Case Information
*1 c OPY
Zsnoreble L. D. Eatliff, yTr.
County Attorney Dickens County
Spur, Texas
Dear Sir:' Opinisn No. O-3138
i?e: Conpensat;ion of the county judge for presiding over the Commissioners' Court.
Your recent request for an opinion of this depart- ment on the above stated,subJect has been received.
We quote from your letter as follows: "The Cowty Judge af Dickens County, Texas has requested me to secure from your Depertment an opinion concernifig his compensetion for pre- siding over the 'Comndssioner's Court, and he has prepared, and I hand you herewith, a brief on this question.
"For your information I~have a copy of your opinion No. 0-lC17."
Your brief reads as follows: Vlease give us an opinion of the~following ^ statezent or acts:
"Dic'kens County is s. county of (7,SG4--parenthesis ours) population ac- ccrdizg to the census of 1940, EM its officers ore psi;? on a fee basis. Is the county
judge thereof, who receives a salary of
$lEC.CC per month for the county, entitled tc additional compensation for &se_? (?iy that *2 :Icnorable L. D. Datliff, Jr., Page 2
he actually serves as chairman of the
Commissionersq Court thereof? Section 3 cf Article 3926, H. C. S. as hmended,
resds'as follows:
"*Tar presiaing over the Commissicners' Court, - ordering elections and making retilrns thereof ,.hearing snd deterrinirg civil
causes, If any, and transacting all ot,her official business not ctherwise provided for, the Cou.nty Judge shail receive such salary frc:i: the County Treasury as the
Co:~%iseioners* Court may allow him by
order, payable monthly from the general funds of the county, provided, that in
counties~ having ~$290,000,000.00 'assessed valuation, or more, and which have estab- lished therein institutions for the care of both dependent and delinquent boys
and girls, the County Judge shall receive as ex-officio salary, not to be accounted for as fees of office,~and,in addition
to all amounts allowed under.the b5aximum Fee Bill, the further sum of #3,000.00
per annum, payable monthly out of the
general funds of the county.'
":le are well aware of your opinion No. O-1017 which states that the County Judqe of Willacy .~- who was receiving $195.00 per month kx- CouIlty, officio, was not entitled to an additional fee
for presiding over 'the Commissioners* Court.
"It is to be observed however that in the case of Nillacy County the County Judge -ijould receive in ex-'officio the sum oft $2380 per year which is only 320.00 less than'the total of ;;2400.00 provided for in Article 3883, sec. 1, K. C. S. as amended. 'VEEFXAS the County Judge of Dickens County will receive in ex-officio only .$19X0 for the year and his fees of officr; together with the ex-officio ~511 no? net hi.12 .+ '"140Q.00, therefore the situation *3 Bonorable L. D. Ratlifr', Jr., Page 3
in Dickens county is different from that in 'iiillacy County.
"Article 3926, referred to above, read.s 3na can be interpreted the same as Article 2450, R. C. S., 1895, which statute was ccn- strued;~and t.he scr;e Guesticn raised in that case as is now under ccnsideration. In that case and construction, namely, Farmer,
County Treasurer vs. Shaw! 93 Texas Reports 43S-445, Chief Justice Gaines held that the County Judge is entitled to additional com- pnsaticn for presidi~ng over the Com!tAs- sioners* Court, etc. As far as we can tell t,his case has neverbeen overruled, and in spite~of the fact that the reading of the statute has been changea some, no material alteration has beer? mtide and the construc- .*.. tion is similar d.s to the point under con- ,/'. sideration. It is our opinion therefore
that the rule laid' dozn by Chief Justice
Gaines in Farmer, County Treasurer vs.
Shaw, should apply to Dickens County and
that t.he opinion of your Department Rum-
berea O-1017 is not in conflict because of the exorbitant ex-cfficio salary allowed in the case',of Viill~cy County."
Article 3895, Vernon's Annotated Civil Statutes, reads as follows:
"The Commissioners1 Court is hereby de- barred fror:. allowing compensation for.ex- officio services to county o~fficiels when the ccripensationan~d excess fees which they are allowed to retain shall reach the maximum provided for in this chapter. In cases
where the compensation and excess fees which the officers are ailolved to retain shall.not reecti the maximum provided for ins this chap- ter, the Commissioners' Court shall allow cor;pens~ation for ex officio services when, in their judgr;;ent, such compensation is
necessary, provided, such compensation for *4 Honorable L. C. Ratliff, Jr., Page 4
ex officio services allowed shall not ih- crease the conpensation of the cfficial
beyond the r!a.xiakm cotipensaticn and excess fees aliofied to be retained ‘oy bin under this chapter;. Provided, however, the ex- officio h;creir. authorized shall be allmed only after an opportunity for a public
hearing end only upon the affirmative vote of at least three ker;:bers of the COD L3issioners' Court."
