OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Honorable C. E. Weaver 

County Auditor 

Nacogdoches County 

Nacogdoches, Texas 

Dear Sir: 

ty clerk of back 

ment on the above 

r as follows: 

ssioners' court be 

taxpayer citizen and payment ordered withheld? 

"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,he case 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 Commissioners Court 

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 unpaid back salary for two years, 

namely, 1937 and 1938. This case ended in a 

compromise with ex-county clerk Winder accepting a settlement of $400 dollars. 

*With the precedent established with the 

Winder case; claims will be presented in which 

the Members of the Commissioners Court, even 

though having set the, salary of the county clerk 

at the lower salary (of $3,000) than that prescribed by the officers salary law and the figure 

established in the trial court by means of the 

Winder Case, will reverse themselves by approving with their signatures in their official capacities 

the payment of the difference between the set 

salary and the salary allowed by the law and the 

figure set by the trial court, as above indioated. 

With this in mind, with, a.,majority.,of~ the oommissioners court signing the claim for the back salary 

herein described, what is the liability of each member of the court so signing to either himself or his 

bondsmen, if such payment is questioned through 

legal process by a taxpaying citizen and the payment ordered withheld? 

"The situation is exactly this: Three members of the commissioners court, who participated 

in setting the salary of the county clerk at 

$3,000 now wish to pay him (then present county 

clerk) on the basis of $3,286.16 per annum, as per 

judgement of the courts, herein before mentioned, 

but in doing so do not want either their bondsmen 

or themselves to be liable for any sums of money 

caused by the payment of this back 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 Nacogdoches County, 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 in which Nacogdoches County fell, "at not less 

than the total sum 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 ex-county clerk sued Naoogdoches County 

to recover a balance of salary claimed to be due him as 

county clerk of said county for theyears, 1937 and 1938, 

and judgment was rendered for the ex-county clerk in the 

sum of $572.32, and the county appealed from this judgment, 

and said judgment as rendered by the trial court was 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 complaince with Section 13, 

Article 3912e, Vernon's Annotate~d Civil Statutes, butsaid 

salary is still qb3,000.00 per' year, a's fixed by the Commissioners* Court, and as the amount of salary for the county 

clerk for the years 1937 and 1938 has been adjudicated by 

the courts, it is apparent that your question has reference 

to the salary of the present county clerk for the year 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 accordance with 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 sum 
Honorable 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 the minimum amount 

of salary (the official earnings in 1935) 

and that being shown to 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 salary at 

$3,000. The provisions of the statute authorizing the commissioners' court to fix 

the salary at any sum not less than a certain 

minimum, and not more that a certain maximum, 

are mandatory, and could not be ignored by 

the members of the court at their discsetion. 

The order fixing appellee's salary at .$S,OOO 

was without authority, and so void. 

". . . 

We overrule appellant's assignment 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'order fixing 

appellee's salary for said years at #.3,000.per 

year, from which orders appellee did not appeal, 

but accepted the monthly warrants issued to him 

for each month of said years 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 salary at $3,000.00, being a sum less 

than the minimum fixed by law, Article 3912e, 

Section 13, Vernon's Ann. Civ. St., the order 

was void, and being so could be attacked in any 

court having jurisdiction of-the matter involved. 

" . . ." 

In the case of Commissioners~ Court of Nacogdoches 

County v. 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 salaries of county officers for 1937 at specified sums 

became mOOt when a prior Order Of the COID.Ii.SSiOn8rS' Court 

fixing the salaries at 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 equal monthly 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: 

"BefOr8 entering 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.warrsnts as may issue to 

him as f88S Of Office. Each commissioner shall 

execute a bond to be approved by the county 

judge in the sum of three thousand dollars, payable to the county treasurer, conditioned for,the 

faithful ,performance of'the dut&es~'~'of h~is office, 

that he will pay over to his county all moneys 

illegally paid to him out of county funds, as 

voluntary payments 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 sureties on an officer's bond without default on 

the part of the principal in regard to the duties which 

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 cannot be extended by implication or construction beyond the terms of their contract; and they must be 

given the benefit of 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 Company v. Hidalgo County, 283 S. W. 267; 

Brown v. Sneed, 14 S. W. 248. 

In view of the foregoing authorities and the facts 

stated in your inquiry, it is the opinion of this department that $3,226.16 is the rainimum salary of the county 

clerk of Nacogdoches County, and that the Commissioners~ 

court has 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 difference between the salary received 

and the minimuni to which he is legally entitled, and that 

the members of the Commissioners' Court or their bondsmen 

would not be liable for such payment if questioned through 

legal proceedings. 

Trusting that the foregoing fully answers your 

inquiry, we are 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

‘i, APPROVED SEP 10, 1940 

'By"($) Ardell Wiiiiams 

Ardell Williams 

Assistant 

(3) Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

APPROVED 

Opinion Committee 

By BWB, Chairman