## THE ATTOIZNEY GENE-L OF TEXAS **AUETXN. TEXAN**  **PRmzE DANIEL**  **A- “** **- -**  December 21, 1948

Hon. Sam B. Hall CountyAttorney HarrisonCounty Marshall, Texas Opinion No. V-750
Re: The maximum salary of a constable in Harrlson County and related questions relative to the recent Constitutional :emendmentchanging certain fee officers to salary officers.
Dear Sir:
You have requested an opinion regarding several questions on the effect of H. 5. R. 36 of the 50th Legislature, amendingArticle XVI, SectSon 61 of our State Constitution. .: Your first question reads:

"1. What annual salary is to be paid a constable of this county?" Harrison County has a population of 50,900 acoordlng to the last preceding Federal Census, and Its preciact.offlcersat.~the.presenttime are compensated on a "fee.basls.* Therefore, we assume that by your first queatfon you desire to know the.maxlmum us salary of e'oonstable in Harrison County beginning January 1, 1949. We do not know at this time whether the Commissioners'Court will determine to place the other precinct officers on a salary or fee .basls in 1949. It was held inAttorney General's Opinion No. V-749 that where the Commlsslonersl-Court determines to compensate~the~preclnctofficera other than the constable on a."fee basis," itmust pay the constable a reasonable salary, at such sum as the Commissioners' Court determines In the exercise of sound dlsaretlon. This opinionwas based on the fact that at the present time there is no statutory provision fixing the salary of a constable in a county where the Commissioners' Court has placed the other precinct offfcers on a *fee basis." We herewith enclose a copy of said opinion. .*Hon. Sam B. Hall, Page 2 (V-750)

Should the Commissioners' Court of Harrison Countydetermine to plaoe all of its precinct officers on a "salarybasis," the salary of the constablewould be governedby the provisions of Article 3912e, Section 17 (b)which provideswhere the Commissioners* Court has-determinedto place all the precinct officers on a "salarybasis'*said officers shall receive not less than the total sum earned as compensation by them in their official capacities for the year 1935, and not more than themaximum amount allowed such officers under laws existingAugust 24, 1935. The maximum amount of compensational.lowedunder laws existingAugust 24, 1935, to precinct officers in counties containing a population of not less than 37,500 and not more than SO;000 inhabitants,was $2,200.00. Articles 3883 and 3891 as amended by Acts, 1933, Chapter 220, Page 734.

Therefore in answer to your first question, It is our opinion that if the Commissioners' Court of Harrison County places all precinct officers on a "salary basis" beginning January 1, 1949, the maximum salary thatmay be paid a constable will be $2,200.00. If, however,the Commissionersr Court places the precinct officers other than the constable on a "fee basis," the salary of the constablewill be that sum determined by the Commissioners'Court in the exercise of soun? discretion. Your second question reads:

"2. What annual salary Is to be paid a deputy constable here?" .Thesalary of a deputy oonstable is governed by the provisionsof Article 3912e, Section 17,V.C.S., which sets the salary at a sum not to exceed $1,500.00 per year. Your third question is:

"3. Are Justices of the Peace to be considered 'precinctlaw enforcement officers*within the meani3 of Constitutional amendment inH. J. R. 36 of the 50th Legislature?”
In our recent opinion NO. V-748 It was held that Justices of the Peace were not "precinct law enforcement officers"within the meanim of the ConstltutionalAmendment (H.J. R. 36 of the 50th Legislature).Hon. Sam B. Hall, Page 3. (V-750)

Your fourth question reads:
How are the expense's of a to be"kndled by the county; i.e., constable actual expensespaid by the county, or at so much per mile traveled eachmonth, or either, or neither?"
Your fourth question is answeredby Attorney General's Opinion No. V-71 in which the Attorney General ruled: "The Commissioners'Court.of a county, the constablesof which are compensated on a salarybasis,.~has no authority to pay such constablesmileage for the use of th.eireutomobiles inthe discharge of their official duties."
Your fifth,

question is! "5. Must counties pay the premiums on bonds of the officers of constable,deputy constable,and justices. of the peac.e?" Article 3899 (b),V. C. S., reads in part as follows: "Each officernamed in thisAct, where he receivesa salary as.cgmpensation for his services,,shallbe'entitled and .permitted~ to purchase or charge to his county all reasonable expenses necessary in the proper and legal conduct of his~office, premiums on officlalslbonds, premiums on fire, burglary, theft, robbery;insuranceprotecting public .' funds;,

and.Pncluding~,the cost **of** surety.bonds for his depu$les, : ;
.

