. - 

September 24, 1949 Supersedes @inion 

v-750 

See Art. ~@&~;v.c.s. 

Hon. MO B., Campbell Opinion NO. v-912 

County Auditor 

Nacogdoches county Be: Salary of constable 

Aocogdoches, Texas for 1949, 

,I I 

Dear Sir: 

Your request for an opinion is 88 follows: 

“If the Commissioners’ Court ol Nacogdochea County 

in January 1949 eek salaries of constables without teking into consideration and basing such salaries on earnings of constables in 1935? may the same Court now befon 

the end of the year 1949, r-e-sethese salaries and reduce them? 

%ay the Commissioners’ Court set constables’ salaries at fixed amounts, and at the same time in addition 

to these salaries allow said constables to collect end 

retain fees of office and mileage as pert of their compenset ion, ” 

From January 1, 1949, until the effective date of Senate Bill 

92, Acts of the 51et Legislature, (June 6, 1949) the amount of salaries 

.to be paid the constables in counties where the precinct officers, other 

than the constables, were compeneated on a “fee basis,” ME left to 

the discretion of the Commis8loners’ Court. A.G, Opinion got V-749, 

a copy of which ia enclosed. 

provide’: 

Sections 1 and 3 of Senate Bill 92 of the 5lst LegUlature 

“section 1, The Commissioners Court in each county 

of this State Is hereby authorized, when in their judgment ti%e flnu.tcial condition of the county and the needs 

of the officer justify the increase, to enter an order 

increasing the compensation of the precinct, county and 

district offlcerr, or either of them, in an additional 

amount not to exceed twenty-five (2%) per cent of the 

sum alloved under the law for the fiscal year of 1948, 

whether paid on fee or salary beaiaj provided, however, 

the members of the Commissionern Court may not raise ,the 

urlarier of any of such Commissioners Court under the 
. 

- 

EUI. M. B. Cupbell, page 2 (V-9l2) 

tesm6 of the Act without rai6ing the nelary of the remining county officlalm in like proportion. 

"sec. 3. All of 6ald officer6 who were paid on a fee 

ba6i6 during the flrcal year of 1948, and who (~‘0 now to 

be paid on a 6alary ba616, rim11 be paid an annual 6alary 

in twelve (12) equal in6tallments of not let36 than th6 total 6um earned a6 compeneetion by him in hi6 official capacity for the fiscal year of 1935, and not mor6 than th6 

maximum sum allowed such officer under the law6 exi6ting 

on August 24, 1948, together with the twenty-five (2%) 

per cent increase allowed by this Act within the dlrcretlon of the Commirrioner6 Court." 

Bection 3, above quoted, place6 a minimum aud mm on the 

68lary to be paid the con6tablej the minimus being not le8g tlmntb 

t&al mm earned as compenution by him for the fl6& yeam 1935. 

Tbrefon, from June 6, 1949, (the effective date of B.B. 92) the con6tables were entitled to annual salaries of not 1066 tbnthr total 

M earned by them in 1935. 

The Commissioners1 Court ie authorized by the proviBicas of 

8ection 1 above quoted, to raise the 6elarle6 of the co~tabl06 in 6n 

additional amount not to exceed twenty-five per cat of thr uirn 

6um allowed such officers under the law for the fircal ye&r 1948. 

You have informed u6 in an6wer to our reque6t for additional 

information that the constables of Bacogdochem COrnrty hoi Jw 1, 

1949, until the prelrent date are being paid auaual 6alarie6 of #15CO.o0 

per’ annum. You fur&ear state that the6e 6alarier m in ace66 of the 

total mm earned by laid official6 for the fircal year 1935. The Comti661aerBt Court of Bacoqdocher County 16 authorized by the provi6ion6 

of Section 1, above quoted, to nire the 6alaries of the conEtable in 

an additional amount not to exceed twenty-five per cent of the a~imum 

6u6 allowed 6uch officer6 under the law for the fiscal year 1948. There 

16 no provfelon, however, in Seaate Bill 92 which would prohibit th6 

Colmnirllloners' Court to change the ralarier of the COnEtable 60 long 

a6 they are paid the minimum fixed in Eaid Act. 

In Attorney General Opinion No. 0-5061 the question before 

the Attorney General et that time wa6 whether the action of the Comml6- 

l ioner6' Court In raising the salary of the dirtrict clerk within the 

minimum end maximum limits provided by law after the 6alaX-y had once 

been set wa6 valid. It was held in thie opinion that: 

"We have likewise been unable to find any authorities 

forbidding the action taken by the commi66ioner6' court. 

