**OFFICE** OF THE ATTORNKY OKNKRAL OF TKXA8 AUSTIN

May 27, 1939 Honorable Fred T. Porter County Attornoy Kautian County Kaufman, Texas Dear Sir:

Weare In recelp bearing date May20, 1939, ing questfone:

the regular oounty

Itled to reoelve the same per r judge for every day that in such probate matter? he special oounty judge reoelve he regular otiioer’a salary fund?* In answer to your first question, it is the opinion or this department, and you are 80advlmd, that the compeusatlon ror a special judge appointed to try oama in whlahHonorablr Fred T. Porter, May27, 1939, Pago 2

the regular judge or the County Court ofKaufman County is disqualified, la the annual salary oi the judge ofthe County Court or Kaufman County divided by365 and the quotient multiplied bythe number of days 

### l otually served by auoh apeolal judgr,

Ouropinion is baaed upon Artiole 1933 Revised Civil Statutes or Tr~aa 1925 and Art1018 557, Eode of Criminal Prooedure, Rsvlaed &atutea or 1925. Article 1933, Revised Civil Statutes, reads In part as follows:

*- - - Any special judge agreed upon or appointed to try oases shall receive the samepay iOr.hia eervioea as lmprovided by law for county judges.” Artlole 567, Code of Criminal Procedure, reads as f011OWS

f “Aapaclal judge selected or appointed in acoordanoe with the preceding artiola shall raoeive the sameoompenaatloa as provided by law ror regular judges in almllar oaa68.* Youstate In your latter that in Keufman County, whloh la a oounty of over 20,000 population, the. county judge in onaregular salary fixed by the CommissioneraT court. Although the statutes quoted donot apeeirlaally provide that the special judge’s salary shall be determined by the number ofdays the jud e la the ralreat and moat praot fi servos), webelieve that this cal ray of oaloulating a apaoial judge’s oompenaation. Compara.the provision6 ofArtlola 6821wlth rersrenoa to the oompenaatlon of a apehI diatriot judge, which reads as tollowar

“The aalariaa of apwial judges - - - shall be determined andpaid as rollowa:

“2. The amount of such. salary shall be aacertained by dlylding the salary allowed adistrict judge by305, and then multiplying the quotient by the number OCdays actually served bythe apeoial judge.”

### 543

Honorable Fred T. Porter, May27, 1939, Page 3

In anawar to your aaoond question, you are advised that it is the opinion of this department that in probate oaaoa, whara tha regular oounty judge la disqualified end a 

### l pooial judge la agreed upon by the parties or appointed by tha governor, such apeolal judge, soappointed, In such probate oases, shall be ontltled to receive the same oomponaatioa per diem as the regular judge, for every day that such special oounty judge serves In that capacity.

The salary ot the county judge, under tha provlaiona of Article 3912s (3). Revlaad Civil Statutes, la *In lieu or ‘all other rrea, oommiaaiona or cbmpanaation* and neoeaaarily oovira oompaaaation ior all lervloea rendered .;zr;he county judga, Including hla l ervioe In probate matWabelieve that It would be impossible to separate the Galus or the aervloea or a apeoial judge in probate matters from the value of his aervloea in other mattera, under the salary system. In other words, it is our oplaion that a apeaial judge who serves in probate matters la entitled to receive the eame oompenaatlon as if he had psrrormed all or the duties of the oouaty jgdge. CcaaparbHolland
‘1.Harris Couatx 102 S. W, (2) 190, adeolaion of the ‘cornmission of Appeais orethe State ofTexas, adopted by tha Supreme Court wherein it was held that a special diatriot juggo wsa entitled to receive aproportion of the regular salary ofa diatrlot judge baaed onthe number of days served, evan though he did not p8rrOm someof the duties required of the district judge.

In this connection Artlolo 1932, Revised Civil Statutes of Texan, 1925; provider:

When a oounty judge is dlaqualirled to aot la any probata matter ha shall forthwith oertlfy his dlaquallflcat~on therein to tha governor, whereupon the governor shall appoint someperson to sot as special judge in said case, whoshall act Iroai term to term until auoh dfaqualfflaatioa ceases to,exist.” Artiole 1933, Revised Cltil Statutes ot Texas), 1925, from whloh wehave already quoted, provides:Honorable Fro&T. Porter, Mny27, 1939, Page 4

***Any** apeolal **judge** agreed upon or appointed to try cases ahall rrcelve the same pay ior hla aervicoa as 10provldad bylaw for oounty judges.” WIdonot reel that the 1agIrlature intended that **a**apealal oounty judge serving ror one purpose should beplaoed upon a dlrrerent salary baa18 from a special county judge for another or dirrerent purpose and It la our.opinlon that a apeoial county judge In probate oases shall be compensated upon the same basis as a special county judge while sitting for other purposes.

With referenoa to your last question, wedlraot your attention to Section 4ofArticle 39120, which provides as follows :

‘In all counties ofthis state containing a population oflees than 190,000 lahabltanta aocording .to the last preceding Federal Census wherein the oounty or precinot officers are compenaatad ona salary baa18 under ths provisions

. ofthis Act. there shall be oreated a fund to bo

be-proteotod to the sake extent **as** other county run&s.” **We**are of the opinion thatthe salary or **a**oounty judge should be oonaldered athe aalariea of offlcera~ and an eauthorlzed expense of oifioae, and aooordlngly, that a apeoial oounty judge should be oompenaated out of the ofticer~a salary fund.Honorable Fred T. Porter, May27, 1939, Page 5
Trusting that this aatiafactorlly answers your queaMona, weremain Yours very truly ATTORNEY

GENERAL

OFTFXAS

-- ATTORNEYGENERAL

OFTXXAS EC:FL APPROVED

OPINIONCObfMITTEX BYRWFCHAIRMAN

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