OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

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Hon. &&III

R. Shook Criatltial

Metriot Attorney Ban Antonio, Texao Dear Sir1 Attention ofEr

Be are in req ion of this department stated.
Your letter

the Camisfor a alari116,but are, naverthelesr, omhe requestmade U.S.

e ruled, and oorreotly 80,we at a speoial county judge, by the parties or appointed by the Ootsrnor upon the tllequallfioation OS the regular oounty judge in elther~& 01vil suit or a probate base, ie entltled.to 1/36S of the annual salary of the oounty judge for saoh day that he senss; You further ruledHon. John R. Shook,Page 2

that suohpaymentwas to bemade out of the regular officer*s salary fund. "We ask you tha following questions: "1. Is the regular judge*8alary **tv** be reduoed **by** the emouut that is **paid** to the spsolal judge? -2. pould the samehold true It the regular aounty judge ia not disqualliied, but tails to act by reason 0f illness,

### other inability or by takinga short vaoatloh, and a epeoial judge ia eleoted by the praotioing lawyers to serve aa provided Bar byArtiale 1934 of the 1923 Revised Civil Statutea?

‘3. In determining the emount of a-pen-- sation tobe paid to the special county judge, should the additional compensationrhich the regular oouuty judge receivesae amember of the uvenile board ba included in the aalaulationd*
In your letteryou refer to our opinions Roe. Q-722 and O-1234. The tlrst opinionmentioned~uaswritten by Hon. Edgar Gale, Aaairtant Attorney General, anddtreoted to Ron. Fred C. Porter, CountyAtto.:nep, Yaufman, Texas and holds that a epeclal

### county judgewhether serving in a general capacity 

### or in a probate oapaaity, only shouldbe compensated on the followingbasis:

The annual mlary of the judge of the county tour divided by three hundredand sixty-dive and the quotient multiplied by the number of days aotually served by such special judge, and that this compensation shouldbe paid rrom the Officers' SalaryFund or the oouaty.

OpinionNo. O-1234wes written by Ron. WB. J. Fanning, Aseletaat Attorney General, directed to Hon. imight Whitwell, Aaeietant County Attorney, Colllnr County, and holda directly in accordI*ithopinion X0. O-722.Eon. John R. Shook,Fage 3

hrticle 1933,Vernon's Civil Statutes, reads as follows: Whenever the county judge or the special judge shallbe disqualified from trying 'acase, #he parties or their counselrmy agree upon an attorney for the trial thereof; and, if they shell fail to agree upon an attorney at or before the time it Is called for trial, or if the trial of the ease ispending and the county judge should become unable to aot, or Is absent, and a speolal judge is seleatedwho is disqualified to proceed with the trial, and the partfes then fail to select or agree upon a special judgewho is quallffed, the county judge or special judgepresidIng s&all certify the fact to the Governor Wasdlai%ly,whereupon the Covernor shell appoint a speci& judge, qualified to try same. Such appointmentmay be made by telegram or otherwise. The special judge shall proceed to the trial or disposltlon of Euch case. iinyspeolal,judge agreed upon or appointed to try cases shall receive the srmepay for his services as isprovided by law for county judges." Articlea554, 555, and 556, Code oi CriainalProcedure provide thstwhen the judge of the county court or county courtat law is disqualified in any criminal cape. pending in the court ofwhich he Is a judge, that the partiesmy, by consent, agree upon a special judge to try such case and it the parties fail to agree upon a speofal judge tc try such case on or helore the third day of the Berm atwhich such casemay be called for trial, the judge presiding shall forthwith certify that faot to the Governor who shall appoint scme practioing attorney to try the case. '!'hssa statutes turthar provide that the attorney agreed upon or app'oiuteashall, before he enters upon his duties as special judge,take the oath of office required by the Constitutionand that the clerk of the oourt shall knter in theminutes, as a part ot the proceeding in suchoause, a record ahowing thatthe judge of the oourt was disqu~lified to try the cause, that the special judge (naminghim) was by consent of the parties agreed upon andwas appointed by the Governor to try the oause, and that the oath oi office prescribed by law had been duly admlhlstered to suoh

### 5G5

Hon. John R. Shook,Page 4

apooial judge.

