Case Information
*1 , OFFICE OF THE Al-kORNtiYGENERAL OF TEXAS AUSTIN _’
Q-C.- A-- nonorsble Keeldon 3, Davis
county Attorliey
Aust.in County
IjelLville, Texas
zqar sir :
correctly advise orders auly mite soa entered of recwa at its first reg.&r ne9tinc in Janunry or each cult-ndar yem since the effective data Gi: .4xtic1o 391% or the i;cvisQd civil stat- utes of Tom:;18 deierninsd that thu cwnty of- fioors of ;,ustin County shsll be 003;.enmtea on the b"sIs of fees enrnd by thorn in the . .
c-- 328 , Szlorable \Folaon B. Davis, Page 2
perfomance of their official duties. On
April 22, 1939, e vacancy occurred in the
ofrice of 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 entered of record reduced the ex-
officio compensation to bo paid the County
Attorney of Austin County from and after
said date from $1800.00 per year, or $150.00
I@; ;;;t";, to 31200.00 per year, or $100.00
Ths ex-offioio compensation of . lOOO.OO'~r year had been fixed et the B * first regular msetin~ of the Comisaioners’
court in *IDmary, 1939. On April 25, 1939,
three days after such order reducing the ex-
,officio oompensation was amae end entered of
record, the Commissioners* Court made the
appointment of a-County Attorney to fill' the
vacancy, and the person’ 80 appointed accepted
ouch eppointmcnt and qualified es suoh officer with full knowledge of the action of the Com-
mlosioners' Court in reducing the ex-officio
compensation to be paid such offioer, and in
fact suoh appointee before accepting such
appointment and before qualifying for such
office oxpressea to the Commissioners* Gcurt
his satisfacticn and his willingness to
serve as County Attorney at such reduced ex-
officio coaponsation. He hcs now, howevsr,
presented to the Commissioners* C0urt his
claim for additional ex-officio comyensation
for the period from tho date of his quualifi-
Cetion to the end of the year 1939 at the
rate of $50.00 per month, that being the
amount the ox-officio oomgensaticn wos re-
duced by the order of the Court made and
ontorod on April 22, 1939. The exact ques-
tion thus presented is whether the Corzi~fts-
slonsrsr Court cl" Austin County unacr the
faots related ooul,fi at a m::oting other than
the first regular mseting in January of each
Year enter ,an order reducing or deorsaslng the
ex-officio compensation to be paid the County
Attorney for future sorvicos.
Bonorable iY&lon 1). Eavi~, Rage 3
"In briefing the question 1 have come to the oonclusion that the provisions of
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 together vtith the opinions handed down by your offike con- struing the provisions of this article, have no application to the question presented for 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 conpensa- tion for ex-officio services must be derived from kticle 3895 of the i?evlsed Civil Ctotutoa of Texas and the construction given said ar- tiole by the oourts of our State. In my opinion the case of Colllngaworth County vs. Xyers, 35 s. W. 414, definitely settles the issue and cor- rectly answers the question in the affirmative.
Ry conolusion that the CGurt could on April 22, 1939, end as for that netter at any time, lava- fully enter the order ohanging or reducing the ex-ofSici0 congensation of the County Attorney, for future services is Purthor fortified by the statements found under the title 'Fublic Of- Hoers* 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 authorities there 0itea.n
We have oarefully considered your letter, together *lth the statutes and authorities mentioned therein, and agree Eith the cmcluelon reaohod bjr you,
Article 3693, VernGn'a .Annotated Civil Statutes, rd.5 as f0110~s:
*The Co!r&saiunersl Court is hereby .debarred IrGm nllouing compensation for ex- off1010 services to county officials when the ccnpensation ma excess fee3 vM.ch Lhey are allowed to rctsin shall reach the marimur~ provided for. 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 their *4 gonorab16 -Weldon B. aavis, FaCe 4
Judgment,, such cocpensation is ns&,+sary, prodded, such compensation for ex officio services allo;ied shall not increase the
compensation of the offioial beyond the
maxlnum of compen6ation and excess fees
alloviod to be retained ,by bin under this
chapter. Provided, however, the ex of-
fioio herein authorized shall be alloned
only after an opportunity for 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 ex- officio services are not contracts or juag- manta 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 capccity Roro 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. *5 ,. ._
. 33-J I
gonorable C6ldon B, Dovia,. Fage 5
Trusting that the foregoing fully answsrs your lncplry, rre are I
rrdell ‘XilllnmS Assi6tant