Case Information
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This opinion holds:
That an order of the conainsloners' court plecing the preeimat offleers of one preeimat in the somaty on a salary hasis and leaving the other preeimat offleers of the somaty on a fee hasis is rold and that the preeimat offleers who are placed on a salary hasis should now be compensated on a fee hasis.
OFFICH OF TEN ATTODAY GENEAL
July 3, 1939
Hon. Lee Pressell
County Attorney
Hpehur County
Gilmer, Texas
Bear Siy:
Opinion Ho. 0-915
He: What are the proper steps for a somaty to take at this date of its fiscal year if it has eryoseowely exercised its option on a salary hasis under the provisions of Art. 3912, V. A. C. B. by placing the preeinat officers of one preeimat on a salary hasis?
Your request for an opinion on the question as is stated herein has been received by this office.
Your letter reads in part as follows: "What would be the proper step or steps for a somaty to take at this date of their fiscal year, which is laboring under a situation such as expressed in the following statement of fects? "A somaty coming under a population breakst such as to require them to place the somaty offis lals on a salary hasis, under Article 3912, R. C. B. 1925, but leaving it optional upon the part of the Comnissioners' Court of such somaty to place preeinat officers upon a salary hasis or leave them upon a fee hasis, and such somaty exercises this option as to preeinat officers by placing the preeinat officers of one preeinat within the somaty upon a salary hasis, and leaving the remaining preeinat officers upon a fee hasis, and this option being exercised
*2 as provided in Article 39120, Sec. 2, where in the commissioners' court of each county in the state of Texas, at its first regular meeting in January of each calendar year, shall, by order made and entered in the minutes of such court, determine whether pree 1 not offieers of such county shall be compensated upon a salary basis as provided for in this Act, or whether they shall receive as their compensation such fees of office as may be earned by them in the performance of the duties of their offiees."
Section 2 of Article 39120, R. G. B. reads in part as follows:
"Sec. 2. The Commissioners' Court of each county in the State of Texas, at its first regular meeting in January of each calendar year, shall, by order made and entered in the minutes of said court, determine whether pree 1 not offieers of such county (except public weighers and registrars of vital statistics) shall be compensated on a salary basis as provided for in this Act, or whether they shall receive as their compensation, such fees of office as may be earned by them in the performance of the duties of their offiees, and it shall be the duty of the county clerk of each county to forward to the Comptroller of Public Accounts of the State of Texas on or before the 31st day of January a certified copy of such order...."
Section 17, Article 39120, R. G. B., reads in part as follows:
"(a) The term 'Pree 1 not offieers' as used in this Act means justices of the peace and constables.
"In all counties in this State such pree 1 not offieers shall continue to be compensated for their services on a fee basis until the Commissioners' Court shall have determined otherwise in accordance with the provisions of Section 2 of this Act.
"In counties wherein the Commissioners' Court shall have determined that pree 1 not offieers shall be compensated on an annual salary basis, but wherein they have determined that county officers shall not be so compensated, the officers' salary Fund of said county shall be composed and made up of fees, commissions and other compensation collected by the pree 1 not officers of such county and deposited in said Fund, and such funds as may be transferred to said Fund by the Commissioners' Court of the county.
"(b) In counties where it shall have been determined that pree 1 not officers shall be compensated on an annual salary basis it shall be the duty of the Commissioners' Court of such
*3 sounity to fix the salary allowed to such officers. Each of said officers shall be paid in money on annual salary in twelve (18) equal installments of not less than the total sum earned as compensation earned by him in his official capacity for the fiscal year 1935 and not more than the maximum amount allowed such officer under laws existing August 24, 1935.
Articls 3912s, Section 17(b), supra, requires that the compensation, when first on a salary basis, shall be paid in twelve equal monthly payments which clearly indicates that the same cannot be changed during the year for which the salary has been legally fixed.
On April 24, 1939, this department in conference opinion No. 3045 held that:
"1. The Commissionsers' Court is without authority to place one preeint officer upon a salary basis and leave other officers upon a fee basis. The system must be uniform and the Commissionsers' Court must place all of the preeint officers upon a salary basis or leave all upon a fee basis under salary law.
"2. Where the Commissionsers' Court places a preeint officers of a county upon the salary basis as outlined in the officer's Salary Law, the Commissionsers' Court has no authority to set a preeint officer's salary at less than the total sum earned as compensation by him in his official capacity for the fiscal year 1935 and that the Commissionsers' Court has no authority to set a preeint officer's salary at more than the maximum amount allowed such officer under laws existing August 24, 1935."
For your convenience we enclose herewith a copy of conference opinion No. 3045.
You are respectfully advised that it is the opinion of this department that the order of the Commissionsers' Court placing the preeint officers of one preeint in a county upon a salary basis and leaving the remaining preeint officers in the county upon a fee basis is void and that the preeint officers of one preeint who are not compensated on a salary basis under a void order of the Commissionsers' Court should now be compensated or paid on a fee basis.
Vrunting that the foregoing answers your inquiry, we remain
Yours very truly
ATTORNEY GENERAL OF TEXAS
By /s/ Ardell Williams
Ardell Williams
Assistant
AV:AV;jt
ENCLOPEDIA
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Hon. Lee Presenll, Page 4
This opinion has been considered in conference, approved, and order rocorded. /a/ W. F. Moore W. F. Moore FIRST ASSISTANT AYTOHENY GENIRAL