Artlols 557, Code of Criminal Prooedure, reads as follows: *A speoial judge seleotedor appointed in aooordancewith the meoeding artiolea shall receive the same oompenantion as provid**ed** by law ror regular judges in similar oaaea.*
Rexar County had a population of two hundred and ninety-two thousand five hundred end thirty-three (292,533) Inhabitantsaooordlng to the last Federal Cenaua, and paragraph (4)at SeVtlon 19 a? Artiole SOlee,Vernon’8 Civil Gtatutea, epeolfidsllydesignates the amount of salaries to .bepaid oounty offioiala In.oountieahaving a population In excess or One Hundred andNinety Thousand fnhabitants. Therefore,

### Bexar County would oome within the provlafone OS paragraph (d) of Seotdon 19 ofArtfole 3$12e, wherein the salariesof the oounty orfiolala o? such oounties are definitelyprovided. Section 15 OS Artlole 5142b, Vernon’s Civil Statutesprovides addftional compensation for oounty judges of oounties having the populationdeafgnetad inArtlole 3912s a8members of the oountyJuvenile Board in such counties.

Sections 1, 2 and 15 of Artlole 5142b,Vernon’8 Civil Statutea, read as follower

wSectlon 1. That the provisions of this Aot ahall apply to and arfeot auoh counties only ln the State of Texea as have,aooording to the last preceding Federal Cenaua, a population of not more than threehundred abd twenty thousand (320,000)Inhabitants, and not leaa than two hundredand twenty thouaaud (220,000) Inhabitants, aooording to the lastpreoeding or any future Federal Ceneue. nSsotion 2. The Juvenile Roard of suoh oountiea ahall be aompoaed of the Judgea of the several Diatriot and Criminal Diatriot Courts thereof, togethergith the County Judge there&. “Section 15. The members oompoaing said Juvenile Roar6 in auoh oountles, on eooount. ’

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Hon. John R. Shook, Page 5

of the additionalduties hareby imposed on them, ara each hereby allowed an addltlonal oompenaation ot Seventy-five ($75.00)Dollafa per month to bepaid by the Commlaaioneral Court In such oountlea, and the same to be in addition to all other oompensationnow allowedby law to auoh oiilcera.”
In the oaae of Bolland vs. Rarrla County, 102 SW Znd, 196, a deolalon ot the Coamiaaion o?Appeals ot the State 

### ot Texas adopted by the Supreme Court, it

### we8 held that a speoie! judge o? a orimlnal dlatriot oourt 0r Harris county, aotlng in the abaenoe o? the regular judgewas entitledto oompenrsatlonon a basis o? salary, parable to the regular diatrlot judges o? that oounty, inoduding salarypayable to the regulardlatriot judges as member8of the Juvenile Board,notwithstandingthe apeoial judgepe~?ornts no duties as a member o? the Juvenile Board, and that the cimount alloued regular judgeaior aervi088 performed asmembers o? the board,waa allowed aa part a? their annual aalery end not merely as additional oompenaatioa.
In view of the ioragoing authorities,we answer your quf9atlona

as followsI 1. The regular udge’a ealary is not to be reduoed by the amount that i8 paid to the special judge. The regular judge ia entitled to his iull canpeneation aa allowed by law, although it is necessary rot a apeoial judge to aot ln certain inatanoea.

2. The same enawer applies to your aeoondquesaa It 18 immaterialwhether the judgewas disqualltfed or failed to aot by reason o? illness or some other inabillty 

### or by taking a shortvaoation. It munt be assumed that the regular judgewill talthtully perfonu his duties and aot in all oases exoeptwhere he la dlaqualltied or is unable to aot by reason o? some legal excuse.

3. In deterrainingthe amount o? oompenaatlon to be paid to the apeoiel oounty judge, the additional oanpenaationwhioh the regular ‘rountyjudge 

### moeives as amember’

.

Hon. John R, Shook, Page 6

of tbe Juvenile Court shouldbe included in the gploulatlon in arriving at the amountwhloh the specie) aounty judge is entitled to.

Trusting thnt the 

### foregoing fully inawera your inquiry,we remin Vary trulf yours ATTO?NEY (3Es?IERAL OF ‘IEXAC
BY&zidh&m*

Rsaeli Wllllama Aa6iataat AWlAW



### APPROVED OPINION

c 

### COMMI ’ TTIC 4ik%s,