OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN

Honorable C. E. Weaver CountyAuditor Nacogdoches County Nacogdoches, Texas

Dear Sir:

ty clerk of back

ment on the above

r as follows:

ssioners' courtbe

taxpayer citizen and payment orderedwithheld?
"The Officers Salary Law stipulates that salaries of county officers are based on the amount earned by their offices during the fiscal year of ~1935. In t,hecase referred to in the question submitted, the earnings of the County Clerk of.- Honorable C. E. Weaver, page 2

Nacogdoches County, proven to the satisfaction of the trd.al

court and upheld by the court of civil appeals, Beaumont,was set .at$3,286.16. The law suit of F. C.Winder, above referred to,was occasioned by the CommissionersCourt setting the salary of F. C. Winder, duly elected county clerk, at a lower sum, namely, $3;000 perannum. Judgment was given for $572.32, representing unpaidback salary for two years, namely, 1937 and 1938. This case ended in a compromisewith ex-county clerkWinder accepting a settlement of $400 dollars. *With the precedent establishedwith the Winder case; claimswill be presented inwhich theMembers of the CommissionersCourt, even though having set the,salary of the county clerk at the lower salary (of $3,000) than that prescribedby the officers salary law and the figure established in the trial court bymeans of the Winder Case, will reverse themselves by approvingwith their signatures in their official capacities the payment of the differencebetween the set salary and the salary allowed by the law and the figure set by the trial court, as above indioated. With this inmind, with, a.,majority.,of~

the oommissioners court signing the claim for the back salary hereindescribed,what is the liability of eachmember of the court so signing to either himself or his bondsmen, if such payment is questionedthrough legal processby a taxpaying citizen and the payment orderedwithheld?
"The situation is exactly this: Threemembers of the commissionerscourt,who participated in setting the salary of the county clerk at $3,000now wish to pay him (then present county clerk) on the basis of $3,286.16 per annum, as per judgementof the courts,herein beforementioned, but in doing so do not want either their bondsmen or themselves to be liable for any sums ofmoney causedby the payment of thisback salary."Honorable C. X. Weaver, Page 3

As we understand the facts presented in your inquiry, the county clerk of Nacogdoches County earned the sum of $3,286.16 in the year 1935. Also, that the officers salary law is applicable to NacogdochesCounty, and that in 1937 and 1938, the Commissioners* Court fixed the salary of the county clerk at the sum of $3,000.00 per annum. Article 3912e, Section 13,Vernon's Annotated Civil Stat- * '\utes, fixes the salary of county clerks in the class of counties inwhich Nacogdoches County fell, "at not less than the total sum earned by him 'Inhis officialcapacity for the fiscal year 1935, and not more than the maximum amount allowed such officer under laws existing onAugust 24, 1935." The ex-county clerk suedNaoogdoches County to recover a balance of salary claimed to be due him as county clerk of said county for theyears, 1937 and 1938, and judgmentwas rendered for the ex-county clerk in the sum of $572.32,and the county appealed from this judgment, and said judgmentas rendered by the trial courtwas affirmed by the Beaumont Court of Civil Appeals, 140 S. W. (2d) 972.

:- It further appears from the facts stated in your

inquiry that the Commissioners'Court has not fixed the salary of the county clerk in complaincewith Section 13, Article 3912e,Vernon'sAnnotate~d Civil Statutes, butsaid salary is still qb3,000.00 per' year, a'sfixed by the Commissioners*Court, and as the amount of salary for the county clerk for the years 1937 and 1938 has been adjudicatedby the courts, it is apparent that your questionhas reference to the salary of the present county clerk for theyear 1939 and the year 1940,

We quote from the case of Nacogdoches Winder, 140 S. W. (2d) 972, as follows:

"ihie think the order fixing appellee's county v.

salary made at the regular term on January 13, 1936,was in accordancewith the law, and that the amount then fixed as the annual salary of appellee, $3,286.16,under the facts and the law was proper, and is controlling here. Article 3912e, section 13,Vernon's AM. Civ. St., fixes the salary of County Clerks in the class of counties in which NaCOgdoches fell, at not less than the total sumHonorable C. E. weaver, Page 4

earned by him in his official capacity for the fiscal year 1935 and not more than the maximum amount allowed such officer under laws existing on August 24, 1935. The legislature having prescribed theminimum amount of salary (theofficial earnings in 1935) and that being shownto have been $3,286.16, the commissioners'court did not have the authority to ignore this statutory provision of the minimum salary and fix the salaryat $3,000. The provisions of the statute authorizing the commissioners'court to fix the salaryat any sum not less than a certain minimum, and not more that a certainmaximum, are mandatory,and could not be ignoredby themembers of the court at their discsetion. The order fixing appellee's salary at .$S,OOO was without authority, and sovoid.
".

