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A-- OFFICE OF THE Al-kORNtiYGENERAL OF TEXAS
AUSTIN

_’

nonorsbleKeeldon

3, Davis county Attorliey Aust.in County IjelLville,

Texas

zqar sir :

correctlyadvise

orders auly mite soa entered of recwa at its first reg.&r ne9tinc in Janunry or each cult-ndar

yem since the effectivedata Gi:.4xtic1o

391% or the i;cvisQd civil statutes of Tom:;18

deierninsdthat thu cwnty offioors of ;,ustin

County shsll be 003;.enmtea on the b"sIs of fees enrnd by thorn in the

. .Szlorable \Folaon B. Davis, Page 2

perfomance of their official duties. On April 22, 1939, e vacancy occurred in the ofriceof County Attorney of Austin County. On said date, April 22, 1939, an8 during tho time the vacancy existed end before the appointment

to fill the vacancy wes made, the Commissioners' Court by en order duly made and enteredof record reduced the exofficiocompensation to bo paid the County Attorneyof Austin County from and after saiddate from $1800.00 per year, or $150.00 I@; ;;;t";,

to 31200.00 per year, or $100.00

lOOO.OO'~r

Ths ex-offioiocompensationof

.

, B * year had been fixed et the

firstregularmsetin~ of the Comisaioners’ court in *IDmary, 1939. On April 25, 1939, threedays after such order reducing the ex- ,officio

oompensation

was amae end entered of record, the Commissioners* Court made the appointment

of a-CountyAttorney to fill' the vacancy,and the person’ 80 appointedaccepted ouch eppointmcntand qualifiedes suoh officer with full knowledge of the action of the Commlosioners'

Court in reducing the ex-officio compensation

to be paid such offioer, and in fact suoh appointeebefore accepting such appointment

and before qualifyingfor such officeoxpresseato the Commissioners* Gcurt his satisfacticn

and his willingness to serveas CountyAttorney at such reduced exofficiocoaponsation. He hcs now, howevsr, presented

to the Commissioners* C0urt his claimfor additionalex-officio comyensation for the period from tho date of his quualifiCetionto the end of the year 1939 at the rate of $50.00 per month, that being the amountthe ox-officiooomgensaticn wos reducedby the order of the Court made and ontorod on April 22, 1939. The exact question thus presented is whether the Corzi~ftsslonsrsr

Court cl"

Austin County unacr the faotsrelated ooul,fi at a m::oting

other than the first regular mseting in January of each Year enter ,anorder reducing or deorsaslngthe ex-officio

compensationto be paid the County Attorneyfor future sorvicos. c-- 328

,Bonorable iY&lon 1).Eavi~, Rage 3

"In briefing the question 1 have come to the oonclusion that the provisionsof Article 3912e of the Revised Civil Statutes relating to the tines and the amounts and the manner of fixing the salaries of county officers,and the recent cases togethervtith the opinions handed down by your offike construingthe provisionsof this article, have
no application to the question presentedfor the reason that Austin County is coszpensating its officers on a fee basis and not on a 'salary basis, Any authority the Corn&saioners* Court has to allow, ohange or modify conpensation for ex-officio servicesmust be derived from kticle 3895 of the i?evlsed Civil Ctotutoa of Texas and the constructiongiven said artiole by the oourts of our State. In my opinion the case of ColllngaworthCounty vs. Xyers, 35
s. W. 414, definitely settles the issue and correctlyanswers the question in the affirmative. Ry conolusionthat the CGurt could on April 22, 1939, end as for that netter at any time, lavafully enter the order ohanging or reducing the ex-ofSici0congensationof the County Attorney, for future services is Purthor fortified by the statementsfound under the title 'FublicOfHoers* in 3-i **Taxes** Jurisprudence,tee. 107, on page 511, and in the saiae voluroe and under the same title on pages 526-329, Sec..llS, end the authoritiesthere 0itea.n

We have oarefully consideredyour letter, together *lththe statutesand authoritiesmentioned therein,and agree Eiththe cmcluelon reaohod bjr you,
Article 3693, VernGn'a .Annotated Civil Statutes, rd.5 as f0110~s:

*The Co!r&saiunerslCourt is hereby .debarredIrGm nllouing compensationfor exoff1010 services to county officialswhen the ccnpensation

ma excess fee3 vM.ch Lhey are allowed to rctsin shall reach the marimur~ providedfor.

in this chapter. In cases -Jihsre the oonpcnsation

and exce:~s

foes which the officers are allozed to retain shall not reach the nsximm provided for in this chapter, the ~bsxa3.ssioner.s~ Cour t shzll allovr

cGm:ensa-~ tion for ox officio sGrvicezB when, in theirgonorab16 -WeldonB. aavis, FaCe 4

, Judgment,, such cocpensationis ns&,+sary, prodded, such compensationfor ex officio servicesallo;ied

shall not increase the compensationof the offioial beyond the maxlnum of compen6ationand excess fees alloviod

to be retained ,bybin under this chapter. Provided, however, the ex offioio herein authorized shall be alloned only after an opportunityfor a publid hearing and only upon the affirmative vote of at least three megbars of the ~ommissioners~

Court."

We quote from Texas Turisprudence, Vol. S?, P. 527, 88 fol.loss:

** * * the coCnissioners*oourt has powor to fix the co3lpensation of an officer, it nay change the amount at any time, oven during his term of office. Thus its orders fixing the compensation of officers for exofficio services are not contracts or juagmanta against the ccunty, and may be ohangcd, modified, repealed or revoked at any tine before the nonoy $5~ tczually been paid Out to the officer.

.

we quote from the ca6e of Collinysworth County v. Lydrs, 35 s. iv.414, as follows:
r* + * t:e

are of opinion that, in auditing ani fixing the onounto to be paid 6uch officers for ex offioio scrvicas,the 00~ii3sionersf

court acts in a legislative capccityRoro than in a judicial,and that such orders are not judE)I;lents against the Ccunty,and that, whenever the cozzissionera Oonclude, for any reason, that such allowances
are too great or too ~~11, they have the Sight and power, at any time before the xeoney is actwlly paid out to the officer, to change, modify, or even sntiroly repeal
or revokes the order. * r,*.n

In view of tho for'ei;OIng authorities,the above stated W6tion is answsred in the affirmatlvo.

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I
gonorable

C6ldon B, Dovia,.

Fage 5

Trusting that the foregoing fully answsrs your lncplry,

rre are

. rrdell ‘XilllnmS Assi6tant **I**