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‘TaE ihTT0 EY GENERAL OFTEXAS

August 31, 1965

Honorable EdKeys Opinion No. C-497 County Attorney WardCounty Courthouse Re: Underwhat circumstances Monahans, Texas mayajustice of the peace be paid more than Is provided in Article 53.07(d) of Senate Bill No ’

. 107, Dear Mr. Keys: Acts 59th Legislature, 1965?

In your letter requ&ting anopinion from this office you submit certain Tacts which wequote as follows:

“The reierenced Article of the newCode of Criminal Procedure (Article 53.07(d)) limits the amount which can be paid to a Justice of the Peace as salary ‘not to exceed the maximum amountof fees which they were entitled by law to retain before the effective date of this code. 9 ” With regard to these facts you ask the following question:

“Under what circumstances, If any, can a Justice of the Peace be paid more than provided by this sub-section d?

. , .” Senate,Bill 107, Acts 59th Legislature, Regular Session, 1965,is knownaa the “Code of Criminal Procedure.” ThenewCodebecomes effective January 1, 1966.

‘@a~provisions of the Code of Criminal Procedure of 1965, moat pertinent to our discussion, are quoted as follows:

“Art. 53.07 Justice of Peace Salary

“(a) Every justice of the peace in the State of Texas shall be compensated by salary,

-2347-Honorable Ed Keys, page 2 (C-497)

the amountof which shall be determlned by the commissioners court. I,

. . .

“(d) All justices of the peace compensated on a fee basis before the effective date of this Code shall receive a salary to be determined by the commissioners court of each county, not to exceed the maximumamountof fees which they were entitled by law to retain before the effective date of this Code.” Youassumebyyour question that the provisions of Article 53.07(a) and 53.07(d), requiring that every justice of the peace In the State of Texas shall be compensated by salary, are valid. However, Section 61 of Article XVIof the Texas Constitution provides In part as follows:

. . .In all counties in this State, the Commissioners Courts shall be authorized to determine whether precinct officers shall be compensated on a fee basis or on a salary basis, with the exception that It shall be mandatory upon the Commissioners Courts, to compensate all constables, deputy constables andprecinct law enforcement officers on a salary basis beginning January,l, 1949;

. . .I’ Theforegoing constitutional amendmentwasadopted by the voters of Texas at the General Election in November, 1948, and subsequent thereto on lkcember 21, 1948, an Attorney ffeneral’s Opinion No. v-748 construed the provisions of the foregoing as follows:

“H.J.R. 36of the 50th Legislature, amending /I Article XVIof Section 61 of the Texas Constitution, placing sheriffs andconstables on a salary basis, Is self-executing to the extent that said officers shall be compensated on a salary basis beginning January 1, 1949.

“The Justices of the Peace, County Judges, County Attorneys and District Clerks are.not
‘law enforcement officers’ within the meaning of Article XVI, Sec. 61 of the State Constitution.” Underthe language of Section 61 of Article XVI of the Texas*Constltutlon and the holding In the above-quoted

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I Honorable EdKeys, page 3 (c-497)

opinion, It Is within the sole discretion of the Commissioners Court to determine whether the .justlces of the peace shall be compensated on a fee or salary basis. Opinion V-1317 !I

1951). Attorney General's

Consequently, It Is our opinion that Article 53.07(a and Article 53.07(d) so far as each makes mandatory the compensation by salary for each justice of the peace In this State, are In conflict with the constitutional provision quoted above andeach is therefore void. SUMMARY Both Article 53.07(a) andArticle 53.07(d) Senate Bill 107, Acts 59th Legislature, Regular Session, 1965, so far as each makesmandatory the compensation by salary for every justice of the peace In this State, are In conflict with Section 61, Article XVIof the Texas Constitution andeach Is therefore void. However, this constitutional provision makesIt mandatory that all Constables and Deputy Constables be compensated on a salary basis. Very truly yours, WAGGONER

CARR Attorney General

1RWjr:mkh Ivan R. Wllllams, Jr. Assistant
APPROVED: OPINIONCOMMITTEE W.0. Shultz, Chairman Larry Craddock Roger Tyler Phllllp Crawford John Reeves .' ~; APPROVED

FORTHEATTORNEY

GENERAL BY: T. B. Wright