It ir true that Section 2 of Article 3912e, V.A.C.S., requires the CO~i66iOIler6' court of every county in Texas 

at it6 first regular meeting in January of each year to 
a. M. B. Campte~, peep 3 (V-912) 

determUm whether certain precinct officers shall be placed 

on a salary or fee barie; thie section aleo provider that 

in countlen having a populatlon of lees than 20,000 lnhabitar&#, according to the laet preceding Fedezul Cenme that 

each comirrloners ’ court shell at it8 first regular meeting in January of each year determine whether its, county 

officen should be placed on a salary or fee basis. Section 15 of Article 39126, V.A.C.S., also provider that the 

coimiaeionerr~ court In countlee having a population of 

lees than 20,000 inhabittmts, according to the laet preceding Federal Census, at the first regular meeting In 

Jamary of each calendar year, may pams 8n order providing for compensation of all county end precinct officers 

on a ealary basis. Bowever, Sectionn 2 and 15 of Article 

3912e, V.A.C.S., do not apply to the county officers of 

Brazoria County, said county having a population in exceee of 20,COO InhabItante according to the last preceding Federal Cenmm. Section 13 of Article 39l2e, V.A.C.S., 

which governs the ralarier of the couuty officers of Brazoria County, contain8 no epecific requirement that salaries be set at the first regular meeting of the commirlionem ’ court In January of each year.” 

It is noted that the rea.8oh for holding that the salary of 

the district clerk could be chauged was that them was no law requirleg the comissioners~ court to set the ealaries of officials governed 

by Section 13-of Article 3912e, Vernon’s Civil Statutea, to be eet et 

it8 first regular meeting in January. Furthermore, it was pointed out 

that there we6 no provision In eald Article which would prohibit the 

comissioners’ court from changing the salaries prevlourly ret. We 

bellcve the reasoning in Attorney 0encra.l Opinion No. O-5061 la sound. 

We therefore affixm said opinion. 

In the Instant case, salaries of constablei are no longer 

governed by Section 2 of Article 3912e, which required the conmissionam’ court in every couhty, at Its regular meeting in January, to detarmine whether precinct officera shall be compensated on a wlary or 

fee basis. Section 61 of Article XVI of the Constitution of Texas aa 

amded In Ilovwdor, 1948, place& all conetabler in the State on a 

salary bamir be&naing Janumy 1, 1949. 

In view of the foregoing, it is our opinion that the coaulsrioaere’ court of llacogdoches County my now set the salaries of constables at any mum not lere than the total earned by them as compensetion for the fiecal year 1935 nor more than the mximum mm allowed 

such offlcere under laws existing on August 24, 1948, together with 

the twenty-five per cent increare allowed by Senate Bill 92. 

Following the reasoning in Attorney General Opinion No. o-5061, 

it lo our opinion that the eelariea of conetables may be railed or lowered 
Eoa. M. B. cupbell, page 4 (v-912) 

et any time during ttm year 80 long aa the ealarie~ xauln within ttr 

a ln5mm a na na x irr Uo untm l llomd by law. 

In Attorney General Opinion Ilo. V-71, It was held that thr 

collalesioncrrf court diB not have authority to allow a con&able who 

ir compennated on a ealary basim mlleage for the urn of hia automobile 

intbe dipchar@ of official burlnesr: We enclow a copy of this prior 

opinion. WC have been unable to find uy~ rtatutosy provi~iom aubaequent to the date of thie foreping opinion wblch would authorire tba 

comtable of Bacogdoches County mileage for the use of hir autowblle 

In the di6charge of official butler. 

Under the provinions of Senate Bill 92, Act6 

of tbr 51& Leglrlature, the mutable8 of Nacoudocher County are entitled to axi atmual aaluy of 

not leas than the total rum eaxned by tbea am coapen&ion ?or the fircal year 1935 ma not 1105, 

than the maximum mm alloved much officem under 

law6 existing August 24, 1948; anatho nalarier of 

conetablee nmy be reduced or raised ice long M tlw 

malarler $0 changed remain within the tiniaa mb 

maximum allowed by law. A.5. Opinion We. 0-m. 

Conatebles caunot be allowed to retain fees 

of office but must pay all feae eaxaed into the 

County Txeaaury. Art. XVI, tic. 6I, Coa#t. of 

Tena a 

The comvnimbnerr court of Racogaocher County 

IS not authorized to allow the constables mileage, 

for the use of their autoamblle In the Blachsrge of 

official duties . A. 5. Opinion No. V-71. 

Yours very tmly, 

3R:bh:sw:egw:ln’ 

APPROVND 

/I/ Jos R. GreenhLll 

ATTORNNY - OF TECM 

By /I/ John Reeve@ 

John Reeve* 

Aasietaut