Case Information

*1 THEATTORNEY GENERAL

OF 7rExAs

PRICE DANIEL ATTORNEY GENERAL

March 13, 1948 Hon. John Atchison opinion no. v-519 County Attorney Cooke County

Re: Authority of the Com- Gainesville, Texas missioners' Court of a

county of more than 20,000 populrtioIl to fix the salary of I constable at any time subsequent to its first regular meeting in January.

Dear Sir:

Your request for an opinion from this offloe

on the above subject matter is, Inpart, as follows:

"Your opinion is requested as to, vheth- er the Commissioners Court of a county of more than 20,000 population has the authority at any time subsequent to its first regular meeting in January of any calendar year to enter an order placing a certain precinct constableDs offioe on ft salary for that year, and fixing the salary.

We quote the following pertinent statutory pro- visions:

Art. 39120, v. c. S.:

%eotion 2. The Commissioners Court of each county in the State of Texas, 8t its first regular meeting in January of each calendar gear, shall, by.order made and entered in the minutes of said court, determine vhether precinct officers of. ceive as their compensation, such fO,Os such county (except public wei hers and registrars of vital statistics shall be 7,

compensated on a salary basis as provided forin thls Act, or whether they shaX1 re-

Of *2 of'fioe as may be earned by them in the per- formance of the duties of their offlcas, 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 3lst day of January a certified copy of such order.

In counties having a opulation of less thantwenty thousand ? 20,000) inhabitants according te the last preceding Federal Census, it shall likewise be the duty of the Commissioners9 Court, by its order

duly made and entered of reoord at Its

fi*st regular meet&g in January of each calendar gear;.to determine whether coun- ty officers 6 such county (excluding cmun- ty surveyors, registrars of vital atetia- tics and notaries public) shall be compen- sated for the fiscal year on the basis of an annual salary or whether they shall be compensated on the basis of fees earned by them in the performance of their of- ficial duties, and lt.shall also be the duty of the county clerk to forward to

the Comptroller of Public Accounts of

the State of Texas, on or before the 3lst day of January, a certified copy of said order of said CommissionersD Court.

'Set, 17 (a) The term sPrecinct Officerss as used in this Act means jus; tices of the peace and constables o o *

Article 3898, V. C. S,:

"The fiscal year, within the meaning of this Act, shall begin on January 1st of each year; and each district, county and precinct officer shall file his re- port and make the final settlement re-

quired in this Act not later than Febru- ary 1st of each year; provided, however, that officers receiving an axmual salary as compensation fer their services shall, by the close of each month, pay into the Officersa Salary Fund or funds, all fees, commissions and compensation collected by him during said month. Whenever such of- ficer serves for a fractional part of the *3 Eon. John Atchison, page 3 (V-519)

fiscal year, he shall nevertheless file his report and make final settlement for such part of the year as he serves and shall be entitled to such proportionate part of his compensation as the time gor his service bears to the entire year.

It was held in Attorney General's Opinion No. O-5061 that"Yection 2 of Article 3912e, V. A. C. S., re- quires the Commissioners Court of every county in Texas at its first regular meetiw in January of each year to determine whether certain precinct officers shall be placed on a salary OP fee basis."

It was held in Attorney General's Opinien Ba, O-6462 that the Commissioners’ Court of a oounty under 20,000 population 00uia place its county offioirls on a salary basis at its first regular meeting in January and not subsequent thereto., We quote the following from that opinion:

"Under the provisions of Article 3898, the fiscal year of a county beg& on Janu- ary 1st of each year, We think that It was contemplated by the provisions of Section 2, Article 3912e, that during the month of Jm- uary, the commiasioners~ court should have determined whether the designated county of- ficers would be compensated on a fee or sol- ary basis, whereby said officers could ac- count for and dispose of the fees of office accordingly, in the manner provided in Arti- cle 3898. When the commissioners" court has determined that county officers shall be paid on an annual salary basis, we think that it was contemplated that such annual salary should be paid for the fiscal year, beginning January lst, in twelve equal in- stallments. We do not think it was within the contemplation of this Act that county officers shvuld be compensated on a fee br- sis par a part of a year, and, for the re- maining portion of said year, be oompsnsrt- ed on a salary basis, If it were determin- ed that county officers should be paid on the basis of an annual salary, in any month later than January of any riscal year, it would be impossible to comply with these provisions as to fixing salaries on an

annual basis and paying same in twelve

equal installwnt* f*r that fiscal year.' (Emphasis ours>

In view of the foregoing and after oarefully considering all the pertinent statutory provisions, it is our opinion that the holding in Attorney General's Opinion No, O-6462 is equally applicable to precinct of- ficers and we find no authority for the Commissioners1 Court to determine whether precinct officers shall be paid on a fee or salary basis at any time other than at Its first regular meeting in January of each year..

You are, therefore, advised that the salary of a constable of a county of more than 20,000 popula- tien cannot be fixed in any one year at any time later, than at the first regular meeting in January of the corn- missioners' Court,

SUMMARY The Commissioners Court in a ooun- ty of more than 20,000 population does not have the authority to place preoinct offi- cers on an annual salary basis at any time later than at its first regular meeting in January of each year, Article 3912e, Sec. 2.

Yours very truly, ATTORNEY GERRRAL OF TRXAS John Reeves JR:mw APPROVED: KEY GERERAL