OFFICE OF THE ATTORNKY OKNKRAL OF TKXA8 

AUSTIN 

May 27, 1939 

Honorable Fred T. Porter 

County Attornoy 

Kautian County 

Kaufman, Texas 

Dear Sir: 

We are In recelp 

bearing date May 20, 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 80 advlmd, that the compeusatlon ror a special judge appointed to try oama in whlah 
Honorablr Fred T. Porter, May 27, 1939, Pago 2 

the regular judge or the County Court of Kaufman County is 

disqualified, la the annual salary oi the judge of the 

County Court or Kaufman County divided by 365 and the quotient multiplied by the number of days l otually served by 

auoh apeolal judgr, 

Our opinion 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 same pay 

iOr.hia eervioea as lm provided by law for county 

judges.” 

Artlole 567, Code of Criminal Procedure, reads as 

f 011OWS f 

“A apaclal judge selected or appointed in 

acoordanoe with the preceding artiola shall raoeive the same oompenaatloa as provided by law 

ror regular judges in almllar oaa68.* 

You state In your latter that in Keufman County, 

whloh la a oounty of over 20,000 population, the. county 

judge in on a regular salary fixed by the CommissioneraT 

court. Although the statutes quoted do not apeeirlaally 

provide that the special judge’s salary shall be determined 

by the number of days the jud e 

la the ralreat and moat praot fi 

servos), we believe that this 

cal ray of oaloulating a apaoial judge’s oompenaation. Compara. the provision6 of Artlola 

6821 wlth rersrenoa to the oompenaatlon of a apehI diatriot 

judge, which reads as tollowar 

“The aalariaa of apwial judges - - - shall 

be determined and paid as rollowa: 

“2. The amount of such. salary shall be aacertained by dlylding the salary allowed a district 

judge by 305, and then multiplying the quotient 

by the number OC days actually served by the apeoial judge.” 
543 

Honorable Fred T. Porter, May 27, 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, so appointed, 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 l er vlo ea rendered 

.;zr;he county judga, Including hla l ervioe In probate matWa believe 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. Ccaaparb Holland 

‘1. Harris Couatx 102 S. W, (2) 190, a deolaion of the ‘cornmission of Appeais ore the State of Texas, adopted by tha 

Supreme Court wherein it was held that a special diatriot 

juggo wsa entitled to receive a proportion of the regular 

salary of a diatrlot judge baaed on the number of days 

served, evan though he did not p8rrOm some of 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 

some person to sot as special judge in said 

case, who shall act Iroai term to term until 

auoh dfaqualfflaatioa ceases to, exist.” 

Artiole 1933, Revised Cltil Statutes ot Texas), 1925, 

from whloh we have already quoted, provides: 
Honorable Fro& T. Porter, Mny 27, 1939, Page 4 

*Any apeolal judge agreed upon or appointed 

to try cases ahall rrcelve the same pay ior hla 

aervicoa as 10 provldad by law for oounty judges.” 

WI do not reel that the 1agIrlature intended that 

a apealal oounty judge serving ror one purpose should be plaoed 

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, we dlraot your 

attention to Section 4 of Article 39120, which provides as 

follows : 

‘In all counties of this state containing a 

population of lees than 190,000 lahabltanta aocording .to the last preceding Federal Census 

wherein the oounty or precinot officers are compenaatad on a salary baa18 under ths provisions . 

of this 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, May 27, 1939, Page 5 

Trusting that this aatiafactorlly answers your queaMona, we remain 

Yours very truly 

ATTORNEY GENERAL OF TFXAS 

-- 

ATTORNEYGENERAL OFTXXAS 

EC:FL 

APPROVED OPINION CObfMITTEX BY RWF CHAIRMAN 

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