### 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 2and

### 4in Oarza County under the stated facta, anda related question. Your redpest for an opinion from this office ooncerne the legality of **the** election of conatablee for precincts 2and 4 of ffarza County whowere eleoted by majority vote at the November 6th, 1962, Qeneral Eleotion.

Arelated pueatlon is raised byyou 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 andConstable. Thesalary of the Juatlce **of** Peace in Precinct OneIS set at 

### $3600 **a year.**  In 1957, the Commissioners~ Court set the salary for Constable andJustloe OSPeace In all other precincta besides Prealnct One,at .OneDollar a **year.** Thequeatlon confronting the Commissionera’ Is of course, the matter of setting salaries of the newJuatlce of Peace andConstables if legally elected, andwhether or not they are bpundby any restrictlons In regarda to the matter of setting salaries. * O

.‘I Section 

### 18,Artlole Vof the Texas Cbnstltutlon, which create8 the office of constable, provide8 In part a8 follows:



### Vet-; 18. Eachorganized county In the State nowor hereafter existing, shall be divided from time to time, for the convenience of the people, Into prealnata, not less than four and not more ,thaneight. ~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 andone Constable, each of whomahall hold hi8 office for **four** yeara and until his auccesaor ahall be elected andqualified,

. . .

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

vldes for offlcea. vldea for Section 28, Article Vof the Texas Constitution prothe filling of.vacanclea created in certain judicial Noconstitutional 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 membersof said Court, present andvoting and the person chosen ahall,hold office until the next general election.” That a vacancy did exist In the office of constable In Precincts TwoandFour of Garea County, cannot be doubted. Williams v. Caatleman, 112,Tex. 193, 247 S.W. 263, p. 270.(1922), and author1tl 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 80appointed 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 XVIof 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: 0e 0 tg) Constables D At subsequent elections, such officers shail be elected for the .full terms provided In this Conatltution.” Bythe 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.

Weare therefore of the opinion that the office of constable ln.Precincte TwoandFour of. Garza Countywasvacant 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 maximumsalary limits in each said bracket.

Section 9 of Article 39121, eupra, reads in 'Sec. 9. TheCommleelonere Court shall not be required to fix the, salaries In all precincts at equal amounts, but shall have discretion to determine the amountof salaries to be paid each Justice of the Peace andeach 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:

.

Froma'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 nominimumsalary Is prescribed and ( ) that In noevent shall the Commissioners Court eet'the salary-in excess of the maximumcompensation provided by the aforementioned population brackets, except as speclflcally set forth in Section 9, sub-sections 1and 2of Article 39121, eupra.- .

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

TheLegislature in Its wisdom, has given the Commissioners Court wide latitude anddiscretion In setting salaries for Justices of the:Peace and Constables. Theyhave prescribed a maximum as to cotipensation, but have seen fit not to~prescrlbe a minimum. However, the Legislature has set upcertain guides In fixing the amount of salaries whenthey 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.

. .’ Weare of the oplnlon that the Commissioners Court of Garza County, Texas, may set the salaries of the Justices of the Peace andConstables, 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 Twoand Four of Garza County, wasvacant 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 madeto 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 nominimumhas been preecrlbed by the Legislature. Sincerely, WILLWILSON

~OLH:mkh

;’. . -

Hon. Carleton 

### P;,.Wkbb, page 

### 5 (W-1499)

APPROVED: OPINIONCOMMITTEE W.V. Gepperti'Chairman JohnReeves Albert Pruitt SamStone ' REVIEWED

FORTHEATTORNEY

GENERAL BY: Leonard Pasemore