The only statute now in force referring directly to compensation for a county judge presiding over the COD missioners' Court is subdivisicn 3, Article 3926, supra.
We have carefully,considered the case of FarEer v. Shaw, 93 Tex. 43S, 54 S:W. 772, 55 S. W.~l115, but do not think that this case governs or controls the questicn here icvolved.
In the above menticned case the court had under consideration Articles 2450 and 2466, R. S. ,1895, Article 2450, which authorized the Ccmissioners* Court to allow the county judge a salary for ex officio services, read as follows:
"For presiding over the comissioners court, ordering elections and making returns thereon, hearing and detemining civil causes, and transacting all other official busioess not otherwise provided for, the county judge shall receive such salary fron the county treasurer as ;;iay be allov~ec? him by order of the cormiseioners court."
firticle 2466 read as follovm: "Zach county commissioner, and tee county judge .&en acting as such, shall receive from the county treasure:, to be paid on order of t.he cozziseicners court ~, the sun: of three dcl.lars for esch day he is engaged in holding a teri;; of' the co:izissioners court, but SUC?_ comzissicners shall receive no pay for hold- ihg zore thaa one sy~ecinl term of their court per niohth."
Honorable L. D.Ratliff, Jr., Rage 5
In discussing the two above mentioned stxtutes, the court said: n 'Be do not think there is a conflict . . .s
between i.hese two statutes, and it is apparent to us that the purpose was to allow the county judge an extra cor;;,7ensaticn as presiding offi- cer of the coiznissioners csurt, and that by virtue of article 2466, he should receive cotipensstion as a ;neGber of the cozzissioners court. That article expressly includes the county judge as entitled to three dollars a day as compensation v&en he is engaged in holding a tez of court. By virtue.of the constitution and the statutes thereunder, he is made a member of the coszissioners court and the purpose of the law evidently was to entitle him to compensation for the see services .rendered by other coinmissioners, and additicnal compensation for presiding over that body. The. legislature evidently thought the county judge, as the presiding officer, was burdened with more duties when sitting with the coaissioners court than the commissioners, and the purpose was evident- ly, by article 2450, to allow him some com- pensation for these extra services. Viewing the two sections of law in this way, we think they can be reconciled. .~ .."
At the present, we have no statute such as Article 2466, supra, specifically providing a certain coqpensation for the county judge when presiding over the Commissioners' Court. It is true that Article 3926, Vernon's Annotated Civil Statutes, contains, substantially, the same language as Article 2450, supra, but, as above stated, there is no statute such as Article 2466 now in force and effect. It is evident from Tour letter that the county officials of Dickens County are compensated on a fee basis, and in. addition to the fees of.office, the county judge receives an ex officio compensation of 3160.00 per month. We think that Article 3895 and Article 3926, supra, must be con- sidered tcgether, and it must be keRt in mind that it is the established law of this state that "an officer nay not *6 ,
Konorable L. D. Ratliff, Jr., Page 6
claim or reach any money without a law authorizing him to do so, and clearly fixing the amount to which he is entitled." 34 Tex. Jur. 511. In other words, an officer may not _. _ _ . _ claim a fee for a particular service rendered unless,the
statute has prescribed a fixed fee for said service. This is the rule;even though the fee or compensation fixed is unreasonable~ or inadequate. An officer may be required by law to perform specific services or discharge additional duties for which no compensation is provided. 34 Tex. Jur. pp. 530, 531.
The $160.00 monthly ex officio conpensaticn al- lowe,d by the CorcJissioners' court compensates the county judge for presiding over the Commissioners' Court, order- ing elections and making returns thereof, and transacting all other official business not otherwise provided for. Therefore, you are respectfully advised that it is our opinion that the County Judge of Dickens County is not entitled to additionalcompensation for presiding over the Commissioners* Court.
Trusting that the foregoing fully answers your inquiry, we are
Yours very truly ATTORXZY GEBEML OF TEXAS By S. Ardell Williams Assistant AW:GO
APPROVED FEB. 15, 1941
S. GERALD C. Iv&E
ATTORNEY GERERAL OF TEXAS
APPROVED OPINION COUWCTEE BY S. EW'B, CHAIRMAN