.~ n

. . .All such approved claims and accounts shall be,paid fromthe Officers Salary Fund unless otherwise provided herein'."
It is our opinion.that th.eabove provisions authorize the payment~ofpremiums*onofficial bonds of constables,deputy constables, and justices of the peace, the payment being,made out-of the Officers Salary Fund of the County.Hon. Sam B. Hall, Page 4 (V-750)

Your sixth quastlon reads: "6. Must the county furnish offices for such officers?"
Itwas held inAttorney General's Opinion No. O-2385 that the rental of office space for Justices of the Peace on a "fee basis" could not be paid out of fees of office. It was further held inAttorney General'sOpinionNo. O-1976,that the county~could not furnish office space for the Justice of the,Peace in a county containingless than 75,000 inhabitants. It is therefore.

our opinion that office space for.the Justice of the Peace and constable~inHarrison Countymay not be furnishedby the county. The opinions are based on . Articles 2379 and 3899b. Article wprovides that in countiesof over 75,000population the .countyuhnll Purnish a suitableplace in the courthouse.for the Justice of Peace. Article 3899b names the officerswho shall be furnishedoffices,stationer and supplies (County Judge, Clerk,TaxAssessor and %llector,~County Superintendant,Surveyor, and District Judge.~) The Justice of Peace is not included. The fact that the Justice of Peace is not furn,ished a court room would-appear to be a proper subject for'legislation.

Your seventhquestion reads as follows: ,"7. Must the county furnish the constablewith radio equipment, telephone, and.other office supplies as is provided for in the case of the Sheriff?*
Your seventhquestion is answered in,part by Attorney General'sOpinion No. O-6649 where it waspheld that the Commissioners*Courtwas not authorized to furnish radio equipmentfor a constable. However, the constable is authorizedby Art. 3899(b),V-C-S., to charge to the county all reasonable expanses necessary in the proper and legal conduct of his office,which expenses would normally includea telephone and certain office supplies.
Your eighth question reads as follows:

"8. May the Commissioners **COUrt** now change the numberand limits **of** Justice Precincts in this county to become effective on January 1, 1949, even though, the offices of some of those elected recentlywould thereby be abolished?*Hon. Sam B. Hall, Page 5 (V-750)

ArticleV, Section 18 of our State Copstitution provides:

.' "Each organized county in the.State now

or hereafterexisting, shall be divided from time to time, for the convenience of the people, into precincts,not less than four and notmore than eight. The present county courts~shallmake the first division. Subsequent divisions shall be made by the comlssioners' court provided for by this Constitution. In each such precinct there shall be electedat each biennial election, one justice of the peace and one~constable,~each~of whom shall hold his office for two years and until,hissuccessor shall be elected and qualified;provided that in any precinct in which theremay be a city of 8000 or more inhabitants, there shall be elected two justices of the peace. Each county shall in like manner be divided,

into four commissioners' precincts 'in eachof which there shall be electedby the qualifiedvoters.thereof one county com- ,missioner,who shall hold his office for two years and until his successor,shall.ibeelected and qualified. The county commissioners so chosen,with the county judge, as presiding officers, shall compose the county commissioners court,which.shall exercise such powersand jurisdictionover all county buslness, as is'conferredby this Constitution and the laws of this State, or as may be hereafter prescribed.".
Itwas held -in.AttorneyGeneral's Opinion No. O-3114 that the Commissionars!'Courthad the power to

.merge and redefinebounda~riesof justice precincts at any time, subject to the limitation that not less than four normore than eightsuch precincts are created.
SUMMARY If the Comlssloners' Court of Harrison

. County,with a population of 50,900 inhabitants, places all precinct officers on a "Salary basis" beginning Jatiuary1, 1949, the maximum salary that may be paid a constable will be $2,200.00. If the Commissioners* Court places the precinct officers other than the constables on a "fee basis," the salaries of the constableswill be whateverHon. Sam B. Hall, Page 6 (V-750)

sum the Commissioners' Court sets In the exerciseof sound discretion. Article XVI, Section 61, Constitution of Texas;Artlcla 3912e,Section~l'l'(b)., V. C. S. Salaries of deputy,constables in Harrison County cannotexceed the sum of $1,500.00 peryear. Article 3912e, Section'l7. Justices of the Peace are not "precinct law enforcementoff'ioersw wlthln themeaning of 8; J. R. 36 of the 50,th Legislature, amendingArticle XVI, Section 61; of the Texas Con' stltution. Opinion Wo. V-748.
Yours very truly, AlTOREEY GERERAL OF TEXAS 

# BY

Assistant

JR:bh:jrb John Reeves Assistant