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 to the compensation of the County Judge of Pecosi~County.,.who is also ex officio county superintendent of public 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 

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

Under the provisions of Article 3888, V.C.S., as amended by 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 ‘to know ‘if the compensation provided in 

Article 3888 is to be included in the salary set by the Commissioners” Court under Articles 3912e-12 and 39128, or in addition to 

such salary. In determining the answer to this question, we deem 

it advisable to review the’legislative history of Article 3888. 

Article 3888 was originally enacted in 1897. It was codified in the 1911 revision 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. ID 
Hon. W. A. Hadden, page 2 (V-1262) 

In construing this provision, it was held in Attorney General’s Opinion 2310 (1921), Report and Opinions of Attorney General 1920-22, p. 497: 

“Article 3886 provides that 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 $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 4 of 

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 

of the 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 in Articles 3881 et 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 of Article 3893.” 

This compensation of the 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: 

“In a 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 a year as the commissioners court may 

provide.” 
Hon. W. A. Hadden. page 3 (V-1262) 

Article 3888 was again amended in 1935 by House 

Bill 66. Acts 44th Leg., 2nd C.S. 1935, ch. 447, p. 1732, so as 

to provide: 

“In a 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 of the respective counties 

may provide. The amount shall be paid in the manner specified in Chapter 49, Acts of the Forty-first 

Legislature, Fourth Called Session, 

115 * A cts of the 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 of the county 

superintendent of public instruction and such assistants as he ‘may have shall be paid out of the school 

funds of the common and independent school districts of the 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 of the salary and office expenses of the 

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 to the 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 in Article 3888, provides in part: 

“Section 1. That, from and after August 

31. 1931, it shall be the duty of the County Board 

of Trustees 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, of the amount 

of the State Available School Fund that should be 
Hon. 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 of the office of County Superintendent in accor.dance with Law; provided;‘that 

the amount to be set aside fr~om the per capita ., 

apportionment for said county shall include ~the”,. 

per .capita apportionment for the districts of the 

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, on the order:of the State 

Board of Education, remit to the County Depository of each such county the amount of said 

Available School Fund, to be deposited to the’ ‘# 

credit of the Administration Fund of the County 

for the purpose set forth in Section 1 of this Act;, 

provided, that the payments to the~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, of each successive school 

year. w 

In construing Article 3888, as amended in 1935, it 

was stated in Attorney General’s Opinion O-3026 (1941): 

U Nith reference to Article 3888, supra, we 

direct your attention to the fact that this article 

has been long construed by this department,as 

being accountable as part of the maximum the officer could retain under the provisions of Article 

3891, supra, and the county judge ,is not entitled ,. 

to the 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 no provision which altars the holding in Attorney General’s Opinions 2310 and o-3026. 

The,refore, in a Yee”‘co@y, the’couiity judge cannot ret.ain.compensation provided in Articie ,3888. V;k.S.. in 

addition to the maximum set by Articles 3883 and.3891. V.C.S. 

It is our opinion that this construction of Article 3888 is equally 
Hon. W. A. Hadden, page 5 (V-1262) 

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

Section 3 of Article 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 of an 

annual salary, neither the State of Texas nor any 

county shall be charged with or pay to any of the 

officers so compensated, any fee or commission 

for the performance of any or all of the 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 of taxes shall continue to collect 

and retain for the benefit of the 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 to account for and 

to pay all such monies received ‘by him into the 

fund created and provided for under the provisions 

,of this 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 of this Act to account for fees, commissions 

and costs collected from private parties.” (Emphasis added.) 

By virtue of the underlined provision of Section 3 of 

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, 159 S.W.2d 

543 (Tex. Civ. App. 1942,error ref.), ‘had before if a similar 

question to the one presented in yours request, Jn that case the 

county treasurer was seeking to retain compensation received 

under the provisionsofArticles 8148 and 8221, V.C.S., earned 

as treasurer of Drainage Districts and Navigation Districts in 

addition to the salary set by the commissioners’ court under 

Section 19 of Article 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 salary 
Hon. W. A. Hadden, page 6 (V-1262) 

which could be.pid the county treasurer was limited to the maximum salary provided in Section 19 of Article ,3912e. 

Although different statutory provisions were involved 

in the Setteg.ast case. it is our opinion that the principle of law 

stated therein controls the question to be 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 to the salary prescribed by the commissioners’ court 

pursuant to Articles 3912t-12 and 3912g, V.C.S. 

The compensation provided in Articlt’388S, 

V.C~.S.. to a county judge acting ss ex officio c,ounty superintendent cannot be retained by the county 

judge in addition to the salary set by the commissioners’ court pursuant to Articles 3912e-12 and 

3912g. V.C.S. Art. 3912e, Sec. 3, V.C.S; Sette ast 

v. Harris County, 159 S.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 

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