. . We overrule appellant'sassignment that the court erred in not sustaining its plea in abatement.~The insistence is that the oommissioners' Court in January, 1937, and in January, 1938, entered upon~ its'minutes'an'orderfixing appellee's salary for saidyears at #.3,000.per year, fromwhich orders appellee did not appeal, but accepted themonthly warrants issued to him for eachmonth of saidyears same being for onetwelfth of $3,000; that said orders became final judgments of the court,and so was conclusive of appellee's right to maintain this suit. This dontention is not sound. The order fixing appellee's salaryat $3,000.00,being a sum less than theminimum fixed by law, Article 3912e, Section 13,Vernon'sAnn. Civ. St., the order was void, and being so could be attacked in any court having jurisdictionof-thematter involved.
"

. . ."
In the case of Commissioners~Court of Nacogdoches Countyv. Winder, et al, 113 S. W. (2d) 277, the court holds r*<'\ in effect that a judgment directing the Co&nissioners~Court‘

-

P. Honorable C. E. Weaver, Page 5

to fix salariesof county officers for 1937 at specified sums becamemOOt when a prior Order Of the COID.Ii.SSiOn8rS' Court fixing the salariesat lower amounts expire at th8 end of 1937, snd the Commissioners'Court could not enter an order fixing the salaries for the year 1937 in the year 1938. Also, where the Commissioners'Court entered an order in 1937 fixing the salaries for county officers for the year 1937,.to be paid in equalmonthly installments!the court could not enter an order in 1938, fixing the salaries for 1937;payable in monthly installments.

Article 2340,Vernon's Annotated Civil Statutes, reads as follows:

"BefOr8entering upon the duties of their office, the county judge and each commissioner shall take the official oath, and shall also take a written oath that he will not be directly or indirectly interested in any contract with, or claim against, the county in which he resides,except such.warrsntsas may issue to him as f88S Of Office. Each commissionershall execute a bond to be approved by the county judge in the sum of three thousand dollars, payable to the county treasurer, conditionedfor,the faithful ,performance of'the dut&es~'~'of

h~isoffice, that he will pay over to his countyall moneys illegallypaid to him out of county funds, as voluntarypayments or otherwise, and that he will not vote or give his consent to pay out county funds except for lawful purposes." Generally, there can be no liability on the part of the suretieson an officer'sbondwithout default on the part of the principal in regard to the dutieswhich they have contracted that he&all discharge. To render them liable, the act complained of must be a violation of the conditions of the bona. Their liability is striotissiai juris; it cannotbe extended by implication or construction beyond the terms of their contract;and they must be given the benefitof any doubt as to the meaning of the terms of the bond. Texas Jurisprudence,Vol. 34, p. 570;,P,

_ Honorable C. E. Weaver, Page 6

.
Affierican

Surety Companyv. Hidalgo County, 283 S. W. 267; Brownv. Sneed, 14 S. W. 248.

In view of the foregoingauthorities and the facts stated in your inquiry, it is the opinion of this department that $3,226.16 is the rainimumsalary of the county clerk of Nacogdoches County,and that the Commissioners~ courthas no authority to fix the salary of said clerk at any sum below that amount. It is our further opinion that it is the duty of the Commissioners'Court to pay the county clerk the differencebetween the salary received and theminimunito which he is legallyentitled, and that themembers of the Commissioners'Court or their bondsmen would not be liable for such payment if questionedthrough legalproceedings.

Trusting that the foregoing fully answers your inquiry,we are

Yours very truly
ATTORNEY GENERAL OF TEXAS

‘i, APPROVED SEP 10, 1940 'By"($)ArdellWiiiiams Ardell Williams Assistant

(3)Gerald C. Mann
ATTORNEY GENERAL OF TEXAS

APPROVED Opinion Committee By BWB, Chairman