THEATLTORNJEYGENERAL 

OF TEXAS 

AUS- aa. TEXAS 

December 17, 1962 

Honorable Carleton P. Webb 

County Attorney 

Qarza County 

Post., Texas 

Dear Mr. Webb: 

Oplnlon No. WW-1499 

Re: Legality of the election 

of oonstables for precincts 

2 and 4 in Oarza County under 

the stated facta, and a related question. 

Your redpest for an opinion from this office ooncerne 

the legality of the election of conatablee for precincts 2 and 

4 of ffarza County who were eleoted by majority vote at the November 6th, 1962, Qeneral Eleotion. 

A related pueatlon is raised by you a8 followa: 

“Another question has arisen in regard to 

the same’ thing, a8 to the effwt OS’ 39121, VATS, 

Section 9, In regard to the aalarg of the Justloe 

of Peaoe and Constable. The salary of the Juatlce 

of Peace in Precinct One IS set at $3600 a year. 

In 1957, the Commissioners~ Court set the salary 

for Constable and Justloe OS Peace In all other 

precincta besides Prealnct One, at .One Dollar a 

year. The queatlon confronting the Commissionera’ 

Is of course, the matter of setting salaries of 

the new Juatlce of Peace and Constables if legally 

elected, and whether or not they are bpund by any 

restrictlons In regarda to the matter of setting 

salaries. * O .‘I 

Section 18, Artlole V of the Texas Cbnstltutlon, which 

create8 the office of constable, provide8 In part a8 follows: 

Vet-; 18. Each organized county In the State 

now or hereafter existing, shall be divided from 

time to time, for the convenience of the people, 

Into prealnata, not less than four and not more 

,than eight. ~Dlvlslona shall be made by the Commlaslonera Court provided for by this Conetitution. 

In each such precinct there shall be elected one 

Juatlce of the Peace and one Constable, each of 

whom ahall hold hi8 office for four yeara and until his auccesaor ahall be elected and qualified, 

. . . 

. 
lion,. Carleton P. Webb; page 2 (W&1499 ) 

vldes for 

offlcea. 

vldea for 

Section 28, Article V of the Texas Constitution prothe filling of.vacanclea created in certain judicial 

No constitutional provision can be found which prothe filling of vacancies In the office of constable. 

Ho$ever, Article 2355, Vernon’8 Civil Statutes, pro- 

.videa in part: 

“The Court flommlssloners Coury shall have 

power to fill vacancies In the office,of: County 

Judge, County Clerk, Sheriff, County Attorney, 

County Treasurer, County Surveyor, County Hide 

Inspector,. Asseaaor of Taxes, Collector of Taxes, 

Justides of the Peace, Constables, and County 

Superln’tendent of Public Instruction. Such 

vaoancles,shall be filled by a majority vote of 

the members of said Court, present and voting and 

the person chosen ahall,hold office until the 

next general election.” 

That a vacancy did exist In the office of constable 

In Precincts Two and Four of Garea County, cannot be doubted. 

Williams v. Caatleman, 112,Tex. 193, 247 S.W. 263, p. 270.(1922), 

and author1 tl there cited. 

No. v-178 (19;;). 

Also.aee Attorney General’s Opinion 

Under the plain and unambiguous language of Article 

2355, supra, these vacancies are to be filled by the Commlasioners 

. . Court and the persons 80 appointed are to hold office until the 

next general election. Regardless of whether an appointment Is 

or’18 not made, the office of constable la subject to being filled 

at the next general,electlon after creation of the vacancy, in 

compliance with the ‘terms and provisions of Article 2355, supra. 

Pertinent part8 of Section 65a, Article XVI of the 

Texas Constitution, read as follows: 

next 

n ~Notwlthstandlng other provisions of this 

Constitution, the followlngrofflcers elected at the 

General ElectIonIn November, 1954 ehall serve only 

for terms 9f two (2) years: 0 e 0 tg) Constables D 

At subsequent elections, such officers shail be 

elected for the .full terms provided In this Conatltution.” 

