, 

‘TaE ihTT0 EY GENERAL 

OFTEXAS 

August 31, 1965 

Honorable Ed Keys Opinion No. C-497 

County Attorney 

Ward County Courthouse Re: Under what circumstances 

Monahans, Texas may a justice 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 an opinion from this office 

you submit certain Tacts which we quote as follows: 

“The reierenced Article of the new Code 

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 

amount of 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 known aa the “Code of Criminal Procedure.” 

The new Code becomes 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 amount of 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 maximum amount of fees which they were 

entitled by law to retain before the effective 

date of this Code.” 

You assume by your 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 XVI of 

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 

and precinct law enforcement officers on a 

salary basis beginning January ,l, 1949; . . .I’ 

The foregoing constitutional amendment was adopted 

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. 36 of the 50th Legislature, amending 

/I Article XVI of Section 61 of the Texas Constitution, placing sheriffs and constables 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.” 

Under the language of Section 61 of Article XVI of 

the Texas*Constltutlon and the holding In the above-quoted 

-2348- 
, 

I Honorable Ed Keys, 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 and each is therefore void. 

SUMMARY 

Both Article 53.07(a) and Article 53.07(d) 

Senate Bill 107, Acts 59th Legislature, Regular 

Session, 1965, so far as each makes mandatory the 

compensation by salary for every justice of the 

peace In this State, are In conflict with Section 61, Article XVI of the Texas Constitution 

and each Is therefore void. However, this constitutional provision makes It 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: 

OPINION COMMITTEE 

W. 0. Shultz, Chairman 

Larry Craddock 

Roger Tyler 

Phllllp Crawford 

John Reeves .' ~; 

APPROVED FOR THE ATTORNEY GENERAL 

BY: T. B. Wright