each salary is in itself reasonable. Tex. Att’y Gen. Op. No. JM-770 (1987); see also 

Tex. Att’y Gen. Op. No. DM-5 1 (1991) at 2 (it would not be per se unreasonable for the 

commissioners court to base the pay scale for justices of the peace on the volume of cases filed in 

their respective courts). Accordingly, the salaries of constables in different precincts may differ if 

the circumstances in each precinct reasonably required different salaries and if each salary is in itself 

reasonable. 

You finally ask whether the salary set by the Donley County Commissioners Court for the 

newly-elected position is reasonable. We cannot advise you whether the salary set for the constable 

of precincts 1 and 2 is reasonable. The specific amount that constitutes a reasonable salary is a fact 

question within the discretion of the commissioners court, subject to judicial review for abuse of 

discretion. See Stringer, 843 S. W.2d at 479; Tex. Att’y Gen. Op. Nos. DM-5 1 (199 1) at 2; JM- 10 19 

(1989) at 2; JM-770 (1987) at 3. 
The Honorable Kaye Messer - Page 6 (JC-0389) 

SUMMARY 

The salaries of constables must reflect the duties imposed 

upon them by statute, even if the sheriff is expected to serve process 

in a particular constable’s precinct. In some cases, the responsibilities of the constable in one precinct of the county are more extensive 

than those of a constable in another precinct because the first 

constable has been assigned duties in addition to a constable’s 

statutory duties, or because one precinct has a greater need for law 

enforcement activities than does another precinct. Under such 

circumstances, the salaries may vary to reflect those differences in 

workload, as long as each salary is reasonable. The specific amount 

that constitutes a reasonable salary for a constable is a fact question 

within the discretion of the commissioners court, subject to judicial 

review for abuse of discretion. 

Yo s ve truly, riJVi!!i 

JOHN CORNYN 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

SUSAN D. GUSKY 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General - Opinion Committee