## THEATTORNEY 

# GENERAL’ QPTEXAS

PRICE DANIEL AUWTIN m.ITrcxAe ATTORNEY

GENERAL

August 28, 1951

Han, W. A. Hadden County Attorney Pecos County Fort Stockton, Texas Opinion No. 

### V-1262
Re: Maximum compensation of the County Judge of Pecos County under the submitted facts.
Dear Sir:
You have requested an opinion relative tothe compensation ofthe County Judge of Pecosi~County.,.who is also ex officio county superintendent ofpublic instruction. The county officers of Pecos County are compensated on a salary basis.

Pecos County has a population of 9,939 inhabitants and its county,officers were compensated on a salary basis in 1948. Therefore, the maximum compensation allowed the county judge under Articles 3912e-12 and 39128, V.C.S., is $6750.00 

### ($5400.00plus $1350.00, or 25% of $5400.00).

Under the provisions ofArticle 3888, V.C.S., as amendedby Senate Bill 108,Acts 52nd Leg., 1951.ch. 200, p. 329, where the county judge acts as superintendent of public instruction, the county board of school trustees is authorized to pay the county judge a maximum of $2600.00 per year.

You-desire ‘toknow ‘ifthe compensation provided in Article 3888 is tobe included in the salary set by the Commissioners” Court under Articles 3912e-12 and 39128, or in addition to such salary. Indetermining the answer tothis question, we deem it advisable to review the’legislative history ofArticle 3888.

Article 3888was originally enacted in 1897. Itwas codified in the 1911revision as Article 3886, and provided:

“In counties where a county judge acts as superintendent of~public instruction, he,shall receive such other salary as may be provided by the commissioners’ court, not to exceed the sum of six hundred dollars per annum. IDHon. W. A. Hadden, page 2 (V-1262)

Inconstruing this provision, it was held inAttorney General’s Opinion 2310 (1921), Report and Opinions ofAttorney General 1920-22, p. 497:

“Article 3886 provides that in counties where a county judge acts as superintendent ofpublic instruction. he shall receive such other salary as may be provided by the commissioners court, notto exceed the sum of $600 per annum. “Article 3893 provides that the commissioners court is debarred from allowing compensation,for exofficio services to county officials when the compensation and excess fees which they are allowed to retain shall reach the maximum provided for in Chapter 4of Title 58.
“Article 2763 provides that in each county in this State, having no school superintendent, the county judge shall be ax-officio county superintendent of public instruction, and shall perform all the duties required ofthe county superintendent.
“It is clear, therefore, that the compensation provided for the county judge, when acting as county superintendent, is ex-officio compensation within the meaning of Article 3893. Therefore, the county judge is not entitled to such compensation over and above his maximum compensation and excess fees provided for inArticles 3881et seq. The county judge could not, under the Constitution, hold two offices (with certain exceptions, not including county superintendent), and hence his duties, when acting as county superintendent are simply additional duties as county judge, and the compensation for such services will be considered in arriving at his maximum by reason ofArticle 3893.”
This compensation ofthe county judge acting as county superintendent was increased to $900 in 1920 (Acts 36th Leg., 3rd C.S. 1920, ch. 57, p* 100). The statute was codified in the 1925 revision as Article 3888, which read:

“Ina county where the county judge acts as superintendent ofpublic instruction, he shall receive for such services such salary not to exceed nine hundred dollars ayear as the commissioners court may provide.”Hon. W. A. Hadden. page 3 (V-1262)

Article 3888 was again amended in 1935by House Bill 66. Acts 44th Leg., 2nd C.S. 1935, ch. 447, p. 1732, so as to provide:
“Ina county where the County Judge acts as superintendent of public instruction, he shall receive for such services such salary not to exceed Nine Hundred Dollars ($900) a year as the County Board of School Trustees ofthe respective counties may provide. The amount shall be paid in the manner specified in Chapter 49, Acts ofthe Forty-first Legislature, Fourth Called Session, 115 A * cts ofthe Forty-second Legislature, Regular Session.” (Emphasis added.) Chapter 49, Acts 41st Leg., 4th C.S. 1930 (Art. 2700d-1. V.C.S.), referred to in Article 3888, provides in part:

“Section 1. That from and after August 31. 1930,the salary and office expenses ofthe county superintendent of public instruction and such assistants as he ‘mayhave shall be paid out ofthe school funds ofthe common and independent school districts ofthe county.

“Sec. 2. That the County Board of Trustees shall annually on or before the first (1st) day of August hereafter order a scholastic per capita assessment against each school district within the County in sufficient amount to provide for the payment ofthe salary and office expenses ofthe County Superintendent and any office assistants he may have, as is now provided by law. or may hereafter be provided. And the said assessment when legally made and certified tothe school districts of the County shall be paid by them for the purpose herein specified.“’ Chapter 175,Acts 42nd Leg., R.S. 1931(Art. 2827a, V.C.S.), referred to inArticle 3888, provides in part:

“Section 1. That, from and after August 31.1931,it shall be the duty ofthe County Board ofTrustees in each county in this State having an elective County Superintendent of Public Instruction to notify the State Superintendent and the State Board of Education. not later than September 1,of each scholastic year, ofthe amount ofthe State Available School Fund that should beHon. W.A. Hadden, page 4 (V-1262)

set,aside from the per capita apportionment for said county for the ensuing scholastic year for the maintenance ofthe office of County Superintendent in accor.dance with Law; provided;‘that the amount tobe set aside fr~omthe per capita ., apportionment for said county shall include ~the”,. per .capita apportionment for the districts ofthe county~that are noti lawfully required, or that may hereafter:, by General Law, be required, to’ contribute to said County .Administration”Ex- ~. pense Fund.
“Sec. 2. That the State Superintendent of‘, Public Instruction shall, onthe order:of the State Board of Education, remit tothe County Depository of each such county the amount of said Available School Fund, tobe deposited to the’ ‘# credit ofthe Administration Fund ofthe County for the purpose set forth in Section 1ofthis Act;, provided, that the payments tothe~various coun; ties may be made in two equal installments, the first, on or before October ~1. and the second, on or before March 1,ofeach successive school year. w Inconstruing Article 3888, as amended in 1935,it was stated in Attorney General’s Opinion O-3026 (1941):

UNith reference to Article 3888, supra, we direct your attention tothe fact that this article has been long construed by this department,as being accountable as part ofthe maximum the officer could retain under the provisions ofArticle 3891, supra, and the county judge ,isnot entitled ,. tothe compensation provided by Article 3888 over and above his maximum compensation arrived at by reasons of said Article 3891.”
Article 3888 has been subsequently amended by Senate Bill 252, Acts 50th Leg., 1947, ch. 305, p. 519.,and Senate Bill 108,Acts 52nd Leg., R.S. 195,1,ch. 200. p.,329. However, these amendments contain noprovision which altars the holding inAttorney General’s Opinions 2310and o-3026.

The,refore, in a Yee”‘co@y, the’couiity judge cannot ret.ain.compensation provided inArticie ,3888. V;k.S.. in addition tothe maximum set by Articles 3883 and.3891. V.C.S. Itis our opinion that this construction ofArticle 3888 is equallyHon. W. A. Hadden, page 5 (V-1262)

applicable to “salary” counties, for the following reasons:

Section 3ofArticle 3912e, V.C.S.. provides:
“In all cases where the Commissioners’ Court shall have determined that county officers or precinct officers in such county shall be compensated for their services by the payment ofan annual salary, neither the State of Texas nor any county shall be charged with or pay to any ofthe officers so compensated, any fee or commission for the performance ofany or all ofthe duties of their offices but such officers shall receive said salary in lieu of all other fees, commissions or compensation whrch they would otherwise be auiorrzed to retam; provrded, however, that the assessor and collector oftaxes shall continue to collect and retain for the benefit ofthe Officers’ Salary Fund or funds hereinafter provided for all fees and commissions which he is authorized under law to collect; and it shall be his duty toaccount for and to pay all such monies received ‘byhim into the fund created and provided for under the provisions ,ofthis Act; provided further, that the provisions of this Section shall not affect the payment of costs in civil cases by the State but all such costs so paid shall be accounted for by the officers collecting the same, as they are required under the provisions ofthis Act to account for fees, commissions and costs collected from private parties.” (Emphasis added.) By virtue ofthe underlined provision of Section 3of Article 3912e, the salary prescribed by the commissioners’ court is “in lieu of all other

., .compensation which they [county officers or precinct officers] would otherwise be authorized to retain.”

The court, in Settegast v. Harris County, 159S.W.2d 543 (Tex. Civ. App. 1942,error ref.), ‘hadbefore if a similar question tothe one presented inyoursrequest, Jnthat case the county treasurer was seeking to retain compensation received under the provisionsofArticles 8148and 8221,V.C.S., earned as treasurer ofDrainage Districts and Navigation Districts in addition tothe salary set by the commissioners’ court under Section 19ofArticle 3912e. The court held that the county treasurer could not retain the compensation received from the Drainage Districts and Navigation Districts, as the amount of salaryHon. W. A. Hadden, page 6 (V-1262)

which could be.pid the county treasurer was limited tothe maximum salary provided in Section 19ofArticle ,3912e.

Although different 

### statutory provisions were involved intheSetteg.ast case. it is our opinion that the principle of law stated therein controls the question tobe determined here. 

### We. therefore, agree with your conclusion that the county judge cannot retain the compensation provided by Article 3888, V.C.S.. in addition tothe 

### salary prescribed by the commissioners’ court pursuant toArticles 3912t-12 and 3912g, V.C.S.

The compensation provided inArticlt’388S, V.C~.S.. to a county judge acting ss ex officio c,ounty superintendent cannot be retained by the county judge in addition tothe salary set by the commissioners’ court pursuant toArticles 3912e-12 and 3912g. V.C.S. Art. 3912e, Sec. 3, V.C.S; Sette ast v. Harris County, 159S.W.Zd 543 (Tex. cl&c1942, error, rtf.fi.Att’y Gen. Ops. 2310 (1921),O-3026 (1941).

, Yours very truly,

APPROVED: PRICE DANIEL Attorney General
J.C. Davis, Jr. County Affairs Division
Everett Hutchinson Executive Assistant
Price Daniel Attorney General Byi!i52veh Assistant

JR:b - .