By the plain Import of the above quoted Section, the 

General Election, at which constablee are to be elected for 
. - 

Hon. Carleton P. Webb, page 3 (WW1499) 

a four year term, .wlll be In November, 1964. 

We are therefore of the opinion that the office of 

constable ln.Precincte Two and Four of. Garza County was vacant 

at the general election, held on November 6, 1962, and could 

properly be filled by the election of a qualified Individual 

thereto, said Individual being elected to fill the unexpired 

term terminating December 31, 1964. 

Your second inquiry relates to the compensation to 

be paid the Justices of the Peace and the Constables. 

Article 39121, Vernon18 Civil Statutes, provides for 

the compensation to be received by Juet%cee of the Peace and 

Constables. This statutory provision establishes population 

brackets together with maximum salary limits in each said bracket. 

Section 9 of Article 39121, eupra, reads in 

'Sec. 9. The Commleelonere Court shall not 

be required to fix the, salaries In all precincts 

at equal amounts, but shall have discretion to 

determine the amount of salaries to be paid each 

Justice of the Peace and each Constable in the 

several precincts on an lnd~lvldual basis without 

regard to the ealatiles paid 'In other precincts 

or to other officials. In arriving at the compensation to be paid the officials goyerned by 

the provisions of this Act the Commieeloners 

Court shall consider the financial condition of 

their respective counties and the duties and 

needs of their officials, but in no event shall 

any Commissioners Court set the salary of any 

official at a figure In excess of the maxlmuni 

compensation prescribed for the offlclals of 

that county by this Act, save and except as 

hereinafter provided, to-wit: . , ," 

part: . 

From a'gerusal of the foregoing quoted Section, we 

can say (1) that &Uaries need not be fixed in equal amounts 

In all precincts (2) that the Commissioners Court has wide 

discretion In fixin 

& 

said salaries (3) that no minimum salary 

Is prescribed and ( ) that In no event shall the Commissioners 

Court eet'the salary-in excess of the maximum compensation provided by the aforementioned population brackets, except as speclflcally set forth in Section 9, sub-sections 1 and 2 of Article 

39121, eupra. 
- . 

i 

Hon. Carleton P. Webb, page 4 [WW-I&99) 

The Legislature in Its wisdom, has given the Commissioners Court wide latitude and discretion In setting salaries 

for Justices of the:Peace and Constables. They have prescribed 

a maximum as to cotipensation, but have seen fit not to~prescrlbe 

a minimum. 

However, the Legislature has set up certain guides In 

fixing the amount of salaries when they state In Section 9, 

Article 39121, supra. 

11 e .In arriving at the compensation to be 

paid the officials governed by the provisions of 

this Act the~Commleeionere Courts shall consider 

the financial condition of their respective counties 

and the duties and needs of their offlclale. . .’ 

We are of the oplnlon that the Commissioners Court of 

Garza County, Texas, may set the salaries of the Justices of the 

Peace and Constables, taking into consideration the financial 

‘condition of Garza County and the duties and needs of said officials, at any ‘figure not In excess of the maximum contained In 

the applicable population bracket. 

SUMMARY 

The Office of Constable in Precincts Two and Four 

of Garza County, was vacant at the general~electlon held 

on November 6, 1962, and could ~properly be filled by the 

election of a qualified Individual thereto, regardless of 

whether an appointment had or had not been made to fill 

such vacancy, with said Individual being elected to fill 

the unexpired term terminating December 31, 1964. 

Salaries to be paid Justices of the Peace and Constables are within the discretion of the Commleeioners 

Court limited to the’maxlmums set forth in Article 39121, 

Vernon’s Civil Statutes, and no minimum has been preecrlbed by the Legislature. 

Sincerely, 

WILL WILSON 

~OLH:mkh 

;’ 
. . - 

Hon. Carleton P;,.Wkbb, page 5 (W-1499) 

APPROVED: 

OPINION COMMITTEE 

W. V. Gepperti'Chairman 

John Reeves 

Albert Pruitt 

Sam Stone 

REVIEWED FOR THE ATTORNEY GENERAL ' 

BY: Leonard Pasemore